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

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

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

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 [Page 7] Society, that of abstaining from in­juring others, is enforced by the most effi­cacious Sanctions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Again,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 [Page 124] the relation of property is so inti­mate, as to involve a power or privilege of making donations to take effect after death, as well as during life. Laws have been made, and decisions pronounced, in every age, conformable to the different ideas that have been entertained of this relation. These laws and decisions are rendered ob­scure, and perhaps scarce intelligible, to those who are unacquainted with the history of property; and therefore we have reason to hope, that this history will prove equally curious and instructive^*.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 [Page 222] highest security that can be given for pay­ment of debt. Thus the property of land is split, betwixt the superior and vassal, be­twixt the debtor and creditor, and betwixt one having a perpetual and one a temporary right.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 [Page 286] are distinguished from the mass of the peo­ple, by name more than by any solid pre­eminence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 [Page 314] clans together. Individuals of different clans, came to be more and more blended by inter­marriages, and consequently by blood. Com­merce arose, and united under its wings, not only distant individuals, but different nati­ons. The clan-connection gave way by de­grees; and no longer subsists in any civilized country, being lost in the more extended connections that have no relation to clan­ship.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AND as the disuse of jury-trials in civil causes, is another revolution in our law, not less memorable than that already handled concerning appeals, the connection of mat­ter offers me a fair opportunity to trace the history of this revolution, and to dis­cover, if I can, by what influence or by what means it has happened, that juries are no longer employed in civil actions, even where proof is requisite. To throw all the light I can upon a dark part of the history of law, which is overlooked by all our writ­ers, I must take the help of a maxim which [Page 411] appears to have been adopted by our fore­fathers, and to have had a steady influence in the practice of law. The maxim is, That though questions in law may be trust­ed to a single judge, matters of proof are safest in the hands of a plurality. It was probably thought, that in determining que­stions of law there is little trust reposed in a judge, because he is tied down to a pre­cise rule; but that as no precise rule can be laid down to direct the judgment in matters of proof, all questions of this kind ought to be referred to a number of judges, who are a check one upon another. Whatever may be the foundation of this maxim, we find it constantly applied in practice. In all courts, civil and criminal, governed by a single judge, we find juries always employ­ed. Before the judge matters of law were discussed, and every thing preparatory to the verdict; but to the jury was reserved to judge of the matter of fact. On the other hand, juries never were employed in any British court, where the judges were suffi­ciently [Page 412] numerous to act the part of a jury. Juries, for example, were never employed in parliament, nor in processes before the King and council. And in England, when the court last named was split into the King's bench, the exchequer, and the common pleas, I am verily persuaded, that the con­tinuance of jury-trials in these new courts, was owing to the following circumstance, that four judges only were appointed in each of them, and but a single judge in the circuit-courts. Hence I presume, that juries were not employed in the court of session, instituted anno 1425. The very nature of its institution leads me to think so; not only that the members of this court were chosen out of the three estates; but also that the purpose of its institution was to relieve the King and council, of the load of business growing daily upon them. There is little reason to doubt, that this new court, consisting of many members, would follow and imitate the forms of the two courts, to which it was so nearly allied. And [Page 413] that this was really the case, may be gathered not obscurely from Balfour^*. One thing we are certain of, without necessity of recur­ring to a conjecture, that the daily council, which came in place of the session, and equally with it consisted of many judges, had not from the beginning any jury-trials, but took evidence by witnesses, and in every cause gave judgment upon the proof, pre­cisely as we do at this day. These facts considered, it seems a well founded conjec­ture, that so large a number of judges as fifteen, which constitute our present court of session, were appointed with a view to the practice of the preceeding courts, and in order to prevent the necessity of trying causes by juries. In the former court, viz. The daily council, we find it composed of bishops, abbots, earls, lords, gentlemen, and burgesses, in order probably that every man might be tried by some at least of his own rank; and in examining the records of this court, we find at first few sederunts, but [Page 414] where at least twelve judges are present. This matter is still better ordered in the present court of session. Nine judges must be present to make a quorum; and it seldom happens in examining any proof, that the judges present are under twelve in number. This I am persuaded is the foundation of a maxim, which among us passes current, without any direct autho­rity from the regulations concerning the jurisdiction of this court. It is said to be the grand jury of the nation in civilibus; and it is supposed, that its privilege to take proof without the aid of a jury, proceeds from this branch of its constitution. In fact, it is the inviolable practice to give judgment upon the testimony of witnesses, in a full court where there must always be at least a quorum present; which is no slight indication that the court in this case acts as a jury. For why otherwise should it be less competent to a single member of the court, to judge of a proof than to judge of a point of law? This account of the court of ses­sion, [Page 415] as having united in it the powers both of the judge and jury, cannot fail to be relished, when it is discovered, that this was far from being a novelty when the court was instituted. The thought was borrow­ed from the court of parliament, the mem­bers of which, in all trials, acted both as judges and jurymen. One clear instance we have upon record, anno 1481, in the trial of Lord Lile for high treason. The members present, the King only excep­ted, formed themselves into a jury, and brought in a regular verdict, declaring the pannel not guilty. A copy of the trial is annexed, Appendix, N^o. 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, [Page 416] than the same number occasionally collected from the mass of the people, to undertake an unaccustomed task, which is, to pronounce a verdict upon an intricate proof.

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

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

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

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

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

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

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