HISTORICAL LAW-TRACTS.
VOLUME I.
EDINBURGH: Printed for A. MILLAR, at BUCHANAN's Head in the STRAND, LONDON; and A. KINCAID, and J. BELL, EDINBURGH. MDCCLVIII.
PREFACE.
THE history of mankind is a delightful subject. A rational inquirer is not less entertained than instructed, when he traces the gradual progress of manners, of laws, of arts, from their birth to their present maturity. Events and subordinate incidents are, in each of these, linked together, and connected in a regular chain of causes and effects. Law in particular becomes then only a rational study, when it is traced historically, from its first rudiments among savages, through successive changes, to its highest improvements in a civilized society. And yet the study is seldom conducted in this manner. Law, like geography, is taught as if it were a collection of facts merely: the memory is employed to the full, rarely the judgment. This method, if it were not rendered familiar by custom, would appear strange and unaccountable. With respect to the political constitution of Britain, how imperfect must the knowledge be of that man who confines his reading to the present times? If he follow the same method in studying its laws, have we reason to hope that his knowledge of them will be more perfect?
SUCH neglect of the history of law is the more unaccountable, that in place of a dry, intricate and crabbed science, law treated historically becomes an entertaining study; entertaining not only to those whose profession it is, but to every person who hath any thirst for knowledge. With the bulk of men, it is true, the history of law makes not so great a figure, as the history of wars and conquests. Singular events, which, by the prevalence of chance and fortune, excite wonder, are greatly relished by the vulgar. But readers of solid judgment find more entertainment, in studying the constitution of a state, its government, its laws, the manners of its people: where reason is exercised in discovering causes and tracing effects through a long train of dependencies.
THE history of law, in common with other histories, enjoys the privilege of gratifying curiosity. It enjoys besides several peculiar privileges. The feudal customs ought to be the study of every man who proposes to reap instruction from the history of the modern European nations: because among these nations, publick transactions, not less than private property, were some centuries ago, regulated by the feudal system. Sovereigns formerly were many of them connected by the relation of superior and vassal. The King of England, for example, by the feudal tenure, held of the French King many fair provinces. The King of Scotland, in the same manner, held many lands of the English King. The controversies among these princes were generally feudal; and without a thorough knowledge of the feudal system, one must be ever at a loss, in forming any accurate notion of such controversies, or in applying to them the standard of right and wrong.
THE feudal system is connected with the municipal law of this island, still more than with the law of nations. It formerly made the chief part of our municipal law, and in Scotland to this day makes some part. In England indeed, it is reduced to a shadow. Yet, without excepting even England, much of our present practice is evidently derived from it. This consideration must recommend the feudal system, as a study to every man of taste who is desirous to acquire the true spirit of law.
BUT the history of law is not consined to the feudal system. It comprehends particulars without end, of which one additional instance shall at present suffice. A statute, or any regulation, if we confine ourourselves to the words, is seldom so perspicuous as to prevent errors, perhaps gross ones. In order to form a solid judgment about any statute, and to discover its spirit and intendment, we ought to be well informed how the law stood at the time, what defect was meant to be supplied, or what improvement made. These particulars require historical knowledge; and therefore, with respect to statute law at least, such knowledge appears indispensible.
IN the foregoing respects I have often amused myself with a fanciful resemblance of law to the river Nile. When we enter upon the municipal law of any country in its present state, we resemble a traveller, who crossing the Delta, loses his way among the numberless branches of the Egyptian river. But when we begin at the source and follow the current of law, it is in that course not less easy than agreeable; and all its relations and dependencies are traced with no greater difficulty, than are the many streams into which that magnificent river is divided before it is lost in the sea.
AN author, in whose voluminous writings not many things deserve to be copied, has however handled the present subject with such superiority of thought and expression, that in order to recommend the history of law, I may be allowed to cite the passage at large.
"I might instance (says he) in other professions the obligation men lie under of applying themselves to certain parts of history, and I can hardly forbear doing it in that of the law, in its nature the noblest and most beneficial to mankind, in its abuse and debasement the most sordid and the most pernicious. A lawyer now is nothing more, I speak of ninety nine in a hundred at least, to use some of Tully's words,
nisi leguleius quidem cautus, et acutus praeco actionum, cantor formularum, auceps syllabarum.
But there have been lawyers that were orators, philosophers, historians: there have been Bacons and Clarendons. There will be none such any more, till in some better age, true ambition or the love of fame prevails over avarice; and till men find leisure and encouragement to prepare themselves for the exercise of this profession, by climbing up to the
vantage ground,
so my Lord Bacon calls it, of science, instead of groveling all their lives below, in a mean, but gainful, application to all the little arts of chicane. Till this happen, the profession of the law will scarce deserve to be ranked among the learned professions: and whenever it happens, one of the vantage grounds to which men must climb, is metaphysical, and the other, historical knowledge. They must pry into the secret recesses of the human heart, and become well acquainted with the whole moral world, that they may discover the abstract reason of all laws: and they must trace the laws of particular states, especially of their own, from the first rough sketches to the more perfect draughts; from the first causes or occasions that produced them, through all the effects, good and bad, that they produced
Bolinbroke of the study of history, page 353. Quarto edition.
."
THE following discourses are selected from a greater number, as a specimen of that manner of treating law which is here so warmly recommended. The author flatters himself, that they may tend to excite an historical spirit, if he may use the expression, in those who apply themselves to law, whether for profit or amusement; and for that end solely has he surrendered them to the publick.
AN additional motive concurred to the selection here made. The discourses relate, each of them, to subjects common to the law of England and of Scotland; and, in tracing the history of both, tend to introduce both into the reader's acquaintance. I have often reflected upon it as an unhappy circumstance, that different parts of the same kingdom should be governed by different laws. This imperfection could not be remedied in the union betwixt England and Scotland; for what nation will tamely surrender its laws more than its liberties? But if the thing was unavoidable, its bad consequences were not altogether so. These might have been prevented, and may yet be prevented, by establishing publick professors of both laws, and giving suitable encouragement for carrying on together the study of both. To unite both, in some such plan of education, will be less difficult than at first view may be apprehended; for the whole island originally was governed by the same law; and even at present the difference consists more in terms of art than in substance. Difficulties at the same time may be overbalanced by advantages; and the proposed plan has great advantages, not only by removing or lessening the foresaid inconvenience, but by introducing the best method of studying law; for I know none more rational, than a careful and judicious comparison of the laws of different countries. Materials for such comparison are richly furnished by the laws of England and of Scotland. They have such resemblance, as to bear a comparison almost in every branch; and they so far differ, as to illustrate each other by their opposition. Our law will admit of many improvements from that of England; and if the author be not in a mistake, through partiality to his native country, we are rich enough to repay with interest, all we have occasion to borrow. A regular institute of the common law of this island, deducing historically the changes which that law hath undergone in the two nations, would be a valuable present to the publick; because it would make the study of both laws a task easy and agreeable. Such institute, it is true, is an undertaking too great for any one hand. But if men of knowledge and genius would undertake particular branches, a general system might in time be compleated from their works. This subject, which has frequently occupied the author's thoughts, must touch every Briton who wishes a compleat union; and a North-Briton in a peculiar manner. Let us reflect but a moment upon the condition of property in Scotland, subjected in the last resort to judges, who have little inclination, because they have scarce any means, to acquire knowledge in our law. With respect to these judges, providence, it is true, all along favourable, hath of late years been singularly kind to us. But in a matter so precarious, we ought to dread a reverse of fortune, which would be severely felt. A prospect so gloomy demands our whole activity to prevent, if possible, the impending evil. There are men of genius in this country, and good writers. Were our law treated as a rational science, it would find its way into England, and be studied there for curiosity as well as for profit. The author, excited by this thought, has ventured to make an essay, which, for the good of his country, more than for his own reputation, he wishes to succeed. If his essay be relished, he must hope, that writers of greater abilities will be moved to undertake other branches successively, till the work be brought to perfection.
TRACT I.
HISTORY OF THE CRIMINAL LAW.
OF the human System no part, external or internal, is more remarkable than a class of principles intended obviously to promote Society, by restraining men from harming each other. These principles, as the Source of the criminal Law, must be attentively examined; and, to form a just notion of them, we need but reflect upon what we feel when we commit a Crime, or witness it. The first reflection will unfold Divine justice carried into execution with the most penetrating wisdom. Upon certain Actions, hurtful to others, the Stamp of
impropriety
and
wrong
is impressed in legible characters, visible to all, not excepting even the Delinquent. Passing from the action to its Author, we feel that he is
guilty;
and we also feel that he ought to be punished for his guilt. He himself, having the same feeling, is filled with remorse; and, which is extremely remarkable, his remorse is accompanied with an anxious dread that the punishment will be inflicted, unless it be prevented by his making reparation or atonement. Thus in the breast of man a tribunal is erected for Conscience; sentence passeth against him for every Delinquency; and he is delivered over to the hand of Providence to be punished in proportion to his guilt. With relation to a final cause, the wisdom of this contrivance is conspicuous. A Sense of wrong is of itself not sufficient to restrain the excesses of Passion: but the dread of Punishment, which is felt even where there is no visible hand to punish, is a natural restraint so efficacious, that none more perfect can be imagined
Essays on the Principles of Morality and natural Religion, Part 1. Ess. 2. Chap. 3.
. This dread, when the result of atrocious or unnatural Crimes, is itself a tremenduous punishment, far exceeding all that have been invented by Man. Happy it is for Society, that instances are rare of crimes so gross as to produce this natural dread in its higher Degrees: it is however still more rare to find any person so singularly virtuous, as never to have been conscious of it in any degree. When we peruse the history of Mankind, even in their most savage State, we discover it to be universal. One instance I must mention, because it relates to the Hottentotes, of all men the most brutish. They adore a certain Insect as their Deity. The arrival of this Insect in a Kraal, is supposed to bring grace and prosperity to the Inhabitants; and it is an article in their Creed, that all the offences of which they had been guilty to that moment, are buried in oblivion, and all their iniquities pardoned
Kolben's Present State of the Cape of Good Hope, Vol. 1. Page 99.
. The dread which accompanies guilt, till punishment be inflicted or forgiven, must undoubtedly be universal, when it makes a figure even among the Hottentotes.
UPON every wrong, reason and experience make us apprehend the resentment of the person injured: but the horror of mind which accompanies every gross Crime, produceth in the Criminal an impression that all nature is in arms against him. Conscious of meriting the highest punishment, he dreads it from the hand of GOD and from the hand of Man.
"And Cain said unto the Lord, My punishment is greater than I can bear. Behold, thou hast driven me out this day from the face of the earth: and from thy face shall I be hid, and I shall be a fugitive and a vagabond in the Earth, and it shall come to pass, that every one that findeth me, shall slay me
Genesis Chap. iv. Ver. 13, 14.
."
Hence the efficacy of human punishments in particular, to which man is adapted with wonderful foresight, through the consciousness of their being justly inflicted, not only by the person injured, but by the Magistrate, or by any one. Abstracting from this consciousness, the most frequent instances of chastising Criminals, would readily be misapprehended for so many acts of violence and oppression, the effects of Malice even in Judges; and much more so in the party offended, where the punishment is inflicted by him.
THE purposes of Nature are not any where left imperfect. Corresponding to the dread of punishment, is first the indignation we have at gross crimes, even when we suffer not by them; and next Resentment in the person injured, even for the slightest Crime; by which sufficient provision is made for inflicting the punishment that is dreaded. No passion is more keen or fierce than Resentment; which, at the same time, when confined within due bounds, is authorised by Conscience. The delinquent is sensible that he may be justly punished; and if any person, preferably to others, be entitled to inflict the punishment, it must be the person injured.
—BUT at the Tyrant's name,
My rage rekindles, and my Soul's on flame;
'Tis
just
Resentment, and becomes the Brave;
Disgrac'd, dishonour'd, like the vilest slave.
ILIAD 9. 759.
REVENGE therefore, when provoked by Injury or voluntary wrong, is a privilege that belongs to every person by the Law of Nature; for we have no Criterion of right or wrong more illustrious than the approbation or disapprobation of Conscience. And thus the first Law of Nature, regarding Society, that of abstaining from injuring others, is enforced by the most efficacious Sanctions.
AN Author of the first rank for Genius, as well as blood, expresses himself with great propriety upon this Subject.
"There is another passion very different from that of fear, and which, in a certain degree, is equally preservative to us, and conducing to our safety. As that is serviceable in prompting us to shun Danger, so is this in fortifying us against it, and enabling us to repel Injury and resist violence when offered. 'Tis by this Passion that one Creature offering violence to another, is deterred from the execution; whilst he observes how the attempt affects his fellow, and knows by the very signs which accompany this rising motion, that if the injury be carried further, it will not pass easily, or with impunity. 'Tis this passion withal, which, after violence and hostility executed, rouses a Creature in opposition, and assists him in returning like hostility and harm on the Invader. For thus as rage and despair encrease, a Creature grows still more terrible, and, being urged to the greatest extremity, finds a degree of strength and boldness unexperienced till then, and which had never risen except through the height of provocation
Characteristic's, Vol. 2. Page 144.
."
BUT a cursory view of this remarkable passion is not sufficient. It will be seen by and by, that the criminal Law in all Nations, is entirely founded upon it; and for that reason it ought to be examined with the utmost accuracy. Resentment is raised in different degrees, according to the sense one hath of the Injury. An Injury done to a man himself, provokes Resentment in its highest degree. An Injury of the same kind done to a friend or relation, raises resentment in a lower degree; and the passion becomes gradually fainter, in proportion to the slightness of the connection. This difference is not the result of any peculiarity in the nature of the passion. It is occasioned by a principle inherent in all sensible Beings, that every one has the strongest Sense of what touches itself. Thus a man hath a more lively Sense of a kindness done to himself, than to his friend; and the passion of Gratitude corresponds in degree to the Sensation. In the same manner an injury done to myself, to my child, or to my friend, makes a greater figure in my mind, than when done to others in whom I am less interested.
EVERY heinous transgression of the Law of Nature, raiseth Indignation in all, and a keen desire to have the Criminal brought to condign punishment. Slighter delinquencies are less regarded. A slight Injury done to a stranger, with whom we have no connection, raiseth our indignation, it is true, but so faintly as not to prompt any degree of revenge. The passion in this case, being quiescent, vanisheth in a moment. But a man's resentment for an injury done to himself, or to one with whom he is connected, is an active passion, which is gratified by punishing the Delinquent in a measure corresponding to the injury. And it must be remarked, that many circumstances must concur before this Passion be fully gratified. It is not satisfied with the suffering merely of the Criminal. The Person injured must inflict the punishment, or at least direct it; and the Criminal must be made sensible, not only that he is punished for his Crime, but that the punishment proceeds from the person injured. When all these circumstances concur, and not otherwise, the passion is fully gratified; and commonly vanisheth as if it had never been. Racine understood the nature of this passion, and paints it with great accuracy in the following Scene.
VOUS-vous perdez, Madame. Et vous devez songer.—
QUE je me perde, ou non, je songe à me venger.
Je ne sai même encor, quoi qu'il m'ait pu promettre,
Sur d'autres que sur moi, si je dois m'en remettre.
Pyrrhus n'est pas coupable à ses yeux comme aux miens,
Et je tiendrois mes coups bien plus surs que les siens.
Quel plaisir, de venger moi-même-mon injure;
De retirer mon bras teint du sang du Parjure;
Et pour rendre sa peine & mes plaisirs plus grands,
De cacher ma rivale à ses regards mourans!
Ah! si du-moins Oreste, en punissant son crime,
Lui laissoit le regret de mourir ma victime!
Va le trouver. Dis-lui qu'il aprenne à l'Ingrat,
Qu'on l'immole à ma haine, & non pas à l'Etat.
Chére Cléone, cours. Ma vengeance est perdue,
S'il ignore, en mourant, que c'est moi qui le tue.
ANDROMAQUE, Act IV. Sc. 4.
THOUGH Injury, or voluntary wrong, is generally the cause of resentment, we find by experience, that sudden pain is sufficient sometimes to raise this passion, even where injury is not intended. If a man wound me by accident in a tender part, the sudden anguish, giving no time for reflection, provokes resentment, which is as suddenly exerted upon the involuntary cause. Treading upon a gouty Toe, or breaking a favourite vase, may upon a warm temper produce this effect. The mind engrossed by bodily pain, or any pain which raises bad humour, demands an object for its resentment; and what object so ready as the person who was the occasion of the pain, though without design? In the same manner, even a Stock or a Stone becomes sometimes the object of resentment. If accidentally striking my foot against a Stone, a smart pain ensues, Resentment discovers itself at once, which prompts me to bray the Stone to pieces. The Passion is still more irregular in a losing Gamester, when he vents it on the Cards and Dice. All that can be said, as an apology for such absurd fits of passion, is, that they are but momentary, and vanish upon the first reflection. And yet such indulgence was by the Athenians given to this irrational Emotion, that if a man was killed by the fall of a Stone, or other accident, the instrument of death was dedestroyed
Meursius de leg. Atticis, L. 1. Cap. 17.
.
THE
Actio Noxalis
among the Romans, founded also upon the privilege of resentment, appears not altogether void of reason. Animals, it was thought, were not to be exempted from punishment more than men; and when a domestick animal did mischief contrary to its nature, the law required that it should be given up to the person who was hurt, in order to be punished. To make this law effectual the
Actio Noxalis
was given, which followed the animal, though even in the hands of a purchaser
bona fide
§ 5. Inst. de Noxal. Action.
. So far it was well judged, that property should yield to the more essential right of self-preservation, and to the privilege of punishing injuries. It is probable that originally there was a necessity to deliver the animal to punishment, without admitting any alternative. But afterwards, when the passions of men were more under subjection, and the connection of property became more vigorous, which last will be the subject of a following discourse, an alternative was indulged to the defendant to repair the damage, if he chose rather to be at that expence than to surrender his animal
l. 1. pr. D. si quadrupes pauperiem fecisse dicatur.
. Among modern nations, in Scotland at least, this action went into disuse with the privilege of private punishment. As at present it belongs to the Magistrate only to inflict punishment, the mischief done by irrational animals is not otherwise regarded, than as a reason for preventing the like mischief in time coming. The Satisfaction of private revenge is quite disregarded.
ULPIAN seems not to have understood the nature or foundation of the
Actio Noxalis,
in teaching the following doctrine, That the proprietor is primarly liable to repair the mischief done by his animal, and that the alternative of delivering up the animal was afterwards indulged by the law of the Twelve Tables
l. 6. § 1. de re judicata.
. The Law of Nature subjects no man to repair the mischief done by his horse or his ox, if not antecedently known to be vitious. All that can be incumbent upon him, by any rational principle, is to deliver up the animal to be punished; and hence it is evident that the privilege indulged by law was not that of giving up the animal, but that of retaining it upon repairing the damage.
Resentment raised by voluntary wrong, which is a rational and useful passion, is in a very different condition. It subsists till the sense of the injury be done away, by punishment, atonement, or length of time.
BUT all the irregularities of this passion are not yet exhausted. It is still more savage and irrational, when, without distinguishing the innocent from the guilty, it is exerted against the Relations of the Criminal, and even against the Brute Creatures that belong to him. Such barbarity will scarce find credit with those who have no knowledge of man but what is discovered by experience in a civilized Society; and yet, in the History and Laws of ancient Nations, we find this Savage practice not only indulged without redress, but what is still more astonishing, we find it authorised by positive Laws. Thus, by an Athenian Law, a man commiting Sacrilege, or betraying his Country, was banished, with all his Children
Meursius, L. 2. Cap. 2.
. And when a Tyrant was killed, his Children were also put to death
Ibid. L. 2. Cap. 15.
.
HANNO, one of the most considerable Citizens of Carthage, formed a design to make himself Tyrant of his Country, by poisoning the whole Senate at a Banquet. The plot being discovered, he was put to death by torture, and his Children, with all his Relations, were at the same time cut off without mercy, though they had no share in his guilt
Justin, L. 21. Cap. 4.
.
By the Law of Macedon, the punishment of Treason was extended against the relations of the Criminal
Quintus Curtius, L. 6. Cap. 11.
. By a Scythian Law, when a Criminal was punished with death, all his Sons were put to death with him: his Daughters only were saved from destruction
Herodotus, L. 4.
. In the Laws of the Bavarians
Tit. 1. § 13.
, the use of women was forbid to Clergymne,
"lest (as in the text) the People be destroyed for the Crime of their Pastor."
A very gross notion of divine Punishment. And yet the Grecians entertained the same notion, as appears from the Iliad in the beginning.
LATONA'S Son a dire contagion spread,
And heap'd the Camp with Mountains of the dead,
The King of men his rev'rend Priest defy'd,
And for the King's offence the people dy'd.
LUCAN for a Crime committed by the King, thought it not unjust to destroy all Egypt
L. 9. l. 145.
. But it may appear still more surprising, that this Savage and absurd practice continued very long in some parts of the Roman Empire, though governed by Laws remarkable for their Equity. Of this the following Statute of the Emperors Arcadius and Honorius
l. 22. C. de poenis.
is clear evidence.
"Sancimus, ibi esse poenam, ubi et noxia est. Propinquos, Notos, familiares, procul a calumnia submovemus, quos reos sceleris Societas non facit. Nec enim adfinitas vel amicitia nefarium Crimen admittunt. Peccata igitur suos teneant Auctores: nec ulterius progrediatur metus quam reperiatur delictum.
Hoc singulis quibusque Judicibus intimetur.
"
At the same time these very Emperors, however mild and rational with regard to others, talk a very different Language upon a Crime which affected themselves: after observing that will and purpose alone, without any ouvert act, was treason, subjecting the guilty person to a capital punishment and forfeiture of goods, they go on in the following words.
"Filii vero ejus, quibus vitam Imperatoria specialiter lenitate concedimus, (paterno enim deberent perire supplicio, in quibus paterni, hoc est, hereditarii criminis exempla metuuntur) a materna, vel avita, omnium etiam proximorum hereditate ac successione, habeantur alieni: testamentis extraneorum nihil capiant: sint perpetuo egentes, & pauperes, infamia eos paterna semper comitetur, ad nullos prorsus honores, ad nulla sacramenta perveniant: sint postremo tales, ut his, perpetua egestate sordentibus, sit et mors solatium, & vita supplicium
I. 5. § 1. C. ad Leg. Jul. Majest.
."
Every one knows that Murder committed by a Man who belonged to a particular Tribe or Clan, was resented not only against the Criminal and his Relations, but against the whole Clan; a species of resentment so common as to be distinguished by a peculiar name, that of
deadly feud.
So late as the days of King Edmond, a Law was made in England, forbidding deadly feud, except betwixt the relations of the deceas'd and the Murderer himself; and declaring, that these relations shall forfeit all their goods, if they prosecute with deadly feud the relations of the Murderer. And in Japan, to this day, it is the practice to involve Children and Relations in the punishment of capital Crimes
See Kemfer's history of Japan.
.
A tendency to excess, so destructive in the passion of resentment, is a quality, which in other passions is often the occasion of good. Joy when excessive as well as Gratitude, are not confined to their proper Objects, but expand themselves upon every thing that is connected with these Objects. In general, all our active passions are, in their nascent State, and when moderate, accompanied with a Sense of fitness and rectitude; but when excessive, they inflame the mind, which is violently hurried to action, without due distinction of Objects.
AND this leads me to a reflection upon the irregular tendency of Resentment here displayed. If it be the nature of all active passions, when immoderate, to expand themselves beyond their proper objects, which is remarkable in friendship, Love, Gratitude, and all the social passions, it ought not to be surprising that Resentment, Hatred, Envy, and other dissocial passions, should not be more regular. Among Savages this, perhaps, may have a bad tendency, by adding force to the malevolent passions: but in a civilized State, where all encouragement is given to kindly affections, and dissocial passions are softned, if not subdued, by habitual Submission to legal Authority, this tendency to excess is, upon the whole, extremely beneficial.
IT is observed above, that revenge is a privilege bestowed by the Law of Nature upon those who suffer by a voluntary injury; and the Correspondence hath also been observed betwixt this privilege and the sense of merited punishment; by which means the Criminal submits naturally to the punishment he deserves. Thus by the Law of Nature, the person injured acquires a right over the delinquent, to chastise and punish him in proportion to the Injury; and the Delinquent, sensible of this right; knows he ought to submit to it. Upon this account, Punishment has generally been considered as a sort of debt, which the Criminal is bound to pay to the person he hath injured;
Upon this resemblance, the expression in the Roman Language,
solvere,
or
pendere poenas,
is founded.
and this way of speaking may safely be indulged as an analogical illustration, provided no consequence be drawn which the analogy will not justify. This caution is not unnecessary; for many writers, influenced by the foregoing resemblance, reason about punishment unwarily, as if it were a debt in the strictest sense. By means of the same resemblance, a notion prevailed in the darker ages of the world, of a substitute in punishment, who undertakes the debt, and suffers the punishment that another merits. Traces of this opinion are found in the religious ceremonies of the ancient Egyptians and other heathen nations. Among them the conceptions of a Deity were gross, and of morality not less so. We must not therefore be surprised at their notion of a transference of punishment, as of debt, from one person to another. They were imposed upon by the slight analogy above mentioned; which reasoning taught them not to correct, because reasoning at that time was not so far advanced as to overbalance the weight of natural prejudices. Even in later times, when a Roman army was in hazard of a defeat, it was not uncommon for the General to devote himself to death, in order to obtain the Victory
Tit. Liv. L. 8. § 9. and again, L. 10. § 28, 29.
. Is not this practice founded upon the same Notion? Let Lucan answer the question.
O utinam, coelique Deis, Erebique liberet
Hoc caput in cunctas damnatum exponere poenas!
Devotum hostiles Decium pressere catervae:
Me geminae figant acies, me barbara telis
Rheni turba petat: cunctis ego pervius hastis
Excipiam medius totius vulnera Belli.
Hic redimat sanguis populos: hac caede luatur
Quicquid Romani meruerunt pendere Mores.
L. 2. l. 306.
AND the following passage of Horace, seems to be founded on the same notion.
AT tu, Nauta, vagae ne parce malignus arenae
Ossibus et capiti inhumato
Particulam dare. Sic, quodcunque minabitur Eurus
Fluctibus Hesperiis, Venusinae
Plectantur Sylvae, te Sospite.
CARM. L. 1. Ode 28.
THAT one should undertake a debt for another, is a matter of consent, not repugnant to the rules of Justice. But with respect to the administration of Justice among men, no maxim has a more solid foundation or is more universal, than that punishment cannot be transferred from the guilty to the innocent. Punishment, considered as a gratification of the party offended, is purely personal; and, being inseparably connected with guilt, cannot admit of substitution. A man may consent, it is true, to suffer that pain which his friend the offender merits as a punishment. But the injured person is not gratified by such transmutation of suffering. Such is the nature of resentment, that it is not to be gratified otherways than by retaliating upon that very person who did the injury. Yet even in a matter obvious to enlightened reason, so liable are men to error, when led astray by any wrong bias, that to the foregoing notion concerning punishment, we may impute the most barbarous practice ever prevailed among savages, that of substituting human creatures in punishment, and making them, by force, undergo the most grievous torments, even death itself. I speak of human sacrifices, which are deservedly a lasting reproach upon mankind, being of all human Institutions the most irrational, and the most subversive of humanity. To sacrifice a prisoner of war to an incensed Deity, barbarous and inhuman as it is, may admit some excuse. But that a man should offer up the lives of his own Children as an atonement for his own Crimes, cannot be thought of without detestation and horror
WHEN Agathocles King of Syracuse, after a compleat victory, laid siege to Carthage, the Carthaginians, believing that their Calamities were brought upon them by the anger of the Gods, became extremely superstitious. It had been the custom to sacrifice to their God Saturn, the Sons of the most eminent persons; but, in later times, they secretly bought and bred up Children for that purpose. That they might therefore without delay reform what was amiss, they offered, as a publick Sacrifice, two hundred of the Sons of the Nobility
Diodorus Siculus, Book 20. Ch. 1.
.
. Yet this savage impiety can rest upon no other foundation, than the slight resemblance that Punishment hath to a debt; which is a strong evidence of the influence of Imagination upon our Conduct. The vitious have ever been solicitous to transfer upon others the punishment they themselves deserve; for nothing is so dear to a man as himself.
"Wherewith shall I come before the Lord, and bow myself before the high GOD? shall I come before him with burnt-offerings, with calves of a year old? Will the Lord be pleased with thousands of rams, or with ten thousands of rivers of Oil? shall I give my first-born for my transgression, the fruit of my body for the sin of my soul?"
But this is not an atonement in the sight of the Almighty.
"He hath shewed thee, O man, what is good; and what doth the Lord require of thee, but to do justly, and to love mercy, and to walk humbly with thy GOD
Micah, Ch. vi.
?"
I must be indulged a reflection, which arises naturally out of this branch of the subject, that the permitting vicarious punishment in human society, is subversive of humanity, and not less so of moral duty. Men we see have been misled so far, as fondly to flatter themselves, that, without repentance or reformation of manners, they could atone for their sins; and by this pernicious notion have been encouraged to indulge in them without end. Happy it is for mankind, that a composition for sin is now generally exploded from our hearts, as well as actions: but, from the selfishness of human nature, such propensity is there to this doctrine, that it continues to have an influence upon our conduct, much greater than is willingly acknowledged, or even suspected. Many men give punctual attendance at publick worship, to compound for hidden vices. Many men are openly charitable, to compound for private oppression; and many men are willing to do GOD good service, in supporting his established Church, to compound for aiming at power by a factious disturbance of the peace of the State. Such pernicious notions, proceeding from a wrong bias in our nature, cannot be eradicated after they have once got possession of the mind; nor be prevented, except by early culture, and by frequently inculcating the most important of all truths, That the Almighty admits of no Composition for Sin; and that pardon is not to be obtained from him, without sincere repentance, and thorough reformation of manners.
HAVING discoursed in general of the Nature of punishment, and of some irregular notions that have been entertained about it, I am now ready to attend its progress through the different Stages of the social life. Society, originally, did not make so strict an union among Individuals as at present. Mutual Defence against a more powerful Neighbour, being, in early times, the chief or sole Motive for joining in Society, Individuals never thought of surrendering to the publick, any of their natural rights that could be retained consistently with their great aim of mutual Defence. In particular, the privileges of maintaining their own property, and of avenging their own wrongs, were reserved to Individuals full and entire. In the dawn of Society, accordingly, we find no traces of a Judge, properly so called, who hath power to interpose in differences, and to force persons at variance to submit to his opinion. If a dispute about property, or about any civil right, could not be adjusted by the parties themselves, there was no other method, but to appeal to some indifferent person, whose opinion should be the rule. This method of determining civil differences was imperfect; for what if the parties did not agree upon an Arbiter? Or what if one of them proved refractory, after the chosen Arbiter had given his opinion? To remedy these inconveniences, it was found expedient to establish Judges, who, at first, differed in one circumstance only from Arbiters, that they could not be declined. They had no magisterial authority, not even that of compelling parties to appear before them. This is evident from the Roman Law, which subsisted many centuries before the notion obtained of a power in a Judge to force a party into Court. To bring a disputable matter to an issue, no other means occurred, but the making it lawful for the Complainer to drag his party before the Judge,
obtorto collo,
as expressed by the writers on that Law: and the same regulation appears in the Laws of the Visigoths
L. 6. Tit. 4. § 4.
. But Jurisdiction, at first merely voluntary, came gradually to be improved to its present state of being compulsory, involving so much of the magisterial Authority as is necessary for explicating Jurisdiction,
viz.
Power of calling a party into Court, and power of making a Sentence effectual. And in this manner, civil Jurisdiction, in progress of time, was brought to perfection.
CRIMINAL Jurisdiction is in all Countries of a much later date. Revenge, the darling privilege of human nature, is never tamely given up; for the reason chiefly, that it is not gratified unless the punishment be inflicted by the person injured. The privilege of resenting Injuries, was therefore that private right which was the latest of being surrendered, or rather wrested from Individuals in Society. This Revolution was of great importance with respect to Government, which can never fully attain its end, where punishment in any measure is trusted in private hands. A Revolution so contradictory to the strongest propensity of human nature, could not by any power, or by any artifice, be instantaneous. It behoved to be gradual, and, in fact, the progressive Steps tending to its completion, were slow, and, taken singly, almost imperceptible; as will appear from the following history. And to be convinced of the difficulty of wresting this privilege from Individuals, we need but reflect upon the practice of Duelling, so customary in times past; and which the strictest attention in the Magistrate, joined with the severest punishment, have not altogether been able to repress.
NO production of art or nature is more imperfect than is Government in its infancy, comprehending no sort of Jurisdiction either civil or criminal. What can more tend to break the peace of Society, and to promote universal discord, than that every man should be the sole Judge in his own cause, and inflict punishment according to his own Judgment? But instead of wondering at the original weakness of Government, our wonder would be better directed upon its present state of perfection, and upon the means by which it hath arrived to the utmost degree of Authority, in contradiction to the strongest and most active principles of human nature. This subject makes a great figure in the history of Mankind, and that it partly comes under the present undertaking, I esteem a lucky circumstance.
A partiality that is rooted in the nature of Man, makes private revenge the most dangerous privilege that ever was left with Individuals. The man who is injured, having a strong Sense of the wrong done him, never dreams that his resentment can be pushed too far. The Offender, on the other hand, under-rating the Injury, judges a slight atonement to be sufficient. Further, the man who suffers is apt to judge rashly, and to blame persons without cause, where it doth not clearly appear who is the Criminal. To restrain the unjust effects of natural partiality, was not an easy task, and probably was not soon attempted. But early measures were taken to prevent the bad effects of rash judgment, by which the innocent were often oppressed. We have one early instance among the Jews. Their cities of refuge were appointed as an interim sanctuary to the man-slayer, till the elders of the city had an opportunity to judge whether the deed was voluntary or casual. If the latter appeared to be the case, the man was protected from the relations of the deceased, called in the text
the avenger of blood:
but he was to remain in that city until the death of the high priest, to give time for the resentment of the offended party to subside. If the man taking benefit of the sanctuary was found guilty, he was delivered to the avenger of blood that he might die
Numbers, Ch. xxxv. Deuteronomy, Ch. xix.
. In the laws of the Athenians, and also of the barbarous nations who dismembred the Roman Empire, we find regulations which correspond to this among the Jews, and which, in a different form, prevented erroneous judgment, rather more effectually than was done by the cities of refuge. If a crime was manifest, the party injured might avenge himself without any ceremony. Therefore it was lawful for a man to kill his wife and the adulterer found together
Meursius de leg. Atticis, L. 1. C. 4. Laws of the Visigoths, L. 3. Tit. 4. § 4. Laws of the Bavar. Tit. 7. § 1.
. It was lawful for a man to kill his daughter taken in the act of fornication. The same was lawful to the brothers and uncles after the father's death
Laws of the Visig. L. 3. Tit. 4. § 5.
. And it was lawful to kill a thief apprehended under night with stolen goods
Laws of the Bavar. Tit. 8. § 5.
. But if the crime was not manifest, there behoved to be a previous trial, in order to determine whether the suspected person was guilty or innocent. Thus a married woman, suspected of adultery, must be accused before the judge, and, if found guilty, she and the adulterer are delivered over to the husband to be punished at his will
Laws of the Visig. L. 3. Tit. 4. § 3.
. If a free woman live in adultery with a married man, she is delivered by the judges to the man's wife to be punished at her will
Ibid. § 9.
. He that steals a child, shall be delivered to the child's relations to be put to death, or sold, at their pleasure
Ibid. L. 7. Tit. 3. § 3.
. A slave who commits fornication with a free woman, must be delivered to her parents to be put to death
Laws of the Bavar. Tit. 7. § 9.
.
IN tracing the history of law through dark ages unprovided with records, or so slenderly provided, as not to afford any regular historical chain, we must endeavour, the best way we can, to supply the broken links, by hints from poets and historians, by collateral facts, and by cautious conjectures drawn from the nature of the government, of the people, and of the times. If we use all the light that is afforded, and if the conjectural facts correspond with the few facts that are distinctly vouched, and join all in one regular chain, nothing further can be expected from human endeavours. The evidence is compleat, so far at least as to afford conviction, if it be the best of the kind. This apology is necessary with regard to the subject under consideration. In tracing the history of the criminal law, we must not hope that all its steps and changes can be drawn from the archives of any one nation. In fact, many steps were taken, and many changes made, before archives were kept, and even before writing was a common art. We must be satisfied with collecting the facts and circumstances as they may be gathered from the Laws of different countries: and if these put together make a regular system of causes and effects, we may rationally conclude, that the progress has been the same among all nations, in the capital circumstances at least; for accidents, or the singular nature of a people, or of a government, will always produce some peculiarities.
EMBOLDENED by this apology, I proceed chearfully with the task I have undertaken. The necessity of applying to a judge, where any doubt arose about the author of the crime, was probably, in all countries, the first instance of the legislature's interposing in matters of punishment. It was no doubt a novelty; but it was such as could not readily alarm individuals, being calculated not to restrain the privilege of revenge, but only to direct revenge to its proper object. The application to a judge was made necessary among the Jews, by the privilege conferred upon the cities of refuge; and, among other nations, by a positive law without any circuit. That this was the law of the Visigoths and Bavarians, hath already been said; and that it was also the law of Abyssinia and Athens, will appear below. The step next in order, was an improvement upon the regulation above mentioned. The necessity of applying to a judge, removed all ambiguity about the Criminal, but it did not remove an evil, repugnant to humanity and justice, that of putting the offender under the power of the party injured, to be punished at his pleasure. With relation to this matter, I discover a wise regulation in Abyssinia. In that empire, the degree, or extent of punishment, is not left to the discretion of the person injured. The governor of the province names a judge, who determines what punishment the crime deserves. If death, the criminal is delivered to the accuser, who has thereby an opportunity to gratify his resentment to the full
Father Lobo's voyage to Abyssinia, Ch. 3.
. This regulation must be approved, because it restrains, in a considerable degree, that natural partiality which magnifies every injury done to a man himself, and which therefore leads to excess in revenge. But a great latitude still remaining in the manner of executing the punishment, this also was rectified by a law among the Athenians. A person suspected of murder, was first carried before the judge, and, if found guilty, was delivered to the relations of the deceased, to be put to death, if they thought proper. But it was unlawful for them to put him to any torture, or to force money from him
Meursius de leg. Atticis, L. 1. Cap. 20.
. Whether the regulations now mentioned, were peculiar to Athens and Abyssinia, I cannot say, for I have not discovered any traces of them in the customs of other nations. They were remedies so proper for the disease, that one should imagine they must have obtained every where, some time or other. Perhaps they have been prevented, and rendered unnecessary, by a custom I am now to enter upon, which made a great figure in Europe for many ages, that of pecuniary Compositions for crimes.
OF these pecuniary compositions, I discover traces among many different nations. It is natural to offer satisfaction to the party injured; and no satisfaction is for either party more commodious than a sum of money. Avarice, it is true, is not so fierce a passion as resentment; but it is more stable, and by its perseverance often prevails over the keenest passions. With regard to man-slaughter in particular, which doth not always prejudice the nearest relations, it may appear prudent to relinquish the momentary pleasure of gratifying a passion for a permanent good. At the same time, the notion that punishment is a kind of debt, did certainly facilitate the introduction of this custom; and there was opportunity for its becoming universal, during the period that the right of punishment was in private hands. We find traces of this custom among the ancient Greeks. The husband had a choice to put the adulterer to death, or to exact a sum from him
Meursius de leg. Atticis, L. 1. Cap. 4.
. And Homer plainly alludes to this law, in his story of Mars and Venus entangled by the husband Vulcan in a net, and exposed to publick view.
LOUD laugh the rest, ev'n Neptune laughs aloud
Yet sues importunate to loose the God:
And free, he cries, oh Vulcan! free from shame
Thy captives; I ensure the penal Claim.
Will Neptune (Vulcan then) the faithless trust?
He suffers who gives surety for th' unjust:
But say, if that leud scandal of the sky
To liberty restor'd, perfidious, fly,
Say wilt thou bear the mulct? He instant cries,
The mulct I bear, if Mars perfidious flies.
ODYSS. L. 8. l. 381.
THE Greeks also admitted a composition for murder, as appears from the following passage.
STERN and unpitying! if a brother bleed,
On just atonement, we remit the deed;
A sire the slaughter of his son forgives,
The price of blood discharg'd, the murd'rer lives;
The haughtiest hearts at length their rage resign,
And gifts can conquer ev'ry soul but thine.
The Gods that unrelenting breast have steel'd,
And curs'd thee with a mind that cannot yield.
ILIAD 9. l. 743.
Again,
THERE, in the forum, swarm a num'rous train;
The subject of debate, a town's-man slain:
One pleads the fine discharg'd, which one deny'd,
And bade the publick and the laws decide.
ILIAD 18. l. 577.
ONE of the laws of the Twelve Tables was, Si membrum rupit, ni cum eo pacit, talio esto
Aulus Gellius, L. 20. Cap. 1.
. And Tacitus is very express upon this custom among the Germans
De moribus Germanorum.
.
"Suscipere tam inimicitias seu patris seu propinqui quam amicitias necesse est: nee implacabiles durant; luitur enim etiam homicidium certo armentorum ac pecorum numero, recipitque satisfactionem universa domus."
We find traces of the same thing in Abyssinia
Lobo, Ch. 7.
, among the Negroes on the coast of Guinea
Description of the coast of Guinea, letter 10 & 11.
, and among the Blacks of Madagascar
Drury, p. 240.
. The laws of the barbarous nations, cited above, insist longer upon these compositions than upon any other subject; and that the practice was established among our Saxon ancestors, under the name of
Vergelt,
is known to all the world.
THIS practice at first, as may reasonably be conjectured, rested altogether upon private consent. It was so in Greece, if we can trust Eustathius in his notes upon the forgoing passage in the Iliad, first cited. He reports, that the murderer was obliged to go into banishment one year, unless he could purchase liberty to remain at home, by paying a certain fine to the relations of the deceased. While compositions for crimes rested upon this foundation, there was nothing new or singular in them. The person injured might punish or forgive at his pleasure; and if he chose to remit the punishment upon terms or conditions, he was no doubt bound by his consent. But this practice, if not remarkable in its nascent state, made a great figure in its after progress. It was not only countenanced, but greatly encouraged among all nations, as the likelyest means to restrain the impetuosity of revenge, till becoming frequent and customary, it was established into a law; and what at first was voluntary, was, in process of time, made necessary. But this change was slow and gradual. The first step probably was to interpose in behalf of the delinquent, if he offered a reasonable satisfaction in cattle or money; and to afford him protection, if the satisfaction was refused by the person injured. The next step was to make it unlawful to prosecute resentment, without first demanding satisfaction from the delinquent. And in the Laws of king Ina
Lambards Collection, Law 9.
we read, that he who takes revenge without first demanding satisfaction, must restore what he has taken, and further be liable in a compensation. The third step compleated the system, which was to compel the delinquent to pay, and the person injured to accept of a proper satisfaction. By the laws of the Longobards
L. 1. Tit. 37. § 1.
, if the person injured refused to accept of a composition, he was sent to the king to be imprisoned, in order to restrain him from revenge. And if the criminal refused to pay a composition, he also was sent to the king to be imprisoned, in order to restrain him from doing more mischief. After composition is made for man-slaughter, the person injured must give his oath not further to prosecute his feud
Laws of the Longobards. L. 1. Tit. 9. § 34.
; and if he, notwithstanding, follow out his revenge, he is subjected to a double composition
Ibid. L. 1. Tit. 9. § 8.
.
ALTARS, among most nations, were places of sanctuary. The person who fled to an altar, was held to be under the immediate protection of the Deity, and therefore inviolable. This practice prevailed among the Jews, as appears by the frequent mention of laying hold of the horns of the altar. Among the Grecians
Meursms de leg. Atticis, L. 2. Cap. 32.
.
PHEMIUS alone the hand of vengeance spar'd,
Phemius the sweet, the heav'n-instructed bard.
Beside the gate the rev'rend minstrel stands;
The lyre, now silent, trembling in his hands;
Dubious to supplicate the chief, or fly
To Joves inviolable altar nigh.
ODYSSEY 22. 1. 367.
AEDIBUS in mediis, nudoque sub aetheris axe,
Ingens ara fuit; juxtaque veterrima laurus,
Incumbens arae, atque umbra complexa penates.
Hic Hecuba, & natae nequicquam altaria circum
Praecipites atra seu tempestate columbae
Condensae, & Divum amplexae simulacra tenebant.
Ipsum autem sumptis Priamum juvenilibus armis
Ut vidit: quae mens tam dira, miserrima conjux,
Impulit his cingi telis? aut quo ruis? inquit.
Non tali auxilio, nec defensoribus istis
Tempus eget: non, si ipse meus nunc afforet Hector.
Huc tandem concede: haec ara tuebitur omnes,
Aut moriere simul. Sic ore effata, recepit
Ad sese, & sacra longaevum in sede locavit.
AENEID, L. 2. I. 512.
THE same notion prevailed among Christians, and altars served the purpose of the cities of refuge among the Jews. Thus, by the Law of the Visigoths
L. 6. Tit. 5. § 16.
, if a murderer fly to the altar, the priest shall deliver him to the relations of the deceased, upon giving oath that, in prosecuting their revenge, they will not put him to death. Had the prosecuter, at this period, been bound to accept of a composition, the privilege of sanctuary would have been unnecessary. By this time however, it would appear, the practice of compounding for crimes had gained such authority, that it was thought hard, even for a murderer, to lose his life, by the obstinacy of the dead man's relations. But this practice gaining still more authority, it was enacted in England
Laws of King Ina collected by Lambard. Law 5.
, That if any guilty of a capital crime, fly to the church, his life shall be safe, but he must pay a composition. Thus it appears, that the privilege of sanctuary, tho' the child of superstition, was extremely useful, while the power of punishment was a private right: but now that this right is transferred to the publick, and that there is no longer any hazard of excess in punishment, a sanctuary for crimes, which hath no other effect but to restrain the free course of the criminal law, and to give unjust hopes of impunity, ought not to be tolerated in any society.
WHEN compositions first came in use, it is probable that they were authorized in slight delinquencies only. We read in the laws of the Visigoths
L. 6. Tit. 4. § 1.
, That if a free man strike another free man on the head, he shall pay for discolouring the skin, five shillings; for breaking the skin, ten shillings; for a cut which reaches the bone, twenty shillings; and for a broken bone, one hundred shillings; but that greater crimes shall be more severely punished: maiming, dismembring, or depriving one of his natural liberty by imprisonment or fetters, to be punished by the
lex talionis
Laws of the Visigoths, L. 6. Tit. 4. § 3.
. But compositions growing more and more reputable, were extended to the grossest delinquencies. The laws of the Burgundians, of the Salians, of the Almanni, of the Bavarians, of the Ripuarii, of the Saxons, of the Angli and Thuringi, of the Frisians, of the Longobards, and of the Anglo Saxons, are full of these compositions, extending from the most triffling injury, to the most atrocious crimes, not excepting high treason, by imagining and compassing the death of the King. In perusing the tables of these compositions, which enter into a minute detail of the most trivial offences, a question naturally occurs, why all this scrupulous nicety of adjusting sums to delinquencies? Such a thing is not heard of in later times. But the following answer will give satisfaction, That resentment, allowed scope among Barbarians, was apt to take flame by the slightest spark
In the year 1327, most of the great houses in Ireland were banded one against another, the Giraldines, Butlers and Breminghams on the one side, and the Bourkes and Poers on the other. The ground of the quarrel was no other, but that the Lord Arnold Poer had called the Earl of Kildare Rimer. This quarrel was prosecuted with such malice and violence, that the counties of Waterford and Kilkenny were destroyed with fire and sword
Affairs of Ireland by Sir John Davies.
.
. Therefore, to provide for its gratification, it became necessary to enact compositions for every triffling wrong, such as at present would be the subject of mirth rather than of serious punishment. For example, where the clothes of a woman, bathing in a river, are taken away to expose her nakedness
Laws of the Longobards, L. 1. Tit. 12. § 6.
; and where dirty water is thrown upon a woman in the way of contumely
Ibid. § 8.
. But, as the criminal law is now modeled, private resentment being in a good measure sunk in publick punishment, nothing is reckoned criminal, but what encroaches upon the safety or peace of society; and such a punishment is chosen, as may have the effect of repressing the crime in time coming, without much regarding the gratification of the party offended.
As these compositions were favoured by the resemblance that private punishment has to a debt, they were apt, in a gross way of thinking, to be considered as reparation to the party injured for his loss or damage. Therefore, in adjusting these compositions, no steady or regular distinction is made betwixt voluntary and involuntary wrongs. He who wounded or killed a man by chance, was liable to a composition
Laws of the Angli and Thuringi, § 10. Laws of Henry I. of England, law 70.
; and even where a man was killed in self-defence, a full composition was due
Laws of the Longo. L. 1. Tit. 9. § 19.
. Voluntary and involuntary crimes were generally put upon the same footing. But this was altered by a law among the Longobards, enacting, That the latter should bear a less composition than the former
Law 1. Tit. 2. § 11.
. And the same rule did no doubt obtain among other nations, when they came to think more accurately about the nature of punishment
What is said above about the nature of resentment, that, when suddenly raised, it is apt to make no distinction betwixt a voluntary and involuntary wrong, may help to explain this matter. It is certain, that such grossness of conception was not peculiar to the barbarous nations. The polite Grecians appear to be as little sensible of the distinction as the others. Aristotle talks familiarly of an involuntary crime; and that this was not merely a way of speaking, appears from the story of Oedipus, whose crimes, if they can be called so, were, strictly speaking, involuntary. And by an express law among the Athenians, involuntary slaughter was punished with banishment, without liberty of returning till the relations of the deceased were satisfied
Meursius de leg. Atticis, L. 1. Cap. 16.
.
. But such was the prevalency of Resentment, that though at first no alleviation or excuse was sustained to mitigate the composition, aggravating circumstances were often laid hold of to inflame the composition. Thus he who took the opportunity of fire or shipwreck, to steal goods, was obliged to restore four fold
Laws of the Visigoths, L. 7. Tit. 2. § 18.
. These compositions were also proportioned to the dignity of the persons injured; and from this source is derived our knowledge of the different ranks and titles of honour among the barbarous nations above mentioned. And it is a strong indication of the approach of these nations towards humanity and politeness, that their compositions for injuries done to women are generally double.
AS to the persons who were entitled to the composition, it must be obvious in the first place, that he only had right to the composition who was injured: but if a man was killed, every one of his relations was entitled to a share, because they were all sufferers by his death. Thus, in the Salic laws
Tit. 65.
, where a man is killed, the half of the composition belongs to his children; the other half to his other relations, upon the side of the father and mother. If there be no relations on the father's side, the part that would belong to them, accrues to the sisk. The like if there be no relations on the mother's side. The Longobards had a singular way of thinking in this matter. Female relations got no part of the composition; and the reason given is, that they cannot assist in prosecuting revenge,
non possunt ipsam faydam levare
L. 1. Tit. 9. § 18.
. But women are capable of receiving satisfaction or atonement for a crime committed against their relation, and therefore are entitled in justice to some share of the composition.
BEFORE entering upon a new branch, I must lay hold of the present opportunity, to bestow a reflection upon this singular practice of compounding for crimes. However strange it may appear to us, it was certainly a happy invention. By the temptation of money, men were gradually accustomed to stiffle their resentments. This was a fine preparation for transferring the power of punishment to the magistrate, which would have been impracticable without some such intermediate step: for while individuals retain their privilege of avenging injuries, the passion of resentment, fortified by universal practice, is too violent to be subdued by the force of any government.
WE are now arrived at the last and most shining period of the Criminal Law. And our present task is to unfold the means by which criminal jurisdiction, or the right of punishment, was transferred from private hands to the magistrate. There, perhaps, never was in government a revolution of greater importance than this. While criminal jurisdiction is ingrossed by every individual for his own behoof, there must be an overbalance of power in the people, inconsistent with any stable administration of publick affairs. The daily practice of blood, makes a nation fierce and untameable, so as not to be awed by the power of any government. A government, at the same time, destitute of the power of the sword, except in crimes against the publick, which are rare, must be so weak, as scarce to be a match for the tamest people: for it cannot escape observation, that nothing tends more to support the authority of the magistrate, than his power of criminal jurisdiction; because every exercise of that power, being publick, strikes every eye. In a country already civilized, the power of making laws may be considered as a greater trust: but in order to establish the authority of government, and to create awe and submission in the people, the power of making laws is a mere shadow, without the power of the sword.
IN the original formation of societies, to which mutual defence against some more powerful enemy was the chief or sole motive, the idea of a common interest, otherwise than for defence, of a publick, of a community, was scarce understood. War, indeed, requiring the strictest union among individuals, introduced the notion of a number of men becoming an army, governed like a single person, by one mind, and one council. But in peaceable times, every man relied upon his own prowess, or that of his clan, without having any notion of a common interest, of which no signs appeared. There behoved indeed, from the beginning, to be some sort of government; but it was so limited, that the magistrate did not pretend to interpose in private differences, whether civil or criminal. In the infancy of society, the idea of a publick is so faint and obscure, that publick crimes, where no individual is hurt, pass unregarded. But when government, in its natural growth, hath advanced to some degree of maturity, the publick interest is then recognized, and the nature of a crime against the publick understood. This notion must gain strength, and become universal, in the course of a regular administration, spreading itself upon all affairs which have any connection with the common interest. It naturally comes to be considered, that by all atrocious crimes the publick is injured, and by open rapine and violence the peace of the society broke. This introduced a new regulation, that in compounding for gross crimes, a fine, or
fredum,
should be paid to the fisk, over and above what the person injured was entitled to claim.
IT cannot be doubted, that the compositions for crimes established by law, paved the way to these improved notions of government. Compositions were first solicited, and afterwards enforced by the legislative authority. It was now no longer a novelty for the chief magistrate to interpose in private quarrels. Resentment was now no longer allowed to rage, but was brought under some discipline: and this reformation, at the same time, however burdensome to an individual during a fit of passion, was agreeable to all in their ordinary state of mind. The magistrate, having thus acquired such influence even in private punishment, proceeded naturally to assume the privilege of avenging wrongs done to the publick merely, where no individual is hurt. And in this manner was the power of punishing crimes against the state, established in the chief magistrate.
TO publick crimes, in the strictest sense, where no individual is hurt, was at first this new-assumed privilege undoubtedly confined. And accordingly, in the laws of the Bavarians
Tit. 6. § 1.
, we find that the goods of those who contract marriage within the prohibited degrees, are confiscated. In the laws of King Ina
Lambard's Collection, Law 6.
, he who fights in the King's house, forfeits all his substance, and his life is to be in the King's power. The judge, who knowingly doth injustice, shall lose his liberty, unless the King admit him to redeem the same
Laws of William the Conqueror, Wilkin's Edition, Law 41.
.
IT being once established, that there is a publick, that this publick is a politic body, which, like a real person, may sue and defend, and in particular is entitled to resent injuries; it was an easy step, as hinted above, to interest the publick even in private crimes, by imagining every atrocious crime to be a publick as well as a private injury; and in particular, that by every open act of violence, the peace of the publick or country is broke. In the oldest compositions for crimes that are recorded, there is not a word of the publick; the whole is given to the private party. In the Salic laws, there is a very long list of crimes, and of their conversion in money, without any fine to the publick. The same in the laws of the Allamanni. But in the tables of compositions for crimes among the Burgundians and Longobards, supposed to be more recent, there is constantly superadded a fine, or
fredum,
to the King. And in the laws of King Canute
Lambard's Collection, Law 2.
,
"If murder be committed in a church, a full compensation shall be paid to JESUS CHRIST, another full compensation to the King, and a third to the relations of the deceased."
The two first compositions, are evidently founded upon the foregoing supposition, that the peace of the church, and the King's peace, are broke by the murder.
AFTER establishing compositions for crimes, which proved a very lucky exertion of legal authority, the publick had not hitherto claimed any privilege but what belonged to every private person,
viz.
that of prosecuting its own resentment. But this practice of converting punishment into money, a wise institution indeed to prevent a greater evil, was yet, in itself, too absurd to be for ever supported against enlightned reason. Certain crimes came to be reckoned too flagrant and atrocious to admit of a pecuniary conversion: and, perhaps, the lowness of the conversion contributed to this thought; for compositions established in days of poverty, bore no proportion to crimes after nations became rich and powerful. That this was the case of the old Roman compositions, every one knows who has dip'd into their history. This evil required a remedy, and it was not difficult to find one. It had long been established, that the person injured has no claim but for the composition, however disproportioned to the crime. Here then was a fair opportunity for the King, or chief magistrate, to interpose, and to decree an adequate punishment. The first instances of this kind had probably the consent of the person injured; and it is not difficult to persuade any man of spirit, that it is more for his honour, to see his enemy condignly punished, than to put up with a triffling compensation in money. However this be, the new method of punishing atrocious crimes gained credit, became customary, and past into a law. If a punishment was inflicted adequate to the crime, there could be no claim for a composition, which would be the same as paying a debt twice. And thus, though indirectly, an end was put to the right of private punishment in all matters of importance.
THEFT is a crime, which, more than any other private crime, affected the publick, after the security of property came to be a capital object; and therefore theft afforded probably the first instances of this new kind of punishment. It was enacted in England, That a thief, after repeated acts, shall have his hand or foot cut off
Laws of King Ina, Lambard's Collection, Law 18.
. Among the Longobards, the third act of theft was punished with death
L. 1. Tit. 25. § 67.
. By the Salic laws, theft was punished with death, if proved by seven or five credible witnesses
Tit. 70. § 7.
. And that the first instances of this new punishment had the consent of the person injured, is made probable from the same Salic laws, in which murder was punished with death, and no composition admitted, without consent of the friends of the deceased
Tit. 70. § 5.
.
A power to punish all atrocious crimes, though of a private nature, was a valuable acquisition to the publick. This acquisition was supported by the common sense of mankind, which, as observed in the beginning of this discourse, entitles even those to inflict punishment who are not injured by the crime; and if such privilege belong to private persons, there could be no doubt that the magistrate was peculiarly privileged. Here, by the way, may be remarked, a striking instance of the aptitude of man for society. By engrossing the right of punishing, Government has reached a high degree towards perfection. But did nature dictate that none have right to punish but those who are injured, government must for ever have remained in its infantine state: for, upon that supposition, I can discover no means sufficient to subdue human nature, and to contradict it so far, as to confine to the magistrate the power of dispensing punishments.
THE magistrates power of criminal jurisdiction being thus far advanced, was carried its full length without meeting any longer with the slightest obstruction. Compositions for crimes were prohibited, or wore out of practice; and the people were taught a salutary doctrine, that it is inconsistent with good government to suffer individuals to exert their resentment, otherwise than by applying to the criminal judge, who, after trying the crime, directs an adequate punishment to be inflicted by an officer appointed for that purpose; admitting no other gratification to the person injured, but to see the sentence put in execution, if he be pleased to indulge his resentment so far.
BUT as this signal revolution in the criminal law behoved to be galling to individuals, unaccustomed to restrain their passions
For some time after this revolution was compleated, we find, among most European nations, certain crimes prevailing, one after another, in a regular succession. Two centuries ago, assassination was the crime in fashion. It wore out by degrees, and made way for a more covered, but more detestable method of destruction, and that is poison. This horrid crime was extremely common, in France and Italy chiefly, almost within a century. It vanished imperceptibly, and was succeeded by a less dishonourable method of exercising revenge,
viz.
duelling. This curious succession, is too regular to have been the child of accident. It must have had a regular caufe; and this cause, I imagine, may be gathered from the history now given of the criminal law. We may readily believe, that the right of punishment, wrested from individuals, and transferred to the magistrate, was at first submitted to with the utmost reluctance. Resentment is a passion too fierce to be subdued till man be first humanized and softened in a long course of discipline, under the awe and dread of a government firmly established. For many centuries after the power of the sword was assumed by the magistrate, individuals, prone to avenge their own wrongs, were incessantly breaking out into open violence, murder not excepted. But the authority of law, gathering strength daily, became too mighty for revenge executed in this bold manner; and open violence, through the terror of punishment, being repressed, confined men to more cautious methods, and introduced assassination in place of murder committed openly. But as assassination is seldom practicable without accomplices or emissaries, of abandoned morals, experience shewed that this crime is never long concealed; and the fear of detection prevailed at last over the spirit of revenge gratified in this hazardous manner. More secret methods of gratification were now studied. Assassination repressed made way for poisoning, the most dangerous pest that ever invaded society, if, as believed, poison can be conveyed in a letter, or by other-latent means that cannot be traced. Here legal authority was at a stand; for how can a criminal be reached who is unknown? But nature happily interposed, and afforded a remedy when law could not. The gratification which poisoning affords, must be extremely slight, when the offender is not made sensible from what quarter the punishment comes, nor for what cause it is inflicted. Repeated experience showed the emptiness of this method of avenging injuries; a method which plunges a man in guilt, without procuring him any gratification. This horrid practice, accordingly, had not a long course. Conscience and humanity exerted their lawful authority, and put an end to it. Such, in many instances, is the course of providence. It exerts benevolent wisdom in such a manner as to bring good out of evil. The crime of poisoning is scarce within the reach of the magistrate: but a remedy is provided in the very nature of its cause; for, as observed, revenge is never gratified, unless it be made known to the offender that he is punished by the person injured. To finish my reflections upon this subject, duelling, which came in the last place, was supported by a notion of honour; and the still subsisting propensity to revenge blinded men so much, as to make them see but obscurely, that the practice is inconsistent with conscience and humanity.
, all measures were taken to make the yoke easy, by directing such a punishment as tended the most to gratify the person injured. Whether this was done in a political view, or through the still subsisting influence of the right of private revenge, is not material. But the fact is curious, and merits attention; because it unfolds the reason of that variation of punishment for the same crime, which is remarkable in different ages. With respect to theft, the punishment among the Bavarians was increased to a nine-fold restitution, calculated entirely to satisfy the person injured, before they thought of a corporal punishment
Tit. 8. § 1.
. The next step was demembration, by cutting off the hand or foot; but this only after repeated acts
Laws of King Ina, Lambard, L. 18.
. Among the Longobards, it required a third act of theft, before a capital punishment could be inflicted
L. 1. Tit. 25. § 67.
. And at last theft was to be punished with death in all cases, if clearly proved
Salic Laws, Tit. 70. § 7.
. By this time, it would appear, the interest of the publick, with respect to punishment, had prevailed over private interest; or at least had become weighty enough to direct a punishment that should answer the purpose of terror, as well as of private resentment. There is one curious fact relating to the punishment of theft, which I must not overlook. By the laws of the Twelve Tables, borrowed from Greece, theft was punished with death in a slave, and with slavery in a free man. But this law, being not agreeable either to the manners or notions of the Roman people, was afterwards mitigated, by converting the punishment into a pecuniary composition; subjecting the
furtum manifestum
to a four-fold restitution, and the
furtum nec manifestum,
to the restitution of double. The punishment of theft, established by the law of the Twelve Tables, might suit some of the civilized states in Greece, who had acquired the notion of a publick, and of the interest which a publick has to punish crimes
in terrorem.
But the law was unsuitable to the notions of a rude people, such as the Romans were in those days, who of punishment understood no other end but the gratification of private resentment. Nor do I find in any period of the Roman history, that theft was considered as a crime against the publick, to admit of a punishment
in terrorem.
Towards such improvement there never was a step taken but one, which was not only late, but extremely slight,
viz.
that a thief might be condemned to an arbitrary punishment, if the party injured chose to insist for it
l. ult. de Furtis.
. I make another remark, that so long as the gratification of the prosecutor was the principal aim in punishing theft, the value of the stolen goods was constantly considered as a preferable claim
Judicia Civitatis Lundoniae, Wilkins, p. 65.
. for unless the prosecutor obtain restitution of his goods or their value, there can be no sufficient gratification. But after the interest of the publick came chiefly to be considered in punishing theft, the prosecutor's claim of restitution was little regarded, of which our act 26. p. 1661. is clear evidence; witness also the law of Saxony, by which if a thief suffer death, his heir is not bound to restore the stolen goods
Carpzovius, part 4. const. 32. def. 23.
.
FOR the same reason, a false witness is now punished capitally in Scotland, though not so of old. By the Roman Law
l. 1. § ult. de leg. Cornel. de fals.
, and also by our common law
Reg. Maj. L. 4. Cap. 13. Stat. Alexr. II. Cap. 19.
, the punishment of falshood is not capital, which is also clear from act 80. p. 1540. and act 22. p. 1551. Yet our supreme criminal court has, for more than a century, assumed the power of punishing this crime capitally, as well as that of bearing false witness, though warranted by no statute. The notions of a publick, and of a publick interest, are brought to perfection; and the interest of the publick to be severe upon a crime which is so prejudicial to society, hath, we see, in these instances, prevailed over even the strict rules of the criminal law
Durum est, torquere leges, ad hoc, ut torqueant homines. Non placet igitur extendi leges paenales, multo minus capitales, ad delicta nova. Quod si crimen vetus fuerit, et legibus notum, sed prosecutio ejus incidat in casum novum, a legibus non provisum; omnino recedatur a placitis juris, potius quam delicta maneant impunita
Eacon de augmentis scientiarum, L. 8. Cap. 3. aphor. 13.
. By the law of Egypt, perjury was capital: for it was said to involve the two greatest crimes,
viz.
impiety to the gods, and violation of faith and truth to man
Diodorus Siculus, Book 1. Ch. 6.
. This, and many other laws of the antient Egyptians show, that publick police was carried to a considerable degree of perfection in that celebrated country.
.
UPON this head, a remark occurs which will be found to hold universally. It regards a material point, that of adjusting punishments to crimes, when criminal jurisdiction is totally ingrossed by the publick. After this revolution in government, we find the first punishments extremely moderate; not only for the reason above given, that they are directed chiefly to gratify the persons injured, but for a separate reason. Though the power of the sword adds great authority to a government, yet this effect is far from being instantaneous; and till authority be sufficiently established, great severities are beyond the strength of a legislature. But after publick authority is firmly rooted in the minds of the people, punishments more rigorous may be ventured upon, which are rendered necessary by the yet indisciplined temper of the people. At last, when a people have become altogether tame and submissive, under a long and steady administration, punishments being less and less necessary, are generally mild, and ought always to be so
WE discover a similar progress in the civil law of this country. Some ages ago, before the ferocity of the inhabitants of this part of the island was subdued, the utmost severity of the civil law was necessary, to restrain individuals from plundering each other. Thus the man who intermedled irregularly with the moveables of a person deceased, was subjected to all the debts of the deceased without limitation. This makes a branch of the law of Scoland, known by the name of
Vitious Intromission;
and so rigidly was this regulation applied in our courts of law, that the most triffling moveable abstracted
mala fide,
subjected the intermedler to the forgoing consequences, which proved, in many instances, a most rigorous punishment. But this severity was necessary, in order to subdue the undisciplined nature of our people. It is extremely remarkable, that in proportion to to our improvement in manners, this regulation has been gradually softned, and applied by our sovereign court with a sparing hand. It is at present so little in repute, that the vitious intromission must be extremely gross which provokes the judges to give way to the law in its utmost extent; and it seldom happens, that vitious intromission is attended with any consequence beyond reparation, and costs of suit.
.
ANOTHER remark occurs, connected with the former, that to preserve a strict proportion betwixt a crime and its punishment, is not the only or chief view of a wise legislature. The purposes of human punishments are, first, to add weight to those which nature has provided, and next to enforce municipal regulations intended for the good of society. In this view, a crime, however heinous, ought to be little regarded, if it have no bad effect in society. On the other hand, a crime, however slight, ought to be severely punished, if it tend greatly to disturb the peace of society. A dispute about the succession to a crown, seldom ends without a civil war, in which the party vanquished, however zealous for right, and for the good of their country, must be considered as guilty of treason against their lawful sovereign; and to prevent the ruine of civil war, it becomes necessary that such treason be attended with the severest punishment, without regarding, that the guilt of those who suffer arose from bad success merely. Hence, in regulating the punishment of crimes, two circumstances ought to weigh,
viz.
the immorality of the action, and its bad tendency, of which the latter appears to be the capital circumstance; for this evident reason, that the peace of society is an object of much greater importance, than the peace, or even life, of many individuals.
ONE great advantage, among many, of transferring to the magistrate the power of punishment, is, that revenge thereby is kept within the strictest bounds, and confined to its proper objects. The criminal law appears to have been brought to perfection among the antient Egyptians. It was a regulation among them, that a woman with child could not be put to death till she was delivered. And our author Diodorus Siculus
Book 1. Ch. 6.
observes, That this law was received by many of the Grecian states, deeming it unjust, that the innocent should suffer with the guilty; and that a child, common to father and mother, should lose its life for the crime of the mother. The power of punishment must have long been the privivilege of the magistrate, before a law so moderate and so impartial could take place. We find no similar instances while punishment was in the hands of individuals; for a good reason, that such regulations are incompatible with the partiality of man, and the inflamable nature of resentment. But this is not the only instance of the wisdom and moderation of the criminal law now mentioned. Capital punishments are avoided as much as possible; and in their place punishments are chosen, which, equally with death, restrain the delinquent from committing the like crime a second time. In a word, the antient Egyptian punishments have the following peculiar character, that they effectually answer their end, with less harshness and severity, than is found in the laws of any other nation antient or modern. Thus those who revealed the secrets of the army to the enemy, had their tongues cut out. Those who coined false money, or contrived false weights, or forged deeds, or razed publick records, were condemned to lose both hands. In like manner, he that committed a rape upon a free woman, was deprived of his privy members; and a woman committing adultery, was punished with the loss of her nose, that she might not again allure men to wantonness
WE have an instance in this law of still greater refinement. The criminal law of other civilized nations has not, in any instance, a farther aim than to prevent injury and mischief. Egypt is the only country we read of, where individuals were laid under an obligation to aid the distressed, under a penal sanction. In the table of laws recorded by the above mentioned author, we read the following passage.
"If a man be violently assaulted, and in hazard of death, it is the duty of every by-stander to attempt a rescue; and if it be proved against such a man, that he was sufficiently able to prevent the murder, his neglect or forbearance is to be punished with death."
It is altogether concordant with the refined spirit of the other laws mentioned by our author, that relieving the distressed should be made the duty of every individual: but to punish with death an act of omission, or a neglect of any duty, far more the neglect of a duty so refined, must arise from the most exalted notions of morality. Government must have arrived at great perfection, before such a regulation could be admitted. None of the present European nations are even at present so far refined as to admit of such a law. There must be some cause, natural or artificial, for such early persection of the criminal law in Egypt; and as the subject is of importance, in tracing the history of mankind, I cannot resist the present opportunity of attempting to investigate this cause.
HUNTING and fishing, in order for sustenance, were the original occupations of man. The shepherd life succeeded; and the next stage was that of agriculture. These progressive changes, in the order now mentioned, may be traced in all nations, so far as we have any remains of their original history. The life of a fisher or hunter is averse to society, except among the members of single families. The shepherd life promotes larger societies, if that can be called a society, which hath scarce any other than a local connection. But the true spirit of society, which consists in mutual benefits, and in making the industry of individuals profitable to others as well as to themselves, was not known till agriculture was invented. Agriculture requires the aid of many other arts. The carpenter, the blacksmith, the mason, and other artificers, contribute to it. This circumstance connects individuals in an intimate society of mutual support, which again compacts them within a narrow space. Now, in the first state of man,
viz.
that of hunting and fishing, there obviously is no place for government, except that which is exercised by the heads of families over children and domesticks. The shepherd life, in which societies are formed, by the conjunction of families for mutual defence, requires some sort of government; slight indeed in proportion to the slightness of the mutual connection. But it was agriculture which first produced a regular system of government. The intimate union among a multitude of individuals, occasioned by agriculture, discovered a number of social duties, formerly unknown. These behoved to be ascertained by laws, the observance of which must be enforced by punishment. Such operations cannot be carried on, otherwise than by lodging power in one or more persons, to direct the resolutions, and apply the force of the whole society. In short, it may be laid down as an universal maxim, that in every society, the advances of government towards perfection, are strictly proportioned to the advances of the society towards intimacy of union.
WHEN we apply these reflections to the present subject, we find that the condition of the land of Egypt makes husbandry of absolute necessity; because in that country, without husbandry, there are no means of subsistence. All the soil, except what is yearly covered with the river when it overflows, being a barren sand unfit for habitation, the people are confined to the low grounds adjacent to the river. The fandy grounds produce little or no grass; and however fit for pasture the low grounds may be during the bulk of the year, the inhabitants, without agriculture, would be destitute of all means to preserve their cattle alive during the inundation. The Egyptians must therefore, from the beginning, have depended upon husbandry for their subsistence; and the soil, by the yearly inundations, being rendered extremely fertile, the great plenty of provisions produced by the slightest culture, could not fail to multiply the people exceedingly. But this people lived in a still more compact state, than is necessary for the prosecution of husbandry in other countries; because their cultivated lands were narrow in proportion to their fertility. Individuals, thus collected within very narrow bounds, could not subsist a moment without a regular government. The necessity, after every inundation, of adjusting marches by geometry, naturally productive of disputes, must alone have early taught the inhabitants of this wonderful country, the necessity of due submission to legal authority. Joining all these circumstances, we may assuredly conclude, that, in Egypt, government was coeval with the peopling of the country; and this, perhaps, is the single instance of the kind. Government, therefore, must have long subsisted among the Egyptians in an advanced state; and for that reason it ceases to be a wonder, that their laws were brought to perfection more early than those of any other people.
THIS, at the same time, accounts for the practice of Hieroglyphics, peculiar to this country. In the administration of publick affairs, writing is, in a great measure, necessary. The Egyptian government had made vigorous advances toward perfection before writing was invented. A condition so singular, behoved to make a strong demand for some method to publish laws, and to preserve them in memory. This produced hieroglyphical writing, if the emblems made use of to express ideas, can be called so.
N. B.
Publick police appears, in antient Egypt, to have been carried to an eminent degree of perfection in other articles, as well as in that of law. We have the authority of Aristotle
Polit. l. 3. Ch. 15.
, and of Herodote
l. 2.
, for saying, That in Egypt the art of physick was distributed into several distinct parts, that every physician employed himself wholely in the cure of a single disease, and that by this means the art was brought to great perfection.
.
I have one thing further to add upon publick punishment. Though all civilized nations have agreed to forbid private revenge, and to trust punishment, whether of publick or private crimes, in the hands of disinterested judges; yet they differ as to the persons who are allowed to prosecute before these judges. In Rome, where they had no
calumniator publicus,
no advocate or attorney general, every one was allowed to prosecute crimes which have a publick bad tendency, and for that reason are termed
Publick Crimes.
This was a very faulty institution; because such a privilege given to individuals, could not fail to be frequently made the instrument of venting private ill-will and revenge. The oath of calumny, which was the first check thought of, was far from restraining this evil. It grew to such a height, that the Romans were obliged to impose another check upon criminal prosecutors, indeed of the severest kind, which shall be given in Voet's words
Tit. de accusationibus & inscriptionibus, § 13.
.
"Ne autem temere quis per accusationem in alieni capitis discrimen irruerit, neve impunita esset in criminalibus mentiendi atque calumniandi licentia, loco jurisjurandi calumniae adinventa fuit in crimen subscriptio, cujus vinculo cavet quisque quod crimen objecturus sit, et in ejus accusatione usque ad sententiam perseveraturus, dato eum in finem fidejussore; simulque ad talionem seu similitudinem supplicii sese obstringit, si in probatione defecisse & calumniatus esse deprehensus fuerit."
Had the Roman law continued to flourish any considerable time after this regulation, we may be pretty certain it must have been altered. It was indeed a compleat bar to false accusations; being, in effect, a prohibition of prosecutions at the instance of private persons: for what men will venture his life and fortune, in bringing to punishment a criminal who hath done him no injury, however beneficial it may be to the state, to have the criminal destroyed? This would be an exertion of publick spirit, scarce to be expected among the most virtuous people, not to talk of times of universal corruption and depravity.
IN modern governments, a better method is invented. The privilege of prosecuting publick crimes belongs to the chief magistrate. The King's Advocate in Scotland is, by his office,
calumniator publicus;
and there is delegated to him from the crown, the privilege of prosecuting publick crimes, when he judges such prosecution to be for the interest of the publick. In England, personal liberty has, from the beginning, been more sacred than in Scotland; and to prevent the oppression of criminal prosecutions, there is in England a regulation much more effectual than that now mentioned. No criminal trial, in name of the crown, can proceed, till first the matter be examined by the grand jury of the county, and their authority be interposed for the prosecution.
WITH respect to private crimes, where individuals are hurt in their persons, goods, or character, the publick, and person injured, have each of them separately an interest. The King's Advocate may prosecute such crimes alone, so far as the publick is concerned in the punishment. The private party again is interested to obtain reparation for the wrong done him. Even where this is the end of the prosecution, our forms require the concurrence of the King's Advocate, as a check upon the prosecutor, whose resentment otherwise may carry him beyond proper bounds. But this concurrence must be granted, unless the Advocate will take upon him to show, that there is no foundation for the prosecution; for the Advocate, by with-holding his consent, cannot bar the private party from the reparation due him by law, more than the private party, by with-holding his consent, can bar the Advocate from exacting that reparation or punishment which is a debt due to the publick.
THE interposition of the sovereign authority, to punish crimes more severely than by a composition, was at first, we may believe, not common; nor to be obtained at any rate, unless where the atrocity of the crime called aloud for an extraordinary punishment. But it happened in this, as in all similar cases, where novelty wears off by reiteration of acts, that what at first is an extraordinary remedy, comes in time as a common practice, to be reckoned a branch of the common law. During the infancy, however, of this practice, there being no rule established for the King's interposition, it was understood to be a branch of his prerogative, to interpose or not at his pleasure; and to direct an extraordinary punishment, or to leave the crime to the composition of the common law. It must be evident, that this prerogative could not regularly subsist after criminal jurisdiction was totally engrossed by the publick, and a criminal was regularly condemned by the solemn sentence of a judge. But our fore-fathers were not so clear-sighted. The prerogative now mentioned, was misapprehended for a power of pardoning even after sentence; and the resemblance of the cases made way for the mistake. It appears to me, that the King's prerogative of pardoning arbitrarily, which is asserted by all lawyers, can have no foundation other than this now assigned. Were it limited in criminal as in civil cases, not to give relief but where strict law is over-balanced by equity, the prerogative would have a more rational foundation. But we must prosecute the thread of our history. Though the option of inflicting an adequate punishment, or leaving the crime to the common law, was imperceptibly converted into an arbitrary power of pardoning even after sentence; yet the foundation of this new prerogative was not forgot. The King's pardon is held as leaving the crime to the common law, by which the person injured is entitled to a composition, And the evident injustice of a pardon upon any other condition, tends no doubt to support this construction: for it would be gross injustice, that the law should suffer a man to be injured, without affording him any satisfaction, either by a publick punishment, or by a private composition. This, however, it would appear, has been attempted. But the matter was settled by a law of Edward the Confessor
Lambard's Collection, Law 18.
, declaring, That the King, by his prerogative, may pardon a capital crime; but that the criminal must, in this case, satisfy the person injured, by a just composition.
IT appears then that the
Vergelt,
or composition for crimes, which obtained in all cases by our old law, is still in force where the criminal obtains a pardon; and the claim which the relations of the deceased have against the murderer who obtains the pardon, known in the law of Scotland by the name of
Assythment,
has no other foundation. The practice is carried farther, and may be discovered even in civil actions. When a process of defamation is brought before a civil court, or a process for any violent inversion of possession, a sum is generally decreed in name of damages, proportioned to the wrong done; even where the pursuer is not able to specify any hurt or real damage. Such a sentence can have no other view, but to gratify the resentment of the person injured, who has not the gratification of any other punishment. It is given, as lawyers say,
in solatium;
and therefore is obviously of the nature of a
Vergelt,
or composition for a crime. Damages awarded to a husband, against the man who corrupts his wife, or against the man who commits a rape upon her, are precisely of the same nature.
IN taking a review of the whole, the manners and temper of savages afford no agreeable prospect. But man excells other animals chiefly by being susceptible of high improvements in a well regulated society. In his original solitary state, he is scarce a rational creature. Resentment is a passion, that, in an undisciplined breast, appears to exceed all rational bounds. But savages, unrestrained by law, indulge their appetites without control; and in this state, resentment, were it more moderate, would, perhaps, scarce be sufficient to keep men in awe, and to restrain them, in any considerable degree, from mutual injuries. Happy it is for civilized societies, that the authority of law hath, in a good measure, rendered unnecessary this savage and impetuous passion; and happy it is for individuals, that early discipline, under the restraint of law, by calming the temper, and sweetening manners, hath rendered it a less troublesome guest than it is by nature.
TRACT II.
HISTORY OF PROMISES and COVENANTS.
MORAL duties, originally weak and feeble, acquire great strength by refinement of manners in polished societies
See Essays on the Principles of Morality and Natural Religion, Part 1. Essay 2. Ch. 9.
. This is peculiarly the case of the duties that are founded on consent. Promises and covenants have full authority among nations tamed and disciplined in a long course of regular government: but among Barbarians it is rare to find a promise or covenant of such authority as to counterbalance, in any considerable degree, the weight of appetite or passion. This circumstance, joined with the imperfection of a language in its infancy, are the causes why engagements are little regarded in original laws.
IT is lucky, that among a rude people, in the first stages of government, the necessity of engagements is not greater than their authority. Originally every family subsisted by hunting, and by the natural fruits of the earth. The taming wild animals, and rendering them domestick, multiplied greatly the means of subsistence. The invention of agriculture produced to the industrious a superfluity, with which foreign necessaries were purchased. Commerce, originally, was carried on by barter or permutation, to which a previous covenant is not necessary. And after the use of money was known, we have reason to believe, that buying and selling also was at first carried on in the same manner,
viz.
by exchange of goods and money, without any previous covenant. But in the progress of the social life, the wants and appetites of individuals multiply faster than to be readily supplied by a species of commerce so narrow and confined. The use of an interposed person was discovered, who takes care to be informed of what is redundant in one corner, and of what is wanted in another. This occupation was improved into that of a merchant, who provides himself from a distance with what is demanded at home. Then it is, and no sooner, that the use of a covenant comes to be recognized; for the business of a merchant cannot be carried on to any extent, or with any success, without previous agreements.
So far back as we can trace the Roman law, we find its authority interposed in behalf of sale, location, and other contracts deemed essential to commerce. And that commerce was advanced in Rome before action was sustained upon such contracts, is evident from the contract of society put in that class. Other covenants were not regarded, but left upon the obligation of the natural law. One general exception there was. A promise or paction, of whatever nature, executed in a solemn form of words, termed
stipulatio,
was countenanced with an action. This solemn manner of agreement, testified the deliberate purpose of the parties; and, at the same time, removed all ambiguity as to their meaning, which, in the infancy of a language, words at random are much subjected to
A naked promise, which is a transitory act, makes but a slender impression upon the mind among a rude people. Hence it is, that after the great utility of conventions came to be discovered in the progress of the social life, we find certain solemnities used in every nation, to give conventions a stronger hold of the mind than they have naturally. The Romans and Grecians, after their police was somewhat advanced, were satisfied with a solemn form of words. Ouvert acts were necessary among other people less refined. The solemnity used among the Scythians, according to Herodotus
Book 4.
, is curious and remarkable-
"The Scythians (says that author) in their alliances and contracts, use the following ceremonies. They pour wine into an earthen vessel, and tinge it with blood drawn from the parties contracters. They dip a scymeter, some arrows, a bill, and a javelin, in the vessel, and after many imprecations, the persons principally concerned, with the most considerable men present, drink of the liquor."
Among other barbarous nations, ancient and modern, we find ceremonies contrived for the same end. The Medes and Lydians, in their federal contracts, observe the same ceremonies with the Grecians, with this difference, that both parties wound themselves in the arm, and then mutually lick the blood
Herodotus, Book 1.
. The Arabians religiously observe those contracts which are attended with the following ceremonies. A third person standing between the parties, draws blood from both, by making an incision with a sharp stone in the palm of the hand under the longest fingers; and cuting a thread from the garment of each, dips it in the blood, and anoints seven stones brought there to that end; invoking their gods, Bacchus and Urania, and exhorting the parties to perform the conditions. The ceremony is closed with a mutual profession of the parties, that they are bound to perform
Ibid. Book 3.
. The Nasamones of Africa, in pledging their faith to each other, mutually present a cup of liquor; and if they have none, they take up dust, which they put into their mouths
Ibid. Book 4.
. To the same purpose is the striking or joining hands, and a practice so frequent among the Grecians and Romans as to be introduced into their poetry, of swearing by the gods, by the tombs of their ancestors, or any other object of awe and reverence.
.
COURTS were a noble invention in the social state; for by them individuals are compelled to do their duty. This invention, as generally happens, was originally confined within narrow bounds. To take under the protection of a court, natural obligations of every sort, would, in a new experiment, have been reckoned too bold. It was deemed sufficient to enforce, by legal authority, those particular duties that contribute the most to the well-being of society. A regulation so important gave full satisfaction, and, while recent, left no desire or thought of any farther improvement. This fairly accounts for what is observed above, that in the infancy of law, promises and agreements which make a figure, are countenanced with an action, while others of less utility are left upon conscience. But here it must be remarked, that this distinction is not made where the effect of a promise or agreement is not to create an obligation, but to dissolve it.
Pacta liberatoria
have, in all ages, been enforced by courts of law. The reason commonly assigned, that liberty is more favourable than obligation, is not satisfactory; for no pactions merit more favour than those which promote the good of society, by obliging individuals to serve and aid each other. The following reason will perhaps be reckoned more solid. There is a wide difference betwixt refusing action, even where the claim is just, and sustaining action upon an unjust claim. With respect to the former, all that can be objected is, that the court is less useful than it might be. The latter would be directly countenancing, or rather enforcing, iniquity. It is not surprising to find courts confined, originally, within too narrow bounds in point of utility: but it would be strange indeed if it were made their duty to enforce wrong of any sort. Thus where a court refuses to make effectual a gratuitous promise, there is no harm done: matters are left where they were before courts were instituted. But it is undoubtedly unjust to demand payment of a debt after it is discharged, though by a gratuitous promise only. And therefore, when in this case an action for payment is brought, the court has no choice. It cannot otherwise avoid supporting this unjust claim, but by sustaining the gratuitous promise as a good defence against the action
This difference betwixt an action and an exception, arising from the original constitution of courts of law, is not peculiar to the present subject, but obtains universally. Thus, in the Roman law, the
exceptiones doli et metus,
were sustained from the beginning; though for many ages after the Roman courts were established, no action was afforded to redress wrong done by fraud or force. It was the
Praetor
who first gave an action, after it became a rule, that it was his province to supply what was defective in the courts of common law.
.
ONE case excepted, similar to the Roman
stipulatio,
of which afterwards, it appears to me that no naked promise or covenant was, by our forefathers, countenanced with an action. A contract of buying and selling was certainly not binding by the municipal law of this island, unless the price were paid, or the thing sold delivered. There was
locus penitentiae
even after arles were given; and change of mind was attended with no other penalty, but loss of the arles, or value of them
Reg. Maj. L. 3. Cap. 10. Fleta, L. 2. Cap. 58. § 3. & 5.
. Our antient writers are not so express upon other covenants; but as permutation, or in place of of it buying and selling, are of all the most useful covenants in common life, we may reasonably conclude, that if an agreement of this kind was not made effectual by law, other agreements would not be more privileged.
THE case hinted above as an exception, is where an agreement is made or acknowledged in the face of court, taken down in writing, and recorded in the books of the court
Glanvil, L. 10. Cap. 8. Reg. Maj. L. 3. Cap. 4.
. For though this was done chiefly to make evidence, I judge the solemn manner of making the agreement behoved to have an effect, the same with that of
stipulatio
in the Roman law, which tied both parties, and absolutely barred repentance. And indeed the recording a transaction would be an idle solemnity, if the parties were not bound by it.
THE occasion of introducing this form, I conjecture to be what follows. In difficult or intricate cases, it was an early practice for judges to interpose, by pressing a transaction betwixt the parties; of which we have some instances in the court of session, not far back. This practice brought about many agreements betwixt litigants, which were always recorded in the court where the process depended. The record was compleat evidence of the fact; and if either party broke the concord or agreement, a decree went against him without other proof
See Glanvil, L. 8. Cap. 1, 2, 3, &c.
. The singular advantages of a concord or transaction, thus finished in face of court, moved individuals to make all their agreements, of any importance, in that form. And indeed, while writing continued a rare art, skilful artists, except in courts of justice, were not easily found, who could readily take down a covenant in writing.
SO much upon the first head, how far naked covenants and promises were effectual by our old law. What proof of a bargain was required by a court of justice, comes next to be examined. Evidence may justly be distinguished into natural and artificial. To the former belong proof by witnesses, by confession of the party, and by writing. To the latter belong those extraordinary methods invented in days of gross superstition, for bringing out the truth in doubtful cases, such as the trial by fire, the trial by water, and singular battle.
BEFORE writing was invented, or rather while, like painting, it was in the hands of a few artists, witnesses behoved to be relyed on for evidence in all cases. Witnesses, in particular, were admitted for proving a debt to whatever extent, as well as for proving payment of it. But experience discovered both the danger and uncertainty of such evidence; which, therefore, was confined within narrower bounds gradually as the art of writing became more common. It was first established that two witnesses were not sufficient to prove a debt above forty shillings; and that the number of witnesses behoved to be in proportion to the extent of the debt. Afterwards, when the art of writing was more diffused, the King's courts took upon them to confine the proof of debt to writing, and the confession of the party, leaving the inferior judges to follow the common law, by admitting debt to be proved by witnesses. This seems to be the import of Quon. Attach. Cap. 81. and the only proper sense that it can bear. The burghs adhered the longest to the common law, by admitting two witnesses to prove debt to any extent
Curia quatuor Burg. Cap. 3. § 6.
.
This limitation of proof regards the constitution only of a debt. Payment being a more favourable plea, was left to the common law; and accordingly, in England, parole evidence, to this day, is admitted to prove payment of money. The rule was the same in Scotland while our sovereign court, named
the Daily Council,
subsisted; witness the records of that court still preserved; and continued to be the rule till the Act of Sederunt, 8th June 1597, was made, declaring the resolution of the court, That thereafter they would not admit witnesses to prove payment of any sum above 100 Pounds.
THE King's courts assumed the like privilege in other actions. Though they admitted witnesses to prove that a contract of sale, for example, or location, was performed in part, in order to be a foundation for decreeing full performance; yet they allowed nothing to be proved by witnesses, but what is customary in every covenant of the sort. If any singular paction was insisted on, such as an irritancy
ob non solutum canonem,
witnesses were not admitted to prove such pactions, more than to prove a claim of debt. The proof was confined to writ, or confession of the party
Glanvil, L. 10. Cap. ult. Reg. Maj. L. 3. Cap. 14. § ult.
.
THE second species of natural evidence is, confession of the party; which, in the strictest sense, behoved to be a confession; that is, it behoved to be voluntary. For, by the original law of this island, no man was bound to bear testimony against himself, whether in civil or criminal causes. So stands the common law of England to this day; though courts of equity take greater liberty. Our law was the same, till it came to be established, through the influence of the Roman law, that in civil actions, the facts set forth in the libel, or declaration, may be referred to the defendant's testimony, and he be held as confest, if he refuse to give his oath. The transition was easy from civil matters, to the slighter delinquencies which are punished with pecuniary penalties; and in these also, by our present practice, the person accused is, in a civil court, obliged to give evidence against himself.
THE discovery of truth, by oath of party, denied in civil courts, was, in the ecclesiastical court, obtained by a circuit. An action for payment could not be brought before the ecclesiastical court; but, in a religious view, a complaint could be brought for breach of faith and promise. The party, as in the presence of GOD, was bound to declare, whether he had not made the promise. By this oath, the truth being drawn from him, he was of course enjoined, not only to do penance, but also to satisfy the complainer. This was, in effect, a decree which was followed with the most rigorous execution for obtaining payment of the debt. And this, by the by, is the foundation of the privilege which our commissary courts have of judging in actions of debt, when the debt is referred to oath.
THE third species of natural evidence is writ, which is of two kinds,
viz.
record of court, and writ executed privately betwixt parties. The first kind, which has already been mentioned, is, in England, termed
Recognizance,
because debt is there acknowledged. And here it must be carefully remarked, that this writ is of itself compleat evidence, so as to admit of no contrary averment, as expressed in the English law. With respect again to a private writ, it is laid down, that if the defendant deny the seal, the pursuer must verify the same by witnesses, or by comparison of seals; but that if he acknowledge it to be his seal, he is not admitted to deny the writ
Glanvil, L. 10. Cap. 12. Reg. Maj. L. 3. Cap. 8.
. The presumption lies, that it was he himself who sealed the writ; unless he can bring evidence, that the seal was stole from him, and put to the writ by another.
A deed hath sprung from the Recognizance, which requires peculiar attention. In England it is termed
a Bond in Judgment,
and with us
a Bond registrable.
When, by peace and regular government, this island came to be better peopled than formerly, it was extremely cumbersome to go before the judge upon every private bargain, in order to munute and record the same. After the art of writing was spread every where, a method was contrived to render this matter more easy. The agreement is taken down in writing; and, with the same breath, a mandate is granted to a procurator to appear in court, and to obtain the writing to be recorded as the agreement of such and such persons. If the parties happen to differ in executing the agreement, the writing is put upon record by virtue of the mandate, and faith is given to it by the court, not less than if the agreement had been recorded originally. The authority of the mandate is not called in question, being joined with the averment of the procurator. And, from the nature of the thing, if faith be at all given to writ, the mind must rest upon some fact which is taken for granted without witnesses. A bond, for example, is vouched by the subscription of the granter, and the granter's subscription by that of one or more witnesses. But the subscription of a witness must be held as true; for otherwise there behoved to be a chain of proof without end, and a writing could never be legal evidence. The same solemnity is not necessary to the mandate, which being a relative deed, is supported by the bond or agreement to which it relates; and therefore, of such a mandate, we do not require any evidence besides the subscription of the party. The stile of this mandate was afterwards improved, and made to serve a double purpose; not only to be an authority for recording the writ, but also to impower the procurator to confess judgment against his employer; upon which a decree passes of course, in order for execution. The mandate was originally contained in a separate writing, which is the practice in England to this day. In Scotland, the practice first crept in of indorsing it upon the bond, and afterwards of ingrossing it in the bond at the close, which is our present form.
COMPARING the law of England and of Scotland, upon the evidence of writ, I can discover no discrepance betwixt them. For, first, as to registrable writs, or bonds in judgment, these do and must bear full faith; because, without other evidence, they are a sufficient foundation for execution. Such a writ, when put upon record, produces a decree, which cannot be challenged but in a process of reduction or suspension; and in England it is a rule, that matters of record prove themselves, and admit of no averment against the truth of them
New Abridgment of the Law, vol. 2. p. 306.
. In the next place, as to a private writ, used as evidence in a process, it appears from the Regiam Majestatem, compared with Glanvil in the passages above cited, that the law was also the same in both countries. In England, to this day, a party may deny the verity of the writ, by pleading
quod non est factum.
But then it is not enough barely to deny, without undertaking a proof. What I am to suggest, will make it evident, that
non est factum
is a proper exception, which, like all other exceptions, must be verified by evidence. One needs but reflect, that a bond signed sealed and delivered, makes an effectual obligation by the law of England, and is therefore a good foundation for an action. This is in other words saying, that such bond is probative, and requires not the support of extraneous evidence: and if so, it cannot be sufficient for the defendant to rest upon a denial, without attempting, by contrary evidence, to disprove the evidence of the bond. To this end he has an opportunity to produce the instrumentary witnesses. But if these be dead, it is a rule in England, as well as in Scotland, that they prove the verity of the writing; which, in plain sense, comes to this, that every thing said in the bond, is presumed to be true, until the contrary be proved. This is, in every point, agreeable to the law of Scotland; for which, in place of all other authority, I appeal to Lord Stair
Book 4. Tit. 40. § 39, 40.
, who lays down in express terms,
"That against registrable writs, improbation ought not to be sustained by exception, but only by action; but that against other writs, improbation may be proponed by way of exception."
I cannot, upon this occasion, overlook a remarkable impropriety in our old statutes, requiring witnesses to the subscription of an obligor, without enjoining the witnesses to subscribe, in token that they did witness the obligor's subscription. To appoint any act to be done, without requiring any evidence of its having been done, is undoubtedly an idle regulation. The testing clause, it is true, bears, that the obligor subscribed before such and such witnesses. But the testing clause, which, in point of time, goes before the subscription of the obligor, cannot otherwise than prophetically be evidence, that the witnesses named saw the obligor subscribe. This blunder is not found in the English law: for tho' witnesses are generally called, and do often subscribe; yet, according to my information, witnesses are not essential by the law of England. It is sufficient to specify in the declaration, that the bond was signed sealed and delivered. Of the signing and sealing, the bond itself is evidence; and it is legal evidence of the delivery, that the bond is produced by the obligee.
THIS blunder, in our law, is corrected by the statute 1681, enacting,
"That none but subscribing witnesses shall be probative, and not witnesses insert not subscribing."
By this regulation, the evidence of writ is now, with us, more compleat than it is in England. The subscriptions of the witnesses are justly held legal evidence of their having witnessed the subscription of the granter of the deed; and the subscriptions must be held their subscriptions; otherwise, as above observed, no writ could in any case afford legal evidence. And thus the evidence required in Scotland, to give faith to a bond, or other deed, is by this statute made proper and rational. It is required that the granter subscribe before witnesses: but we no longer hold the testing clause to be evidence of this fact. The subscription of the witnesses is the evidence, as it properly ought to be.
OF the artificial means used in a process to discover truth, those by fire and water
THIS sort of artificial trial prevailed in nations that had no communication with each other, which may be accounted for by the prevalency of superstition. Among the Indians, on the Malabar coast, when a man is to clear himself of some heinous crime, as theft, adultery, or murder, he is obliged to swim over the river Cranganor, which swarms with Alligators of a monstrous size. If he reach unhurt the opposite bank, he is reputed innocent. If devoured, he is concluded guilty
Texeira's History of Persia.
. The trial by fire also, is discovered in a country not less remote than Japan
Kempter's History of Japan, Book 3. Ch. 5.
.
were discharged by Alexander the second
Cap. 7. of his Statutes.
. And it is wonderful that even the grossest superstition could support them so long. But the trial by singular battle, introduced by Dagobert King of Burgundy, being more agreeable to the genius of a warlike people, was retained longer in practice. And being considered as an appeal to the Almighty, who would infallibly give the cause for the innocent, it continued long a successful method of detecting guilt: for it was rare to find one so hardened in wickedness, as to behave with any degree of resolution, under the weight of this conviction. But instances of such bold impiety, rare indeed at first, became more frequent. Men of sense began to entertain doubts about this method of trying causes; and it was reckoned too presumptuous to expect a miraculous interposition of providence upon every slight dispute betwixt private persons, which might be decided by the ordinary forms of law. Custom, however, and the superstitious notions of the vulgar, preserved it long in force; and even after it became a publick nusance, it was not directly abolished. All that could be done, was to sap its foundations
AMONG the Longobards, an accuser could not demand singular battle, in order to prove the person accused guilty, till he swore upon the gospel that he had a well founded suspicion of the person's guilt. And it is added,
"Quia incerti sumus de judicio dei; & multos audivimus per pugnam sine justa causa, suam causam perdere. Sed propter consuetudinem gentis nostrae, Longobardorum legem impiam vetare non possumus
Laws of the Longobards, L. 1. Tit. 9. § 23.
."
, by substituting gradually in its place another method of trial.
THIS was the oath of purgation; the form of which is as follows. The defendant brings along with him into court, certain persons called
Compurgators;
and after swearing to his own innocence, and that he brings the compurgators along with him to make and swear a leil and true oath, they all of them shall swear that this oath is true, and not false
Quon. Attach. Cap. 5. § 7.
. Considering this form in itself, and that it was admitted where the proof was defective on the pursuer's part, nothing appears more repugnant to justice. For why should a defendant be so loaded, when there is no proof against him? But considering it with relation to the trial by singular battle, to which it was substituted, it appears to me a rational measure. For, in effect, it was giving an advantage to the defendant which originally he had not,
viz.
that of chusing whether he would enter the lists in a warlike manner, or undergo the oath of purgation. That the oath of purgation came in place of singular battle, is not obscurely insinuated, Leges Burgor. Cap. 24. and is more directly said, Quon. Attach. Cap. 61.
"If a man is challenged for theft in the King's court, or in any court, it is in his will, whether he will defend himself by battle, or by the cleansing of twelve leil men
See Spelman's Glossary, Tit. Adrhamire.
."
It bears in England the law term of
Wager at Law
Jacob's Law Dictionary (voce) Wager at Law.
. That is, it is waging law instead of waging battle; joining issue upon the oaths of the defendant and compurgators, in place of joining issue upon a duel. But the oath of purgation, invented to soften this barbarous custom of duels, being reckoned not sufficient to repress the evil, duels were afterwards limited to accusations for capital crimes, where there are probable suspicions and presumptions, without direct evidence
Stat. Rob. III. Cap. 16.
. And consequently, if the foregoing conjecture be well founded, the oath of purgation came also to be confined to the same case. By degrees both wore out of use; and, in this country, there are no remaining traces of the oath of purgation, if it be not in Ecclesiastical courts.
IT is probable, that as singular battle gave place to the oath of purgation, so this oath gave place to juries. The transition was easy, there being no variation other than that the twelve compurgators, formerly named by the defendant, were now named by the judge. The variation proved notably advantageous to the defendant, though in appearance against him. Singular battle wearing out of repute, the unjustice of burdening with a proof of innocence, every person who is accused, was clearly perceived; and witnesses being now more frequently employed on the part of the prosecutor to prove guilt, than on the part of the defendant to prove innocence, it was thought proper that they should be chosen by the judge, not by the defendant. If it be demanded, why not by the prosecutor as at present? It is answered, That at that time the innovation would have been reckoned too violent. However this be, one thing appears from Glanvil
L. 2. Cap. 7. to the end of that book.
, That in all disputes concerning the property of land, founded on the brieve of right, a privilege was about that time bestowed on the defendant, to have the cause tried by a jury, in place of singular battle. As this was an innovation authorized by reason, and not by statute, it was probably at first attempted in questions upon the brieve of right only; matters of less importance being left upon the oath of purgation. That a jury trial, and the oath of purgation, were in use both of them at the same time, we have evidence from the Regiam Majestatem
L. 4. Cap. I. § 13. and Cap. 4. § 2.
, compared with the foregoing citations. But these two methods could not long subsist together. The new method of trial by a jury, was so evidently preferable to the other, that it would soon become universal, and be extended to all cases civil and criminal; and in fact, we find it so extended so far back as we have any distinct records.
FROM this deduction it appears, that a jury was originally a number of witnesses chosen by the judge, in order to declare the truth
See. Reg. Maj. L. 1. Cap. 12.
. And hence the process against a jury for perjury and wilful error. This explains also why the verdict of a jury is final, even where they are convicted of perjury. Singular battle, from the nature of the thing, was so: the oath of purgation, in place of singular battle, was so; and a verdict, in place of an oath of purgation, is so. It likewise explains the practice of England, that the jury must be unanimous in their verdict; for it was required, that the compurgators should be so in their oath of purgation. The same rule probably obtained in Scotland: but at present, and so far back as our records carry us, the verdict is fixed by the votes of the majority.
IN later times, the nature and office of a jury were altered. Through the difficulty of procuring twelve proper witnesses acquainted with the facts, twelve men of skill and integrity were chosen, to judge of the evidence produced by the litigants. The cause of this alteration may be guessed, admitting only that the present strict forms of a jury trial were at first not in use. If jury-men, considered as witnesses, differed, or were uncertain about the facts, they would naturally demand extraneous evidence; of which, when brought, it belonged to them to judge. It is likely that, for centuries, jury-men acted thus both as witnesses and as judges. They may, it is certain, do so at this day; though, for the reason above given, they are commonly chosen by rotation, without being regarded in the character of witnesses. Hence it is, that a jury is now considered chiefly as judges of the fact, and scarce at all as a body of witnesses. And this explains why the process for perjury against them is laid aside. This process cannot take place against judges, but only against witnesses.
TRACT III.
HISTORY OF PROPERTY.
THAT peculiar relation betwixt persons and things, signified by the term
Property,
is one of the great objects of law. The privileges founded on this relation, are at present extensive, but were not always so. Property, originally, bestowed no other privilege but merely that of using or enjoying the subject. A privilege essential to commerce was afterwards acknowledged,
viz.
to alien for a valuable consideration: and at present the relation of property is so intimate, as to involve a power or privilege of making donations to take effect after death, as well as during life. Laws have been made, and decisions pronounced, in every age, conformable to the different ideas that have been entertained of this relation. These laws and decisions are rendered obscure, and perhaps scarce intelligible, to those who are unacquainted with the history of property; and therefore we have reason to hope, that this history will prove equally curious and instructive
THE term property has three different significations. It signifies properly, as above, a peculiar relation betwixt a person and certain subjects, as land, houses, moveables, &c. Sometimes it is made to signify the privileges a person has with relation to such a subject; and sometimes it signifies the subject itself, considered with relation to the person. I have not scrupled to use the term, in these different senses, as occasion offered.
.
MAN, by his nature, is fitted for society, and society is fitted for man by its manifold conveniencies. The perfection of human society, consists in that just degree of union among individuals, which to each reserves freedom and independency, so far as is consistent with peace and good order. The bonds of society may be too lax; but they may also be overstretched. A society, where every man should be bound to dedicate the whole of his industry to the common interest, would be of the strictest kind. But it would be unnatural and incomfortable, because destructive of liberty and independency. The enjoyment of the goods of fortune in common, would, for the same reason, be not less unnatural and incomfortable. Another reason may be added. There subsists in man a remarkable propensity for appropriation, which makes us averse to a communion of goods, some singular cases excepted. And happy it is for man to be thus constituted. Industry, in a great measure, depends on property; and a much greater blessing depends on it, which is the gratification of the most dignified natural affections. What place would there. be for generosity, benevolence, or charity, if the goods of fortune were common to all? These noble principles, being destitute of objects and exercise, would for ever lie dormant; and what would man be without them? Truly a very groveling creature; distinguishable indeed from the brutes, but scarce elevated above them. Gratitude and compassion might have some slight exercise; but how much greater is the figure they make in the present state of things? The springs and principles of man are adjusted with admirable wisdom to his external circumstances; and these in conjunction form one regular constitution, harmonious in all its parts.
HUNTING and fishing were originally the occupations of man, upon which chiefly he depended for food. The beast caught in a gin, or the fish with a hook, being the purchase of art and industry, were undoubtedly, from the beginning, considered by all as belonging to the occupant. The strong appetite which man has for appropriation, vouches this to be true: but what were the precise boundaries of the relation thus created betwixt the hunter or fisher, and his prey, and what powers were acquired by the former over the latter, in common estimation, is a question of more intricacy. That this relation implies a power to use for sustenance the creature thus taken, and towards that end to defend the possession against every invader, is extremely clear. But supposing the creature to have been lost, and without violence to have come into the hands of another, I do not clearly see that, in such circumstances, the original occupant would have had any claim, or that restitution would have been reckoned the duty of the possessor. This may be thought Sceptical; for to one who has imbibed the refined principles of law, the conception is familiar of a relation betwixt a man and a subject, so intimate, as not to be dissolvable without his consent: but, in the investigation of original laws, nothing is more apt to lead into error, than prepossession derived from modern improvements. It appears to me extremely probable, that among savages involved in objects of sense, and strangers to abstract speculation, property and the rights or moral powers arising from it, never are with acaccuracy distinguished from the natural powers, which must be exerted upon the subject to make it profitable to the possessor. The man who kills and eats, who sows and reaps, at his own pleasure, independent of another's will, is naturally deemed proprietor. The grossest savages can apprehend power without right, of which they are made sensible by daily acts of violence: but it requires a habit of abstraction, to conceive right or moral power independent of natural power; because in this condition, right, being attended with no visible effect, is a mental conception merely. That a man may be deprived of a subject, and yet retain the property, is a lesson too intricate for a savage. For how can this be, it will be observed, when he has not the use of the subject, and has no power over it? Hence as a subject, in order for enjoyment, must be under the power of the proprietor, and consequently in his possession, I infer, that, in the original conception of property, possession was an essential circumstance, and that when the latter was lost, the former could no longer subsist. I confirm this inference by the following observation. To this day the vulgar can form no distinct conception of property, otherwise than by figuring the man in possession, using the subject without control, and according to his own will. If such be at present the vulgar way of thinking, we may reasonably suspect a still greater obscurity in the conceptions of a savage.
BUT though originally property was lost with the possession, it follows not that it was always acquired with the possession. That property cannot be acquired by theft, or other immoral act, is a sentiment dictated by nature; and which therefore influences even the grossest savages. Hence it behoyed to be a rule, that though property is lost by theft, it is not acquired by theft. Here is a clear foundation laid for obliging the thief to restore. He has no title to retain a subject which, though in his possession, is not his property; and he is besides bound in conscience to repair the damage done by him to the person formerly proprietor, by restoring the possession, which of course restores the property. But this claim of restitution, evidently reaches not any person who has acquired the subject by honest means, and who having done no wrong, cannot be liable to make any reparation.
To illustrate this subject, I figure the case of a horse carried off by theft, which, after passing through several hands, is fairly purchased in open market. Let us see what arguments are suggested by reason on either side; and after weighing these arguments, let natural justice pronounce sentence. The claimant urges,
"That he was deprived of his horse by theft."
The Purchaser answers,
"That he had no accession to the theft, and that the thief alone is liable."
The claimant again urges,
"That a man may lay hold of his own goods whereever they are found."
Answered,
"The horse was the property of the claimant, while in his possession; but the property was lost with the possession. And supposing the connection of property to subsist independent of possession, this can only hold where there is no separate connection formed. In the present case, the connection of property arising from an honest bargain, and a full price paid, is of the strongest kind."
Betwixt pretensions so equally balanced, how can a judge otherwise interpose than by pronouncing,
quod potior est conditio possidentis?
And that antiently this was the rule, may be gathered from traces of it, which, to this day, remain in several countries. By the old law of Germany, the proprietor could demand his goods from the person to whom he delivered them, in order to be restored; because this claim is founded on a contract. But he had no claim against any other possessor; and hence the maxim,
"That a man must demand his subject from the person to whom he delivered it."
And Heineccius
Compend of the Pandects, Pars 2. § 86.
observes, That this continues to be the Law of Lubec, of Hamburg, of Culm in Prussia, of Sweden, and even of Holland. Upon the same principle, stolen goods were confiscated
Maevius de jur. Lubec. Part 4. Tit. 1. § 2.
. And this continued to be the law till it was abrogated by the Emperor Charles V.
Constit. Crim. 218.
. Upon the same principle the Saxon law is founded, That if a thief suffer death, by which the stolen goods are confiscated, his heir is not bound to pay the value
Carpzovius, Part 4. Const. 32. def. 23.
.
IF the reader, neglecting the opinions delivered by writers on the Roman law, form his judgment on facts and circumstances reported by them, he will, to the foregoing authorities, add the practice of the ancient Romans, which, to the man who lost his goods by theft, afforded a
condictio furtiva
against the thief. This action being merely personal, and founded on the delinquency of the defendant, takes it for granted, that the pursuer had, by the theft, lost his property; and accordingly the action is calculated to restore the property to the pursuer, by compelling the defendant to yield the possession to him. Afterwards, so soon as property was distinguished from possession, and theft was held not sufficient to deprive a man of his property, a
rei vindicatio
was given. This again being a real action, takes it for granted, that the property remains with the pursuer; and accordingly it concludes only, that the possession be restored to him. After this alteration of the law concerning property, there was evidently no longer occasion or place for the
condictio furtiva;
because a man who has not lost his property, cannot demand that it be restored to him. And yet the later Roman writers, Justinian in particular, not adverting to this alteration, hold most absurdly, That the
rei vindicatio,
and
condictio furtiva,
are competent both of them against the thief, and that the Pursuer has his choice of either; which is, in effect, maintaining, That the pursuer is proprietor and not proprietor at the same time
l. 7. pr. de condict. suit. § ult. Institut. de Oblig. quae ex delict.
. Vinnius, in his commentary on Justinian's Institutes
Tit. de Action. § 14
, sees clearly the inconsistency of giving to a proprietor the
condictio furtiva.
His words are,
"Quomodo igitur fur qui dominus non est, domino cui soli condictionem furtivam competere constat, rem dare poterit? Quod si hoc impossibile est, absurdissimum videtur quod hic traditur, furem sic convenire posse, ut dare jubeatur, et dominium rei quod non habet transferre in actorem, eundemque rei petitae dominum. Nodus hic indissolubilis est, &c."
Is it not strange, that an inconsistency set in so clear a light, did not open this author's eyes, nor lead him to conclude, naturally and infallibly, that the sustaining a
condictio furtiva
is compleat evidence, that when this action was invented, the property, as well as the possession, was by theft understood to be lost?
WE find traces of the same way of thinking in other matters. A man who, by force or fear, was compelled to sell his subject at an undervalue, had no redress by the common law of the Romans
The reason of this is given in the second Tract.
. It was the Pretor who first took upon him to restore
in integrum,
by an action, those who were thus deprived of their property. This action originally was strictly personal, being directed against the wrong doer only; nor could it be extended against a
bona fide
purchaser, so long as property was held to vanish when the possession was lost. For though, by the law of nature, no man is bound by a covenant which by force or fear he is compelled to make, yet when delivery is made, and the subject is acquired by a third party, who purchases
bona fide,
an action of restitution could not lie against him. The claimant, who lost his property with the possession, had not a
rei vindicatio;
and a personal action could not lie against a purchaser who had no accession to the wrong. But after the doctrine prevailed, That property can subsist independent of possession, it came naturally to be a subject of deliberation, whether a
rei vindicatio
might not lie in this case against the
bona fide
purchaser, as well as where a subject is robbed or stolen without the formality of a contract. There is fundamentally no difference. For a Contract, however formal, is no evidence of consent where force has been interposed; and delivery, without consent, transfers not property. In this case, however, which had the appearance of some intricacy, the Roman Pretor did not venture to sustain a
rei vindicatio
in direct terms. But the same thing, in effect, was done under disguise. The connection of property had by this time taken so fast hold of the mind, as to make it a rule, That a man cannot be deprived of his subject by an involuntary sale, more than by theft or robbery; and to redress such wrong, the
actio metus
was, by the perpetual edict, extended even against the
bona fide
purchaser
l. 3. C. his quae vi metusque caus.
. The
actio metus
being in this case made truly a real action, differed in nothing but the name from a
rei vindicatio;
for, from a purchaser
bona fide,
the subject evidently cannot be claimed upon any medium, other than that the claimant is proprietor; and consequently is entitled to a
rei vindicatio.
Hence it is, that, in the Roman Law, the
actio metus
is classed under a species denominated,
Actiones in rem scriptae,
a species which has puzzled all the commentators, and which none of them have been able to explain. It is the history of law only that can give us a clear notion of these actions. All actions pass under that name, which, originally personal, were, by the augmented vigour of the relationof property, made afterwards real.
WE also discover from the Roman law, that other real rights made a progress similar to that mentioned concerning property. There was, for example, in the Roman law no real action originally for recovering a pledge, when the creditor, by accident or otherwise, had lost the possession. It was the Pretor Servius who gave a real action
§ 8. Instit. de action. and Vinnius upon that §.
.
WERE we altogether destitute of evidence, it would remain probable however, that in this island the original notions about property did not widely differ from what prevailed in other countries. But luckily we have very strong evidence that they were the same; not even excepting the case of stolen goods. Our act 26, p. 1661, vouches it to have been the law of Scotland, that when a thief was condemned, his effects, including the stolen goods, were confiscated. Nor is this law abrogated totally by the statute. The proprietor cannot demand his goods, except upon condition that he prosecute the thief
usque ad sententiam.
Such being the law with regard to stolen goods, we cannot doubt, that a man purchasing
bona fide
from a vender, who is not proprietor, was secure against this claim of property. That such was the practice, may be gathered from many passages in our ancient law-books. In point of evidence, I shall confine myself to one fact. A regulation appears to have been early introduced, prohibiting buying and selling except in open market. The purpose undoubtedly was to repress theft, and to prevent the transference of property by private bargains. It is not safe to venture stolen goods in open market; and if they be disposed of privately, the buyer cannot be secure who purchases
prohibente lege
COKE
Instit. 2. p. 713.
seems not to have understood this matter, when he can find no cause for the regulation, other than the encouragement of fairs and markets, in order to promote commerce. This implies, that formerly a purchase, even in open market, afforded no security against the proprietor; and that the legislature, to encourage fairs and markets, could think of no better expedient, than to render property precarious, and to subject individuals to frequent forfeitures. A measure so unjust and so violent, is not agreeable to the genius of the law of England. This regulation (as in the text) was introduced to secure property, not to unhinge it; which also appears from the two statutes mentioned by our author, confining the privilege of those who purchase in open market within the narrowest bounds. By the latter,
viz.
31st of Elisabeth, no person is in safety to buy a horse even in open market, unless some sufficient or credible person vouch for the vender. And even in that case, the horse must be restored to the proprietor claiming within six months, and offering the price that was paid by the
bona side
purchaser.
. I have another fact to urge, which is no slight confirmation of what is here suggested. By the oldest law of the Romans, a single year compleated the prescription of moveables; which testifies, that property independent of possession was considered to be a right of the slenderest kind. In later times, when the relation of property was so strengthned as to be clearly distinguished from possession, this prescription was, among the Romans, extended to ten years; and with us a man, by prescription, is not deprived of the most trifling moveable in a shorter time than forty years.
BUT if such originally was the law of property, by what over-ruling principle has property acquired strength and energy to affect the subject wherever found, and to exclude even an honest purchaser, where the title of his author is discovered to be lame? This question enters deep into the history of law, and the answer to it must be drawn, partly from natural, partly from political principles. It will appear, in the course of this history, that both have concurred to bestow upon property that degree of firmness and stability which at present it enjoys among all civilized nations. Proceeding regularly, according to the course of time, the first cause which offers itself to view is a natural principle.
MAN, by the frame of his body, is unqualified to be an animal of prey. His stomach requires more regular supplies of food than can be obtained in a state where the means of nourishment are so precarious
WHEN men were hunters, and lived, like the Savage animals, upon prey, there could be no regular supplies of food; and after they became shepherds, the former habit of abstinence, made their meals probably less frequent than at present, though food was at hand. In old times there was but one meal a day; which continued to be the fashion, even after great luxury was indulged in other respects. In the war which Xerxes made upon Greece, it was pleasantly said of the Abderites, who were appointed to provide for the King's table, that they ought to go in a general procession, and acknowledge the favour of the gods, in not inclining Xerxes to eat twice a day
Herodotus, L. 7.
. In the reign of Henry VI. of England, we have Shakespear's authority, that the people of England fed but twice a day
Vol. 5. page 95. near the top, compared with page 93. in the middle. Warburton's edition.
. Our historian, Hector Boyes, exclaims against the growing luxury of his time, that, not satisfied with two meals, some men were so gluttonous as to eat thrice every day. Custom, no doubt, has a powerful effect in this case, as well as in many others: but the human frame is not so much under the power of custom, as to make it easy for a man, like an eagle, to fast perhaps for a month.
. His necessities taught him the art of taming such of the wild creatures as are peaceable and docile. Large herds were propagated of cattle, sheep and goats, which afforded plenty of food ready at hand for daily use. By this invention, the conveniencies of living were greatly promoted: and in this state, which makes the second stage of the social life, the relation of property, though not entirely disjoined from possession, was considerably enlivened. The care and attention bestowed upon a domestic animal from the time of its birth, form in the mind of every one a strong connection betwixt the man and his beast, which, upon any casual interruption of possession, does not so readily vanish, as in the case of a wild beast seized by a hunter.
THUS, by a natural principle, the relation of property was in some measure fortified, and was considered, as forming a stricter connection betwixt man and other animals than it did originally. In this condition, a political principle contributed to make the relation appear still more intimate. Experience demonstrated, that it is impracticable to repress theft and robbery, if purchasers be secure upon the pretext of
bona fides.
For every purchase must be presumed honest, till the contrary be proved; and nothing is more easy than to contrive a dishonest purchase that shall be secure from detection. To remedy an evil which gave so great scope to stealth and violence, the regulation above mentioned was, in this island, introduced among our Saxon ancestors, prohibiting all buying and selling except in open market. After this regulation, a private purchase afforded no security, nor was the property transferred. The
nexus,
or lien of property, was greatly strengthned, when it was now become law, that no man could be deprived of his property without his own consent; except singly in the case of a purchase
bona fide
in open market. I add, upon this head, that the notion of right independent of natural power, once evolved, acquired the greatest firmness and stability, by the regular establishment of courts of justice, the great purpose of which is to afford natural power, whenever it is of use to make right or moral power effectual.
AND, by the way, the influence of property, in its different stages of improvement, is extremely remarkable. The
nexus,
or lien of property, being originally slight, it was not thought unjust to deprive a man of his property by means of a
bona fide
purchase, even where the subject was sold by a robber. The law, which restrained purchases except in open market, bestowed a firmness upon the relation of property, which made it, in some measure, prevail over the right arising from a
bona fide
purchase. This produced the statute above mentioned, 31st of Elisabeth, enacting, That even a
bona fide
purchase, in open market, shall not transfer the property, provided the proprietor claim within six months, and offer to the purchaser the price he paid. So stands the law of England to this day; and yet to such stability has the relation of property arrived by the course of time, and by the favour of all men, that it is doubtful, whether, at present, the claim of property would not be sustained, even without offering the price. In Scotland there is a regulation, of a very old date, for the security of property. Besides buying in open market, the purchaser is bound to take from the vender security for his honesty, termed,
Borgh of haim-hald.
By this precaution the purchaser was secure against all the world. But if the goods came to be claimed by the true owner, the cautioner was bound to produce the vender, otherwise to be liable for damages
Leg. Burg. Cap. 128.
. But though this continues to be our statute law, such however is the influence of property, that I doubt whether our judges would not be in hazard of sustaining a
rei vindicatio
against the purchaser in open market, even after using the forgoing precaution. Property, it is certain, is a great favourite of human nature, and is frequently the object of a very strong affection. In the fluctuating state of human affairs, before regular governments were formed, property was seldom so permanent as to afford great scope for this affection. But in peaceable times, under a steady administration of law, the affection for property becomes exceeding strong, which, of consequence, fortifies greatly the relation of property. Thus there is discovered a natural connection betwixt government and property. From the weak and infantine state in which both are found originally, both of them, by equal degrees of improvement, have arrived at that stability and perfection which they enjoy at present.
HAVING advanced so far in the history of moveable property, it is full time to turn our view to the property of land. In the two first stages of the social life, while men were hunters or shepherds, there scarce could be any notion of land-property. Men being strangers to agriculture, and also to the art of building, if it was not of huts, which could be raised or demolished in a moment, had no fixed habitations, but wandred about in hords or clans, in order to find pasture for their cattle
THE Scythians drawing no subsistence from the plough, but from cattle, and having no cities nor inclosed places, made their carts serve them for houses: by which it was easy for them to move from place to place. Herodotus
Book 4.
from this observes, that the Scythians are never to be found by an enemy they chuse to avoid.
. In this vagrant life men had scarce any connection with land more than with air or water. A field of grass might be considered as belonging to a hord or clan, while they were in possession; and so might the air in which they breathed, and the water of which they drunk: but the moment they removed to another quarter, there no longer subsisted any connection betwixt them and the field that was deserted. It lay open to new-comers, who had the same right as if it had not been formerly occupied. Hence I conclude, that while men led the life of shepherds, there was no relation formed betwixt them and land, in any manner so distinct as to obtain the name of Property
See the description given by Thucydides of the original state of Greece. Book 1. at the beginning.
.
AGRICULTURE, which makes the third stage of the social life, produced the relation of land-property. A man who has bestowed labour in preparing a field for the plough, and who has improved this field by artful culture, forms in his mind a very intimate connection with it. He contracts, by degrees, a singular affection for a spot, which, in a manner, is the workmanship of his own hands. He chuses to live there, and there to deposit his bones. It is an object which fills his mind, and is never out of thought at home or abroad. After a summer's expedition, or perhaps years of a foreign war, he returns with avidity to his own house, and to his own field, there to pass his time in ease and plenty. By such trials the relation of property being gradually evolved, is disjoined from possession; and to this disjunction, the lively perception of property with respect to an object so considerable, mainly contributes. If a proprietor happen to be dispossessed in his absence, the injustice done, in depriving him of the exercise of his property, is perceived and acknowledged. In the common sense of mankind he continues proprietor, and a
rei vindicatio
will be sustained to him against the possessor, to whom the property cannot be transferred by an immoral act. But what if the subject, after a long interval, be purchased
bona fide,
and peaceable possession attained? I have given my reasons above, for conjecturing, that in ancient times, such a purchase transferred property, and extinguished the right of the former proprietor. Such undoubtedly was once the condition of moveable property, gradually altered, as observed above, by successive regulations. Land-property continued a much shorter time in this unstable condition. Of all subjects of property, land is that which engages our affection the most; and for this reason the relation of property, respecting land, grew up much sooner to its present firmness and stability, than the relation of property respecting moveables. For many centuries past, it is believed, that in no civilized nation, has
bona fides
alone been held to secure the purchaser of land. Where the vender is not proprietor, it is requisite that the purchase be followed with a long and peaceable possession.
IT is extreme probable, that the strong
nexus
of land-property, which cannot be loosed otherwise than by consent, had an influence upon moveable property, to make it equally stable. But if land-property led the way in this particular, moveable property undoubtedly led the way in what we are now to enter upon,
viz.
the power of aliening. The connection of persons with moveables is more immediate than with land. A moveable may be locked up in a repository. Cattle are killed every day for the sustenance of the proprietor and his family. From this power, the transition is easy to that of alienation; for what doubt can there be of my power to alien what I can destroy? The right or power of alienation must therefore have been early recognized as a quality of moveable property. The power of disposing moveables by will, to take effect after death, is a greater stretch; and we shall have occasion to see, that this power was not early acknowledged as one of the qualities even of moveable-property. We have reason, before-hand, to conjecture, that a power of aliening land, whether to take effect instantly, or after death, was not early introduced; because land admits not, like moveables, a ready delivery from hand to hand. And this conjecture will be verified in the following part of our history. Land, at the same time, is a desireable object; and a power to alien, after it came to be established in moveable property, could not long be separated from the property of land.
BUT before we proceed farther in this history, we must take a view of the forms and solemnities which, in the common apprehension of mankind, are requisite, first to acquire, and then to transfer land-property. For these, if I mistake not, will support the foregoing observations. It is taught by all writers, that occupation is an essential solemnity in the original establishment of land-property. The reason will be evident from what is said above, that property originally was not separated from possession. And the same solemnity is requisite at this day with respect to every uninhabited country: for where there is no proprietor to alien, there can be no means other than occupation to form the connection of property, whether with land or with moveables. Occupation was equally necessary in old times to compleat the transference of land-property. For if property was not understood to have an existence without possession, occupation behoved to be necessary for transferring the property of land, as well as for establishing it originally. But so soon as property came to be considered as a right independent of possession, it was natural to relax from the solemnities formerly requisite to transfer land-property. It is often difficult, and always troublesome, to introduce a purchaser with his family and goods into the natural possession; and this solemnity therefore was dispensed with, because not essential upon the later system of property. But then, in opposition to a practice so long established, the innovation would have been too violent, to ascribe to the bare will of the former proprietor, the efficacy of transferring the property to a purchaser, without any sort of solemnity in place of possession. Such is our attachment to sensible objects, that it would have appeared like magic, or the tricks of a juggler, to make the property of land jump from one person to another, merely upon pronouncing certain words expressing will or consent. Words are often ambiguous, and always too transitory to take fast hold of the mind, without concomitant circumstances. In place therefore of actual possession, some ouvert act was held necessary in order to compleat the transmission. This act, of whatever nature it be, is conceived as representing possession, or as a symbol of it: and hence it has acquired the name of symbolical possession. When this form first crept in, some act was chosen to represent possession as distinctly as possible; witness the case mentioned by Selden
Janus Anglorum, Cap. 25.
, where a grant of land made to the church,
anno
687, was perfected, by laying a turf of the land upon the altar. This innovation was attempted with the greatest caution; but after the form became customary, there was less nicety in the choice. The delivery of a spear, of a helmet, or of a bunch of arrows, compleated the transmission. In short, any symbol was taken, however little connected with the land: it was sufficient that it was connected with the will of the granter. In the cathedral of York there is, to this day, preserved, a horn, delivered by Ulphus king of Deira to the monastry of York, as a symbol for compleating a grant of land in their favours
IT is a common practice among the salmon-fishers to purloin from their masters part of the fish; and it is very difficult to restrain them, because they scarce think it a fault. They cannot conceive that the salmon, before delivery, belong to their master. After delivery indeed, or after the master's mark is put upon the fish, they readily admit, that it would be theft to take any away. This shows, that in the natural sense of mankind, occupation or delivery is requisite to establish property.
.
A single observation, with which I shall conclude this branch of our subject, may serve to give us a more enlarged view of it. It appears to me, that there is a stricter analogy betwixt creating personal obligations and transferring land-property, than is commonly imagined. Words merely, make no great impression upon the rude and illiterate. In ancient times therefore, some external solemnity was always used to fortify covenants and engagements, without which they were reckoned not binding
See the essay immediately forgoing.
. Writing at present being common, and the meaning of words ascertained, we require no other solemnity but writing, to compleat the most important transactions. Writing hitherto among us, with regard to land-rights, has not superceded the necessity of symbolical delivery: but when our notions come to be more refined, and substance regarded more than form, it is probable, that external symbols, which have long been laid aside in personal rights, will also be laid aside in rights affecting land. We return to our history.
PROPERTY, as originally limited, bestowing no power of alienation, carries the mind naturally to the children of the possessor, who continue the possession after his death, and who must succeed if he cannot alien
HEREDES tamen successoresque sui cuique liberi: et nullum testamentum
Tacitus de morbus Germanorum.
.
. Their right, being independent of his will, was conceived a sort of property. They make part of the family, live upon the land; and, in common with their parents, enjoy the product of the land. When the father dies, they continue in possession without any alteration, but that the family is less by one than formerly. Such a right in children, of which the father could not deprive them, which commenced, in some measure, at their birth, and which was perfected by the father's death, was not readily to be distinguished from property. It is, in effect, the same with the strictest entail that can be contrived.
To those who are ignorant of the history of law, and in their notions are riveted to the present system of things, the right here attributed to children may appear chimerical. But it will have a very different appearance, after mentioning a few of the many ancient customs and regulations founded upon it. And, to pave the way, I shall first show, that the notions of the ancients about this matter were precisely as here stated; for which I appeal to a learned Roman lawyer, Paulus
I. 11. de liber. & posthum. hered.
.
"In suis heredibus evidentius apparet, continuationem dominii eo rem perducere ut nulla videatur hereditas fuisse, quasi olim hi domini essent, qui etiam vivo patre quodam modo domini existimantur. Unde etiam filiusfamilias appellatur, sicut pater-familias: sola nota hac adjecta, per quam distinguitur genitor ab eo qui genitus sit. Itaque post mortem patris non hereditatem percipere videntur, sed magis liberam bonorum administrationem consequuntur."
Here we see, even in an author far removed from the infancy of law, the interest which children once had in the estate of their father, termed a sort of property. The only thing surprising in this passage is, that a notion so distinct should remain of the property of children in their father's effects, for such a length of time after the right was at an end. But to proceed, it plainly arose from this right, that, among the Romans, children got the appellation of
sui et necessarii heredes.
The strict connection betwixt parents and children produced the first term; and the other arose from the singularity of their condition, that the heritage becoming theirs
ipso facto
by the father's death, they were heirs necessarily, without liberty of choice. Nor did this subject them to any risk, because, deriving no right from their father, they were not bound to fulfil his deeds. In general, while property subsisted without power of aliening, no deed done by the father, whether civil or criminal, could affect the children. And as to crimes, some good authorities are still extant. It was a law of Edward the Confessor, That children born or begot before commission of a crime, which infers forfeiture of goods, shall not lose their inheritance
Lambard's collection of old English laws, Edw. the Confessor, lex 19. at the end.
. And it was a law of the Longobards
L. 1. Tit. 10. § 1.
, That goods are not confiscated where the criminal has near relations. Other regulations, acknowledging this right in children, and authorising particular exceptions from it, will come in more properly, after proceeding a little farther in our history.
IT is remarked above, that the enlarged notion of property, by annexing to it a power of alienation, obtained first in moveables; and indeed society could scarce subsist without such a power; at least so far as is necessary for exchanging commodities, and carrying on commerce. But the same power was not early annexed to the property of land, unless perhaps to support the alienation of some small part for value. This we certainly know, that a proprietor of land, which had descended to him from his ancestors, could not dispose upon it totally, even for a valuable consideration, unless he was reduced to want of bread; and even in that case, he was obliged to make the first offer to his heir. This regulation, known among lawyers by the name of
jus retractus,
is very ancient, and we have reason to believe it was universal. It obtained among the Jews
Ruth, Ch. 4.
. It was the law of Scotland
Leg. Burg. cap. 45, 94, 95, 96, 115, 125. 57, 127.
, of which we have traces remaining not above three centuries ago. And it appears also to have been the law among other European nations
Laws of the Saxons, § 14, 16.
. But this regulation gave place gradually to commerce; and, now for ages, bargains about land have been not less free than bargains about moveables. The power of aliening for a valuable consideration, is now universally held to be inherent in the property of land as well as of moveables.
DONATIONS, or gratuitous alienations, were of a slower growth. These were at first small, and upon plausible pretexts. By degrees they gained ground, and in course of time came to be indulged almost without limitation. By the laws of the Visigoths
L. 5. Tit. 1. § 1.
, it was lawful to make donations to the church. The Burgundians sustained a gift by a man though he had children
Laws of the Burgundians, Tit. 1.
. And among the Bavarians, it was lawful for a free man, after dividing his means with his sons, to make a donation to the church out of his own portion
Laws of the Bavar. Tit. 1. §. 1.
. With respect to our Saxon ancestors, the learned antiquary Sir Henry Spelman is an excellent guide. He observes
Of ancient deeds and charters, page 234.
,
"That heretable land began by little and little to be aliened by proprietors, first to churches and religious houses, by consent of the next heir; next to lay persons; so that it grew at last a matter of course for children, as
heredes proximi,
for kinsmen, as
heredes remotiores,
and for the lord, as
heres ultimus,
to confirm the same. Such consent being understood a matter of course, it grew to be law, That the father, without consent of his heirs, might give part of his land, either to religious uses, or in marriage with his daughter, or in recompence of service."
That such was the practice of England in the days of Henry II, Glanvil testifieth
L. 7. cap. 1.
. And that such also was the law of Scotland in the days of David II, is testified by Reg. Maj.
L. 2. cap. 18.
. But here a limitation mentioned by both authors must be attended to, That such a donation was not effectual unless compleated by delivery. The reason assigned is slight and unsatisfactory; but the true reason is, that if the subject was not delivered, the heir, whether we consider the feudal or allodial law, was entitled to take possession after his ancestor's death, without being subjected to pay any of the debts, or perform any of the engagements of his ancestor. And upon this account there was no security against the heir, but by delivery. This also appears to have been the Roman law
Heineccii antiquitates Romanae, L. 2. Tit. 7. § 13.
.
DONATIONS
inter vivos,
paved the way to donations
mortis causa.
But this was a wide step, which behoved to require the authority of a law; for it was hard to conceive that the will of any man should, after his death and after his own right was at an end, have so strong an effect, as to prefer any person to the lawful heir. The power of testing was introduced among the Athenians by a law of Solon, giving power to every proprietor who had no children, to regulate his succession by testament. Plutarch, in the life of that law-giver, has the following passage.
"Magnam quoque sibi existimationem peperit lege de testamentis lata. Antea enim non licebat testamentum condere, nam defuncti opes domumque, penes genere proximos manere oportebat. Hic liberum fecit, si liberi non essent, res suas, cui vellet dare: praetulitque amicitiam generi, et gratiam necessitati: et effecit, ut pecuniae possessorum propriae essent."
The concluding sentence is remarkable. Alienations
inter vivos
had been long in practice; and it was but one step farther to annex to property a power of alienating
mortis causa.
Athens was ripe for this law; and hence it was natural for Plutarch to observe, that the power of testing made every man proprietor of his own goods. The Decemviri at Rome, transferred this law into their Twelve Tables in the following words.
Pater-familias uti legassit super familiae, pecuniae, tutelaeve suae rei, ita jus esto.
This law, though conceived in words unlimited, was certainly not intended, more than Solon's law, to deprive children of their birth-right, which, in that early period, was too firmly established, to be subjected to the arbitrary will of the father; and if their interest in the succession had not been greater than that of other heirs, they would not have been distinguished by the appellation of
sui et necessarii heredes.
Further, that among the Romans, the power of testing did not originally affect the heirs who are the issue of the testator's own body, must be evident from the following circumstance, that even after the law of the Twelve Tables, no man had a power to exheredate his own issue, unless in the testament he could specify a just cause, ingratitude for example, rendering them unworthy of the succession. And the
querela inofficiosi testamenti
was an action introduced in favour of children, for rescinding testaments made in their prejudice, in which no cause of exheredation was assigned, or an unjust cause assigned. It is true, that a man was afterwards indulged to disinherit his children without a cause, provided he bequeathed to them the fourth part of what they would have inherited
ab intestato
l. 8. § 6. de inoff. test.
. But Justinian
Novel. 115. cap 3.
restored the old law, declaring, That without a just cause of exheredation, specified in the testament, the
querela
shall be competent, notwithstanding his leaving the said fourth part to his son and heir. And this regulation was adopted by the Longobards
L. 2. Tit. 14. § 12.
.
BUT though the
sui et necessarii heredes
could not be directly exheredated, it was in the father's power, not only by alienations
inter vivos,
but even by contracting debt, to render the succession unprofitable. So soon as the power of aliening becomes a branch of property, every subject belonging to a debtor, land or moveables, must lie open to be attached by his creditors. It is his duty to convert into money, the readiest of his subjects for their payment, and if he prove refractory, by refusing to do what in conscience is incumbent upon him, the law will interpose. Justice bestows this privilege upon creditors during their debtor's life; and consequently also after his death; it being inconsistent with justice that the heir should profit by their loss. This new circumstance introduced necessarily an alteration of the law as to the
sui et necessarii heredes:
for now they could no longer be held as necessary heirs, when their being heirs was no longer attended with safety, but might prove ruinous instead of beneficial. The same rule of justice which prevailed in the former case, prevailed also in this, and conferred upon them the privilege of abandoning the succession, in which case their father's debts did not reach them
l. 12. de acquir. vel omit. hered.
.
IT may appear singular, that while children were thus gradually losing ground, collateral heirs, who originally had no privilege, were in many countries gaining ground. I shall first state the facts, and afterwards endeavour to assign the cause. Several nations followed the Grecian plan, indulging an unlimited power of testing, where the testator had not issue of his own body. Thus, by the Ripuarian law, a man who had no children might dispose of his effects as he thought proper
Lex Ripuariorum, § 48.
; and among the Visigoths, the man who had no descendants might do the same
Lex Visigothorum, L. 4. Tit. 2. § 20.
. But this privilege was more limited among other nations. The power of making a testament, bestowed at large by the Roman law, failing children, was afterwards confined within narrower bounds. The privilege which children and other descendants had, to rescind a testament exheredating them without just cause, spread itself upon other near relations; and these therefore might insist in a
querela inofficiosi,
which originally was competent to descendants only
l. 1. de inoff. test.
. By the laws of the German Saxons, it was not lawful to disinherit the heir
Laws of the Saxons, § 14.
. And by the laws of king Alfred,
"He who inherits lands derived from his ancestors by writ, shall not have power to alien the same from his heirs, especially if it be proved by writing or witnesses, that the person who made the grant discharged such alienation
Lambard's collection. Laws of king Alfred, l. 37.
."
Thus we see in several instances, the prerogative of a child who is heir, extended in part to other heirs, which, as hinted above, may appear surprising, when the powers of the proprietor in possession over his subject were by this time enlarged, and the right of his children abriged in proportion.
To set this matter in its proper light, I must premise, that originally there was not such a thing as a right of succession, in the sense we now give to that term. Children came in place of their parents: but this was not properly a succession; it was a continuation of possession, founded upon their own title of property. And while the relation of property continued so slight as it was originally, it was perhaps thought sufficient, that children
in familia
only, should enjoy this privilege. Hence when a man died without children, the land he possessed fell back to the common, ready for the first occupant. But the connection betwixt a man and the land upon which he dwells, having, in course of time, acquired great stability, is now imagined to subsist even after death. This conception preserves the subject as in a state of appropriation, and consequently bars every person except those who derive right from the deceased. By this means, the right of inheriting the family-estate was probably communicated first to children
foris familiate,
especially if all the children were in that situation; thereafter, failing children, to brothers, and so gradually to more distant relations. We have to this day traces remaining of the gradual progress. In the laws of the Longobards, collaterals succeeded to the seventh degree
L. 2. Tit. 14. § 1.
. Our countryman Craig
L. 2. Dieg. 17.
relateth it as the opinion of some, That if there be no heirs within the seventh degree, the King hath right as
ultimus heres.
He indeed signifies his own opinion to the contrary; and now it is established, That relations succeed, however distant, provided only they give evidence of their propinquity.
THE succession of collaterals, failing descendants, produced a new legal idea; for as they had no pretext of right, independent of the former proprietor, their privilege of succeeding could stand upon no other ground than the presumed will of the deceased, which made them heirs, in the proper sense of the word, succeding to the right of the deceased, and enjoying his land by his will. This makes a solid difference betwixt the succession of collaterals, depending on the will of the ancestor, and the succession of descendants, which originally did not depend on his will. But the privilege of descendants, being gradually restrained within narrower and narrower bounds, was confounded with the hope of succession in collaterals. They were put upon the same footing, and considered equally as representatives of the person in whose place they came. This deduction appears natural; and what I have farther to observe appears not less so, That descendants and collaterals being thus blended into one class, the privileges of the former were communicated to the latter.
BUT the privileges thus acquired by collaterals were not of long continuance. The powers annexed to property being carried to their utmost bounds, it came, in most countries which did not adhere to the Roman law, to be considered as an inherent power in proprietors, to settle their estates at their pleasure, without regard to their natural heirs, descendants or collaterals. In this island the power of disposal became unlimited, even to take effect after death, provided the deed were in the form of an alienation
inter
vivos.
The property which children once had in the family-estate was no longer in force, except as to one particular, that of baring deeds on death-bed
WHILE the law stood, as it did originally, That no man could dispose of his estate in prejudice of his heir, there could not be place for the law of death-bed. This law was the consequence of indulging proprietors to dispose of a part for rational considerations; from which indulgence death-bed was an exception. Hence it appears, that the law of death-bed was not a new regulation introduced into Scotland by statute or custom. It is in reality a branch of the original law, confining proprietors from aliening their lands in prejudice of their heirs, which original law is still preserved entire in the circumstance of death-bed. Our authors therefore are in a mistake, when they ascribe the law of death-bed to the wisdom of our forefathers, in order to protect their estates from the rapacity of the clergy. It existed too early among us to make this a probable supposition. In those early times, the prevalence of superstition would have prevented such a regulation, had a positive law been necessary.
. And this, with other privileges of descendants, was communicated to collateral heirs
See Glanvil, L. 7. Cap. 1. Reg. Maj. L. 2. Cap. 18.
. In England the powers of proprietors were so far extended by a law of Henry VIII.
34 and 35 Hen. VIII. Cap. 5. § 4.
. as to entitle them, without the formality of a deed of alienation, to settle or dispose of their lands by testament; after which, deeds on death-bed could no longer be restrained. In Scotland the law of death-bed subsists entire, as well as the limitation upon proprietors, that they cannot dispose of their heretable subjects by testament. The former is no longer considered as a limitation of the powers of property, but as a personal privilege belonging to heirs; for which reason a deed on death-bed is not void for want of power: it is an effectual grant till it be voided by the heir upon his privilege. But the latter is plainly a limitation of the powers of property; which shews, that in this country property is not so compleat as elsewhere. By the old law, a donation had no effect without delivery. For supposing the deed to have contained warrandice, yet this warrandice was not effectual against the heir, who was not bound to pay his father's debts, or fulfil his engagements. Heirs, it is true, are now liable; but then a testament contains no warrandice: and therefore an heretable subject legated by testament is considered, as of old, an incompleat donation, which the heir is not bound to make effectual. But though we admit not of the alienation of an heretable subject by testament, alienation is sustained in a form very little different. A disposition of land, though a mere donation, implies warrandice; and therefore, such a deed found in the granter's repository after his death, supposing it to contain neither procuratory nor precept, will be effectual against his heir. And the difference betwixt this deed and a testament, in point of form, is so slight, that it is not to be comprehended, except by those who are daily conversant in the forms and solemnities of law.
CHILDREN, by the law of Scotland, enjoy another privilege, which is a certain portion of the father's moveable estate. Of this he cannot deprive them by will, or by any deed which takes effect after his death only. This privilege, like that of deathbed, is obviously a branch of the original law, being founded upon the nature of property as originally limited. The power over land is in Scotland not so far extended, as that an incompleat donation will be effectual against the heir, when executed in the form of a testament. The power over moveables is so far extended, as that they can be gifted by testament; but yet not so as to affect the interest which the children have in the moveables. And there is the following analogy betwixt the right of the heir concerning heritage, and that of children concerning moveables, that both have been converted from rights of property to personal privileges; with this difference only, that the privilege of a child, heir in the land-estate, to bar the father's death-bed deed, is communicated to other heirs; whereas the privilege of children, respecting the moveable estate, is communicated to descendants only, and not to collaterals.
TOUCHING the foregoing privilege of children over the moveable estate of their father, one thing must appear whimsical, that the power of aliening moveables should be more limited than that of aliening land. For as a moveable subject is more under the natural power of man than land, so the legal powers of moveable property were brought to perfection more early than of land-property. Were I to indulge a conjecture, in order to account for this whimsical branch of our law, it would be what follows: The privilege of children respecting the moveable estate was preserved entire, because it was all along confined to children; but their privilege respecting the real estate having been communicated to collaterals, which put all heirs upon the same level, the character of child was lost in that of heir, and their common privileges sunk together. Thus, though collaterals have profited by being blended in one class with descendants, the latter have been losers by the union.
AFTER so much discourse upon a subject that is subtile, and perhaps dry, it will, I presume, be agreeable to the reader, before entering upon the second part of the work, to unbend his mind, for a few moments, upon some slight episodical matters, that tend to illustrate the forgoing doctrine. The first shall be upon the equal division of land-property effectuated in Sparta by Lycurgus. One whose notions are derived from the present condition of land-property must be extremely puzzled about this memorable event: for where is the man to be found, who will peaceably surrender his land to the publick without a valuable consideration? And if such a man could be found for a wonder, it would be downright madness to expect the same from a whole people. And yet in settling this branch of publick police, so singular in its nature, we read not even of the slightest tumult or commotion. The story always appeared to me incredible, till I stumbled upon the train of thinking above mentioned. In ancient times, property of land was certainly not so valuable a right as at present. It was no better than a right of usufruct, a power of using the fruits for the support of the possessor and his family. It is also true, That in ancient times the manner of living was more simple than at present: men were satisfied with the product of the land they possessed for their food and raiment. When the foregoing revolution was brought about in Sparta, it is probable, that permutation of commodities, and buying and selling were not far advanced. If so, it was not refining much to think, that a family is not entitled to the possession of more land than is sufficient for the conveniency of living, especially if any other family of the same tribe be in want. In this view of the matter, an equal distribution of land-property, and an agrarian law, might not be so difficult an undertaking as a person accustomed to the present scene of affairs will be apt to imagine.
THE next episode relates to the feudal law. Though, by the feudal system, the property remains with the superior, the right given to the vassal being only an usufruct; yet, it appears, that both in England and Scotland the vassal was early understood to be proprietor. He could alien his land to be held of himself, and the alienation was effectual to bar the superior even from his casualties of ward, marriage, escheat, &c. This was not solely a vulgar way of thinking; it was deemed to be law by the legislature itself; witness the English statute, commonly called,
Quia emptores terrarum,
18. Edw. I. cap. 1. and 2. Statutes Rob. I. cap. 25. It may appear not easy to be explained, how a notion should have gained ground that is so repugnant to the most obvious principles of law. For it might occur, even at first view, that, the property remaining with the superior, he must be entitled to possess the land, and levy the rents upon all occasions, except where he is excluded by his own deed. And as in every military feu, the superior is entitled to the possession, both while there is no vassal, and while the vassal is young and unable to go to war, how could it be overlooked, that the casualties of non-entry and ward, which are effectual against the vassal, must be equally effectual against every one who comes in his place? I cannot account for this otherwise, than by observing, that property originally differed nothing from a right of possession, which gave the enjoyment of the fruits; and therefore, that every man who was in possession, and who had the enjoyment of the fruits, was readily conceived to be proprietor. This was the case of the vassal; and accordingly, when the power of alienation came to be considered as an inherent branch of property, it was thought, That a grant made by the vassal of part of the land, or even of the whole, to be held of himself, must be effectual.
ONE episode more before we return to the principal subject. So great anxiety in the Roman legislature, to restrain proprietors from doing injustice to their own children, has a very odd appearance.
"Children are not to be exheredated without a just cause, chiefly that of ingratitude. The cause must be set forth in the testament. It must be tried before the judge, and verified by witnesses, if denied."
Among other nations, natural affection, without the aid of law, is a sufficient motive with parents to do full justice to their children. Shall we admit, that natural affection was at a lower ebb among the Romans than among other people? It seems so; and the forgoing regulations are real evidence of the fact. The Romans however, in the more early periods of their history, were a brave and gallant people, fond of their country, and consequently, one should think, of their children; whence then should proceed this want of parental affection? I do not suppose they were left unprovided by nature: but laws and customs have a strong influence to produce manners contrary to nature. Let us examine the
patria potestas,
as established by the Roman law; for it may possibly furnish a hint. By the law of nature, the
patria potestas
is bestowed upon the father for the sake of the child, and when steadily exercised for that end, it must necessarily produce in time a reciprocal affection, the strongest our nature is capable of. Nature lays the foundation: continual attention on the one hand, to promote the good of a beloved object; and on the other, continual returns of gratitude augment daily mutual affection, till the mind be incapable of any addition. If in any instance the event be different, it must be occasioned by a wrong application of the
patria potestas,
or by an extreme perverse disposition in the child. But was the
patria potestas
among the Romans established upon the plan of nature? Quite the contrary. It was the power of a tyrant over slaves. A man could put his children to death. He could sell them for a price; and if they obtained their liberty by good luck, or good behaviour, he could sell them a second, and a third time. These unnatural powers were perhaps not often put in exercise; but it is enough that they were lawful. This very circumstance is sufficient to produce severity in parents, and fear and diffidence in children. There is not like to be, in this case, much more harmony than in pure despotism betwixt the awful monarch and his trembling slaves. In short, the Roman
patriae potestas,
and the legal restraint proprietors were laid under, not to hurt their own children, serve to illustrate each other. There could be no universal cordiality where such restraints were necessary. We have reason beforehand to conjecture, that the
patria potestas
behoved to have some such effect; and we have reason to be pleased with our conjecture, when we find it justified by substantial facts.
PUTTING now an end to episodical amusements, we proceed with new vigour in our historical course. It was interrupted at that part, where, with a very few exceptions, the powers of a proprietor were extended, one should think, their utmost length. Every man had the full enjoyment of his own subject while it remained with him. He might dispose of it for a valuable consideration, without any restraint. He might do the same for love and favour; and his power reached even so far, as to direct what person or persons should have the enjoyment of it after his death. Would any moderate man covet more power over such of the goods of fortune as fall to his share? No moderate man, it is certain, will covet more. But the number is not small of those whose thirst after power is never to be quenched. They wish to combine their name, family, and estate in the strictest union, and, leaving nothing to the disposal of providence, they wish to prolong this union, if possible, to the end of time. Such ambitious views, ill suiting the frail condition of humanity, have produced entails in this island; and would have done so in old Rome, had such settlements been found consistent with the nature of property.
BEING arrived at entails in our historical course, it will be necessary to discuss a preliminary question, Whether and how far they are consistent with the nature of property? In order to answer this question, some principles of law must be premised. The first respects every subject capable of property, that the whole powers of property, whether united in one person, or distributed among a plurality, must subsist entire somewhere; and that none of them can be sunk or annihilated so as to be beneficial to no person. The reason will be obvious when we consider, that the goods of fortune are intended for the use of man; and that it is contrary to their nature to be withdrawn from use in whole or in part. A man, if he please, may abandon his subject; but then no will nor purpose of his can bar others, or prevent the right of the first occupant. No law, natural or municipal, gives such effect to the will of any man. Therefore if I shall divest myself of any moveable subject, bestowing it upon my friend, but declaring, that though he himself may enjoy the subject, he shall have no power of disposal, such a deed will not be effectual in law. If I am totally divested, he must be totally invested; and consequently must have the power of alienation. The same must hold in a disposition of land. If the granter reserve no right to himself, the entire property must be transferred to the disponee, however express the granter's will may be to confine the disponee's property within narrower bounds.
SECONDLY, Though none of the powers of property can be annihilated by will or consent, a proprietor however may, by will or consent, limit himself in the exercise of his property, for the benefit of others. Such limitations are effectual in law, and are at the same time perfectly consistent with absolute property. If a man be put in chains, or shut up in a dungeon, his property, in a legal sense, is as entire as ever; though at present he is deprived of the use or enjoyment of the subjects which belong to him. In like manner, a civil obligation may restrain a proprietor from the free use of his own subject: but such restraint limits not his right to the subject, more than restraint by walls or chains.
A THIRD principle will bring the present subject fully within view. A practice was derived from Greece to Rome, of adopting a son, when a man had not issue of his own body. This was done in a solemn manner before the
Calata Comitia,
who in Rome possessed the legislative authority. The adopted son had all the privileges of one born in lawful wedlock: he had the same interest in the family-estate, the same right to continue the father's possession, and to have the full enjoyment of the subject. A testament, when authorised by the law of the Twelve Tables, received its form from this practice. A testament was understood to be only a different form of adopting a son, which bestowed the same privilege of succeeding to the family-estate, after the testator's death, that belonged to the heir who was adopted in the more solemn manner in the
Calata Comitia.
A testament is in Britain a
donatio mortis causa;
an alienation to take effect after death; and the legatee does not succeed as heir, but takes as purchaser, in the same manner as if a formal donation were made in his favour, to have a present effect. In Rome, as just now hinted, a testament was of a different nature. It was not a conveyance of land or goods from one person to another; it entirely consisted in the nomination of an heir, who, in this character, enjoyed the testator's effects. The person named took the heritage as heir, not as purchaser. This explains a maxim in the Roman law, widely differing from our notions, That a man cannot die
pro parte testatus et pro parte intestatus;
and that if in a testament one be named heir, and limited to a particular subject, he notwithstanding is of necessity heir to the whole.
THE privilege of adoption was never known in Britain; nor have we any form of a writ similar to a Roman testament, which a man could use, if he were disposed to exclude his natural heir, and to name another in his place. Testaments we had early; but not in the form of a nomination of heirs. This writ is a species of alienation, whether we consider moveables, which is its sole province in Scotland, or land, to which in England it was extended by the above mentioned statute of Henry VIII. Therefore, by the common law of this land, there is no method for setting aside the natural heirs, otherways than by an alienation of the estate
inter vivos
or
mortis causa.
Nor in this case does the disponee take as heir; he takes as purchaser, and the natural heirs are not otherwise excluded, than by making the succession unprofitable to them. This may serve to explain a maxim in our old law, which, to those educated in the Roman notions, must appear obscure, if not unintelligible. The maxim is, That GOD only can make an heir, not man
Glanvil, L. 7. cap. 1. Reg. Maj. L. 2. cap. 20. § 4.
. The Roman testament laid a foundation for a distinction among heirs. They were either
heredes nati
or
heredes facti.
Our common law acknowledges no such distinction: no man can have the character of an heir but an heir of blood.
WE are now, I presume, sufficiently prepared to enter upon the intricate subject of entails. And to prevent the embarassment of too much matter on hand together, we shall first examine the power of substituting a series of heirs to each other, who are to take the heritage in their order, exclusive of the natural heirs; and then proceed to the limitations imposed upon heirs, which prevent alienation, whether direct, by disponing land, or indirect, by contracting debt. A maxim, which makes a figure in the Roman law, must not be forgot, in explaining the first point concerning the power of substitution. A Roman testator could name any person to be his heir, but he had not the power to name substitutes: for thus says the maxim, NO MAN CAN NAME AN HEIR TO SUCCEED TO HIS HEIR. The reason will appear when we reflect upon some particulars already explained. The heir, whether
natus
or
factus,
became unlimited proprietor so soon as the predecessor was dead. The inheritance was now his, and entirely at his disposal. If he chose to make a testament, the heir named by him took place of the heir named by his predecessor; and if he died
intestate,
the succession opened to his own natural heirs. For it is the will of the proprietor which must regulate his own succession; and not the will of any other, not even of a predecessor. This maxim then is not founded upon any peculiarity in the Roman law, but upon the very nature of property. While a subject is mine, it is entirely at my disposal; but after bestowing it upon another, without any reservation, my power is at end; and my will, though expressed while I was proprietor, cannot now have the effect to limit the power of the present proprietor
THE coins of a Roman emperor had scarce any currency after his death; and therefore the first act of power generally was to recoin the money of the former emperor
Walker's Grecian and Roman history, illustrated by medals, page 15.
. It was the present emperor's will only which could give authority to publick money, or to any other publick concern. This serves to illustrate the principle, That a man's will after his death cannot have the effect to regulate the conduct, or limit the property of the next successor; particularly, that it cannot have the effect to limit the successor with regard to the choice of his own heir.
. An heir named in a Roman testament, might, it is true, be subjected personally to whatever burdens or obligations the testator thought proper to impose upon him: but we ought not, in this matter, to lose sight of the difference betwixt a real burden or limitation and a personal obligation. A man, by his own consent, may restrain himself from the use of his property; but the full property nevertheless remains with him.
ONE exception to this rule was introduced from utility,
viz.
the pupillar substitution. A proprietor who had a son under age to succeed him as his heir, was impowered to name a substitute, who took the estate as heir to the son, in case the son died so early as to be himself incapable of making a testament. In all other cases, if a testator, after naming his heir, inclined to make a substitution, he had no other method, but to take the heir bound personally to make over the estate to the substitute. This form of a settlement is known by the name of
Fidei Commissum.
And after the substitute succeeded, by virtue of the
fidei commissary
clause, there was an end of the entail.
THE forgoing maxim, That no man can regulate the succession of his heir, holds in property only, not in inferior rights. If a proprietor grant a right burdening or limiting his property, and call to the succession a certain series of heirs, it is clear, that neither the grantee, nor any of the heirs named, who accept the right in these terms, have power, without consent of the granter, or his heirs, to alter the order of succession. In the practice even of the Roman law, where the foresaid maxim was inviolable, it was never doubted, that, in a perpetual lease, termed
Emphetensis,
or in any lease of long endurance, it is in the power of the granter to regulate the succession of the lessee. For the same reason, in our feudal rights, a perpetual succession of heirs established in the original grant, is consistent with the strictest principles of property. The order of succession cannot be altered without consent of the superior; for it would be a breach of agreement, to force upon him as vassal any person who is not called to the succession by the original grant. And thus in Britain it came to be an established practice, by means of the feudal system, not that a man singly can name an heir to his heir, but that, with consent of the superior, he can substitute heirs without end, to take the feudal subject successively one after another
ACCORDING to the original constitution of feudal holdings, a perpetual succession to these subjects was established on a foundation still more clear and indisputable. A feudal holding, while it was beneficiary and not patrimonial, admitted not, properly speaking, of a succession of heirs. When a vassal died the subject returned to the superior, who made a new grant in favour of the heir called to the succession in the original grant; and so on till all the heirs were exhausted to whom the succession was originally limited; after which the subject returned simply and absolutely to the superior. The title therefore of possession being a new grant from the superior, the persons called to the succession could not properly be considered as heirs but as purchasers.
.
THE persons thus called to the succession of the feudal subject, are in Scotland understood to be heirs, all of them, to the original grantee, whether they be of his blood or not. This way of thinking is borrowed from the Roman law, in which every person is esteemed an heir who is called by will to the succession. He is at least
heres factus,
according to their language, if not
heres natus.
In this we have deviated from our own common law, which acknowledges none to be an heir who is not of the predecessor's blood.
IN England different notions have obtained. The maxim, That GOD only can make an heir, not man, is not so strictly taken, as to exclude every person from the character of an heir, save the heir at law only. From the beginning nothing was more common in feudal grants, than to chuse a certain species of heirs, such as the male descendants of the original vassal, or the heirs of a marriage. These are heirs in the sense of the English law, though they may happen not to be the heirs who would succeed by law. Hence every person who is called to the succession under a general description, such as heirs of the granter's body, or male issue, or heirs of a marriage, or male issue of a marriage, is considered as an heir, in opposition to a stranger, notwithstanding such person may not be the heir at law. The true sense of the maxim appears then to be as follows,
viz.
That no person can have the character of an heir who is not of the blood of the original vassal: also that it is not sufficient to be of the blood, unless he be also called under some general description. Therefore, in England, when, in a deed of settlement of a land-estate, a stranger or any man is by name called to the succession, he is understood to be called as a conditional institute; precisely as if one grant were made to Sempronius and the heirs of his body, and another grant of the same subject to Titius and the heirs of his body, to take effect whenever the heirs of Sempronius should fail. Titius, in this case, is not called in the quality of an heir to Sempronius: he is, as well as Sempronius, an institute, or a disponee, with this only difference, that the right of Sempronius is pure, and that of Titius conditional. This conditional right is, in England, termed a Remainder; and as a remainder-man is not considered to be an heir, he is not liable to fulfil any of the debts or deeds of the first institute, or of his heirs; and when these heirs are exhausted, he takes, not by a service upon a brieve
quod diem clausit supremum,
but as purchaser, by authority of the original grant.
THUS it is, that the feudal law, by furnishing means for a perpetual succession of heirs, as in Scotland, or of heirs and remainder-men, as in England, hath fostered the ambitious views of men to preserve their names, families and possessions, in perpetual existence. The feudal system, as originally constituted, was qualified to fulfil such views in every particular. It not only paved the way for a perpetual succession, but secured the heirs by preventing dilapidation. And this leads naturally to the second point proposed to be handled with respect to entails,
viz.
The limitations imposed upon heirs to prevent aliening or contracting debt. This followed from the very nature of the feudal system; for the vassal's right, being a liferent or usufruct only, gave him no power of alienating the property which remained with the superior. The only unlucky circumstance for entails is, that during the vigour of the feudal law, constant wars and commotions, a perpetual hurry in attacking or defending, afforded very little time for indulging the foregoing ambitious views. In times only of peace, security and plenty, do men dream of distant futurity, and of perpetuating their estates in their families. The feudal law lost ground universally in times of peace. It was a violent and unnatural system, which could not be long supported in contradiction to love of independency and property, the most steady and industrious of all the human appetites. After a regular government was introduced in Britain, which made the arts of peace prevail, all men equally conspired to overthrow the feudal system. The vassal was willing to purchase independency with his money; and the superior, who had no longer occasion for military tenants, disposed of his land to better advantage. In this manner, land, which is the chief object of avarice, came again to be the chief subject of commerce: and that this was early the case in Britain, we have undoubted evidence from the famous statute,
Quia emptores terrarum,
above mentioned. By this time the strict principles of the feudal law were vanished, and scarce any thing left but the figure only. Land, now restored to commerce, was, generally speaking, in the hands of purchasers who had paid a valuable consideration; and consequently, instead of being beneficiary as formerly, was now become patrimonial. The property being thus transferred from the superior to the vassal, the vassal's power of alienation was a necessary consequence.
BUT men who had acquired great possessions, and who, in quiet times, found leisure to think of perpetuating their families, begun now to regret the never-ceasing flux of land-property from hand to hand; and, revolving the history of former times, to wish for that stability of land-property which the feudal law introduced, if it could be obtained without subjecting themselves to the slavish dependence of that law. In particular, when a grant of land was made to a family, conditioned to return to the granter and his heirs when the family was at an end, it was thought hard, that the vassal, contrary to the condition of his right, could sell the land, or dispose of it at his pleasure, as if he had been a purchaser for a full price. To fulfil the intention of those, who after this manner should make voluntary settlements of land, the English, after the fetters of the feudal law were gone, found that a statute was necessary; and to this end the statute
de donis conditionalibus
was made
13 Edw. I. cap. 1.
. It proceeds upon the recital, 1st, Of land given to a man and his wife, and their issue, conditionally, that if they die without issue, the land shall revert to the giver and his heirs. 2dly, Of land given in free marriage, which implies a condition, though not expressed, that if the husband and wife die without issue, the land shall revert to the giver or his heirs. And, 3dly, Of land given to a man and the heirs of his body, conditionally, that it shall, in like manner, revert, failing issue. It subsumes that, contrary to the conditions expressed or implied in such grants, the feofees had power to alien the land, to the disappointment not only of the heirs, as to their right of succession, but also of the donor, as to his right of reversion. Therefore it is enacted,
"That the will of the donor shall be from henceforth observed, so that the donees shall have no power to alien the land, but that it shall remain to the issue chosen in the deed, and when they fail, shall revert to the donor or his heirs."
And thus in England, a privilege was, by statute, bestowed upon proprietors of land, to establish perpetuities, by depriving the heirs of the power of aliening, which could not be done by the common law.
IN Scotland we had no statute authorising entails till the 1685, though before that time we had entails in plenty, many of which are still subsisting. It was the opinion of our lawyers; as it would appear, that by private authority an entail can be made so as to bar alienation. To this end, clauses prohibitory, irritant, and resolutive, were contrived, which were reckoned effectual to preserve an entailed subject to the heirs in their order, and to void every deed prejudicial to these heirs. Whether this be a just way of thinking I proceed to examine.
To preserve the subject-matter full in view, I take the liberty shortly to recapitulate what is said above on this point. While the feudal law was in vigour there was no occasion for prohibitory clauses: the vassal's right being usufructuary only, involved not the power of alienation, nor of contracting debt so as to be effectual against the heir of the investiture. But the feudal law is in England quite extirpated; nor doth it subsist in Scotland except merely as to the form of our title-deeds. Land with us has for several ages been considered as patrimonial. A vassal has long enjoyed the power of contracting debt, and even of aliening
mortis causa.
To restrain him therefore in any degree from the exercise of his property, can only be effectuated one of two ways; it must be either by statute or by consent. The former requires no discussion. It is evident, that the restraints imposed by statute, of whatever nature, must be effectual; because every deed done in contempt of the law, is voidable, if not null and void. The latter requires a more particular examination, before we can form an accurate judgment of its effects. For the sake of perspicuity, we shall adapt our reasoning to an entail made in the common form, with a long series of heirs, guarded only with a prohibitory clause, directed against every one of the heirs of entail, in order to restrain them from aliening and from contracting debt. It is plain, that every single heir, who accepts the succession, is bound by this prohibition, so far as he can be bound by his own consent. His very acceptance of the deed, vouched by his serving heir and taking possession, subjects him, in common justice, to the prohibition; for no man is permitted to take benefit of a deed without fulfilling the provisions and burdens imposed on him in the deed. Admitting then, that the heir is bound by his acceptance, let us enquire, whether this consent be effectual to fulfil the purposes of the entail. He sells the estate notwithstanding the prohibition; will not the purchaser be secure, leaving to the heirs of entail an action against the vender for damages? This has been doubted, for the following reason, That a purchaser who buys from an heir of entail, in whom it is a breach of duty to sell, concurs thereby with his author in doing what is unjust. But this argument applies not against a
bona fide
purchaser ignorant of the restraint; and therefore he must be secure. Or, to put yet a simpler case, let us suppose the estate is adjudged for payment of debt. It is necessity and not choice that makes a creditor proceed to legal execution; and even supposing him to be in the knowledge of the restraint, there can be no injustice in his taking the benefit of the law to make his claim effectual. Hence it is plain, that a prohibition cannot alone have the effect to secure the estate against the debts and deeds of the tenant in tail.
To supply this defect, lawyers have invented a resolutive or irritant clause, which is calculated to void the right of a tenant in tail, who, contrary to a prohibition, aliens or contracts debt. That a resolutive or forfeiting clause cannot have the same effect with a legal forfeiture, is even at first view evident. A forfeiture is one of the punishments introduced for repressing certain heinous crimes; and it is inconsistent with the nature of the thing, that a person should be punished who is not a criminal. An alienation by a tenant in tail, in opposition to the will of the entailer, is no doubt a wrong: but then it is only a civil wrong inferring damages, and not a delinquency to infer any sort of punishment; far less a punishment of the severest kind, which at any rate cannot be inflicted but by authority of a statute. If now a resolutive clause cannot have any effect as a punishment, its effect, if any, must depend upon the consent of the tenant in tail, who accepts the deed of entail under the conditions and provisions contained in it. Such implied consent, taken in its utmost latitude, cannot be more binding than an express consent signified by the heir in writing, binding himself to abandon his right to the land, upon the first act of transgression, or of contravention, as we call it, whether by aliening or contracting debt. This device to secure an entailed subject, though it hath exhausted the whole invention of our lawyers, is however singularly unlucky, seeing it cannot be clothed in such words, as to hide, or even obscure, a palpable defect. The consent here is obviously conditional,
"I shall abandon if I transgress or contraveen any of the prohibitions."
Therefore, from the very nature of the thing, there can be no abandon till there first be an act of contravention. This is not less clear than that the crime must precede the punishment. Where then is the security that arises from a resolutive clause? A tenant in tail agrees to sell by the lump: a disposition is made out—nothing wanting but the subscription: the disponer takes a pen in his hand, and begins to write his name. During this act there is no abandon nor forfeiture, because as yet there is no alienation. Let it be so, that the forfeiture takes place upon the last stroke of the pen; but then the alienation is also compleated by the same stroke; and the land is gone past redemption. The defect is still more palpable, if possible, in the case of contracting debt. No man can subsist without contracting debt more or less; and no lawyer has been found so chimerical as to assert, that the contracting debt singly will produce a forfeiture. All agree, that the debtor's right is forfeited no sooner than when the debt is secured upon the land by an adjudication. But what avails the forfeiture after the debt is made real and secured upon the land? In a word, before the adjudication be compleated there can be no forfeiture, and after it is compleated, the forfeiture comes too late.
BUT this imperfection of a resolutive clause, though clear and certain, needed scarce to have been mentioned, because it will make no figure in comparison with another, which I now proceed to unfold. Let us suppose, contrary to the nature of things, that the forfeiture could precede the crime; or let us suppose the very simplest case, that a tenant in tail consents to abandon his right without any condition; what will follow? It is a rule in law, which never has been called in question, That consent alone without delivery cannot transfer property. Nay, it is universally admitted, that consent alone cannot even have the effect to divest the consenter of his property till another be invested; or, which comes to the same, that one infeftment cannot be taken away but by another. If so, what avails a resolutive clause more than one that is simply prohibitory? Suppose the consent to abandon, which at first was conditional, is now purified by an act of contravention; the tenant in tail is indeed laid open to have his right voided, and the land taken from him: but still he remains proprietor, and his infeftment stands good till the next heir be infeft; or at least till the next heir obtain a decree declaring the forfeiture. Before such process be commenced, every debt contracted by the tenant in tail, and every disposition granted by him, must be effectual, being deeds of a man, who, at the time of executing, was proprietor. In fine, a consent to abandon, supposing it purified, can in no view have a stronger effect, than a contract of sale executed by a proprietor who is under no limitation. All the world knows, that this will not bar him from selling the land a second time to a different person, who getting the first infeftment will be secure; leaving no remedy to the first purchaser, but an action of damages against the vender. In like manner, a tenant in tail, after transgressing every prohibition contained in the entail, and after all the irritancies have taken place, continues still proprietor, until a decree declaring the irritancy be obtained; and such being the case, it follows of necessary consequence, that every debt contracted by him, and every deed done by him, while there is yet no declarator, must be effectual against the entailed estate.
I am aware, that in the decision, 26th February 1662, Viscount of Stormant
contra
heirs of line and creditors of the Earl of Annandale, prohibitory and resolutive clauses ingrossed in the infeftment were sustained, as being equivalent to an interdiction; every man being presumed to know the condition of the person with whom he deals. But it appears probable, that this judgment was obtained by a prevailing attachment to entails, which, at that time, had the grace of novelty, and were not seen in their proper light. There is certainly no ground for bestowing the force of an interdiction upon prohibitory and resolutive clauses in an entail. An interdiction is a writ of the common law, prohibiting the proprietor to sell without consent of his interdictors, and prohibiting every person to deal with him without such consent. It is notified to all and sundry by a solemn act of publication, which puts every person in
mala fide
to deal with a proprietor who is interdicted; and it is a contempt of legal authority to transgress the prohibition. Prohibitory and resolutive clauses in an entail, being provisions in a private deed, have no authority except against the heir who consents to them; because none except the heir are supposed to know, or bound to know them: and therefore, such clauses notwithstanding, every person is in
optima fide
to deal with the tenant in tail. In order to supply the want of publication, if it be urged, that every man is presumed to be acquainted with the circumstances of those with whom he contracts, I deny there is any such legal presumption. In fact, nothing is more common than to execute a contract of sale, without seeing any of the title-deeds of the subject purchased; and a discovery afterwards of the entail will not oblige the purchaser to relinquish a profitable bargain. At any rate the contract of sale must operate to him, if not a performance of the bargain, at least a claim of damages against the vender, either of which destroys the entail. What if the creditors of the tenant in tail, or perhaps of the entailer, have arrested the price in the hands of the purchaser? He cannot thereafter hurt the arresters by passing from the contract of sale. Let us put another case, That entailed lands, after being sold, and the purchaser infeft, have again been purchased from him; and we may suppose a chain of such purchasers deriving right each from the one that goes before him. It surely will not be affirmed, that the last purchaser, in possession of the land, must be presumed to know that the land was derived from a tenant in tail. This would be stretching a presumption very far. But I need not go farther than the contracting of debt, to show the weakness of the argument from presumed knowledge. Persons without their consent become creditors every day, who furnish goods or work for ready money, and yet obtain not payment; sometimes against their will, as when a claim of damages is founded upon a wrong done. When one becomes cautioner for his friend, it is not usual to consult title-deeds. In short, so little foundation is there for this presumption of knowledge, that the act 24. p. 1695, made for the relief of those who contract with heirs apparent, is founded upon the direct opposite presumption.
SOME eminent lawyers, aware of the foregoing difficulties, have endeavoured to support entails, by conceiving a tenant in tail to be, in effect, but a liferenter, precisely as of old when the feudal law was in vigour. What it is that operates this limitation of right, they do not say. Nor do they say upon what authority their opinion is founded: not surely upon any entail that ever was made. If the full property be in the entailer, it must be equally so in every heir of entail who represents him; because, such as he has it, it is conveyed to the heirs of entail whole and undivided, without reserving any share to himself or a separate set of heirs. But the very form of an entail is sufficient to confute this opinion: for why so many anxious prohibitory and irritant clauses, if a tenant in tail were restrained from aliening by the limited nature of his right. Fetters are very proper where one can do mischief; but they make a most ridiculous figure upon the weak and timorous, incapable of doing the least harm.
WHAT is said upon this head may be contracted within narrower bounds. It resolves into a proposition, vouched by our lawyers, and admitted by our judges in all their reasonings upon the subject of entails,
viz.
That a resolutive clause when incurred, doth not
ipso facto
forfeit the tenant in tail, but only makes his right voidable, by subjecting him to a declarator of forfeiture; and that there is no forfeiture till a decree of declarator be obtained. Such being the established doctrine with respect to irritant clauses, I never can cease wondering, to find it a general opinion, that an entail with such clauses is effectual by the common law. For what proposition can be more clear than the following, That so long as a man remains proprietor, his debts must be effectual against his land as well as against himself? What comparison can be more accurate, than betwixt a tenant in tail who has incurred an irritancy, and a feuar who has neglected to pay his feuduties for two years? Both of them are subjected to a declarator of irritancy, and both of them will be forfeited by a decree of declarator. But an adjudication upon the feuar's debt, before commencing the declarator, will be effectual upon the land. This was never doubted; and there is as little reason to doubt, that an adjudication upon the debt of a tenant in tail, must, in the same circumstances, be equally effectual. If there be a difference, it favours the latter, who cannot be stript of his right till it be acquired by another; whereas a bare extinction of the feuar's right is sufficient to the superior. I cannot account for an opinion void of all foundation, otherwise than from the weight of authority. Finding entails current in England, we were, by the force of imitation, led to think, they might be equally effectual here; being ignorant, or not adverting, that in England, their whole efficacy was derived from statute.
I shall conclude this tract with a brief reflection upon the whole. While the world was rude and illiterate, the relation of property was faint and obscure. This relation was gradually evolved, and, in its growth towards maturity, accompanied the growing sagacity of mankind, till it became vigorous and authoritative, as we find it at present. Men are fond of power, especially over what they call their own; and all men conspired to make the powers of property as extensive as possible. Many centuries have passed since property was carried its utmost length. No moderate man can desire more than to have the free disposal of his goods during his lise, and to name the persons who shall enjoy them after his death. Old Rome as well as Greece acknowledged these powers to be inherent in property; and these powers are sufficient for all the purposes to which the goods of fortune can be subservient. They fully answer the purposes of commerce; and they fully answer the purposes of benevolence. But the passions of men are not to be confined within the bounds of reason: we thirst after opulence, and are not satisfied with the full enjoyment of the goods of fortune, unless it be also in our power to give them a perpetual existence, and to preserve them for ever to ourselves, and our families. This purpose, we are conscious, cannot be fully accomplished; but we approach to it as near as we can, by the aid of imagination. The man who has amassed great wealth, cannot think of quiting his hold, and yet, alas! he must die and leave the enjoyment to others. To colour a dismal prospect, he makes a deed arresting fleeting property, securing his estate to himself, and to those who represent him, in an endless train of succession. His estate and his heirs must for ever bear his name; every thing to perpetuate his memory and his wealth. How unfit for the frail condition of mortals, are such swoln conceptions? The feudal system unluckily suggested a hint for gratifying this irrational appetite. Entails in England, authorised by statute, spread every where with great rapidity, till becoming a publick nusance, they were checked and defeated by the authority of judges without a statute. It was a wonderful blindness in our legislature, to encourage entails by a statute, at a time when the publick interest required a statute against those which had already been imposed upon us. A great proportion of our land is already, by authority of the statute 1685, exempted from commerce. To this dead stock portions of land are daily added by new entails; and if the British legislature interpose not, the time in which the whole will be locked up is not far distant. How pernicious this event must prove, need not be explained. Land-property, naturally one of the great blessings of life, is thus converted into a curse. That entails are subversive of industry and commerce, is not the worst that justly can be said of them; they appear in a still more disagreeable light, when viewed with relation to those more immediately affected. A snare they are to the thoughtless proprietor, who, even by a single act, may be entangled past hope of relief; to the cautious again they are a perpetual source of discontent, by subverting that liberty and independency, to which all men aspire, with respect to their possessions as well as their persons.
TRACT IV.
HISTORY OF SECURITIES upon LAND for payment of debt.
THE multiplied connections among individuals in society, and their various transactions, have bestowed a privilege upon land-property, not only of being transferred from hand to hand whole and entire, but of being split into parts, and being distributed among many. Land is the great object of commerce, and it is useful not only by its product, but by affording the highest security that can be given for payment of debt. Thus the property of land is split, betwixt the superior and vassal, betwixt the debtor and creditor, and betwixt one having a perpetual and one a temporary right.
IN Scotland we distinguish, and not without reason, rights affecting land into two kinds,
viz.
Property, and a right burdening or limiting property. Property, in its nature unbounded, cannot otherwise be bounded, but by rights burdening or narrowing it; and it is restored to its original unbounded state so soon as the burdening right is extinguished: but a burdening right, being in its nature bounded, becomes not more extensive by the extinction of other rights affecting the same subject. The English, without distinguishing betwixt property and other rights, conceive every right affecting land, the most extensive and the most limited, to be an estate in the land. A fee-simple, a fee-tail, a life-rent, a rent-charge, a lease for life, pass all equally under the denomination of an estate. And in this sense it is very consistent, that different persons may, at the same time, possess estates in the same land.
THE spliting land-property into so many parts, favourable indeed to commerce, makes law intricate, and purchases unsecure: but these inconveniencies are unavoidable in a commercial country. Land is not divisible indefinitely; for the possession of a smaller quantity than what occupies a plow, or a spade, is of no use: and he who possesses the smallest profitable share, may be engaged in transactions and connections, not fewer nor less various than he is who possesses a large territory. It may be his will to make a settlement, containing remainders, reversions, rent-charges, &c.; and it is the province of municipal law, to make effectual, as far as utility will admit, private deeds and conventions of every sort. This is so evident, that wherever we read of great simplicity in the manner of transmitting land-property, we may assuredly pronounce, that the people are not far advanced in the arts of life.
THE foregoing cursory view of land-rights, and of their divisibility, if I may be indulged the expression, lead to the subject proposed to be handled in this essay. The Romans had two forms of a right upon land for security of money. The one, distinguished by the name of
Antichresis,
resembles the English mortgage, and our wadset; the creditor being introduced into possession to levy the rents for extinguishing the sum that is due him. The other, termed a
Hypothec,
is barely a security for money, without power to levy the rents for payment. As to the former, whether any solemnity was requisite to compleat the right, I cannot say, because this sort of security is but slightly mentioned in Justinian's compilations: neither is it told us whether any form was requisite to compleat the latter. One thing seems evident with respect to a right which entitles not the creditor to possess, that an act of possession, whether real or symbolical, cannot be required as a solemnity. But as it is difficult to conceive, that a right can be established upon land by consent alone, without some ouvert act, therefore in Holland there is required to the constitution of a hypothec upon land or houses, the presence of a judge
Voet, Tit. de Pignor. et Hypoth. § 9 and 10.
. And in Friesland, to compleat a general hypothec, so as to give it preference, registration is necessary
ib. § 10.
.
BY the Roman law, to make a hypothec effectual, when payment could not be obtained from the debtor, the creditor was impowered to expose the land to sale after repeated denounciations. He needed not the authority of a judge; and as he himself was the vender, he sor that reason could not be also the purchaser. But Voet
Tit de destruct. pignor. § 3.
observes, that in Holland the authority of a judge being necessary, and the judge being the vender, the creditor may be the purchaser.
IT appears to have been of old, both in England and Scotland, a lawful practice, to force payment of debt, by taking, at short hand from the debtor, a pledge, which was detained by the creditor, till the debtor repledged the same, by paying the debt, or finding security for the payment. This rough practice was in England prohibited by the statute 52d Henry III. cap. 1. enacting,
"That no man take a distress of his neighbour without award of court."
In Scotland it was restrained by several statutes. In the first statutes Robert I. cap. 7. it is enacted,
"That in time coming no man take a poynd for debt within another man's land, unless the King's baillie, or the baillie of the ground be present."
And in the statutes of David II. cap. 6. '
"That if a man dwelling in one shire desire to take a poynd in another shire, it must be done in presence of the sheriff or his depute."
Again, in the statutes of Robert III. cap. 12. it is enacted in general,
"That no man shall take a poynd without the King's officers, or the Lord's officers of the land, unless within his own land, for his farms or proper debts."
See to the same purpose, Reg. Maj. L. 4. cap. 22.
BUT these regulations did not extend to poinding within a royal borough. For though a burgess might not poind a brother burgess without licence from the provost
Leg. Burg. cap. 4.
, yet from a stranger found within the borough he might take a poind or pledge at short hand
Cap. 34 and 58.
; and the stranger behoved to repledge in common form, by finding a surety for the debt
Cap. 35 and 37.
. This, by the way, is plainly the foundation of the privilege which burgesses enjoy at this day,
viz.
arresting strangers for debts contracted within the borough.
NEITHER did these regulations extend to rents or feu-duties, for which, in England, the landlord may to this day distrain at short hand. And in this part of the island, as a proprietor might poind at short hand for his house-mail
Leg. Burg. cap. 57.
, and for his rents in the country
First Stat. Rob. I. cap. 7.
, so this privilege is expresly reserved to him in the above mentioned statute of Robert III. This privilege of the landlord may be traced down to the present time; with some restrictions, it is true, introduced by change of manners. Craig observes
L. 1. Dieg. 10. § 38. in fine.
, That the landlord for three terms rent can poind by his private authority; and
L. 2. Dieg. 7. § 26.
that for the price of the seisin ox, which the vassal pays for his entry, the superior may distrain without process. Nor at present is the landlord or superior subjected to the ordinary solemnities. It is required indeed, that the arrears be constituted by a decree in his own court, which has been introduced in imitation of poinding other debts; but after constituting the arrears by a decree, he may proceed directly to poind without giving a charge
Act. 4. p. 1669.
.
NOR is it difficult to discover the foundation of this privilege. It will appear in a clear light by tracing the history of leases in this island. Lands originally were occupied by bond-men, who themselves were the property of the landlord, and consequently were not capable to hold any property of their own: but such persons, who had no interest to be industrious, and who were under no compulsion, when not under the eye of their master, were generally lazy, and always careless. This made it eligible to have a free man to manage the farm; who probably at first got some acres set apart to him for his maintenance and wages. But this not being a sufficient spur to industry, it was found a salutary measure to assume this man as a partner, by communicating to him a proportion of the product in place of wages; by which he came to manage for his own interest as well as that of his master. The next step had still a better effect, entitling the master to a yearly quantity certain, and the overplus to remain with the servant
SERVIS, non in nostrum morem, descriptis per familiam ministeriis, utuntur. Suam quisque sedem, suos paenates regit. Frumenti modum dominus, aut pecoris, aut vestis, ut colono injungit
Tacitus de moribus Germanorum.
.
. By this contract, the benefit of the servant's industry accrued wholly to himself; and his indolence or ignorance hurt himself alone. One farther step was necessary, to bring this contract to its due perfection, which is, to give the servant a lease for years, without which he is not secure that his industry will turn to his own profit. By a contract in these terms he acquired the name of
Tenant;
because he was entitled to hold the possession for years certain. According to this deduction, which is supported by the nature of the thing, the tenant had only a claim by virtue of the contract, for that part of the product he was entitled to. He had no real lien to found upon in opposition to his landlord's property. The whole fruits as
pars soli
belonged to the landlord, while growing upon the ground; and the act of separating them from the ground, could not transfer the property from him to his tenant: neither could payment of the rent transfer the property of the remaining fruits, without actual delivery. It is true, the tenant, impowered by the contract, could lawfully apply this remainder to his own use: but still while upon the ground, it was the landlord's property; and for that reason, as we shall see afterwards, lay open to be attached for payment of the landlord's debts.
MATTERS, it is true, were greatly altered by the act 18. p. 1449, making the tenant secure against a purchaser of the land. This statute was understood to give the lessee a real lien upon the land, or to make a lease, when compleated by possession, a real right, as we term it in Scotland; for a lease, considered as a covenant merely, can only be effectual betwixt the contracters. The real right thus established in the tenant, behoved to regulate the property of the fruits. The maxim,
Quod satum cedit solo,
which formerly gave the property to the landlord, was thought to apply now in favour of the tenant; and thus, after the rent was paid, the remaining fruits came to be considered as the tenant's property. The landlord's property however, continued inviolable, so far as his rent extended. To this limited effect he was held proprietor, just as much as before the statute was made: and therefore there was nothing singular in allowing him to levy his rents by his own authority, whether from his tenants or from his feuars, who differ not from tenants but in the perpetuity of their leases. It was no more than what follows from the very nature of property; for no man needs the authority of a judge to lay hold of his own goods. There could not be a scruple about this privilege, while rents were paid in kind; and landlords, authorised by custom, proceeded in the same train when money-rent was introduced, without adverting to the difference: but after the landlord's rent was paid, it soon came to be reckoned an intolerable grievance, and indeed gross injustice, that the landlord's creditor should be admitted to poind the remainder, which was in reality the tenant's property; and the statute had so quick an operation, that a remedy was provided, at least as to personal debt, by the act 36. p. 1469, restricting poindings for such debts, to the extent of the arrears due by the tenant, and to the current term. With regard to debts secured upon the land, the legislature did not interpose; for it was judged, that the creditor who had a real lien upon the land, had the same title to the fruits for payment of his interest, that the landlord had for payment of his rent. It was not adverted to, that a creditor is not bound to take possession of the land for his payment; that the landlord is entitled to levy the rent if the creditor forbear; and that it is unjust to oblige the tenant to pay the same rent twice. But what was neglected or avoided by the legislature, was provided for by custom; justice, in this matter, prevailing over ancient usage. And now, tenants are by practice secure against poinding for real debts, as well as they are by statute against poinding for personal debts. In England it appears, that, to this day, the creditor in a rent-charge may levy a distress to the extent of what is due to him, without confining the distress to the rent due by the tenant
See 2d Will. and Mary, cap. 5.
. And indeed this is necessary in England where it is not the practice to take the land itself in execution. But of this afterwards.
IT was necessary to explain at large the privilege which landlords have at common law to force payment of their rents; because it is a fundamental doctrine with relation to the present subject. I shall now proceed to consider the case of a creditor who hath obtained a security upon land for debt due to him. Lord Stair
Institut. page 268.
observes, that the English distinguish rent, in rent-service, rent-charge, and rent-seck. Rent-service is that which is due by the
reddendo
of a charter of land, such as a feu or blench-duty. Rent-charge is that which is constituted by the landlord in favour of a creditor, containing a clause of distress, impowering the creditor to distrain the land at short hand for payment of the debt
New abridgement of the law, Tit. (Annuity and rent-charge.)
. A deed of the same nature without a clause of distress is termed rent-seck.
A rent-charge must be compleated by the writing alone without possession; because the creditor, until he have a claim for interest, cannot lawfully take possession, or levy rent. And it is evident, that possession cannot be necessary to establish a right upon land, when such right admits not of possession. A rent-seck is in a different case, as may appear from the following considerations. The tenants are not personally liable to the creditor; and the deed, which contains no clause of distress, affords no title to take a pledge from them. If therefore they be unwilling to pay their rents to the creditor, he has no remedy but a personal action against the granter of the deed. A tenant, it is true, acknowledging a rent-seck, by delivering but a single penny in part payment, puts the creditor in possession of levying rent; after which, if the tenant refuse to pay, it is construed a disseisin, to entitle the creditor to an assize of nouvel disseisin
Jacob's law dictionary, Tit. (Rent.)
. But before seisin or possession so had by the creditor, I see not that in any sense the rent-seck can be construed a real right. A hypothec is a real right, because the creditor can sell the land if the debtor fail to make payment. A rent-charge is a real right, because the creditor can levy rent when his term of payment comes. But no right can be conceived to be real, or a branch of property, which gives the creditor no power whatever over the land. And upon this account, if the land be sold before a creditor in a rent-seck is acknowledged by the tenants, the purchaser, I presume, will be preferred.
I have just now hinted at the means for recovering payment, afforded by law to the creditor in a rent-seck. The creditor in a rent-charge, standing on the same footing with the landlord, hath a much easier method. Where the rent payable to the landlord is a certain quantity of the fruits of the ground, the creditor lays hold of the rent at short hand, which concludes the process with respect to the tenant. The operation is not altogether so simple in the case of money-rent. The creditor, in this case, lays hold of any goods upon the land, corn or cattle, considered as the landlord's property: but then, as the goods distrained belong in reality to the tenant, free of all embargo so soon as the rent is paid, the tenant, for that reason, is entitled to repledge the same, or to demand restitution, upon making payment of the rent, or giving security for it. The creditor in distraining thus, for obtaining payment, has not occasion for a decree, nor is it even necessary that he distrain in presence of an officer of the law. But this form, though easy in one respect, with regard to the creditor as well as the landlord, is not however effectual to draw payment, unless the tenant concur by repledging and substituting security in place of the goods. If the tenant be unable to find a surety, or perverse enough to neglect his interest, there was no remedy till the 2d of William and Mary, cap. 5. by which it is enacted,
"That in case the tenant or owner of the goods, do not within five days replevy the same, with sufficient security for the rent, the creditor shall have liberty to sell for payment of the rent."
Thus the form of distraining upon a rent-charge was made compleat: but a rent-seck remained a very precarious security, for the reasons above mentioned, till the 4th Geo. II. cap. 28. by which it is enacted,
"That the like remedy by distress, and by impoinding and selling the goods, shall be in the case of rent-seck, that is provided in the case of rent reserved upon lease."
THAT a power to sell the goods distrained, so necessary to make rent effectual, should not have been introduced more early, must appear surprising. But it is remarkable, that the English are greatly addicted to old usages. Another thing is not less surprising in this form of execution, for which no remedy is provided, that it is indulged to be followed out by private authority, when in all other civilized countries, execution is not trusted to any but the officers of the law.
I have another observation to make upon this subject, That in the infancy of government, shorter methods are indulged to come at right, than afterwards when under a government long settled, the obstinacy and ferocity of man are subdued, and ready obedience is paid to established laws and customs. By the Roman law, a creditor could sell his pledge at short hand. With us of old a creditor could even take a pledge at short hand; and which was worse than either, it was lawful for a man to take revenge at his own hand for injuries done him
See Tract I.
. None of these things, it is presumed, are permitted at present in any civilized country, England excepted, where the ancient privilege of forcing payment at shorthand, competent to the landlord and to the creditor by a rent-charge, is still in force.
AND now to come to our own securities upon land for payment of debt, we find, in the first place, That originally our law was the same with that of England, as to the form of making rent-services effectual,
viz.
taking a distress at short hand, to be repledged by the tenant upon finding security for the arrears. We have regulations laid down as to the method of taking a distress,
viz.
that the goods must remain in the same barony till they be repledged, or at least in the next adjacent barony, and within the same sheriffdom, but not in castles or fortalices
First Stat. Rob. I. cap. 7.
; regulations which obviously are borrowed from 52d Henry III. cap. 4. In the next place, when we consider that the system of our laws and government is fundamentally the same with that of England, and that nothing is more natural than to adopt the manners and customs of a more potent nation in closs neighbourhood, it is a supposition extremely probable, That a rent-charge was in practice with us as well as with the English. Luckily we have direct evidence of the fact. Several of these securities are preserved to this day; though they are long out of use, having given place to what is called an infeftment of annualrent, which is a land-security established in the feudal form. Copies of two rent-charges are annexed
No . 2.
; one by Simon Lockhart of Lee, by which, for a certain sum delivered to him,
"he grants and sells to William de Lindsay rector of the church of Ayr, ten pound Sterling yearly rent, to be taken out of the lands of Caitland and Lee; binding himself and his heirs to pay the said annuity at two terms in the year, Pentecost and Martinmas; and binding the above lands of Caitland and Lee, with all the goods and chattels upon the same to a distress, at the instance of the said William Lindsay, his heirs and assignees, in case he (the granter) and his heirs shall fail in payment."
This bond is dated in the year 1323. The other is a bond of borrowed money for
L.
40, dated
anno
1418, by James Douglas Lord Baveny, to Sir Robert Erskine Lord of that Ilk, in which the debtor becomes bound,
"That all the lands and barony of Sawlyn shall remain with the creditor, with all freedoms, eases, and commodities, courts, plaints, and escheats, till he the creditor, his heirs, executors, and assignees, be fully paid of the said sum. And failing payment out of the said lands of Sawlyn, the debtor obliges and binds all his lands of the lordship of Dunsyre, to be distrained as well as the lands of Sawlyn, at the will of the creditor, his heirs or assignees, till they be paid of the fore-mentioned sum; in the same manner that he or they might distrain their proper lands for their own rents, without the authority of any judge, civil or ecclesiastical."
THE bond last mentioned is an instance the more happy, as it affords irrefragable evidence, that a rent-charge in this country, was, in all respects, the same as in England; and particularly, that the creditor enjoyed that singular privilege of the landlord, to distrain at short hand without the authority of a judge. It serves at the same time to explain the regulations of Robert I. and of Robert III. about poinding, which, from analogy of the law of England, and from the positive evidence of this deed, must appear now to relate to personal debts only, and by no means to rent-charges more than to rent-services
A clause burdening a disposition of land with a sum to a third party, is, in our practice, made effectual by poinding the ground. A right thus established strongly resembles a rent-charge. The power which in this case the creditor hath to poind the ground, can have no other foundation to rest on, than a clause of distress, which is exprest in a rent-charge, and is implied in the right we are speaking of.
.
WHETHER our law be improved by substituting an infeftment of annualrent in place of a rent-charge may be doubted. I propose to handle this subject at leisure, because it is curious. While land was held as a proper benefice for services performed to a superior, the whole forms relating to such a grant, and the whole casualties due to the superior, were agreeable to the nature of the tenure: but when land returned to be a subject of commerce, and, like moveables, to be exchanged for money, forms and casualties, which were the result of the feudal connection betwixt the superior and vassal, could regularly have no place in these new transactions, with which they were inconsistent in every respect. When a man makes a purchase of land and pays a sull price, the purpose of the bargain is, That he shall have the unlimited property, without being subjected in any manner to the vender: and yet such is the force of custom, that titles behoved to be made up in the feudal form, because no other titles to land were in use. And thus the purchaser, contrary to the nature of the transaction, was metamorphosed into a vassal, and of consequence subjected to homage, fealty, non-entry, liferent escheat, &c. upon account of that very land which he purchased with his own money. Such an inconsistency, it is true, could not long subsist; and form by degrees yielded to substance. When land came universally to be patrimonial, and no longer beneficiary, the forms of the feudal law indeed remained, but the substance wore out gradually. This change produced blench duties, an elusory sum for non-entry in place of the full rents, collateral succession without limitation; and failing heirs, the King, and not the superior, as last heir: which regulations, with many others upon the same plan, are wide deviations from any tenure, that, in a proper sense, can be termed beneficiary. When the substantial part of the feudal law has thus vanished, it is to be regreted that we should still lie under the oppression of its forms, which occasion great trouble and expence in the transmission of land-property.
OUR forefathers, however, in adhering to the feudal forms after the substance was gone, merit less censure than at first sight may appear just from the foregoing deduction. So many different persons were connected with the same portion of land, stages of superiors being commonly interjected betwixt the vassal in possession and the crown, that, in most instances, it would have been difficult to throw off the feudal holding, and to make the right purely allodial. This affords a sufficient excuse for not attempting early to withdraw land from under feudal titles. And when time discovered that the feudal forms could be squeezed and moulded into a new shape, so as to correspond in some measure with a patrimonial estate, it is not wonderful that our forefathers acquiesced in the forms that were in use, improper as they were.
BUT it will be a harder task to justify our forefathers for deserting the established form of a rent-charge, and for substituting in place of it an infeftment of annualrent, than which nothing in my apprehension can be more absurd. For here a man, who hath no other intention but to obtain a real security for his money, is transformed, by a sort of hocus-pocus trick, into a servant or vassal, either of his debtor or of his debtor's superior. And to prevent a mistake, as if this were for the sake of form only, I must observe, that the creditor is even held to be a military vassal, bound to serve his superior in war; if the contrary be not specified in the bond
Stair, page 263.
. The superior again, after the creditor's death, was entitled to the nonentry duties, and it required an act of parliament
Act 42. p. 1692.
to correct this glaring absurdity. It must be confest to be somewhat ludicrous, that the heir of a creditor, acting, for form's sake only, the part of a vassal, and, by the nature of his right, bound neither for service nor duty to his imaginary superior, should yet be punished with the loss of the interest of his money for neglecting to enter heir, which might be hurtful to himself, but could not in any measure hurt his debtor acting the part of a superior. In a word, it is impossible to conceive any form less consistent with the nature and substance of the deed to which it relates, than an infeftment of annualrent is. The wonder is, how it ever came to be introduced, in opposition to the more perfect form of a rent-charge. I can discover no other cause but one, which hath an arbitrary sway in law, as well as in more trivial matters, and that is the prevalency of fashion and opinion. We had long been accustomed to the feudal law, and to consider a feudal tenure as the only compleat title to land. No man thought himself secure with a title of any other sort. Jurisdictions and offices behoved to be brought under a feudal tenure; and even creditors, influenced by the authority of fashion, were not satisfied till they got their securities in the same form.
AND this leads me to another absurdity in the constitution of an annualrent-right, less conspicuous indeed than that above mentioned; and that is the order or precept to introduce the creditor directly into possession: though, by the nature of his right, and by express paction, he is not entitled to take possession, or to levy rent, till the first term's interest become due. Seisin, it is true, is but a symbolical possession; but then, as symbolical possession was invented to save the trouble of apprehending possession really, it is improper, nay, it is absurd, to give symbolical possession before the person be entitled to possess. A seisin indeed will be proper after interest becomes due: but a seisin at that time is unnecessary; because the creditor can enter really into possession by levying rent; and surely real possession can never be less compleat than symbolical possession.
IT tends not to reconcile us to an infeftment of annualrent, that, considered as a commercial subject, it is not less brittle than unwieldy. In its transmission as well as establishment, it is attended with all the expence and trouble of land-property, without being possessed of any advantage of land-property. It is extinguished by levying rent, by receiving payment from the debtor, and even by a voluntary discharge. In short, a personal bond is not extinguished with less ceremony. This circumstance unqualifies it for commerce; for there is no safety in laying out money to purchase it. Nor does the symbolical possession by a seisin give it any advantage over a rent-charge. The seisin does not publish the security: registration is necessary; and a rent-charge, which requires not infeftment, is as easily recorded as a security established by infeftment.
TO compleat this subject, it is necessary to take a view of the execution that proceeds upon an infeftment of annualrent; and comparing it with the ancient form of execution upon a rent-charge, to remark where they agree, and where they differ. In the first place, The creditor in a rentcharge could not bring an action of debt against the tenants for their rents. His claim properly lay to the goods upon the land, which he was entitled to carry off, and to detain till the rent was paid to him. The law stands the same to this day as to the personal action. An infeftment of annualrent binds not the tenants to pay to the creditor: he has no claim against them personally for their rents, unless there be in the deed an assignment to the mails and duties
Durie, 24th March 1626, Gray
contra
Graham. Fountainhall, 5th July 1701, Kinloch
contra
Rochead.
.
BUT in the following particulars, execution upon an infeftment of annualrent, or other
debitum fundi,
differs from execution upon a rent-charge. First, An infeftment of annualrent has not been long in use, and at the time when this security was introduced, more regularity and solemnity were required in all matters of law than formerly. Poinding could not now proceed upon a personal debt, till first a decree was obtained against the debtor. But an infeftment of annualrent, if it did not contain an assignment to mails and duties, afforded not an action against the tenants. Some other form therefore behoved to be contrived, more solemn than that of poinding by private authority. The form invented was to obtain the King's authority for poinding the ground, which was granted in a letter under the signet, directed to messengers, &c. I discover this to have been the practice in the time of our James V. or VI. it is uncertain which; for the letter is dated the 30th year of the reign of James, and no other king of that name reigned so long
See a copy of this letter in the Appendix, No. 3.
. But with respect to the landlord's privilege of distraining the ground, it being afterwards judged necessary, that a decree, in his own court at least, should be interposed, the form was extended to an infeftment of annualrent. There was indeed some difficulty in what manner to frame a libel or declaration, considering that the creditor has not a personal action against the tenants, and can conclude nothing against them to make the appearance of a process. This difficulty is removed, or rather disguised the best way possible. The landlord and his tenants are called; for there can be no process without a defendant. There is also a sort of conclusion against them, very singular indeed,
viz.
"The saids defenders to hear and see letters of poynding and apprising, directed by decreet of the saids Lords, for poynding the readyest goods and gear upon the ground of the said lands, &c."
A decree proceeding upon such a libel or declaration, if it can be called a decree, is in effect a judicial notification merely, to the landlord and his tenants, that the creditor is to proceed to execution. In a word, the singular nature of this decree proves it to be an apish imitation of a decree for payment of debt, without which, as observed above, poinding for personal debt cannot proceed.
IN the second place, The property of the goods distrained was not by the old form transferred to the creditor. The tenant might repledge at any time, upon paying his rent to the creditor, or finding surety for the payment. I have no occasion here to take notice of the English statute, giving power to the creditor to sell the goods distrained; because the rent-charge was laid aside in Scotland, long before the said remedy was invented. This old form must yield to our present form of poinding upon
debita fundi,
borrowed from poinding for payment of personal debt; which is, to sell the goods if a purchaser can be found; otherwise to adjudge them to the creditor upon a just appretiation. 'Tis to be regreted, that in practice we have dropt the most salutary branch of the execution, which is that of selling the goods. But still, it is more commodious to adjudge the goods to the creditor upon a just appretiation, than to make payment depend on the tenant; whereby matters may be kept in suspense for ever.
IN the next place, The most remarkable difference is, that execution upon a
debitum fundi
is much farther extended than formerly. Of old, execution was directed against the moveables only, that were found upon the land; but by our later practice, it is directed both against the moveables and against the land itself, in their order. It appears probable, that this novelty has been introduced, in imitation of execution for payment of personal debt, though there is no analogy betwixt them.
THIS subject affords an illustrious example of the prevalency of humanity and equity, in opposition to the rigour of the common law. By the common law, the creditor who hath a rent-charge, or an infeftment of annualrent, may sweep off the tenant's whole moveables, for payment of the interest that is due upon his bond, and is not limited to the arrears of rent. But the palpable injustice of this execution with regard to the tenant, has produced a remedy; which is, that though goods may be impoinded to the extent of the interest due, yet these goods may be repledged by the tenant, upon payment of the arrears due by him and the current term. And in poinding for payment of personal debt, the attaching the tenant's goods even for the current term, is in disuse; and has given place to an arrestment, which relieves the tenant from the hardship, of paying his rent before the term. The tenant remains still exposed to this hardship, when a decree for poinding the ground is put in execution. But it is unavoidable in this case, because we have not hitherto admitted an arrestment to be founded upon an infeftment of annualrent: and till this be introduced, there is a necessity for indulging the poinding of goods for the current rent; for otherwise, supposing the rents to be punctually paid, there would be no access to the moveables at all. This restriction in a poinding of the ground, paved the way for poinding the land itself; which was seldom necessary of old, when the moveables upon the land could be poinded without limitation.
BY the
Levari Facias
in England, rents payable to the debtor can be seized in execution. This being a more summary method than arrestment, for attaching rents, is the reason, I suppose, that arrestment is not used in England. For if rents can be thus taken in execution, other debts must be equally subjected to the same execution.
I shall conclude with pointing out some mistakes in writers who handle the present subject. Few things passing under the same name, differ more widely than the two kinds of poinding above mentioned. Poinding for payment of personal debt, proceeds upon a principle of common justice,
viz.
That if a man will not dispose of his effects for payment of his debts, the judge ought to interpose, and wrest them from him. Poinding for payment of debt secured upon land, is an exertion of the right of property. The effects are poinded or distrained by the landlord's order or warrant; and the execution can reach no effects but what are understood to be his property. His property, it is true, is limited, and cannot be exerted farther than to make the claim of debt effectual; and upon this account, the tenant, or others who have an interest in the effects poinded, may repledge, upon satisfying the claim. But if they do not repledge, a proportion of the effects, is, in Scotland, adjudged to the creditor as his absolute property, without any reversion; because, in legal execution, matters ought not for ever to be in suspense. Hence execution upon personal debt, is directed against the debtor, and the property is transferred from him to his creditor. Execution again upon debt affecting land, is directed against the land and its product; and transfers not property, but only removes the limitations that were upon the landlord's property, by extinguishing the tenant's right of reversion. Though these matters come out in a clear light, when traced to their origin, yet the two poindings are often confounded by our authors. Lord Stair
Book 4. Tit. 23. § 1.
mentions the brieve of distress as the foundation of both sorts of poinding, and remarks, that by the act 36. p. 1469, the irrational custom of poinding the tenant's goods without limitation, was restrained as to both. And he is copied by Mackenzie
Instit. Book 2. Tit. 8. § 14.
. This is erroneous in every particular. The brieve of distress was nothing else but the King's commission to a judge named, to determine upon a certain claim of debt. This brieve entitled the bearer to a decree, supposing his claim well sounded; and of consequence to poind for payment of the sum decreed. And the act now mentioned, introduceth a regulation, which respects solely the execution upon a debt of this kind; and relates not at all to execution upon debts affecting land.
IN the same paragraph, the author first mentioned adds, That there was no more use for the brieve of distress after the said statute. This must be a careless expression; for our author could not seriously be of this opinion. Execution upon personal debt after this statute continued as formerly, except that as to tenants it was limited to their arrears including the current term. And with regard to the brieve of distress, considered as an authority from the King to judge of personal debt, there was a very different cause for its wearing out of use, which is, that judges took upon them to determine upon claims of personal debt, without any authority
See as to this point, Tract VIII. Of brieves.
.
ONE mistake commonly produceth another. Our author taking it for granted, that poinding upon
debita fundi
is regulated by the act 1469, as well as poinding upon personal debt, draws the following consequence
Book 4. Tit. 23. § 8.
, That there is a reversion of seven years when lands are apprised upon a
debitum fundi,
as well as when they are apprised upon a personal debt; observing at the same time, that the extension of the reversion to ten years, by the act 62. p. 1661, relates to the latter only, and that the former remains upon the footing of the act 1469. But it will be evident, from what is just now said, that apprisings upon
debita fundi
have no reversion as to land more than as to moveables; the act 1469, which introduced the privilege of a reversion, relating only to execution for payment of personal debt.
THIS author is again in a mistake, when he lays down, That apprising of land upon a
debitum fundi
is laid aside, and that the land must be adjudged by a process before the court of session
Book 4. Tit. 23. § 8. Tit. 35. § 27. Tit. 51. § 2, & 11.
. It is clear, that the act 1672, introducing adjudications, goes not one step farther, than to substitute them in place of apprisings for payment of personal debt; and therefore, that execution upon a decree for poinding the ground, remains, to this day, upon its original footing.
TRACT V.
HISTORY OF THE Privilege which an HEIR-APPARENT in a feudal holding has, to continue the possession of his ANCESTOR.
CUJACIUS gives an accurate definition of a feudal holding in the following words:
"Feudum est jus in praedio alieno, in perpetuum utendi, fruendi, quod pro beneficio dominus dat ea lege, ut qui accipit, sibi fidem et militiae munus, aliudve servitium exhibeat
Ad. lib. 1. feud. Tit. 1. §. 10.
."
The feudal contract is distinguished from others, by the following circumstance, That land is given for service in place of wages in money. This contract at its first dawn was limited to a time certain. It was afterwards made to subsist during the vassal's life; and in progress of time was extended to the male issue of the original vassal. It was not the purpose of this contract to transfer the property, but only to give the vassal the profits of the land during his service; or in other words, to give him the usufruct. To transfer the property would have been inconsistent with the nature of the covenant; because wages ought not to be perpetual, when the service is but temporary. Hence it necessarily followed, when the male issue of the original vassal, called to the succession, were exhausted, that the land returned to the superior, to be employed by him, if he pleased, for procuring a new vassal. And the case behoved to be the same, when any of these heirs refused in his course to undertake the service. Such being the nature and intendment of the feudal contract, it is evident, that while a feu was for life only, it was the superior's privilege as proprietor, without any formality, to enter to the possession of the land upon the death of his vassal. Nor was this privilege lost by making feus hereditary. Every heir hath a year to deliberate, whether it will be his interest to undertake the service. During this period, being entitled to no wages since he submits not to the service, the possession and profits of the land must of course remain with the superior. And even supposing the heir makes an offer of his service, without deliberating, he cannot, upon such offer, take possession, at short hand, of land which is not his own. It is necessary, from the very nature of the thing, that the superior, accepting his offer, should give orders to introduce him to the land; and this act is termed
renovatio feudi.
THIS is not the only case, where the superior is entitled to an
interim
possession. A young man, is, by law, held not capable to bear arms, till he be twenty one years compleat; and for that reason, the heir of a military vassal, while under age, is not entitled to possess the land. The superior, during that interval, holds the possession and reaps the profits; for a servant has not a claim to wages, while he is incapable to do duty.
BATING these interruptions of possession, preparatory to the heirs entry, which at the same time are casual, and for the most part momentary, the vassal and his male descendants continue in possession, and enjoy the whole profits of the land. When a vassal dies, the estate descends to his heir, and from one heir to another in a long train. But possession and enjoyment, which are ouvert acts, and the most beneficial exertions of property, make a strong impression on the vulgar; and naturally produce a notion, that the land belongs in property to the family in possession. Hence it came that the property, or the most beneficial part of it, was, in popular estimation, transferred from the superior to the vassal. The intermission of military service in times of peace, favoured this notion; which at last, through the influence of general opinion, was adopted by the legislature.
THIS heteroclite notion, that by a feudal contract, the property is split into parts, and the most substantial part transferred to the vassal, produced another,
viz.
that after the vassal's death, the heir, and not the superior, is entitled to possess the land. This notion prevailed so much, as to procure in England a law, during the reign of Henry II. which shall be given in the words of a learned author
Selden's Janus Anglorum, ch. 17.
.
"If any one shall die holding a frank pledge, (
i. e.
having a free tenure) let his heirs remain in such seisin, as their father had on the day he was alive and died, of his fee, and let them have his chattels, out of which they may make also the devise or partition of the deceased, (that is the sharing of his goods according to his will) and afterwards may require of their lord, and do for their relief and other things, which they ought to do as touching their fee, (
i. e.
in order to their entering upon the estate.")
This law was undoubtedly intended for the benefit of those only who were of full age, capable of the services which a vassal in possession is bound to perform. For it would be absurd, that an heir under age, who is incapable of doing service, should notwithstanding be entitled to the wages. Glanvil, who wrote in this king's reign, makes the distinction, but without referring to any statute
L. 7. C. 9. L. 9. Cap. 4.
. And we have Bracton's authority for the same
L. 4. pa. 252.
.
THAT the King's vassals were not comprehended under this regulation, is evident from the statute 52d Henry III. cap. 16, where a distinction is made betwixt the King's vassals and those who hold of a subject. The first section of this statute declares it to be law, That the heir-apparent, in land held of a subject, is entitled to continue the possession of his ancestor; and provides certain remedies against the superior who endeavours to exclude the heir from possession.
"If any heir, after the death of his ancestor, be within age, and the Lord have the ward of his lands and tenements, if the Lord will not render unto the heir his land (when he cometh to full age) without plea, the heir shall recover his land by assize of mortancestor, with the damages he hath sustained by such with-holding, since the time that he was of full age. And if an heir, at the time of his ancestor's death, be of full age, and he is heir-apparent, and known for heir, and he be found in the inheritance, the chief Lord shall not put him out, nor take nor remove any thing there, but shall take only simple seisin therefor, for the recognition of his seigniority, that he may be known for Lord. And if the chief Lord do put such an heir out of the possession maliciously, whereby he is driven to purchase a writ of mortancestor, or of cousenage, then he shall recover his damages, as in assize of nouvel disseisin."
Here we find it clearly laid down, that the heir, being of full age, is entitled to continue the possession of his ancestor, and that the superior is entitled to simple seisin only, by which is meant the relief
Coke, 2 Instit. 134.
. And it is equally clear, that though the superior is entitled to possess the land, while the heir of his military vassal is under age; yet that this heir, arriving at full age, is entitled to recover the possession, without necessity of a service or any other formality; evident from this, that if the superior be refractory, the heir has a direct remedy by an assize of mortancestry, which is a species of the assize of nouvel disseisin.
BUT the second section of this statute is in a very different strain. The words are:
"Touching heirs which hold of our Lord the King in chief, this order shall be observed, That our Lord the King shall have the first seisin of their lands, likeas he was wont to have beforetime. Neither shall the heir, or any other, intrude into the same inheritance, before he hath received it out of the King's hands, as the same inheritance was wont to be taken out of his hands and his ancestors in time past. And this must be understood of lands and fees, the which are accustomed to be in the King's hands, by reason of knight's service, or serjeantry, or right of patronage."
Here we see the old law preserved in force, as to the King's military vassals, that they have no title to continue the possession of their ancestors; that after the death of such a vassal, the possession returns to the King as proprietor; and that the heir cannot otherwise attain the possession, but by a service upon a brieve from the chancery. The difference here established, betwixt the King's military vassals and those who hold of subjects, is put beyond all doubt by the statute 17th Edward II. cap. 13.
"When any (that holdeth of the King in chief) dieth, and his heir entereth into the land that his ancestor held of the King the day that he died, before that he hath done homage to the King, and received seisin of the King, he shall gain no freehold thereby; and if he die seized during that time, his wife shall not be endowed of the same land; as it came late in ure by Maud, daughter to the Earl of Hereford, wife to Manusel the marshal, which, after the death of William Earl-marshal of England his brother, took his seisin of the castle and manour of Scrogoil, and died in the same castle, before he had entered by the King, and before he had done homage to him: whereupon it was agreed, that his wife should not be endowed, because that her husband had not entered by the King, but rather by intrusion. Howbeit this statute doth not mean of soecage and other small tenures."
We have no reason to doubt, that this statute, concerning the King's military vassals, continued in force till the 12th Charles II. cap. 24. when military tenures, of whomever held, were abolished.
IT appears from our law-books, that the privilege bestowed upon heirs by the statute of Henry II. of continuing the possession of their ancestors, obtained also in Scotland
Reg. Maj. L. 2. cap. 40. cap. 71. § 1. Second slat. Rob. I. cap. 6. § 1, 2, 3.
. This privilege made a great change in the form of feudal titles; and in particular, with respect to land held of a subject, superceded totally the brieve of inquest, and the consequential steps of service and retour. For where an heir is privileged by law to continue, or apprehend at short hand the possession of his ancestor, he has no occasion for a service and retour, of which the only purpose is to procure possession. We followed also the English law with respect to military tenures held of the King. The 2d statute Robert I. cap. 7. which is our authority, is copied almost
verbatim
from the statute of Henry III. above mentioned. But we did not rest there; for we see from the statutes of Robert III.
Cap. 19, & 38.
that the old law was totally restored, entitling every superior to the possession at the first instance, and leaving the heir to claim the possession from his superior.
BUT the authority of these statutes was not sufficient to stem altogether the torrent of popular opinion. By this time, the property, in common apprehension, was transferred from the superior to the vassal; and after the vassal's death, his heir, it was thought, had a better title than the superior to possess the land. The general biass accordingly, in spite of these statutes, continued in favour of the heirs possession; and one circumstance undoubtedly contributed to give him the preference. A young man
in familia
with his father, is considered as in possession, even during his father's life; and after his father's death, there is no change with regard to him: he has no occasion to apprehend possession: he remains or continues in it, and cannot be thrust out at short hand without some sort of process. Our forefathers, at the same time, in this favourite point, were not nice in distinguishing betwixt heirs. If a son
in familia
was entitled to continue in possession, it was reckoned no wide stretch, that a son
foris familiated
should be entitled to step into the possession: nor was it reckoned a wide stretch to communicate this privilege to other heirs, though less connected with the ancestor. Thus, as to the mere right of possession, the heir in Scotland has, for many centuries, been preferred before the superior. I must observe, however, that this privilege, acquired by custom, against the authority of statute-law, has not the effect to vest in the heir the property, or to give him a freehold, as termed in England. This would be to overturn the statute altogether; which we have not attempted. The statute is so far only encroached upon in practice, as to privilege the heir, at the first instance, to step into the void possession; reserving the superior's privilege to turn the heir out of possession by a proper process, unless the heir make up his title by a service, and, in the regular method, demand possession or seisin from the superior.
THE difference then betwixt our present practice, and what it was before the days of Henry II. appears to be what follows. The heir originally had no right to possess, till he was regularly entered by the superior. If the heir entered at his own hand, he was guilty of intrusion, and could be summarily ejected. At present we consider, as originally, the land to be the superior's property, and that the heir has not a freehold till he be regularly entered: but then we consider him as entitled, at the first instance, to the possession; that his possession is lawful; and that the superior cannot turn him out of possession at short hand or by a summary ejection, but must insist in a regular process of removing, after a declarator of non-entry is obtained.
FROM what is above laid down, it is evident, that in no case have we adopted the English maxim,
Quod mortuus sasit vivum.
Formerly the English law, with regard to military tenures held of the crown, was the same with what obtains here in all tenures,
viz.
That the heir has no freehold, till he sue out his livery, after a service upon the brieve
Diem clausit supremum,
which correspends to our brieve of inquest. But now that in England military tenures are abolished, heirs require not service and infeftment; the maxim holds universally there as in France,
Quod mortuus sasit vivum.
IT may be thought, at first view, a very slight favour, to prefer the heir
in possessorio,
when it requires only a process to thrust him out of possession. But not to mention, that he has a defence at hand, which is an offer to enter heir, it belongs more to the present subject to observe, that this privilege of possession is attended with very remarkable advantages, arising from the biass of popular notions, to which the law hath submitted. The superior is entitled to a year's rent in name of relief, or
primer seisin
as termed in England; and if the superior were entitled to the possession, this relief would undoubtedly be the full rent. But by the heir's privilege of possession, the superior for the year's rent is reduced to a claim; and this claim, like all other casualties of superiority, being unfavourable, is measured by the new extent, which, by construction of law, or rather of practice, is, in this case, held to be the rent of the land. And the same rule is observed in the claim of non-entry. This claim of non-entry is also founded upon the superior's legal privilege of possession. The rents claimed are understood to be the rents of the superior's land, levied by the heir without a title, and for which therefore he is bound to account. But the burden of accounting is made easy to him, the new extent being in this case, as in the former, put for the real rent.
THERE is scarce one point in our law so indistinctly handled by writers, and upon which there is such contrariety of decisions, as the following, What right an heir possessed of his ancestor's estate has to the rents, before he be infeft. In many cases it has been judged, that the rents are his, in the same manner as if he were regularly entered. In other cases, not fewer in number, it has been judged, that tenants paying their rents to him
bona fide
are secure; but that he has no legal claim to the rents, and therefore has no action against the tenants to force them to pay. Pursuant to the latter opinion, the growing rents, after the predecessor's death, have been considered as a part or accessory of the
haereditas jacens,
and therefore to be carried by an adjudication deduced against the heir, upon a special charge to enter
13th February 1740, Dickson of Kilbucho
contra
apparent heir of Poldean.
: and yet it weighs on the other side, that an apprising upon a special charge was never thought to carry bygone rents; for a good reason, which applies equally to an adjudication,
viz.
That an apprising upon a special charge ought not to have a more extensive effect, than an apprising at common law, deduced against the the heir after he is infeft, which assuredly doth not carry any arrears. To relieve us from this uncertainty, we must search for some principle that may lead to a just conclusion.
THE superior, during the heir's non-entry, is undoubtedly proprietor of the land. Hence it follows, that, at common law, the rents belong to the superior, and that the heir in possession is liable to account to him for the rents. But our law, or rather our judges, indulging the general prepossession in favour of the heir, have been long in use of limiting this claim to the new extent, which once having been the full rent of the land, is presumed to continue so, in order to relieve the heir from a rigorous claim. What then is to become of the difference betwixt this supposed value of the rents, and what they extend to in reality? This difference must undoubtedly accrue to the heir, because it is, in effect, what he gains from the superior, by the favour of the law. Let us suppose a declarator of non-entry is commenced, which entitles the superior, in equity as well as at common law, to the full rents; and that upon a transaction with the heir, he accepts of the one half: the other half must belong to the heir by this transaction. It ought to be the same before a declarator; for a legal composition has the same effect with one that is voluntary. This reasoning appears to be solid; and therefore we need not hesitate to conclude, that the heir in possession is entitled to levy the rents, in order to account for the same to the superior. And indeed, without a circuit, the power of levying the rents may reasonably be thought a necessary consequence of the right of possession; for without it possession is a mere shadow.
THIS point being established, there no longer remains any dubiety. If the heir-apparent, seizing the possession, or continuing the possession of his ancestor, has right to the rents without a formal entry, it follows, that these rents are not to be considered as
in hereditate jacente
of the ancestor, to be carried by an adjudication upon a special charge. On the contrary, they must be attached as the property of the apparent heir, that is, by arrestment. What of these rents remain in the hands of the tenants, without being levied by the heir-apparent, must after his decease belong to his next of kin; and the next heir, though he compleat his right to the land by infeftment, will have no claim to these rents.
TO conclude; This is a curious branch of the history of the feudal law in Britain, and of a singular nature. The feudal law was a violent system, repugnant to natural principles. It was submitted to in barbarous times, when the exercise of arms was the only science, and the only commerce. It is repugnant to all the arts of peace, and when mankind came to affect security more than danger, nothing could make it tolerable, but long usage and inveterate habit. It behoved however to yield gradually, to the prevailing love of liberty and independency; and accordingly, through all Europe, it dwindled away gradually, and became a shadow, before any branch of it was abrogated by statute. When it was undermined by so powerful a cause, we would have great reason to conjecture, that it could never recover any ground it had once lost: and yet here is a very strong contrary instance, which must have had some singular cause, that probably is now lost to us for ever; for we have no regular records of any antiquity, and our ancient historians seldom take notice of civil transactions that have any relation to law.
TRACT VI.
HISTORY OF REGALITIES, and of the privilege of repledging.
AMONG all the European nations who embraced the feudal system, it is remarkable, that the crown-vassals rose gradually into power and splendor, till they became an overmatch for the sovereign. It is still more remarkable, that the same crown-vassals, those of Germany excepted, after attaining this height of power and splendor, sunk by degrees, and at present are distinguished from the mass of the people, by name more than by any solid preeminence.
THE growing power of the crown-vassals, may be easily accounted for. It was plainly the result of making feus hereditary. Experience discovered, what might have been discovered without experience, that to make the bread of a man's family depend upon his life, is apt to damp the bravest spirits. This engaged first one prince and then another, to promise a renovation of the feu to the heir, if the vassal should lose his life in battle, till these engagements became universal. The sovereigns in Europe, having no standing army, could not promise to carry on a war successfully, without the good-will of their vassals, to whom therefore it became necessary to give all encouragement and indulgence. If one prince led the way, others behoved to follow. At length, no powers were to be with-held from the crown-vassals, who were already become too powerful. In England, Palatinates were erected, exempted from the jurisdiction of the King's judges, with power of coining money, levying war, &c. In Scotland, Regalities were created with the highest civil and criminal jurisdiction, and with all other powers annexed to Palatinates in England.
WHETHER regalities originally were exempted from the jurisdiction of the King's judges, is uncertain. I incline to think they were not; at least, that it has been a matter of doubt. For there are several instances of grants by the King to Lords of regality, exempting them from the jurisdiction of the King's judges. One instance I have at hand. There is a charter by king Robert II. to his brother James de Douglass de Dalkeith, knight of the baronies of Dalkeith, Caldercleer, Kinclaven, &c. to be held in one entire and free barony, and in free regality, with the four pleas of the crown. This charter is in the 16th year of the King's reign, supposed to be in the 1386. And in the year immediately following, there is a grant under the Great Seal to the same James de Douglass, reciting the said charter, and
"discharging all the King's justiciars, sheriffs, and their ministers, from all intromission and administration of their offices within the said lands."
Such a grant, it may be thought, was unnecessary, if the Lords of regality enjoyed this privilege by the common law. However this be, it appears by indenture betwixt king Robert I. and his parliament 1326, authorising a tax to be levied for the King's use during his life, that many of the great Lords enjoyed the foresaid privilege. For this indenture goes upon the supposition, that the King's officers could not act within regalities: and therefore, these Lords take upon themselves, to levy what part of the tax was laid upon their lands, and to pay the same to the King's officers
See this indenture in the Appendix, No . 4.
. And this exclusive privilege, in whatever manner introduced, came to be fully established in Lords of regality, as will appear from the act 5. p. 1440, and act 26. p. 1449; the former regulating the justice airs on the north and south sides of the Scotch sea; and, with the same breath, appointing Lords of regality to hold justice airs within their regalities: the latter appointing regalities to be subjected to the King's justice, while they remain in the King's hands.
AND here, by the way, it may be remarked, that the act 43. p. 1455, is no slight instance of the authority of the great barons. Those who had obtained regalities, were fond to engross to themselves the power and privileges depending thereon; and to prevent future rivalship, they exerted their power, to wrest from the crown one capital branch of its prerogative, that of erecting regalities. They succeeded in their enterprise, and obtained the said act, declaring,
"That in time coming no regalities be granted without deliverance of parliament;"
that is, without consent of the Lords who had already obtained regalities; for in them was centered the power of the parliament. The circumstances of these times readily unfold the political view of this statute; for the publick good is a motive of no great influence in rude ages. In Scotland, the great families, by monopolizing the higher powers and privileges, secured to themselves dignity and authority. In England, the same spirit procured the statute
de donis conditionalibus,
which, by the power of making entails, and attaching unalienably a great estate to a great family, laid a still more solid foundation for dignity and authority.
THE downfal of these great families was occasioned by circumstances more complex. These are many in number, but the chief appear to be, the transference of property from the superior to the vassal, the free commerce of land, and the firm establishment of the right of primogeniture. With respect to the two circumstances first mentioned, it is a maxim in politics, That power, in a good measure, depends on property. The great Lords behoved originally to have great power, because their vassals had the use only of the lands they possessed, not the property. But popular notions prevailing over strict law, the vassal came by degrees to be considered as proprietor, and law accommodated itself to popular notions. And thus the property of the feudal subject was imperceptibly transferred from the superior to his vassal, which made the latter in a good measure independent. The free commerce of land, repugnant to the genius of the feudal law, brought the great Lords lower and lower. Peace and commerce afforded money and introduced luxury. The grandees, despising the frugality of their ancestors, could no longer confine their expences within their yearly income. They were obliged to dispose of land for payment of their debts; and the industrious, who had money, were fond to purchase land, which, for the sake of independency, they chose to hold of the crown. Thus by multiplying the crown-vassals without end, their connection was broke, and their power reduced to nothing.
WHILE the crown-vassals were declining, the crown was gaining ground daily by the privilege of primogeniture. To explain this circumstance, for it requires explanation, it must be observed, that, in matter of succession, primogeniture has no privilege by the law of nature. And though a crown may be an exception, where the succession is confined to a single person; yet primogeniture in this case, cannot take fast hold of the mind, in opposition to the general rule of succession, which, in private estates, bestows an equal right on all the males. We see a notable example of this in Turky, where primogeniture has no privilege, except with regard to the imperial dignity. Influenced by the general rule of an equal succession, the younger sons of the Emperor consider themselves to be upon a level with the first-born; and that their title to the empire is not inferior to his title. By this means, where one is preferred by will, or the eldest where there is no will, the other sons are apt to pronounce it an act of injustice, depriving them of their birthright. Hence perpetual jealousies and civil discord, which commonly terminate in the establishment of one of the sons, at the expence of the lives of his brethren. And considering the matter impartially, this is less the effect of brutal manners, than of an infirm political constitution
IT was a regulation in Persia, that the King behoved to name his successor, if he chose to make war in person. Darius had three sons by the daughter of Gobryas, his first wife; all born before he was king. After his accession to the throne, he had four more by Atossa, the daughter of Cyrus. Of the former, Artabazanes was the eldest: of the latter, Xerxes: and these two were competitors for the succession. Artabazanes urged, that he was the eldest of all the sons of Darius, and that, by the custom of all nations, the eldest son has a right to the crown. On the other hand, it was urged by Xerxes, that he was the son of Atossa, the daughter of Cyrus, who had delivered the Persians from servitude, and that he was born after Darius was king; whereas Artabazanes was only the son of Darius a private man. These reasons appeared so just, that Xerxes was declared the successor
Herodotus, Book 7.
. The privilege of primogeniture could not be firmly established in Persia, when it gave way to such trivial circumstances.
.
FROM the history of Europe we learn, that in the descent of the crown, hereditary right was of old little regarded: and this is not wonderful, considering, that till the feudal law was established, primogeniture did not bestow any privilege in point of succession. The feudal system, by confining to a single heir the succession of the feudal subject, made way for the eldest son. Then it was, and no sooner, that the succession to the crown, and to private estates, were governed by the same rules; which gave force to the right of primogeniture, as if it were a law of nature. This however was a work of time; and, after introduction of feus, it required many ages to obliterate former notions, and to give that preference to primogeniture which now is never called in question. By this means it happened, that while the crown-vassals were in the meridian of power, kings had very little authority. Being indebted for their advancement to the will of the people more than to the privilege of blood, they were little better than elective monarchs. But from the time that primogeniture came to be a general law in succession, the European princes, depending now no longer on the choice of their people, acquired by degrees that extent of power, which naturally belongs to a hereditary monarch. The crown-vassals at the same time gradually declining by the commerce of land, and by the transference of their property to their vassals, are reduced within proper bounds, and have now no power but what tends to support a monarchial government.
GERMANY is in a singular case. Composed of many great parts, which were never solidly united under one government, or under one Royal family, it fluctuated many centuries betwixt hereditary and elective monarchy. This serving to increase the power of the great Lords, the monarchy was reduced to be purely elective. The electors became sovereign princes, and the power of the emperor is almost annihilated.
THE jurisdiction of the crown-vassals, comparing the present with former times, is a beautiful example of this gradual decline. With the power and dominion of the great Lords, their jurisdiction sunk in proportion. What they lost on the one hand, was on the other acquired by the King and his judges; and at present, with the other privileges of crown-vassals, their jurisdiction is reduced to an empty name. The extent of this jurisdiction in its different periods, and its gradual decline, being chiefly the purpose of the present essay, it will be necessary to make a large circuit, in order to set the matter in its proper light.
As no branch of publick police is of greater importance, than that of distributing justice, it is necessary to this end, that the jurisdiction of every judge be ascertained, with respect to causes as well as persons. Concerning the latter, a plain and commodious rule is established, through most civilized nations. The kingdom is divided into districts, and in each, a judge is appointed who has under his jurisdiction the people residing in his district. Thus, with regard to jurisdiction, the people are distinguished by their place of residence, which so far regulates the powers of the several judges. And were it possible to distinguish causes by a rule equally precise, disputes among judges about their jurisdictions would scarce ever occur.
BUT this institution is the result of an improved police: our notions of jurisdiction were originally different, and behoved to be different. Before agriculture was invented, people in a good measure depended on their cattle for sustenance. In these early times, the few inhabitants that were in a country, being classed in tribes or clans, led a wandering life from place to place, for the convenience of pasture. Every clan or tribe had a head, who was their general in war, and their judge in peace. And thus every chieftain was the judge over his own people, without regard to territory, which, in a wandering state, could not be of any consideration. After the invention of agriculture which fixed a clan to a certain spot, the same principle prevailed, and neighbouring clans, to prevent disputes about jurisdiction, settled upon the following regulation, That the people of each clan, wherever found, should be judged by their own chieftain.
DURING the third and fourth centuries, we find this regulation steadily observed in France, after it was deserted by the Romans and abandoned to the Barbarians. It was an established rule among the Burgundians, Franks, Goths, and ancient inhabitants, that each people should be governed by their own laws, and by their own judges; even after they were intermixed by marriages and commerce. Nor was this an incommodious institution, in a country possessed by nations or clans, differing in their language, differing in their laws, and differing in their manners. There can be no doubt, that the same practice prevailed in this country, both before and after our several tribes or clans were united under one general head. The laws of the different clans have been digested into one general law, known by the name of
The Common Law of Scotland;
but the chieftains privilege of judging his own people, continued long in force, and traces of it remain to this day. Clans were distinguished from each other, so as to prevent any confusion in exercising the privilege. Clans often differed in their language, or in their dress; and when these differences were not found, those who lived together, and pastured in common, were reckoned to be of one clan. After agriculture was introduced, clans were distinguished, partly by a common name, and partly by living within a certain territory.
THIS jurisdiction was favoured by the feudal law, which made an additional bond of union betwixt the chieftain and his people, by the relation of superior and vassal. And the jurisdiction being thereby connected with land-property, is, with respect to the title, termed territorial jurisdiction; though, with respect to its exercise it is personal, without relation to territory. On the other hand, jurisdiction granted by the crown to persons or families, without relation to landproperty, such as an heretable justiciary or an heretable sheriffship, is personal with respect to the title, but territorial with respect to its exercise. The first barons were no doubt the chieftains of clans, and the right of jurisdiction specified in the charters of creation, must not be considered as an original jurisdiction flowing from the King, but as the jurisdiction which these chieftains enjoyed from the beginning over their own people. In imitation of these first barons, every man who got his lands erected into a barony, was considered as a chieftain, or the head of a clan; and the jurisdiction conferred upon him, though depending entirely upon the grant, was, by the connection of ideas, considered notwithstanding to be the same that belonged originally to chieftains. And hence it is, that these territorial judges had the power of reclaiming their own people from other judges, and judging them in their own courts.
UPON the same principle, the Royal burrows had the power of reclaiming their own burgesses, not only from territorial judges, but even from the King's judges
Leg. Burg. cap. 61.
. Pleas of the crown were excepted; because the Royal burrows had no jurisdiction in such crimes
Ib. cap. 7.
. And here it must be remarked, that Royal burrows had a peculiar privilege, necessary for preserving peace among their people, that in processes against strangers before the baillies, for riots or breach of the peace committed within the town, reclaiming to the Lord's court was not admitted
First stat. Rob. I. cap. 16. § 3.
.
BUT among a rude people, delighting in war, where the authority of the chieftain depends upon the good-will of his clan, this privilege was often exerted to protect criminals, instead of being exerted to bring them to justice. Endeavours were early used to correct this corrupt practice, by enacting, That chieftains or barons should be bound, to give a pledge or surety in the court where the criminal is attached, to do justice upon him in the Lord's own court within year and day
Quon. attach. cap. 8.
: and from this time, upon account of the pledge or surety given, the privilege of reclaiming obtained the name of repledging.
THIS regulation, though a wise and useful precaution, proved however but an imperfect remedy. Nor was better to be expected; for the privilege of repledging was an unnatural excrescence in the body politick, which admitted of no effectual cure, other than amputation. The statutes of Alexander II. cap. 4. are evidence, that the power of repledging was prostituted in a vile manner, not only to protect the Lord's own men from justice, but also to protect others for hire; and accordingly by that statute, and by the first statutes Robert I. cap. 10. the power of repledging is confined within narrower bounds than formerly. But this power, after all the limitations imposed, being found still prejudicial to the common interest, an attack was prudently made upon it, in its weakest part,
viz.
that of the Royal burrows, which produced the act 1. p. 1488. ordaining burgesses to submit to trial in the justice air, without power of repledging. And to make this new regulation palatable, it was made the duty of the King's justice, to give an assize to a burgess of his own neighbours, if a sufficient number were present in court.
FROM what is said above, there can be no doubt, that barons had a power of repledging from the King's courts, as well as from each other. The privilege, however, was of no great moment; because every partial judgment of the baron, in favour of any of his own people, lay open to immediate redress, by an appeal to the King's court. An appeal lay even to the sheriff against every sentence pronounced in the baron-court
Reg. Maj. L. 1. cap. 3.
. In this respect, the power of repledging, which the Lords of regality enjoyed, was a privilege of much greater moment; because from a court of regality there lay no appeal but to the parliament.
LORDS of regality had undoubtedly the power of repledging, when their people were apprehended out of their territory, and brought before another court. Properly speaking, this is the only case in which there was occasion to exercise the privilege. For their jurisdiction being exclusive even of the King's courts, as appears from what is mentioned above, they could have no occasion to repledge their people, apprehended within their own territory by the authority of any extraneous judge; because such attachment was illegal, and a proper declinator lay.
THE first manifest symptom of the declining power of the crown-vassals, was the extension of the jurisdiction of the King's judges over regalities, so as to produce a cumulative jurisdiction. As this privilege was introduced by practice, and not by statute, the encroachment was gradual, one instance following another, till the privilege was firmly established. It is probable, that the above mentioned power of repledging, so well known in the practice of Scotland, paved the way to this encroachment. For among a rude people, unskilled in the refinements of law, the encroachment would scarce be perceived, so long as the substantial prerogative remained with the chieftains,
viz.
that of judging their own people. And whether this exclusive jurisdiction was maintained by a proper declinator, or by the power of repledging; would be reckoned a mere
punctilio.
The people of a regality, originally exempted from all jurisdiction save that of their own lord, were thus imperceptibly subjected also to the King's courts. But still a regality being co-ordinate with the King's supreme courts, its decrees continued, as formerly, to be subjected to no review, except in parliament.
BY the establishment of the court of session, which is the supreme court in civil matters, the regality-courts were rendered so far subordinate. But in matters criminal, the jurisdiction, as co-ordinate with that of the justiciary court, was preserved entire, together with the power of repledging even from that court
Skene de verb. signif. Tit. (Iter) § 12.
.
THE royal authority with that of the sovereign courts, gaining a firm establishment, annihilated the baron's power of repledging. But the Lords of regality did not so readily succumb under the weight of an enlarged prerogative; and though their privileges were in a great measure incompatible with the growing power of the crown, as well as with the orderly administration of justice; yet such was their influence in parliament, that the attempt to rob them of their privileges by an express law, was found not adviseable. It was more prudent, to lie in wait for favourable opportunities, to abridge these privileges by degrees. The first opportunity that offered, respected church-regalities, annexed to the crown after the reformation. The heretable baillies of these regalities, being an inconsiderable body and in a singular case, it was not difficult to obtain a statute against them. And accordingly, though their power of repledging from the sheriff, both in civil and criminal matters, was reserved entire, yet it was enacted
Act 29. p. 1587.
,
"That they should have no power of repledging from the court of justiciary, except in the case of prevention by the first citation:"
which was abrogating their privilege of repledging from the justiciary court. This being a direct attack upon regality-privileges, though in some measure disguised, it was necessary to soften its harshness; which was done by substituting, in place of the power of repledging, a privilege in appearance greater, but in effect a mere shadow. It was, that the heretable baillie might sit with the King's justice, and judge with him, and, upon conviction, receive a proportion of the escheat.
THIS statute paved the way for abridging the privileges of laick-regalities; as any handle is sufficient against a declining power. The speciality in the statute was forgot, or not regarded, and it was extended against all regalities of whatever sort. The privilege of repledging was however kept alive, though it wore fainter and fainter every day; and at the long-run was indulged for fifteen days only, after the crime was committed. This we learn from the statutes appointing justiciars in the Highlands
Act 39. P. 1693, act 37. P. 1695, and, act 8. P. 170
.
, in which the rights and jurisdiction of Lords of regality are reserved, and particularly
"their right of prevention for fifteen days;"
importing, That if the person was cited before the justice court within fifteen days of committing the alledged crime, the Lord of regality might repledge; for if he was the first attacher, even after the fifteen days, it cannot be doubted, that, of common right, he had the exclusive privilege of proceeding in the trial, and of passing a definitive sentence.
THUS we see the power of repledging reduced to a shadow, though, in other respects, the regality-court still maintained its rank, as co-ordinate with the court of justiciary; acknowledging no superior but the parliament. But as the regality-court had by this time lost all its original authority, its privileges were little regarded. The judges of the court of justiciary gradually increasing in power and dignity, heightned by contrasting them with regality baillies, gave regality courts a severe blow,
anno
1730, by admitting an advocation from the regality court of Glasgow
THE act 3. Geo. II. cap. 32. impowering the judges of the court of justiciary, or any of them, to stay for thirty days, the execution of any sentence of a regality court importing corporal punishment, encouraged probably the court of justiciaryto assume this power.
; which was in effect declaring a regality court subordinate to the court of justiciary in criminal matters, as it had all along been to the court of session in civil matters. This, it is true, was a church-regality, annexed to the crown upon the reformation; and the privileges of such regality only being called in question, it was reckoned a singular case, and therefore alarmed not much those who were possest of laick-regalities. But the court of session gave these regalities the dead blow without necessity, after heretable jurisdictions were abolished by a late statute. For by virtue of the powers delegated to this court, to try the rights of those who should claim heretable jurisdictions, and to estimate the same in money, they found
21st January 1748.
the justiciary belonging to the Earl of Morton, over the islands of Orkney and Zetland,
"to be an inferior jurisdiction only, and not coordinate with the court of justiciary."
This judgment did not rest upon any limitation in the Earl's right, which was granted by parliament in the most ample terms; but upon the following ground, That the court of justiciary, as constituted by act 1672, is the supreme court in criminal, as the court of session is in civil matters, which, of consequence, must render all heretable jurisdictions subordinate; courts of justiciary as well as courts of regality. But though the act 1672 was called in aid to support this inference, yet there is not in that statute, a single clause which so much as hints at a greater power in the court of justiciary than it formerly enjoyed. And this suggests a reflection, which is curious, and appears to be just, That the reason professed and spoke out, is not always that which produces the judgment, but perhaps some latent circumstance operating upon the mind imperceptibly. Thus, in the present case, the act 1672, was the professed cause of the judgment; though, in all probability, what at bottom moved the judges, was a very different consideration. The new form which the court of justiciary received, by substituting five lords of session as perpetual members, in place of justice-deputes who were ambulatory, bestowed a dignity upon this court, to which it was formerly a stranger. This circumstance, joined with the growing power of the crown, which readily communicates itself to the ministers of the crown, advanced this court to a degree of splendor, that quite obscured baillies of regality. We have reason to believe, that this elevation of the court of justiciary, touching the mind imperceptibly, was really what influenced the judges. For it is extremely difficult to support an equality of jurisdiction in two courts, that are so unequal in all other respects. And thus, by natural causes which govern all human affairs, territorial jurisdiction in Scotland was reduced to a mere shadow; which made it be esteemed no harsh measure, to abolish it altogether by statute.
TRACT VII.
HISTORY OF COURTS.
IN most countries originally, the inhabitants were collected into clans or tribes, governed each by a chieftain, in whom were accumulated the several offices of general, magistrate, and judge. These clans or tribes, for a long course of time, subsisted perfectly distinct from each other, without any connection or intercourse among individuals of different clans. The invention of agriculture, extending connections beyond the clan, had a tendency to blend different clans together. Individuals of different clans, came to be more and more blended by intermarriages, and consequently by blood. Commerce arose, and united under its wings, not only distant individuals, but different nations. The clan-connection gave way by degrees; and no longer subsists in any civilized country, being lost in the more extended connections that have no relation to clanship.
THIS change of connection among individuals, introduced a change in jurisdiction. After clans were dissolved, and individuals were left free to their private connections, the jurisdiction of the chieftain could no longer subsist. In place of it, judges were appointed, to exercise jurisdiction in different causes, and in different territories.
IN a very narrow state, one judge perhaps may be sufficient to determine all matters that are in controversy: but this cannot be, where the state is of any extent. Many judges, in that case, are required for an accurate and expeditious distribution of justice. If there must be a number, it is better to distribute among them the different branches of law, than to give each of them a jurisdiction in controversies of whatever kind. It is here as in a manufacture. An artificer confined to one branch, becomes more expert, than where he is employed successively in many. But in law, this regulation hath its limits. Courts may be distinguished into civil, criminal, and ecclesiastical; but more minute divisions would be inconvenient, because the boundaries could not be accurately ascertained.
FOR the reason now given, it becomes also proper in an extensive society, to bestow the same powers upon a plurality of judges, who preside over different territories, and whose jurisdictions accordingly are separated from each other, in the distinctest manner, by the natural marches and boundaries of districts or provinces.
BUT judges subjected to no review, soon become arbitrary. Hence the necessity of superior courts, to review the proceedings of those that are inferior. Where the superior court is a court of appeal only, it has no regular continuance, and is never convened but when there is occasion. This was formerly the case in Scotland, as we shall see by and by. It is an improvement to make this court perform, not only the duty of a court of appeal, but also that of an original court. In this case, it must have stated times of sitting and acting, commonly called terms. And such is the present condition of the superior courts in this island.
THESE observations lead us to distinguish courts into their different kinds. In the first place, Courts are distinguished by the nature of the causes appropriated to each. They are either civil, criminal, or ecclesiastical. This is the primary boundary, which separates the jurisdiction of one court from that of another.
THE next boundary is territory. Courts of the same rank, which judge the same causes, are separated from each other by a local jurisdiction.
COURTS superior and inferior which judge the same causes, admit not of any local distinction; because a court superior or supreme has a jurisdiction that extends over the several territories of many inferior courts. In this case, there can be no separation, other than the first citation.
BESIDES these, there is generally in well regulated states, a court of a peculiar constitution, that has no original jurisdiction, but is established as a court in the last resort, to review the proceedings of all other courts. This may be properly called a court of appeal; and such is the constitution of the house of Lords in Britain.
IN the order here laid down, I proceed to examine the peculiar constitutions of the courts in this country. And first, of the difference of jurisdiction with regard to causes. A man may be hurt in his goods, in his person, or in his character. The first is redressed in the court of session, and other inferior civil courts; the second in the criminal court; and the third in the commissary court. Besides these, the court of exchequer is established, for managing subjects, and making effectual claims, belonging to the crown. The court of admiralty has an exclusive jurisdiction, at the first instance, in all maritime and sea-faring causes, foreign and domestic, whether civil or criminal, and over all persons within this realm, as concerned in the same. There are also, by express statutes, many particular jurisdictions established with respect to certain causes, which must be tried by the judges appointed, and by none other.
THE court of session hath an original jurisdiction in matters of property, and in every thing which comes under the notion of pecuniary interest. But this court hath not an original jurisdiction in matters of rank and precedency, nor in bearing arms. Controversies of this kind belong to the jurisdiction of the Lord Lyon. To determine a right of peerage, is the exclusive privilege of the house of Lords. Nor has the court of session an original jurisdiction, with respect to the qualifications of those who elect or are elected members of parliament. The reason is, that none of the foregoing claims make a pecuniary interest. The court of session, therefore, assumed a jurisdiction which they had not, when they sustained themselves judges, in the dispute of precedency betwixt the Earls of Crawfurd and Sutherland. It was a still bolder step, to sustain themselves judges in the question of the peerage of Lord Oliphant, mentioned in Durie's decisions; and in the question of the peerage of Lovat, decided a few years ago.
THE matters now mentioned, are obviously not comprehended under the ordinary jurisdiction of the court of session; and the court had no occasion to assume extraordinary powers, when, by our law, a different method is established for determining such controversies. But what shall we say of wrongs, where no remedy is provided? Many instances of this kind may be figured, which, having no relation to pecuniary interest, come not regularly under the cognizance of the court of session. The freeholders of a shire, for example, in order to disappoint one who claims to be inrolled, forbear to meet at the Michaelmas Head-court. This is a wrong, for which no remedy is provided by law; and yet our judges, confining themselves within their ordinary jurisdiction, refused to interpose in behalf of a freeholder who had suffered this wrong, and dismissed the complaint as incompetent before them
20th December 1753, Mackenzie of Highfield
contra
freeholders of the shire of Cromarty.
. Considering this case attentively, it may be justly doubted, whether such confined notions, with respect to the powers of a supreme court, be not too scrupulous. No defect in the constitution of a state deserves greater reproach, than the giving licence to wrong without affording redress. Upon this account, it is the province, one should imagine, of the Sovereign and supreme court, to redress wrongs of all sorts, where a peculiar remedy is not provided. Under the cognizance of the privy-council in Scotland, came many injuries, which, by the abolition of that court, are left without any peculiar remedy; and the court of session have been forced to listen to complaints of various kinds, which belonged properly to the privy-council while it had a being. A new branch of jurisdiction is thus sprung up in the court of session, which daily increasing by new matter, will probably in time produce a general maxim, That it is the province of this court, to redress all wrongs for which no other remedy is provided. We are however as yet far from being ripe for adopting this maxim. The utility of it is indeed perceived, but perceived too obscurely, to have any steady influence on the practice of the court. And for that reason our decisions upon this subject are far from being uniform. In the foregoing case of the freeholders of Cromarty, we have one instance where the court would not venture beyond their ordinary limits; though thereby a palpable wrong was left without a remedy. I shall mention another instance, equally with the former beyond the ordinary jurisdiction of the court, where the judges ventured to give redress. A small land-estate, consisting of many parcels, houses, acres, &c. was split among a number of purchasers, who in a body petitioned the commissioners of supply, to divide the valuation among them, in order to have it ascertained what part of the land-tax each should pay. The commissioners, unwilling to split the land-tax into so small parts, refused the petition. Upon a complaint to the court of session against the commissioners, the conveener was appointed to call a general meeting, in order to divide the valuation among the complainers
4th August 1757, Malcolm and others
contra
commissioners of supply for the stewartry of Kircudbright.
. This was not even a matter of judgment, but of pure authority, assumed from the necessity of the thing, there being no other remedy provided; for otherwise the court of session hath not by its constitution any authority over the commissioners of supply. A wrong done by the commissioners, in laying a greater proportion of the land-tax upon a proprietor of land than belongs to him, may be rectified by the court of session, as the supreme court in pecuniary matters: but this court has no regular authority over the commissioners, to direct their proceedings before hand.
UPON a new subject, not moulded into any form, nor resolved into any principle, men are apt to judge by sentiment more than by general rules; and for that reason, the fluctuation, or even opposition, of judgments upon such subjects, is not wonderful. This is peculiarly the case of the subject under consideration: for besides its novelty, it is resolvable into a matter of publick police; which admitting many views, not less various than intricate, occasions much difficulty in the law questions that depend on it. Such difficulties however are not insuperable. Matters of law are ripened in the best manner, by warmth of debate at the bar, and coolness of judgment on the bench; and after many successful experiments of a bold interposition for the publick good, the court of session will clearly perceive the utility, of extending their jurisdiction to every sort of wrong, where the persons injured have no other means of obtaining reparation.
THIS extraordinary power of redressing wrongs, so far from a novelty, has a name appropriated to it in the language of our law. For what else can be meant by the
nobile officium
of the court of session, so much talked of and so little understood? The only question is, How far this extraordinary jurisdiction or
nobile officium,
is, or ought to be, extended? The jurisdiction of the court of session, as a court of common law, is confined to matters of pecuniary interest; and it possibly may be thought, that its extraordinary jurisdiction ought to be confined within the same bounds. Such is the case of the court of exchequer; for its extraordinary or equitable powers, reach no farther than to rectify the common law, so far as relates to the subjects which come under its jurisdiction as a court of common law. But the power to redress wrongs of all kinds, must subsist somewhere in every state; and in Scotland subsists naturally in the court of session. And with respect to the wrongs in particular which came under the jurisdiction of the privy-council, it must have been the intention of our legislature when they annihilated that court, that its powers should so far devolve upon the court of session; for the legislature could not intend to leave without a remedy, many wrongs which belonged to the jurisdiction of the privy-council.
THE rule I am contending for, seems to be adopted by the English court of chancery, in its utmost extent. Every sort of wrong occasioned by the omission or transgression of any duty, is redressed in the court of chancery, where a remedy is not otherwise provided by common or statute law. And hence it is, that the jurisdiction of this court, confined originally within narrow bounds, has been gradually enlarged over a boundless variety of affairs.
THE jurisdiction of the court of session in matters of property, is not only original, but totally exclusive of all other supreme courts. The property of the slightest moveable, considered as a civil claim, cannot be ascertained by the justiciary, by the exchequer, by the admiralty, or by the commissaries. The case is not precisely the same in other matters of pecuniary interest. The commissaries of Edinburgh, as well as inferior commissaries, have, with the court of session, a cumulative jurisdiction in all such matters referred to oath of party. And in all maritime and sea-faring causes, the high court of admiralty has, by act 16. p. 1681, an exclusive jurisdiction at the first instance. Formerly the jurisdiction of the court of session in such causes, was cumulative with that of the admiral. One peculiarity there indeed was in this cumulative jurisdiction, that where a maritime cause was brought before the session at the first instance, the judge of the admiral court took his place among the Lords of session, and voted with them
Sinclair, 9th March 1543, Lord Bothwell
contra
Flemings.
. But by the statute now mentioned, the powers and privileges of the admiral court are greatly enlarged, and with relation to this court, the session at present cannot be considered in any other light, than as a court of appeal; precisely as the house of Lords is with relation to the session. Hence it seems to follow, that the court of session cannot regularly suspend the decree of an inferior admiral; which would be the same, as if a cause should be appealed from the sheriff to the house of Lords. With regard to the admiral court, it must be also observed, that by prescription it hath acquired a jurisdiction in mercantile affairs; an incroachment which has no foundation, other than the natural connection that subsists between maritime affairs and those that are mercantile. But the privileges of this court with respect to the former, are not extended to the latter. The court pretends not to an exclusive jurisdiction in mercantile affairs; and in these it is precisely like the sheriff court, considered as an inferior jurisdiction, subjected to the orders and review of the supreme court of session, by advocation, suspension, and reduction, in the ordinary course. And we shall have occasion to see afterwards, that the privileges of the admiral court, with regard to mercantile causes, are not so entire as even those of the sheriff; it being the privilege of every person to decline the admiral court in these causes.
HAVING described the causes proper to the court of session, in contradistinction to the other supreme courts, I proceed to causes, proper to it, in contradistinction to inferior courts. These may be comprehended under one rule, That all extraordinary actions, not founded on common law, but invented to redress any defect or wrong in the common law, are appropriated to the court of session, being in civil causes the sovereign and supreme court. Inferior courts are justly confined within the limits of the common law; and if extraordinary powers be necessary for doing justice, these cannot safely be trusted but with a sovereign and supreme court. Upon this account, the court of session only, enjoys the privilege of voiding bonds, contracts, and other private deeds. For the same reason, declarators of right, of nullity, and in general all declarators, are competent nowhere but in this court. An extraordinary removing against a tenant, who having a current tack is due a year's rent, is peculiar to this court, as also a proving of the tenor. And lastly, all actions that are founded solely upon equity, belong to the court of session, and to none other.
WITH respect to criminal jurisdiction, our old law was abundantly circumspect. Jealous of inferior courts, it confined their privileges within narrow bounds; and experience, the best test of political institutions, hath justified our law in this particular. All publick crimes,
i. e.
all crimes by which the publick is injured, and where, of consequence, the King is the prosecutor, are confined to the court of justiciary. With the political reason there is joined another, that it is not consistent with the dignity of the crown, to prosecute in an inferior court. All private crimes, however enormous, may be prosecuted before the sheriff. For if the private prosecutor who is injured chuse this court, the law ought to give way. The only case where a baron is trusted with life and death, is where a thief is catched with the stolen goods; and, in this case, the law requires, that the thief be put to death within three suns. The law so far gives way to the natural impulse of punishing a criminal; an indulgence not much greater than is given to the party injured; for he himself may put the thief to death, if catched breaking his house. But after the matter is allowed to cool, and passion subsides, every one is sensible, that now there ought to be a regular trial
A baron is deprived of all jurisdiction in capital cases, by act 20. Geo. II. 43.
. The sheriff has the same power with respect to slaughter, that the baron has with respect to theft. A man taken in the act of murder, or with red hand, as expressed in our law, must have justice done upon him by the sheriff within three suns. If this time be allowed to elapse, the criminal cannot be put to death without a citation and a regular process, which must be before the justiciary, unless the relations of the deceased undertake the prosecution.
BY the act 1681, mentioned above, an exclusive jurisdiction is given to the high admiral,
"in all maritime and sea-faring causes, foreign and domestick, whether civil or criminal; and over all persons within this realm, who are concerned in the same."
With respect to the civil branch of this jurisdiction, I have had occasion to mention, that by prescription it is extended to mercantile causes. But though the civil jurisdiction of this country, is so far encroached on by the court of admiralty, the criminal judges, I presume, will be more watchful over the powers trusted with them. Prohibited goods were seized at sea, and after they were put in a boat to be carried to land, the seizure-makers were attacked by those who had an interest in the goods, and in the scuffle a man was put to death. A criminal prosecution being brought before the court of justiciary, the judges demurred whether it did not belong to the admiral, to try this crime as committed at sea. But after mature deliberation, the court sustained its own jurisdiction, upon the following grounds. It is not every civil cause arising at sea, that is appropriated to the jurisdiction of the admiral, but only maritime and sea-faring causes. In like manner, every crime committed at sea, is not appropriated to this jurisdiction. The admiral has not a jurisdiction by the statute, unless such crime relate to maritime or sea-faring matters. Every crime committed against navigation, such as a mutiny among the crew, orders disobeyed, a ship prevented by violence from sailing, beating, wounding, or killing, persons in such fray, pyracy, and in general all crimes where the
animus
of the delinquent is to offend against the laws of navigation, are maritime or seasaring crimes, and come under the exclusive jurisdiction of the admiral. But if murder, adultery, forgery, or high treason, be committed on board a ship, the cognition will belong to the judge ordinary. The commissaries of Edinburgh will divorce, and the court of justiciary, or commissioners of
Oyer
and
Terminer,
will punish. The only argument for the admiral that seems plausible is, That he is declared the King's justice-general upon the seas, and in all ports, harbours, creeks, &c. But to what effect? The answer to this question will clear the difficulty. He is not made justice-general with respect to all crimes whatever, but singly with respect to crimes concerning maritime or sea-faring matters.
THAT a criminal jurisdiction belongs to the court of session is certain. The precise nature of it is not altogether so certain. Instead of pretending to ascertain a matter that appears somewhat dubious, I venture no farther than to give two different views of this jurisdiction, leaving every man to judge for himself. The first is as follows. In certain criminal matters, the court of session, by the force of connection, have been in use to exercise a criminal jurisdiction. Upon witnesses who prevaricate before them, they are in use to animadvert by a corporal punishment
Gosford, 6th July 1669, Heirs of Towie
contra
Barclay.
. And indeed it seems natural, that this branch of criminal jurisdiction, should be exercised by every court. Again, in the case of forgery, tried by the court of session, the court itself commonly inflicts the punishment, where it is within the pain of death, without remitting the delinquent to the justiciary
Durie, 14th July 1638, Dunbar
contra
Dunbar.
. The punishment here, being a direct consequence of the civil sentence, finding the defendant guilty of the forgery, belongs naturally to the court of session, unless where the crime deserves death; the inflicting of which punishment, would be an encroachment too bold upon the jurisdiction of the criminal court. A slight punishment may be considered as accessory to the civil judgment; but a capital punishment makes too great a figure in the imagination to be considered in that light.
I proceed to the second view of this jurisdiction, It is not accurate to say, That the two courts of session and justiciary, are distinguished by the causes appropriated to each; and that the former is a civil court, the latter a criminal court. The justiciary is confined to crimes; but the court of session is not confined to civil actions. It may justly be held, that this court hath a jurisdiction in all crimes, unless where the proof depends totally or chiefly upon witnesses. Not to mention punishments that are accessory to judgments in civil cases, such as the punishment of forgery, many crimes publick and private are prosecuted in this court, baratry, for example, and usury, even where it is prosecuted by the King's advocate
ad vindictam
publicam
Haddington, 2d March 1611, Officers of state
contra
Coutie and others.
. These, and such like causes, are undertaken by the court, where the evidence is chiefly by writ, and not by witnesses. The processes of fraudulent bankruptcy, and of wrongous imprisonment, are, by statute
Act 5. P. 1696. act 6. P. 1701.
, confined to this court; and for the reason now given, stellionate will also be competent before it. It is clear indeed, that this court cannot judge in any criminal action that must be tried by a jury; because its forms admit not this method of trial; and for that reason, no criminal action where a jury is necessary can be brought before the court of session. Purpresture must be tried by a jury; and for that reason only, cannot be brought before it. And for the same reason, a capital punishment is denied to this court; for a capital punishment cannot be inflicted without a jury.
ECCLESIASTICAL courts, besides their censorial powers with relation to manners and religious tenets, have an important jurisdiction in providing parishes with proper ministers or pastors; and they exercise this jurisdiction, by naming for the minister of a vacant church, that person duly qualified who is presented by the patron. Their sentence, however, is ultimate, even where their proceedings are illegal. The person authorised by their sentence, even in opposition to the presentee, is
de facto
minister of the parish, and as such is entitled to perform every ministerial function.
ONE would imagine, that this should entitle him to the benefice or stipend; for a person invested in any office, is entitled of course to the emoluments. And yet the court of session, without pretending to deprive a minister of his office, will bar him from the stipend, if the ecclesiastical court have proceeded illegally in the settlement. Such interposition of the court of session, singular in appearance, is however founded on law, and is also necessary in good policy. With respect to the former, there is no necessary connection betwixt being minister of a parish, and being entitled to a stipend; witness the pastors of the primitive church, who were maintained by voluntary contributions. It belongs indeed to the ecclesiastical court to provide a parish with a minister: but then it belongs to the civil court, to judge whether that minister be entitled to a stipend; and the court of session will find, that a minister wrongously settled, has no claim for a stipend. With respect to the latter, it would be a great defect in the constitution of a government, that ecclesiastical courts should have an arbitrary power in providing parishes with ministers. To prevent such arbitrary power, the check, provided by law, is, That a minister settled illegally shall not be entitled to a stipend. This happily reconciles two things generally opposite. The check is extremely mild, and yet is fully effectual to prevent the abuse.
THE commissary court is a branch of the ecclesiastical court, instituted for the discussion of certain civil matters, which, among our superstitious ancestors, seemed to have a more immediate connection with religion; divorce, for example, bastardy, scandal, causes referred to oath of party, and such like.
WHAT shall we say in point of jurisdiction, with respect to an injury by which a man is affronted or dishonoured, without being hurt in his character or good fame; as, for example, where he is reviled, or contemptuously treated. For redressing such injuries, I find no court established in Britain. We have not such a thing as a court of honour. Hence it is, that in England, words merely of passion are not actionable; as, you are a villain, rogue, varlet, knave. But if one calls an attorney a knave, the words are actionable, if spoken with relation to his profession, whereby he gets his living
See Wood's Instit. book 4. pa. 536.
. I am not certain, that in England any verbal injury is actionable except such as may be attended with pecuniary loss or damage. If not, we in Scotland are more delicate. Scandal, or any imputation upon a man's good name, may be sued before the commissaries, even where the scandal is of such a nature, that it cannot be the occasion of any pecuniary loss. It is sufficient to say, I am hurt in my character. If I can qualify any pecuniary damage, or probability of damage, such scandal is also actionable before the court of session.
WHEN the several branches of jurisdiction, civil, criminal, and ecclesiastical, were distributed among different courts, great care seems to have been taken, that courts should be confined each precisely within its own limits. Bastardy, for example, could not be tried any where but in the ecclesiastical court; and so strictly was this observed, that if a question of bastardy occurred incidentally, in a process depending before another court, the cause was stayed, till the question of bastardy was tried in the proper court. This was done by a brieve from chancery, directed to the bishop, to try the bastardy as a prejudicial question
Reg. Maj. L. 2. cap. 50.
. The expence and delay of justice, occasioned by such scrupulous confinement of courts within precise limits, produced in Scotland an enlargement of jurisdiction; by impowering every court to decide in all points necessary to a final conclusion of the cause. This regulation is but lately established, though we had been long tending towards it. In the service of an heir, it was the practice, and perhaps may be found so at this day, that if bastardy be objected, the judge to whom the brieve is directed, is bound to stay his proceedings, till the question of bastardy be determined by the commissaries. But if in the reduction of such a service, bastardy be objected, the court of session remit not the question of bastardy to be tried by the commissaries, but take the cognisance of it to themselves, singly to the effect of finishing the reduction. And this has been their practice above a century
See Durie, 23d July 1630, Pifsligo
contra
Davidson.
. The following case is of the same kind. A process of aliment was brought before the court of session, at a woman's instance against her alledged husband. He denied the marriage, and she offered a proof. It was thought by the court, that marriage here was not properly an incidental question; that it was the fundamental proposition, and the aliment merely a consequence. For this reason, they stayed the process of aliment, till the pursuer should instruct her marriage before the commissaries. Fountainhall, 29th December 1710, Forbes, 25th January 1711, Cameron
contra
Innes. But that this was too scrupulous, I have authority to say, from a similar case determined lately. A child was produced in the seventh month after marriage; and the woman confessed, that her husband was not the father, but a man she named. In a process of aliment against this man, he denied that he was the father, and insisted upon the presumption,
quod pater est quem nuptiae demonstrant.
Here legitimacy was the fundamental point, of which that of aliment was a consequence. Yet the court, in order to give judgment on the aliment, had no difficulty of entering into the question about the bastardy. And it was the general voice, that though, upon the medium of the child's being a bastard, they should decern for the aliment, this would not bar the child thereafter from bringing a process before the commissaries, to ascertain its legitimacy
January 1756, Smith
contra
Fowler.
. Nor is it inconsistent, that two courts should give contrary judgments to different effects. This produces not a conflict of jurisdictions; for both judgments may stand and be effectual. Such contrariety of judgments one would wish to avoid: but it is better to submit to that risk, than to make it necessary, that different courts should club their judgments to the finishing of a single cause; which has always been found a great impediment to justice. It is upon the same principle, that inferior judges, though they have no original jurisdiction as to forgery, can try that crime incidentally, when stated as a defence.
AND this leads me to consider more particularly a conflict betwixt different jurisdictions, where the same point is tried by both. This happens frequently, as above mentioned, with respect to different effects. But I see not that there can be in Britain a direct conflict betwixt two courts, both trying the same cause to the same effect. Opposite judgments would indeed be inextricable, as being flatly inconsistent; one of the courts, for example, ordering a thing to be done, and the other court discharging it to be done. This has happened betwixt the two houses of parliament: it may again happen; and I know of no remedy in the constitution of our government. But in this island, matters of jurisdiction are better ordered than to afford place for such an absurdity. An indirect conflict may indeed happen, where two courts handling occasionally the same point, in different causes, are of different opinions upon that point. Such contrariety of opinion, ought as far as possible to be avoided for the sake of expediency; as tending to lessen the authority of one of the courts, and perhaps of both. But as such contrary opinions, are the foundation of judgments calculated for different ends and purposes, these judgments when put to execution, can never interfere. For example, being in pursuit of a horse stole from me, and, in the hands of a suspected person, finding a horse which I judge to be mine, I use the privilege of a proprietor, and take away the horse by violence. A criminal process is brought against me for robbery; against which my defence is, that the horse is mine, and that it is lawful for a man to seize his own goods wherever he finds them, This obliges the criminal judge to try the question of property, as a preliminary point. It is judged, that the evidence I have given of my property, is not sufficient. The result is a sentence to restore the horse, and to pay a fine. I obey the sentence in both particulars. But as the question of property was discussed with a view solely to the criminal prosecution, nothing bars me from bringing thereafter a claim of property before a civil court; and if I prevail, the horse must again be put in my possession. This is not a conflict of execution, but only of opinion, which disturbs not the peace of society. The horse is declared mine: this secures to me the property; but does not unhinge the criminal sentence, nor relieve me from the punishment.
ANOTHER case of a similar nature really existed. Before the justices of peace, a complaint was brought by General St. Clair, with concourse of the procurator-fiscal, against John Ranken officer of excise, charging,
"That the said John Ranken did, without any legal order, forcibly break open the doors or windows of the house of Pitteadie, belonging to the General; and, after rummaging, left the house open, so as any person might have access to steal or carry away the furniture; and concluding that he should be fined and punished for the said riot and trespass."
The defendant acknowledged,
"That upon a particular information of prohibited goods, he, by virtue of a writ of assistance from the court of exchequer, did force open a window of the house, and made a search for prohibited goods, but found none; that in this matter, acting
virtute officii,
he was liable to no other court but the exchequer."
The justices rejected the declinator, imposed a fine upon the defendant, and ordered him to be imprisoned till payment. In this case there is no difficulty. The officers of the revenue are not exempted from the courts of common law; and upon a complaint against any one of them for a riot or other malversation, the justices must sustain themselves competent, and of course judge of the defence as well as of the libel. But I put a straiter case, That the officer had found prohibited goods, and sent them to the custom-house. According to the foregoing sentence of the justices, they must, in the case now supposed, have proceeded to order restitution of the goods,
quia spoliatus ante omnia restituendus.
But before restitution, a process is brought in exchequer for forfeiting these goods as prohibited. In this process the seizure is found regular, and the goods are adjudged to belong to the King. This judgment, which transfers the property to the King, relieves of course the officer from obeying the sentence of the justices ordering him to restore the goods; for if the goods belong not to the plaintiff, he cannot demand restitution. But then if the officer be fined by the justices, their sentence so far must be effectual. The judgment of the court of exchequer, cannot relieve him from this fine.
BY an act 12th George I. cap. 27. § 17. intituled,
"An act for the improvement of of His Majesty's revenues of customs and excise, and inland duties,"
it is enacted,
"That for the better preventing of frauds in the entering for exportation any goods whereon there is a drawback, bounty or premium, it shall be lawful for any officer of the customs, to open any bale or package; and if upon examination the same be found right entered, the officer shall, at his own charge, cause the same to be repacked; which charge shall be allowed to the officer, by the commissioners of the customs, if they think it reasonable."
Upon this statute, a process was brought before the court of session, against the officers of the customs at Port-Glasgow, for unpacking many hogsheads of tobacco entered for exportation, without repacking the same. The defendants betook themselves to a declinator of the court, contending, That this being a revenue affair, it should not be tried but in the court of exchequer. The court of session had no opportunity to judge of this declinator, because the matter was taken away by a transaction. But the following reasons make it clear, that this declinator has no foundation. 1
mo,
Where an action of debt, from whatever cause arising, is brought before the court of session, there can be no doubt of the competency of the court; because its jurisdiction, with regard to such matters, extends over all persons of whatever denomination. The court therefore must be competent. And if so, every thing pleaded in way of defence must also come under the cognisance of the same court, according to the modern rule,
viz.
that it is competent to judge of points proponed as a defence, to which the court is not competent in an original process. 2
do,
With respect to the claim under consideration, it is not competent before the court of exchequer, but only before the court of session. By the act 6
to Ann.
constituting the exchequer, the Barons are the sole judges in all demands by the King upon his subjects, concerning the revenues of customs, excise, &c.; but they have no jurisdiction where the claim is at the instance of the subject against the King. And for that reason, the claims against the forfeited estates, are by statute appointed to be determined by the court of session.
HAVING said what was thought proper upon courts, as distinguished by the different causes appropriated to each, and as thereby different in kind; I proceed to consider courts of the same kind, as distinguished by territorial limits. The jurisdiction of a territorial judge extending over all persons, and over all things within his territory, I shall first take under view personal actions, and thereafter those that are real. With relation to the former, it is a rule, that
Actor sequitur forum rei.
The reason is, that the plaintiff must apply to that judge who hath authority over his party, and can oblige him to do his duty. This must be the judge of that territory, within which the party dwells, and has his ordinary residence. The inhabitants only, are subjected to a territorial judge, and not every person who may be found occasionally within the territory. Such a person is subjected to the judge of the territory where his residence is; and it concerns the publick police, that jurisdictions be kept as distinct as possible. And as it may frequently be doubtful where the residence or domicil of a party is, a plain rule is established in practice, That a man's domicil is construed to be his latest residence for forty days before the citation. This however is not so strictly understood, as that a man can have but one domicil. There is no inconsistency in his having at the same time different domicils; and, of consequence, in his being equally subjected to different jurisdictions, supposing these domicils to be situated in different territories
See l. 6. §. 2. l. 27. § 2. ad municipalem.
. It was accordingly judged, that a gentleman who had his country-house in the shire of Haddington, and at the same time lived frequently with his mother-in-law in Edinburgh, and had a seat in one of the churches there, was subjected to both jurisdictions
Fountainhall, 15th July 1701, Spotswood
contra
Morison.
. On the other hand, a man who has no certain domicil, must be subjected to that judge within whose territory he is found. This is commonly the case of soldiers; and hence the maxim,
"Miles ibi domicilium habere videtur, ubi meret, si nihil in patria possideat
l. 23. § 1. ad municipalem.
".
In a reduction accordingly of a decree against a soldier, pronounced by the baillies of a town where the regiment was for the time, and he personally cited; it being urged that he was not forty days there, and therefore not subjected to the jurisdiction; the Lords considering, that soldiers have no fixed dwelling, repelled the reasons of reduction
Fountainhall, 12th November 1709, Lees
contra
Parlan.
.
To this rule, that
Actor sequitur forum rei,
there are several exceptions, depending on circumstances which entitle the claimant to cite his party to appear before the judge of a territory where the party hath not a residence. A covenant, a delict, nativity, have each of them this effect. A covenant bestows a jurisdiction upon the judge of the territory where it is made, provided only the party be catched within the territory, and be cited there
See l. 19. de judiciis.
. The reason is, that if no other place for performance be specified, it is implied in the covenant, that it shall be performed in the place where it is made; and it is natural to apply for redress to the judge of that territory where the failure happens, provided the party who fails be found there. For the same reason, if a certain place be named for performance, this place only, is regarded, and not the place of the covenant; according to the maxim,
"Contraxisse unusquisque in eo loco intelligitur, in quo ut solveret se obligavit
l. 21. de obligat. et action.
."
The court of session, accordingly, though they resused to sustain themselves judges betwixt two foreigners, with relation to a covenant made abroad, thought themselves competent, where it was agreed the debt should be paid in this country
Haddington, 23d November 1610, Vernor
contra
Elvies.
.
A criminal judge, in the same manner, hath a jurisdiction over all persons committing delicts within his territory, provided the delinquent be found within the territory, and be cited there, or be sent there by the authority of a magistrate to whom he is subjected
ratione domicilii
l. 3. pr. de re militari.
. Nor can the delinquent decline the court, upon a pretext which in ordinary cases would be sufficient,
viz.
that he hath not a domicil within the territory, nor hath resided there forty days
Gosford, 18th Novem. 1673, Gordon
contra
Macculloch.
. This matter is carried so far, as that the
forum delicti
is reckoned preferable to that of the domicil; according to a maxim, That crimes ought to be tried and punished where they are committed; and that a judge hath no concern with any crime but what is committed within his own territory. Hence it is, that a baron having unlawed his tenant for blood, the decree was declared null, and that the matter stood entire to be tried by the sheriff; because the fact was not done upon the baron's ground; nor did the party hurt, live within his territory; nor did he make his complaint there
Durie, 28th July 1630, Freeland
contra
sheriff of Perth.
. In like manner, the Lords turned into a libel, the decree of an inferior court, fining a party for a riot committed in a different territory
Fountainhall, 14th February 1708, Procurator-fiscal of Dumblane
contra
Wright.
. In these cases the prosecution was at the instance of the procurator-fiscal. But where the party injured is the prosecutor, I see no reason why he may not have his choice of either
forum, viz.
of the delict, or of the delinquent
See to this purpose, l. 1. C. ubi de crimin. agi oporteat.
.
WITH relation to jurisdiction, civil, criminal, and ecclesiastical, I have had occasion to observe, how strictly each court was confined originally within its own province. The same way of thinking obtained, with relation to territorial jurisdiction. It was not sufficient to found an action, that the defendant lived within the territory: if the cause of action did not also arise within the territory, the judge was not competent. In remedying disorders and inconveniencies, men seldom are moderate enough to confine themselves within proper bounds. The jurisdiction exercised by chieftains over their own people was found to be so inconvenient, especially after different clans came to be mingled together by blood and commerce, that in reforming the abuse, we were naturally carried to the opposite extreme, by confining judges within the strictest limits, with respect to territory as well as causes. And indeed, in establishing territorial jurisdiction, the thought was natural, that it is the duty of every judge to watch over the inhabitants of his territory, and to regulate their conduct and behaviour while subjected to his authority; but that he hath no concern with what is done in another territory. This I say is a thought which figures extremely well in theory; and might likewise answer tolerably well in practice, while men were in a good measure stationary, and their commercial dealings confined to the neighbourhood. But it became altogether impracticable, after men were put in motion by extensive commerce. The impediment to the distribution of justice, occasioned by this narrow and confined principle of the common law, was in England soon perceived, and an early remedy provided. The court of the constable and marishal was established for trying all actions founded upon contracts, delicts, or other facts, that had their existence in foreign parts; and as the common law of England did not reach such cases, these actions were tried
jure gentium.
This court was much frequented while the English continued to have a footing in France. After they were forced to abandon their conquests there, this court, by want of business, dwindled away to nothing. To support a court with so little prospect of business, was thought unnecessary; and a contrivance was found out, to bring before the courts of Westminster, the few causes of this nature that occurred. A fiction is an admirable resource for lawyers, in all matters of difficulty. The cause of action is set forth in the declaration, as having happened in some particular place within England. It is not incumbent upon the pursuer to prove this fact, nor is it lawful for the defendant to traverse it
See Arth. Duck de authoritate juris civilis, L. 2. cap. 8. pars 3. § 15, 16, 17, and 18.
. But inferior courts enjoy not the privilege of this fiction; and therefore in England, to this day, an inferior court is not competent in any process, where the cause of action doth not arise within the territory of that court
Bacon's abridgement, p. 562, 563, & 564.
. It is not enough that the party against whom the claim lyes is subjected personally to the jurisdiction. And if he retire into foreign parts, there is no power by the common law to cite him to appear before any court in England. There is not in the practice of England any form of a citation, resembling ours at the market-cross of Edinburgh, pier and shore of Leith
THIS defect in the common law may occasion so gross injustice, that the court of chancery, I can have no doubt, will find a remedy. The person abroad cannot be legally cited, but notice may be given him by authority of the court; and if he appear not in his own defence, a decree will, I presume, be given, for making the claim effectual out of his funds personal and real.
.
WE probably had once the same strict way of thinking with respect to territorial judges: but in later times we have relaxed greatly and usefully from such confined notions. As to an action of debt, for example, what can it signify, in point of jurisdiction, where the cause of action arose? This circumstance therefore is quite disregarded. If the party against whom the claim lyes, be subjected personally to the court, we reckon the jurisdiction well founded. Crimes indeed admit of a different consideration. A judge or magistrate must preserve the peace within his own territory; but reckons himself not concerned with crimes committed any where else. Upon this account, there cannot regularly be a prosecution for a crime at the instance of the publick, but before that judge within whose territory the crime was committed. But, as above suggested, where the prosecution is at the instance of the party injured, he may, if he chuse, bring the prosecution before that judge to whom the delinquent is subjected
ratione domicilii.
Such prosecution being chiefly intended to gratify the resentment of the party injured, it naturally belongs to him to chuse the
forum.
I proceed to the third exception,
viz.
that of nativity; and in what cases this makes a
forum,
deserves peculiar attention; because writers seem not to have any accurate notions about it. Jurisdiction was of old, for the most part, personal, founded upon the clan-connection; every person belonging to a clan, being subjected to the jurisdiction of the chieftain, and to none else. While such was the law, nativity or the
locus originis,
was the only circumstance that founded a jurisdiction. Commerce gave a new turn to this matter, by the connections it formed among different nations, and by the confluence it produced in places of trade from all different countries. The clan-jurisdiction becoming by these means inexplicable, gave place to territorial jurisdiction; after which the
locus originis
became a mighty slight affair. The law of nations indulges individuals to change their country, and to fix their residence where they can find better bread than at home. Such migrations are frequent in all trading countries; and it would be unreasonable to subject a man to the laws of his native country, after he has deserted it, and is perhaps naturalized in the country where he is settled for life. It is indeed not an absurd rule, that, even in this case, the duty he owes to his native country, ought to restrain him from carrying arms against it; and I observe, that this has been reckoned the law of nations. But supposing him so far bound, it is a much wider step, to subject him to the courts of his native country, where he has no residence, where he has no effects, and to which he has no intention ever to return. I might add, were it necessary, that the effect of nativity even with regard to treason, is at present scarce thought rational, without other circumstances to support it; and that it is a punishment too severe, to put to death as guilty of high treason the subjects of a foreign prince taken in war, merely because they were born in the country where they are prisoners. Voet
De judiciis, § 91.
cites many authorities to prove, that birth singly doth not produce a
forum competens, excepto solo majestatis crimine.
And therefore, upon the whole, the following conclusion seems to be well founded, That nativity, with respect to the present subject, stands upon the precise same footing with contracts and delicts; and that like the
locus contractus,
and
locus delicti,
the
locus originis
will found a jurisdiction, provided only the party be found within the terriritory. None of them have any other effect, than to exclude the privilege of a domicil, and to subject the party to a jurisdiction where he hath not a residence
To carry this matter a step farther, I put the case, That a Scotsman having a land-estate in Scotland, goes abroad, is naturalized in a foreign country, acquires a fortune, and settles there with his family,
animo remanendi.
Will not he and his descendants, while they retain their family-estate in Scotland, be considered as Scotsmen? I incline to the affirmative, and that they will be subjected to the courts here, precisely like natives. And if this doctrine hold where a Scotsman settles in Holland, France, or Germany, it must
a fortiori
hold where he settles in England, which with Scotland makes one kingdom. But an Englishman, by purchasing a land-estate here, becomes not
eo ipso
a Scotsman, to be subjected personally to the courts of this country. In particular, he is not liable to answer a citation at the marketcross of Edinburgh, pier and shore of Leith. Such weight is still laid upon the
locus originis.
.
I am aware, that in practice actions are commonly sustained against natives of this country, even when they are abroad
animo remanendi;
and in this case that an edictal citation at the market-cross of Edinburgh, pier and shore of Leith, is held sufficient. It is not however positively asserted, that such persons, like inhabitants, are subjected to the courts of this country. The pretext commonly is, that the decree is intended for no other purpose, than to attach the debtor's effects in Scotland, and his person when he shall happen to be found in his native country. Several of these cases, which cannot be justified by principles, are collected in the dictionary
Vol. I. page 327.
. So much appears from them, that the court of session did not pretend to assume a jurisdiction over the subjects of a foreign prince, upon account singly of their being natives of Scotland; and that, in order to found such jurisdiction, it was necessary to have some reference to effects situated here, either really or by supposition. But there is no accuracy in this way of thinking. If nativity, singly considered, make a
forum,
the jurisdiction requires no support from collateral circumstances. If on the other hand, nativity singly make not a
forum,
no other circumstance can be held sufficient, unless actual presence. Without this circumstance the judge cannot give authority even to the first act of jurisdiction,
viz.
a citation. And therefore, all that can in this case be done, is to proceed as against foreigners whose effects are found within Scotland.
THE foregoing exceptions to the rule of law
quod actor sequitur forum rei,
are constraints upon the defendant, by obliging him to answer in another jurisdiction than where he has fixed his residence. Prorogation of jurisdiction, is an exception of a different nature, for it puts the party under no constraint. Where a man is called before an incompetent court, he may offer a declinator; and it is only in case he forbear to make this objection, that the decree is held good against him, upon his actual or supposed acquiescence in the jurisdiction. How far and in what cases such prorogation can have effect, is not clearly laid down by our writers. Lawyers are apt to be misled, by following implicitely what is said in the Roman law upon this subject. For these reasons, I shall handle the subject at large, and endeavour to fix, the best way I can, how far decrees are by our law effectual, upon the footing merely of prorogation. This subject is treated by the Roman lawyers with great accuracy
L. 1. de judiciis.
. The words are:
"Si se subjiciant alicui jurisdictioni et consentiant; inter consentientes, eujusvis judicis qui tribunali praeest, vel aliam jurisdictionem habet, est jurisdictio."
Thus, though consent, by the Roman law, cannot make a man a judge, who is not otherwise a judge, it has however the effect, to bestow upon a judge a new jurisdiction, and to enable him to determine in a case, to which, abstracting from consent, he is altogether incompetent. Upon this principle, a civil judge may determine in a criminal matter, a criminal judge in a matter that is civil, and a judge, whose jurisdiction is limited with respect to sums, may give judgment without limitation
See as to this last point, I. 74. § 1. de judiciis.
. And hence the doctrine laid down by commentators, may be easily understood. They mention four different ways, by which a jurisdiction may be limited. It may be limited as to time, as to place, as to persons, and as to causes. With respect to the two first, it is evident from the law above cited, that jurisdiction cannot be prorogated. A judge after his commission is at an end, has no manner of jurisdiction; and as little jurisdiction has he, beyond the bounds of his territory. But as to persons and causes the matter is otherwise. For though consent cannot advance a private man to be a judge; yet, supposing him once a judge, consent will, in the Roman law, enable him to pronounce sentence against a person not otherwise subjected to his jurisdiction, and in a cause where he has no original jurisdiction.
OUR law, with relation to persons, is the same. For though it be a rule in both laws, that the authority of a judge is confined within his territory, and that no person living in another territory is bound to obey his summons, yet by our law, as well as that of the Romans, if a man cited irregularly chuse to appear, or if he appear without citation, and submit to the judge, by pleading defences as if he were regularly cited, the jurisdiction is thereby prorogated, and the decree hath its full effect. But with respect to causes, our law differs widely. A civil cause brought before the justiciary or exchequer, will not produce an effectual decree, even with the express consent of the defendant. In like manner, if a process for contravention of laburrows, which is peculiar to the court of session, be brought before an inferior court, the acquiescence of the defendant, submitting to the jurisdiction, and pleading defences, will not prorogate the jurisdiction. The decree is null by way of exception
Haddington, 6th July 1611, Kennedy
contra
Kennedy.
. And the like judgment was given with respect to an extraordinary process of removing, founded on the lessee's failure to pay his rent
Falconer, 22d December 1681, Beaton
contra
his tenants.
. With respect to causes of this nature, where the judge is incompetent, it is a rule with us, That consent alone cannot found a jurisdiction, nor impower the judge to give sentence. Causes against members of the college of justice, when sued before an inferior court, are not an exception from this rule. It is the privilege of this body, to have every civil action against them tried in the court of session; and the defendant may advocate upon his privilege, if he chuse not to submit to the inferior judge. Acquiescence however in the inferior judge, is not a prorogation of jurisdiction, but merely waving a privilege; for a court which hath a radical jurisdiction, stands in no need of a prorogation to establish its authority. An action of debt, for example, is competent before the sheriff, against every inhabitant within his territory, not excepting members of the college of justice. The only difference is, that these enjoy the peculiar privilege of removing the cause, if they think proper, to the court of session. But if they chuse not to use their privilege, the sheriff goes on against them as against others, by virtue of his original jurisdiction. The same is precisely the case of the judge admiral, with relation to mercantile causes. These are not contained in his charter; but in these however he hath obtained a jurisdiction by prescription; not so perfectly indeed, as to oblige any one to submit to this assumed jurisdiction. If they submit, the decree will be effectual; and even a decree in absence will be effectual. But a defendant who chuses not to submit to such jurisdiction, may bring the cause before the court of session by advocation, singly upon privilege, without being obliged to assign any other reason.
HAVING discussed personal actions, which, with relation to territorial jurisdiction, are first in order, I proceed to real actions. A real action is, where the conclusion of the declaration or libel respects things only, and not persons; as, for example, a declarator of property or servitude, a declarator of marches, and such like. And the question is, What is the proper court for trying such causes, when the subject or thing is locally within one territory, and the possessor within another? This is not an intricate question. The answer obviously is, That where the conclusion regards the subject, that judge must be chosen who hath authority over it,
viz.
the judge of that territory where it is situated; for territorial jurisdiction, undoubtedly, is connected with things as well as with persons. But then a difficulty occurs in this case. The possessor ought, in common justice, to be called, in order to defend his interest; and yet he cannot be summoned by a judge within whose territory he resides not. My notion in this matter may, I am afraid, appear singular. I acknowledge, that those persons only who have a domicil within the territory, are subjected to the authority of the court; and that it is in vain for a judge to command any thing to be done or forborn, by a person who is not under his authority. Such person cannot even be cited to appear in court; because no person is bound to obey the commands of a judge, who hath no authority over him. The matter, however, is not without a remedy. Instead of a citation, which implies jurisdiction, why may not an intimation or notification suffice, in a case where there is no personal conclusion against the party
See a form of process annexed to the Reg. Majest. Ch. 4. § 4, & 5.
. Such notification may be given by any one, and in particular by a judge. Such notification withal, in point of material justice, is equivalent to a regular citation; because it hath all the advantages of a citation, by affording the party full opportunity to defend his own interest. If this form of process be unexceptionable in point of rationality, it is in a good measure necessary in point of expediency. For how otherwise shall any real claim be made effectual, where the antagonist and the subject in debate are not both within the same territory? If I shall follow the domicil of my party, a decree against him may be a foundation for damages, but will not put me in possession of the subject. This branch of my claim cannot by any other judge be made effectual to me, than by the judge of the territory where the subject locally exists. From this hint, it is evident, that if a notification be not sufficient, the supreme court must be applied to in every case of this nature, which would be a great defect in publick police. Nor, if a citation were necessary, would even this in all cases be an effectual remedy; for what if my party be abroad
animo remanendi,
or perhaps a foreigner? In this case, there is no resource but the notification; and in this case, luckily for my argument, the notification is held sufficient. The process I have in my eye, is that which commonly passes under the name of arrestment
jurisdictionis fundandae gratia.
The judge within whose territory the goods of a foreign debtor are, having a jurisdiction over these goods, though not over the proprietor, can adjudge them to a creditor for his payment. In this process of adjudication or forthcoming, the person in whose hands the goods are found, is trusted with the notification; though, in my apprehension, the process would be more regular, and more solemn, were the notification directed by authority of the court. This process, when it respects moveables, is generally preceded by an arrestment of the goods, in order to prevent their being withdrawn and carried out of the territory; and as by this means the jurisdiction is secured, the arrestment in that view is termed an arrestment
jurisdictionis
fundandae gratia;
improperly indeed. The arrestment, so far from founding the jurisdiction, supposes the jurisdiction antecedently founded; for by what authority could the arrestment be used, if the goods were not already subjected to the jurisdiction? And so little essential is an arrestment to this process, that if the creditor rely upon the person in whose hands the goods are, he may carry on the process to its final issue, without using an arrestment.
IN following out any real action, where the dispute is with one of our own country who resides not within the jurisdiction, I see no good cause why the form now mentioned may not be used as well as in the case of foreigners. And I must observe, that we approach extremely near to this form, by obtaining the interposition of the court of session, or rather of the King, for citing the party to appear within the jurisdiction where the subject lyes. The warrant for citation, in this case, is termed a letter of supplement, which is never given in a personal action; for there the rule obtains,
Quod actor sequitur forum rei.
And it appears to me, that this form of a letter of supplement has crept in, not from necessity, because I hold a private notification to be sufficient, but from the prepossession of custom; a regular citation, as the first step of process, being so general, as to be thought necessary in all cases. Custom is so naturally productive of a bias, and takes so firm hold of the mind, that it requires the utmost fortitude of reason to overcome it. Were I not afraid of refining too much, I would venture to say further, that every inhabitant in Scotland, being in civil causes subjected to the jurisdiction of the court of session, is bound to appear there when regularly called. But I deny their subjection to be such, as to put it in the power of this court, to oblige them to appear in any court to which they are not subjected. If my creditor shall bring a process against me for payment before a sheriff, within whose territory I have no residence, the court of session cannot give warrant for a letter of supplement to oblige me to defend myself there; and were my presence equally necessary in a real action, a letter of supplement could not be issued in a real action more than in one that is personal. But my presence is not necessary, where there is no personal conclusion against me. Common justice indeed requires a notification; and the design of a letter of supplement is not to be a warrant for citation, but only for notification.
To view this matter in its different circumstances, we shall invert the case, by supposing the debtor to be within the jurisdiction, and not his effects. Upon a minute of sale of land, the vender is sued within the sheriffdom where he resides, to grant a disposition. Damages may be awarded for not fulfilling the covenant, but the land cannot be adjudged to the pursuer, because it is not under the sheriff's jurisdiction. The sheriff hath, by prescription, obtained a privilege of pronouncing a decree of adjudication
contra hereditatem jacentem:
but if the real estate be not locally within his territory, he cannot pronounce such a decree. Hence in this matter a remarkable difference appears, betwixt a judicial transference of property or any real decerniture, and a personal decerniture respecting a particular subject. The former is
ultra vires
where the subject is not locally within the territory: not so the latter; for it is enough that the defendant have his residence within the territory. A judge may interpose his authority, and command the defendant to fulfil his bargain, by conveying land or moveables to the pursuer. To found the judge's authority in this case, it is not necessary that the subject be locally within the territory. But what if after all the defendant be refractory? The judge may punish him with imprisonment, or condemn him in damages. There the judge must stop short; for he has no authority over the subject. Upon this footing, a burgess of Edinburgh suing a brother burgess in the town-court, to remove from certain lands
extra territorium,
the Lords thought the process regular
Colvil, 7th March 1579, Johnston
contra
Johnston.
. And upon the same footing, a Scotsman being convened before the court of session, for forging a title to a land-estate in Ireland, the court tried the forgery, because the defendant was subjected to their jurisdiction; and the forgery being proved, the forged deed was ordained to be cancelled
Falconer, 14th Feb. 1683, Murray
contra
Murray.
. A debtor, within threescore days of his notour bankruptcy, goes to England with a favourite creditor, and there assigns to him, for his security and payment, a number of English debts. In a reduction upon the act 1696, against the assignee, he pleads, that the court of session hath no jurisdiction over English debtors, and that this court cannot reduce an assignment which conveys subjects not under its jurisdiction. According to the principles above laid down, the following answer appears to be good, That it was wrong in the assignee to concur with the bankrupt, in a stratagem to defraud the other creditors, who, in the case of bankruptcy, are each entitled to a proportion of the debtor's effects; that the assignee is subjected to the court of session, and to their orders, and that it is the duty of the court, to ordain the assignee to make over to the creditors the debts in question, in order to an equal distribution; or rather to subject him to the creditors for a sum equivalent to these debts, deducting what of these debts he shall convey to the creditors within a limited time.
IN the beginning of this discourse, I have given a sketch of the different powers of our supreme courts, with respect to causes. Upon the present head it is proper to be observed, that these courts are also, in some measure, distinguished with respect to territory. The territorial jurisdictions of the justiciary and exchequer are not confined to land, but reach over all friths, and also over the sea adjoining to the land. These jurisdictions reach over Scotland; and the portions of water now mentioned are conconceived to make part of Scotland. The jurisdiction of the court of session is not less extensive, considered as territorial; and it enjoys besides a jurisdiction over all the natives of Scotland wherever existing, provided they have not deserted their native country, but are abroad occasionally only
See abridgment of statute-law, Note 7th.
. The admiral court again hath a jurisdiction with regard to all maritime and sea-faring matters, civil and criminal, happening in whatever part of the world, provided the person against whom the complaint, civil or criminal, is laid, be found in this country.
ADVANCING to our courts considered as superior and inferior, I begin with observing, that the common method of seeking redress of injustice done by an inferior court, is by appealing to one that is superior. That this particularly was the method in Scotland, is clear from our most ancient law-books. It is laid down,
"That a party may appeal from one court to another, as oft as judgment is given against him, finding borghs lawful for every doom gainsaid; from court to court; till it be decided for or against him in parliament; from which no appeal can be made; because it is the highest court, and ordained for redressing wrongs done by all inferior courts
Mod. Ten. Cur. cap. 16.
."
An appeal lay from the sentence of a baron or freeholder to the sheriff; and from the sentence of magistrates within burgh to the chamberlain; from the sheriff and chamberlain to the King's justiciar; and from him, not to the parliament, as originally, but to thirty or forty persons named by his majesty, with parliamentary powers to discuss the appeal
Act 95. p. 1503.
.
THIS method for obtaining redress of wrong judgment, hath in Scotland gone into disuse, excepting an appeal to the British house of Lords from the sovereign courts; and to the higher ecclesiastical courts from those that are inferior. What was the cause of this innovation? We have the authority of Stair
L. 4. cap. 1. § 31.
, that after the institution of the college of justice, appeals gave place to advocations, suspensions, and reductions. But by what means, and after what manner? Appeals are not discharged by any statute; and being interposed at the will of those who conceive themselves wronged, are too obsequious to the passions and prejudices of mankind, to be tamely surrendered. We are here left in the dark by our writers. I shall endeavour however to trace this matter the best way I can; supplying the want of positive facts by rational conjecture.
IN order to talk with the greater perspicuity, I find it necessary to premise a historical account of the supreme courts, that in this country have successively been established for civil causes. Through most of the European nations, at a certain period of their history, the King and council composed the only supreme civil court, in which all causes were tried that came not under the jurisdiction of inferior courts. But it must be remarked, that, in Scotland at least, this was not a court of appeal; for, as above observed, causes originally were removed by appeal from the King's justiciary to the parliament, and thereafter to persons appointed by the King with parliamentary powers. This court, composed of the King and council, having no continuance, nor regular times of meeting and distributing justice, was extremely inconvenient; and it greatly heightened the inconvenience, that the King who presided, being involved in the greater affairs of government, had little time or inclination for deciding in private affairs. This made it necessary to establish regular courts for different causes; having appointed terms of sufficient length for all matters that should come before them. Thus in England, the King's bench, the exchequer, and the court of common pleas, arose out of the said court, and were all fully established in the reign of Edward I. We did not soon apply so effectual a remedy. The first thought that occurred to our legislature, was to relieve the King and council, by substituting in their place the court of session
Act 65. p. 1425.
, to sit three times in the year, in order
"finally to determine all and sundry complaints, causes, and quarrels that may be determined before the King and his council."
This court acted but forty days at a time; and the members, who served by rotation, were so numerous, that the round was seldom compleated in less time than seven years
See act 63. p. 1457.
. This court was far from being a compleat remedy. Its members and its place of sitting were changeable; and its terms were too short for expediting business. The next attempt to remedy the inconveniencies of the former courts, was the daily council, erected by the act 58. p. 1503. The statute, after narrating the great delay of justice, occasioned by the short terms of the session, and their want of time to finish causes, appoints a council to be chosen by the King, to sit continually in Edinburgh the year round, or where else it shall please the King to appoint, to determine all causes that were formerly competent before the session. This court, called
The Daily Council,
from their sitting daily through the year, was also defective in its constitution, having no
quorum
named, nor any compulsion upon the judges to attend. The same causes passing through the hands of different judges at different times, was a great impediment to the regular administration of justice. In a politic body of judges, there is not a greater disease than a fluctuation of the members. This court accordingly was soon laid aside, to make way for the court of council and session, established in
anno
1532, in the same form that at present subsists, having stated terms of a reasonable endurance, and a certain number of judges, who all of them are tied to a punctual attendance.
TO return to appeals, I remark, that an appeal was competent against an interlocutory as well as against a definitive sentence
Act 41. p. 1471.
; which behoved to be extremely vexatious, by putting it in the power of the defendant to prolong a cause without end. Let us only figure a civil action furnishing exceptions partly dilatory and partly peremptory, to the amount of half a dozen, which is no bold supposition; and let us observe what may follow. In an appeal the ascent behoved to be gradual to the court next in order; and there was not access to the court in the last resort, unless redress was denied by each of the intermediate courts. Thus, from the sentence of a baron court, or of the baillie court in a royal burrow, there behoved to be no fewer than three appeals in order to obtain the judgment of the parliament, or of the court of appeal put in place of the parliament. Hence each of the exceptions above supposed, might occasion no fewer than three appeals; and consequently there might be eighteen appeals in this cause before a final determination; a most admirable device to give full scope to a spirit of litigiosity, which, by all wise men, came to be deemed an intolerable grievance. The first attempt I find made for redress, is in the act 105. p. 1487, bestowing a privilege upon those who are hurt by the partiality of inferior judges,
"to summon before the King and council, the judge and party, who shall be bound to bring the rolls of court along with them in order to verify the matters of fact: and if iniquity be committed, the process shall be reduced and annulled."
It is declared at the same time, that this method of obtaining redress, shall not exclude the ordinary process of appeal, if it shall be more agreeable to the party aggrieved. This regulation is declared to endure till the next parliament only. But though we do not find it renewed in any following parliament, it would be rash to infer that it was laid aside. If it was relished by the nation, which we have great reason to believe, it is more natural to infer, that it was kept in observance without a statute. One thing appears from the records of the daily council still preserved, that very early after the institution of this court, complaints were received against the proceedings and decrees of inferior judges, and, upon iniquity found, that the proceedings were rectified or annulled. The very nature and constitution of this court, behoved to give birth to some such remedy; especially as the remedy was not altogether new. This court could not receive an appeal, because no such privilege was bestowed upon it; and the whole forms of a process of appeal, were accurately adjusted by parliament immediately after the institution of this court
Act 95. p. 15
.
. Now, no man who had once experienced an easier remedy, would ever patiently submit to the hardship and expence, of multiplying appeals through different courts, before he could get his cause determined in the last resort. We may therefore readily believe, that a direct application to the daily council for redress, would be the choice of every man who conceived injustice to be done him by an inferior judge. He could not bring his cause before this court by appeal; which justified his bringing it by summons or complaint. And in this form he had not any difficulty to struggle with, more than in an appeal; for the former requires no antecedent authority from the court, more than the latter. This assumed power of reviewing the decrees of inferior judges, was soon improved into a more regular form. Decrees of registration were from the beginning suspended and reduced in this court; and by its very institution it was the proper court for such matters. The same method came to be followed, in redressing iniquity committed by inferior judges. In place of a complaint, a regular process of reduction was brought; and because this process did not stay execution, the defect was supplied by a suspension.
HERE then is a matter fairly accounted for, which seems to have puzzled our antiquaries,
viz.
How it comes that we hear not of appeals after the institution of the college of justice. Stair, in the passage cited above, says slighty, That after the institution of this college, they fell in desuetude, and gave place to advocations, suspensions and reductions. We now find this to be a mistake. And indeed had they not been antecedently in disuse, it would be difficult to account how it should have happened, that in none of the records, relative to the institution of this court, is there a single word of appeals. On the contrary, in the very first form of process established for this court, we find reductions of inferior decrees among those processes, which are to be called in a certain order
Act 45. p. 1537.
.
IT may be observed by the way, that this process of reduction, first practised in the daily council, and afterwards in the present court of session, put an end to the difference betwixt the sheriff and baron courts in point of superiority. When appeals went into disuse, the sheriff lost his power of reviewing the sentences of the baron court; and these courts came by degrees to be considered as of equal rank, when the proceedings of both were equally subjected to the review of the court of session.
THE redress of wrong judgment by appealing to a superior court, is undoubtedly the more natural remedy; because, in case of variance, it resembles in private life an appeal to a common friend, or to a neutral person. But reductions and suspensions have more the air of a compleat legal police. These actions proceed upon authority of letters from the King, who, by the form of the action, is conceived to be watchful over the welfare of his people, and attentive that justice be done them. In this view, whenever an act of injustice is done by an inferior court, he brings the cause before his own court, where he is more confident that justice will be impartially distributed.
THE connection of the subjects leads me to the history of an advocation, or of a
Certiorari,
as termed in England, which at any rate must not be neglected; being the form for redressing iniquity committed by an inferior judge, before the final sentence is pronounced. An advocation originally was not granted but for a delay or refusal of justice. So says Voet in express terms
De judiciis. §. 143.
. And that this also was the use of an advocation here, appears from Reg. Maj. L. 3. cap. 20, 21. The King and council was at first the only court that had the privilege of advocating causes
ob denegatam justitiam.
This privilege was not communicated to the court of session instituted in the 1425; for it appears from act 62. p. 1457, that the court of session was confined to original actions founded on brieves; and complaints against judges for delay of justice, continued as formerly to be tried before the King and council, act 26. p. 1469, act 62. p. 1475. From the former of these it appears, that, upon a complaint of injustice or partiality, letters of advocation were issued to bring the judge before the King and council, to answer to the complaint, and to punish him if the complaint was verified. But as to the cause itself, so strictly was the rule observed of confining an advocation to the denial or delay of justice, that the party wronged got in this case no redress; being left to seek redress in the ordinary form of law by an appeal. Matters of government, by the increase of commerce and connections with foreign states, becoming gradually more intricate and involved, the administration of justice by the King and council, came to be pretty much neglected. The privilege of advocation, which had been denied to the court of session, was permitted to the daily council; but still to be exercised within its original limits. Balfour
Page 342. cap. 12.
mentions a case so late as the 1531, where it was decided, that after litiscontestation a cause could not be advocated; for litiscontestation removed any pretext of a complaint for delay of justice. But the present court of session begun early to apply the remedy of an advocation, to correct unjust or irregular proceedings in inferior courts, termed Iniquity in the law-language of Scotland. An appeal by this time was in disrepute; and seeing it was established, that iniquity could be redressed by a reduction after a final sentence, it was thought natural to prevent an unjust sentence, by advocating the cause, whenever iniquity was committed, in order instantly to redress the wrong. And the court was encouraged to proceed in this manner, from a just conviction, that it was a shorter and less expensive method of obtaining redress, than by an appeal. Thus it came about, that an advocation, invented as a remedy for delay of justice, was extended to remove causes to the court of session, where there was any suspicion of partiality in the inferior judge, or where there occurred any personal objection, till it obtained, that iniquity singly was a sufficient ground. This change, however beneficial to the publick, was not allowed to take place without opposition. The improvement, it would appear, was not at first relished by our legislature. It was ordained by the act 39. p. 1555,
"That causes be not advocated by the Lords from the judge ordinary, except for deadly feud, or where the judge is a party, or the causes of the Lords of session, their advocates, scribes, and members."
But this statute occasioned by the still remaining influence of former practice, having no great authority, soon slipt into disuse. Advocations upon iniquity gaining ground daily, banished appeals against interlocutory sentences; and being more easy and expeditious, became the only remedy.
AFTER appeals were laid aside in civil actions, and gave place to advocations, reductions and suspensions, the power of advocation was for many years reckoned an extraordinary privilege, competent to the court of session only. Stair observes
L. 4. Tit. 1. §. 35.
,
"That no court in Scotland has this privilege but the court of session."
It was undoubtedly so in his time; but matters have since taken a different turn. The court of justiciary enjoys this privilege, and even the admiral court; and from the following historical deduction, it will appear by what means these courts have extended their privileges. The writ of
Certiorari
in England, is the same with our advocation. The court of chancery being the supreme civil court, and the King's bench being the supreme criminal court, can both of them issue a
certiorari.
No other court in England enjoys this privilege. Some method for redressing iniquity committed by an inferior judge, is not less necessary in criminal than in civil actions. The only difference is, that in a criminal action the remedy must be applied, before the matter be brought before the jury; for we shall see by and by that a verdict is inviolable. An appeal to a superior court, was originally the only method, in criminal as well as in civil actions. The inconveniencies of this method, rendered it generally unpopular. We have heard that it gave way to advocation in civil causes, which was reckoned a great improvement. The practice of England showed the advantages of the same method in criminal causes. But how to come at this remedy, was a matter of no small difficulty. The privilege of advocation, according to the established notion, was confined to the court of session. The justiciary court did not pretend to this privilege, and the court of session could not properly interpose in matters which belonged to another supreme court. The known advantages of an advocation, as an expeditious method for obtaining redress of wrong judgment, surmounted this difficulty. The court of session received complaints of wrong done by inferior criminal judges, and upon finding a complaint well founded, took upon them to remove the cause by advocation to the justiciary. They also ventured to remove criminal causes from one court, to another that was more competent and unsuspeccted
See Durie, 9th January 1629, Baron of Burghton
contra
Kincaid. Stair, 21st February 1666,—
contra
sheriff of Inverness.
. The slight figure made in those days, by the court of justiciary which consisted but of a single judge, with assessors chosen from time to time to hold circuit courts, encouraged the court of session to claim this extraordinary privilege. And through the same influence they interposed in ecclesiastical matters also. They advocated a cause for church censure, from the Dean of the chappel-royal, and remitted the same to the Bishop and clergy
Stair, 19th December 1680, Macclellan
contra
Bishop of Dumblane.
. And a minister who was pursued before a sheriff as an intruder into a church, having presented a bill of advocation to the court of session, the cause was advocated to the privy council
Fountainhall, 5th June 1696, Alexander
contra
sheriff of Inverness.
.
THE court of justiciary, after it was new modeled by the act 1672, received additional splendor, and made a much greater figure than formerly. It did not however begin early to feel its own weight and importance. This court did not at first assume the privilege of advocation, though now that appeals were totally in disuse, that privilege belonged to it as the supreme court in criminal actions, as well as to the court of session in those that are civil. The court of session continued to exercise the power of advocation as formerly; for which we have Mackenzie's evidence in his criminals, title
Advocations,
and that of Dirleton in his doubts, upon the same title. But the court of justiciary afterwards, took this privilege to itself, and the court hath a signet of its own, which gives authority to its advocations. This privilege, as is usual, was assumed at first with some degree of hesitation. It was doubted, whether a single judge could pass an advocation, or even grant a sist upon a bill of advocation. Some thought the matter of so great importance, as to require a
quorum
of the judges. But the practice of the court of session, made this doubt vanish. There are many instances as early as the 1699 and 1700, of advocations being past by single judges; and now it is no longer a matter of doubt. It remains only to be added upon this head, that the judge admiral, following the example of the two supreme courts of session and justiciary, is in the practice of advocating causes to himself from inferior admiral courts.
THE privilege of advocation introduced that of suspension, which is now customary in the court of justiciary, with regard to any error in the proceedings of the inferior judge. This court, so far as I know, has never sustained a reduction of a criminal sentence pronounced by an inferior judge; and it appears to me doubtful, whether the court will ever be inclined to extend its jurisdiction so far. My reason of doubt is, that a regular process of reduction is not proper for a court which hath no continuance, and which is held occasionally only. And were it proper, the privilege would be of very little use. An error in an interlocutory sentence of an inferior judge, may be corrected by an advocation. The execution of a sentence of condemnation, may be prevented by a suspension. If the person accused be acquitted by the verdict of the jury, the matter cannot be brought under review by reduction. If he be dismissed from the bar upon any informality in the process, he is liable to a new prosecution. I can discover then no necessity for a reduction, except singly with regard to pecuniary matters, as where damages and expences are unjustly refused. If in such cases the court of session could not interpose, it would be necessary for the court of justiciary to undertake the reduction. But as the court of session is reckoned competent to pecuniary matters, from whatever cause they arise, civil or criminal, the justiciary court acts wisely, in leaving such reduction to the court of session. This draws after it another consequence by a natural connection. The court of session, which by way of reduction, judges of fines, expences, and damages, refused in an inferior criminal court, assumes naturally the power to judge of the same articles by way of suspension, when an exorbitant sum is given. These considerations clearly lay open the foundation of a practice current in the court of session. Of riots, batteries, and bloodwits, depending before the sheriff or other inferior judge, no advocation is issued, because the court hath not an original jurisdiction in such matters. But as the punishment of such delinquencies is commonly a pecuniary fine, the court of session sustains its jurisdiction in the second instance by reduction or suspension
Fountainhall, 4th March 1707, Alves
contra
Maxwell.
. From what is now said, it must follow, that the courts of session and justiciary, have in some particulars a cumulative jurisdiction. In a criminal prosecution before the sheriff, the person accused is, for example, acquitted, and obtains immoderate expence against the prosecutor, without any good foundation. In this, and many cases of the same kind which may be figured, the party aggrieved has his option to apply to either court for a suspension.
UPON the power of reviewing the proceedings of inferior courts, whetherbythe old form of appeal, or by the latter forms of advocation and reduction, what I have said relates singly to iniquity committed by the judge. Iniquity alledged committed by a jury in giving their verdict, was reserved to be handled separately. In judging of proof, every thing sworn by a witness in judgment, was held by our forefathers to be true, a position which indicates great integrity and simplicity of manners, but little knowledge of mankind. So far was this carried, that, till within a century and a half, a defendant was not suffered to alledge any fact contrary to those contained in the declaration or libel. The reasoning of our judges was to the following purpose.
"The pursuer hath undertaken to prove the facts mentioned in his libel. If he prove them, they must be true; and therefore any contradictory fact alledged by the defendant must be false."
Hence the rule in our old law, That what is determined by an assize must be held for truth, and cannot thereafter pass to another assize. This is declared to be the rule in verdicts, even upon civil actions, Reg. Maj. L. 1. cap. 13. §. 3. Quon. attach. cap. 82. But in the service of brieves not pleadable, such as a brieve of inquest, of tutory, of idiocy, which may be carried on without waiting for a contradictor, it was found by experience, that the verdict is not always to be trusted. And therefore by the act 47. p. 1471, a remedy was provided, which was a complaint to the King and council of the falsehood or ignorance of the inquest; and if the verdict was found wrong, it was voided, and the parties concerned were restored to their original situation. The legislature did not venture upon any remedy, where the verdict proceeded upon a pleadable brieve. This was left upon the common law, which preserves the verdict entire, even where it is proved to be iniquitous, being satisfied to keep jurymen to their duty by the terror of punishment. In a process of error, they were summoned before a great inquest, and, if found guilty of perjury, they were punished with escheat of moveables, infamy, and a year's imprisonment
Reg. Maj. L. 1. cap. 14.
. This is a singular regulation, which deviates from just principles, and has not a parallel in the whole body of our law. It is both common and rational, to redress a wrong with relation to the party aggrieved, without proceeding to punish the wrong-doer, where he can excuse or extenuate his fault. But it is not less uncommon than irrational, to punish a delinquent, without affording any relief to the party injured. However this be, the summons of error is limited to three years, not only where the purpose is to have the assizers punished, but also as to the conclusion of annulling the verdict or its retour upon a brieve not pleadable
Act 57. p. 1494.
. But the reduction of the verdict or retour, upon a brieve of inquest, was afterwards extended to twenty years
Act 13. p. 1617.
. No verdict pronounced in a criminal cause ever was reviewable. For though the jury should be found guilty of perjury by a great assize, yet their verdict is declared to be
res judicata,
whether for or against the pannel
Act 63. p. 1475.
. So far as I can discover, the same rule obtained with regard to verdicts in civil cases, retours alone excepted; and continued to be the rule till jury-trials in civil cases were laid aside.
AND as the disuse of jury-trials in civil causes, is another revolution in our law, not less memorable than that already handled concerning appeals, the connection of matter offers me a fair opportunity to trace the history of this revolution, and to discover, if I can, by what influence or by what means it has happened, that juries are no longer employed in civil actions, even where proof is requisite. To throw all the light I can upon a dark part of the history of law, which is overlooked by all our writers, I must take the help of a maxim which appears to have been adopted by our forefathers, and to have had a steady influence in the practice of law. The maxim is, That though questions in law may be trusted to a single judge, matters of proof are safest in the hands of a plurality. It was probably thought, that in determining questions of law there is little trust reposed in a judge, because he is tied down to a precise rule; but that as no precise rule can be laid down to direct the judgment in matters of proof, all questions of this kind ought to be referred to a number of judges, who are a check one upon another. Whatever may be the foundation of this maxim, we find it constantly applied in practice. In all courts, civil and criminal, governed by a single judge, we find juries always employed. Before the judge matters of law were discussed, and every thing preparatory to the verdict; but to the jury was reserved to judge of the matter of fact. On the other hand, juries never were employed in any British court, where the judges were sufficiently numerous to act the part of a jury. Juries, for example, were never employed in parliament, nor in processes before the King and council. And in England, when the court last named was split into the King's bench, the exchequer, and the common pleas, I am verily persuaded, that the continuance of jury-trials in these new courts, was owing to the following circumstance, that four judges only were appointed in each of them, and but a single judge in the circuit-courts. Hence I presume, that juries were not employed in the court of session, instituted
anno
1425. The very nature of its institution leads me to think so; not only that the members of this court were chosen out of the three estates; but also that the purpose of its institution was to relieve the King and council, of the load of business growing daily upon them. There is little reason to doubt, that this new court, consisting of many members, would follow and imitate the forms of the two courts, to which it was so nearly allied. And that this was really the case, may be gathered not obscurely from Balfour
Page 443. cap. 5.
. One thing we are certain of, without necessity of recurring to a conjecture, that the daily council, which came in place of the session, and equally with it consisted of many judges, had not from the beginning any jury-trials, but took evidence by witnesses, and in every cause gave judgment upon the proof, precisely as we do at this day. These facts considered, it seems a well founded conjecture, that so large a number of judges as fifteen, which constitute our present court of session, were appointed with a view to the practice of the preceeding courts, and in order to prevent the necessity of trying causes by juries. In the former court,
viz.
The daily council, we find it composed of bishops, abbots, earls, lords, gentlemen, and burgesses, in order probably that every man might be tried by some at least of his own rank; and in examining the records of this court, we find at first few sederunts, but where at least twelve judges are present. This matter is still better ordered in the present court of session. Nine judges must be present to make a
quorum;
and it seldom happens in examining any proof, that the judges present are under twelve in number. This I am persuaded is the foundation of a maxim, which among us passes current, without any direct authority from the regulations concerning the jurisdiction of this court. It is said to be the grand jury of the nation
in civilibus;
and it is supposed, that its privilege to take proof without the aid of a jury, proceeds from this branch of its constitution. In fact, it is the inviolable practice to give judgment upon the testimony of witnesses, in a full court where there must always be at least a
quorum
present; which is no slight indication that the court in this case acts as a jury. For why otherwise should it be less competent to a single member of the court, to judge of a proof than to judge of a point of law? This account of the court of session, as having united in it the powers both of the judge and jury, cannot fail to be relished, when it is discovered, that this was far from being a novelty when the court was instituted. The thought was borrowed from the court of parliament, the members of which, in all trials, acted both as judges and jurymen. One clear instance we have upon record,
anno
1481, in the trial of Lord Lile for high treason. The members present, the King only excepted, formed themselves into a jury, and brought in a regular verdict, declaring the pannel not guilty. A copy of the trial is annexed, Appendix, No . 5.
UPON this occasion, I cannot avoid declaring my opinion, that in civil causes, it is a real improvement to trust with established judges, the power of deciding upon facts as well as upon law. A number of men trained up to law, and who are daily in the practice of weighing evidence, may undoubtedly be more relied on for doing justice, than the same number occasionally collected from the mass of the people, to undertake an unaccustomed task, which is, to pronounce a verdict upon an intricate proof.
SUPPOSING the foregoing account why juries are not employed in the court of session, to be satisfactory, it will no doubt occur, that it proves nothing with respect to inferior courts, where the judges are generally single. I admit the observation to be just; and therefore must assign a different cause for the disuse of jury-trials in inferior courts. Were the ancient records preserved of these inferior courts, it would, I presume, be found, that civil causes were tried in them by juries, even after the institution of the college of justice; and indeed we are not at freedom to doubt of this fact, after considering the act 42. p. 1587, appointing molestations to be tried by a jury before the sheriff. In the records indeed of the sheriff's court of Edinburgh, there is not the least vestige remaining of a jurytrial in a civil action. But this circumstance created no great perplexity, because the records of that court are not preserved farther back than the year 1595. I had little expectation of more ancient records in other sheriffdoms; but conjecturing that the old form of jury-trials might wear out more slowly in shires remote from the capital, I continued to search, and in the record, luckily stumbled upon a book of the sheriff's court of Orkney, beginning 3d July 1602, and ending 29th August 1604. All the processes engrossed in this book, civil as well as criminal, are tried by juries. That juries at the long-run wore out of use in inferior courts, will not be surprising, when it is considered, that an appetite for power, as well as for imitating the manners of our superiors, do not forsake us when we are made judges. It is probable also, that this innovation was favoured by the court of session, willing to have under their power of review, iniquitous judgments with relation to matters of fact, from which review they were debarred, when facts were ascertained by the verdict of a jury.
FROM the power which courts have to review the decrees of inferior judges, I proceed to the power which courts have to review their own decrees. The court of justiciary enjoys not this power, because the verdict is ultimate, and cannot be overturned. This obstacle lyes not in the way of the court of session; and as the forms of this court give opportunity for such review, necessity brought it early into practice. For the short sederunts of parliament would have rendered appeals, when multiplied, an impracticable remedy. It was necessary therefore to find a remedy in the court itself, which was obtained by assuming a power to reduce its own decrees. And so an appeal came to be necessary in those cases only where the ultimate judgment of the court is unjust. This is the very reason, according to Balfour, which moved the court of session to reduce its own decrees
Page 268.
. The admiralty is the only other court in Scotland that hath a privilege to review its own decrees; and this privilege is bestowed by the act 16. p. 1681.
HAVING discussed what occurred upon our courts in the three first views, I proceed to consider a court of appeal; upon which I observe in general, that in its powers it is more limited, than where it enjoys also an original jurisdiction. The province of a court of appeal, strictly speaking, is not to try the cause, but to try the justice of the sentence appealed from. All that can be done by the court of appeal, is to examine whether the interlocutor or sentence be justly founded upon the pleadings. If any new point be suggested, the court of appeal, having no original jurisdiction, cannot take more upon it, than to remit this point to be tried in the court below. A court which, along with its power of receiving appeals, hath also an original jurisdiction in the same causes, cannot only rectify any wrong done by the inferior court, but has further an option, either to remit the cause thus amended to the court below, or to retain it to itself, and proceed to the final determination.
THE house of Lords is undoubtedly a court of appeal, with respect to the three sovereign courts in this country. There are appeals daily from the court of session. Appeals from the court of justiciary have hitherto been rare, and probably will never become frequent. The proceedings of this court, being brought under precise rules, afford little matter for an appeal; which at the same time would be but a partial remedy, as the verdict of the jury can never be called in question. An appeal however from this court is competent, as well as from the session; of which there is one noted instance. The King's advocate and the procurator for the Kirk prosecuted the magistrates of Elgin before the justiciary, for an attrocious riot; specifying, that being entrusted by the ministers of Elgin with the keys of the little kirk of Elgin, instead of restoring them when required, they had delivered them to Mr. Blair episcopal minister, by which the established ministers were turned out of possession. In this case the following circumstance came to be material to the issue, whether the said little kirk was or was not a part of the parish church. The affirmative being found by the court of session, to which the point of right was remitted as preliminary to the criminal trial, the magistrates entered an appeal from the court of session, and upon that pretext craved from the court of justiciary a stay of further proceedings till the appeal should be discussed. The prosecutors opposed this demand, founded on an order of the house of Lords, 19th April 1709, resolving,
"That an appeal neither stays process nor sists execution, unless the appeal be received by the house, an order made for the respondent to answer, and the order duly served on the respondent;"
and urged, that this not being done in the present case, the court ought to proceed. The court accordingly proceeded in the trial, and pronounced sentence, 2d March 1713,
"ordaining the pannels to deliver up the keys of the little kirk, with 20
l.
of fine, and 30
l.
of expences."
The defendants, who in a criminal prosecution are with us called pannels, appealed also from this sentence of the court of justiciary, and the sentence was reversed.
THE distinctions above handled, comprehend most of the courts that are to be found any where, but do not totally exhaust them. We have many instances in Britain, of a new jurisdiction erected for a particular purpose and for no other. This for the most part happens, when a fact is made criminal by statute, and to be tried by certain persons named for that precise purpose; or where a new and severe punishment is directed against what was formerly reckoned a venial transgression; as for instance, the statute 1st George I. cap. 18. against the malicious destroying growing trees, which impowers the justices of peace to try this crime. This also sometimes happens in civil causes; witness the jurisdiction given by act of parliament to the justices of peace in revenue matters. With relation to such courts, the question of the greatest importance is, Whether they be subject to any review. The author of a new abridgment of the law
Vol. I. page 592.
, talking of the King's bench, has the following passage.
"Also it hath so sovereign a jurisdiction in all criminal matters, that an act of parliament, appointing all crimes of a certain denomination to be tried before certain judges, doth not exclude the jurisdiction of this court, without express negative words. And therefore it hath been resolved, that 33d Henry VIII. cap. 12. which enacts,
That all treasons within the King's house shall be determined before the Lord steward,
doth not restrain this court from proceeding against such offences. But where a statute creates a new offence, which was not taken notice of by the common law, erects a new jurisdiction for the punishment of it, and prescribes a certain method of proceeding; it seems questionable how far this court has an implied jurisdiction in such a case."
The distinction here suggested, with some degree of hesitation, is, in my apprehension, solidly founded on a clear rule of law. A right established in any court, or in any person, is not presumed to be taken away; and therefore cannot otherwise be taken away but by express words. On the other hand, a right is not presumed to be given, and therefore cannot be given but by express words. Treason of all sorts, wherever committed, is under the jurisdiction of the King's bench; and a statute impowering the Lord steward to try treason committed within the King's house, bestows upon him, in this particular, a cumulative jurisdiction with the King's bench; but not an exclusive jurisdiction, because the words do not necessarily imply so much. A new offence created by a statute, must be considered in a different light. If the trial of such offence be committed to a particular judge, there is no foundation in law for extending the privilege to any other judge; because the words do not necessarily import such extension. The justiciary therefore, or sheriff, have no power to inflict the statutory punishment upon those who maliciously destroy growing trees. They have evidently no such jurisdiction by the statute, and they cannot have it by common law, because the punishment is not directed by the common law.
ONE question there is relative to courts of all kinds, and that is, How is the extent of their jurisdiction to be tried, and who is the judge in this case? This is a matter of no difficulty. It is inherent in the nature of every court, to judge of its own jurisdiction, and, with respect to all causes, to determine whether they come or come not under its cognisance. For to say, that this question, even at the first instance, must be determined by another court, involves the following absurdity, that no cause can be taken in by any court, till antecedently it be found competent by the judgment of a superior court. This therefore is one civil question, to which every court, civil, criminal, and ecclesiastical, must be competent. As this preliminary question must, before entering upon the cause, be determined, if disputed, or be taken for granted, if not disputed, the power to judge of it must necessarily be implied, wherever a court is established and a jurisdiction granted. A judgment however of a court upon its own powers, ought never, in good policy, to be declared final; for this, in effect, would be to bestow upon the court, however limited in its constitution, a power to arrogate to itself an unbounded jurisdiction, which would be absurd. This doctrine shall be illustrated, by applying it to a very plain case, which was disputed in the court of session. In the turnpike act for the shire of Haddington, 23d George II. the trustees are impowered to make compositions with individuals for their toll. Any abuse withal of the powers given by the act, is subjected to the cognisance of the justices of peace, who are authorised to rectify the same ultimately and without appeal. The trustees made a transaction with a neighbouring heretor, allowing those who purchased his coal and salt the use of the turnpike-road free of toll; but obliging him to pay 3
l.
Sterling yearly, whenever he should open coal in a different field specified. This bargain, an exemption in reality, and not a composition, was complained of as an abuse; and upon that footing was, by the justices of peace, declared void, and the toll ordered to be levied. The question was, Whether this sentence could be reviewed by the court of session. The question admits of a clear solution, by spliting the sentence into its two constituent parts, the first respecting the jurisdiction, the other respecting the cause. With regard to the last only, are the sentences of the justices of peace declared final. With regard to the preliminary point, ascertaining their own jurisdiction, their judgment is not final. The cause therefore may be brought before the court of session to try this preliminary point, and if, upon a review, it be judged, that the justices have exceeded the limits of their jurisdiction, the judgment they have given in the cause must also be declared void, as
ultra vires.
On the other hand, if the opinion of the justices about their own jurisdiction be affirmed, the court of session must stop short; and however wrong the judgment upon the cause may to them appear, they cannot interpose, because the judgment is final.
I shall finish this discourse with a comparative view of our different chief courts in point of dignity and pre-eminence. The court of session is sovereign and supreme: sovereign, because it is the King's court, and it is the King who executes the acts and decrees of this court: supreme, with respect to inferior courts having the same or part of the same jurisdiction, but subjected to a review in this court. The court of justiciary, in the foregoing respects, stands precisely upon the same footing with the court of session. The court of exchequer is sovereign, but not supreme. I know no inferior court with which it has a cumulative jurisdiction, and whose proceedings it can review. Causes cannot be brought before the exchequer from any inferior court, whether by reduction, advocation, or appeal. The admiral court again is, by the act 1681, declared sovereign, and accordingly every act of authority of this court goes in the King's name. It is also supreme with respect to inferior admiral courts, whose sentences it can review. But with regard to the courts of session and justiciary, it is an inferior court; because its decrees are subjected to a review in these courts. The commissary court of Edinburgh is properly the bishop's court, and not sovereign. With respect to its supremacy, it stands upon the same footing with the admiral court.
The End of the First Volume.