LAW OF ENGLAND

Of Laws in general. power, he was able unquestionably to have preferred whatever laws he pleased to his creature man, however unjust or severe. But as he is also a Being of infinite wisdom, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. These are the eternal immutable laws of good and evil, to which the Creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such, among others, are these principles: That we should live honestly, should hurt nobody, and should render to every one his due; to which three general precepts Justinian has reduced the whole doctrine of law.

But if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be obtained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance its inseparable companion. As therefore the Creator is a being, not only of infinite power and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to inquire after and pursue the rule of right, but only our own self-love, that universal principle of action. For he has so intimately connected, so inseparably interwoven, the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connexion of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly furnished; but has graciously reduced the rule of obedience to this one paternal precept, "that man should pursue his own happiness." This is the foundation of what we call ethics, or natural law *. For the several articles into which it is branched in our systems amount to no more than demonstrating, that this or that action tends to man's real happiness, and therefore very justly concluding, that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it.

This law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this, and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

But in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason: whose office it is to discover, as was before observed, what the law of nature directs in every circumstance of life, by considering, what method will tend the most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect,

unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.

This has given manifold occasion for the benign interposition of Divine Providence; which, in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered, we call the revealed or divine law, and they are to be found only in the Holy Scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. But we are not from thence to conclude, that the knowledge of these truths was attainable by reason in its present corrupted state; since we find, that, until they were revealed, they were hid from the wisdom of ages. As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is of infinitely more authenticity than that moral system which is framed by ethical writers, and denominated the natural law: because one is the law of nature, expressly declared so to be by God himself; the other is only what, by the assistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority: but till then they can never be put in any competition together.

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary, for the benefit of society, to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy: for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural, law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws that annex a punishment to it, do not at all increase its moral guilt, or superadd any fresh obligation in foro conscientiae to abstain from its perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.

If man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws than the law of nature and the law of God. Neither could any other law possibly exist: for,

* See Morality.

for a law always supposes some superior who is to make it; and in a state of nature we are all equal, without any other superior but him who is the Author of our being. But man was formed for society; and, as is demonstrated by the writers on this subject, is neither capable of living alone, nor indeed has the courage to do it. However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many; and form separate states, commonwealths, and nations, entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse, called the law of nations: which, as none of these states will acknowledge a superiority in the other, cannot be dictated by either; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements, between these several communities: in the construction also of which compacts we have no other rule to resort to but the law of nature; being the only one to which both communities are equally subject: and therefore the civil law very justly observes, that quod naturalis ratio inter omnes homines constituit, vocatur jus gentium.

To the consideration, then, of the law of nature, the revealed law, and the law of nations, succeeds that of the municipal or civil law; that is, the rule by which particular districts, communities, or nations, are governed; being thus defined by Justinian, "jus civile est quod quisque sibi populus constituit." We call it municipal law, in compliance with common speech; for though, strictly, that expression denotes the particular customs of one single municipium or free town, yet it may with sufficient propriety be applied to any one state or nation which is governed by the same laws and customs.

Municipal law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong." Let us endeavour to explain its several properties, as they arise out of this definition.

And, first, it is a rule: not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of Titius, or to attain him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only, and has no relation to the community in general; it is rather a sentence than a law. But an act to declare that the crime of which Titius is accused shall be deemed high treason; this has permanency, uniformity, and universality, and therefore is properly a rule. It is also called a rule, to distinguish it from advice or counsel, which we are at liberty to follow or not as we see proper, and to judge upon the reasonableness or unreasonableness of the thing advised: whereas our obedience to the law depends not upon our approbation, but upon the Maker's will. Counsel is only matter of persuasion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling also.

It is also called a rule, to distinguish it from a compact or agreement; for a compact is a promise proceeding from us, law is a command directed to us. The

language of a compact is, "I will, or will not, do this;" that of a law is, "Thou shalt, or shalt not, do it." It is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law; but then the original of the obligation is different. In compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act without ourselves determining or promising any thing at all. Upon these accounts law is defined to be "a rule."

Municipal law is also "a rule of civil conduct." This distinguishes municipal law from the natural or petty: revealed: the former of which is the rule of moral conduct; and the latter not only the rule of moral conduct, but also of faith. These regard man as a creature; and point out his duty to God, to himself, and to his neighbour, considered in the light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbour, than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more, than that he do contribute, on his part, to the subsistence and peace of the society.

It is likewise "a rule prescribed." Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of England and of Scotland. It may be notified vox voce, by officers appointed for that purpose; as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other assemblies. It may, lastly, be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. Yet, whatever way is made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who (according to Dio Cassius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people. There is still a more unreasonable method than this, which is called making of laws ex post facto; when after an action (indifferent in itself) is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it. Here it is impossible that the party could foresee, that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law: he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust. All laws should be therefore made to commence in futuro, and be notified before their commencement; which is implied in the term "prescribed." But when this rule is in the usual manner notified or prescribed, it is then the subject's business to be thoroughly acquainted therewith; for if ignorance of what he might know, were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity.

^{11 Of Laws in general.} But further: Municipal law is "a rule of civil conduct prescribed by the supreme power in a state." For ^{12 Fourth property.} legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.

This will naturally lead us into a short inquiry concerning the nature of society and civil government; and the natural inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws.

^{13 Givil society.} The only true and natural foundations of society are the wants and fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted: and besides, it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation 2000 years afterwards; both which were effected by the means of single families. These formed the first society among themselves, which every day extended its limits; and when it grew too large to subsist with convenience in that pastoral state wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent; and various tribes, which had formerly separated, reunited again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not its formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the sense of their weakness and imperfection that keeps mankind together, that demonstrates the necessity of this union, and that therefore is the solid and natural foundation, as well as the cement, of society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied in the very act of associating together; namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all, it was impossible that protection could be certainly extended to any.

^{14 Government.} For when society is once formed, government results of course, as necessary to preserve and to keep that society in order. Unless some superior be constituted, whose commands and decisions all the members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. But

Vol. XI. Part II.

as all the members of society are naturally equal, it may be asked, In whose hands are the reins of government to be intrusted? To this the general answer is easy; but the application of it to particular cases has occasioned one half of those mischiefs which are apt to proceed from misguided political zeal. In general, all mankind will agree, that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which is among the attributes of him who is emphatically styled the Supreme Being; the three grand requisites, namely, of wisdom, of goodness, and of power: wisdom, to discern the real interest of the community; goodness, to endeavour always to pursue that real interest; and strength or power to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well constituted frame of government.

How the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. It is not our business or intention to enter into any of them. However they began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii, or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given or collected from their tacit approbation) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found.

The political writers of antiquity will not allow more than three regular forms of government: the first, when the sovereign power is lodged in an aggregate assembly consisting of all the members of a community, which is called a democracy; the second, when it is lodged in a council composed of select members, and then it is styled an aristocracy; the last, when it is intrusted in the hands of a single person, and then it takes the name of a monarchy. All other species of government, they say, are either corruptions of, or reducible to, these three.

By the sovereign power, as was before observed, is meant the making of laws; for wherever that power resides, all others must conform to and be directed by it, whatever appearance the outward form and administration of the government may put on. For it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases: and all the other powers of the state must obey the legislative power in the execution of their several functions, or else the constitution is at an end.

In a democracy, where the right of making laws resides in the people at large, public virtue or goodness of intention is more likely to be found than either of the other qualities of government. Popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. In aristocracies there is more wisdom to be found than in the other forms of government; being composed, or intended to be composed,

posed, of the most experienced citizens: but there is less honesty than in a republic, and less strength than in a monarchy. A monarchy is indeed the most powerful of any, all the sinews of government being knit and united together in the hand of the prince; but then there is imminent danger of his employing that strength to improvident or oppressive purposes.

Thus these three species of government have all of them their several perfections and imperfections. Democracies are usually the best calculated to direct the end of a law; aristocracies, to invent the means by which that end shall be obtained; and monarchies, to carry those means into execution. And the ancients, as was observed, had in general no idea of any other permanent form of government but these three: for though Cicero declares himself of opinion, "esse optimi constitutionum rempublicam, quæ ex rebus generibus illis, regali, optimo, et populari, sit modicè confusa;" yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim, and one that, if effected, could never be lasting or secure.

15
British con-
stitution.

But, happily for us of this island, the British constitution has long remained, and we trust will long continue, a standing exception to the truth of this observation. For, as with us the executive power of the laws is lodged in a single person, they have all the advantages of strength and despatch that are to be found in the most absolute monarchy: and, as the legislature of the kingdom is intrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wisdom, their valour, or their property; and, thirdly, the house of commons, freely chosen by the people from among themselves, which makes it a kind of democracy; as this aggregate body, actuated by different springs and attentive to different interests, composes the British parliament, and has the supreme disposal of every thing, no innovation can be attempted by either of the three branches, but will be withstood by one of the other two, each branch being armed with a negative power sufficient to repel any new measure which it shall think inexpedient or dangerous.

Here, then is lodged the sovereignty of the British constitution; and lodged as beneficially as is possible for society. For in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. If the supreme power were lodged in any one of the three branches separately, we must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so want two of the three principal ingredients of good polity, either virtue, wisdom, or power. If it were lodged in any two of the branches; for instance, in the king and house of lords; our laws might be providently made and well executed, but they might not always have the good of the people in view: if lodged in the king and commons, we should want that circumspection and mediatory caution, which the wisdom of the peers is to afford: if the supreme rights of legislature were lodged in the two houses only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or per-

haps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the legislature and the rest. For if ever it should happen, that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution. The legislature would be changed from that which was originally set up by the general consent and fundamental act of the society, and such a change, however effected, is, according to Mr Locke (who perhaps carries his theory too far), at once an entire dissolution of the bands of government; and the people are thereby reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power.

Having thus cursorily considered the three usual species of government, and our own singular constitution selected and compounded from them all, we proceed to observe, that, as the power of making laws constitutes the supreme authority, so wherever the supreme authority in any state resides, it is the right of that authority to make laws; that is, in the words of our definition, to prescribe the rule of civil action. And this may be discovered from the very end and institution of civil states. For a state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man. If it is therefore to act as one man, it ought to act by one uniform will. But, inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is intrusted; and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be law.

Thus far as to the right of the supreme power to make laws: but farther, it is its duty likewise. For since the respective members are bound to conform themselves to the will of the state, it is expedient that they receive directions from the state declaratory of that its will. But it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, therefore the state establishes general rules, for the perpetual information and direction of all persons in all points, whether of positive or negative duty: and this, in order that every man may know what to look upon as his own, what as another's; what absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest, or indifferent; what degree every man retains of his natural liberty, and what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the state assigns him,

him, in order to promote and secure the public tranquillity.

From what has been advanced, the truth of the former branch of our definition is (we trust) sufficiently evident; that "municipal law is a rule of civil conduct, prescribed by the supreme power in a state." We proceed now to the latter branch of it; that it is a rule so prescribed, "commanding what is right, and prohibiting what is wrong."

Now, in order to do this completely, it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. And when this is once done, it will follow of course, that it is likewise the business of the law, considered as a rule of civil conduct, to enforce these rights, and to restrain or redress these wrongs. It remains therefore only to consider, in what manner the law is said to ascertain the boundaries of right and wrong; and the methods which it makes to command the one and prohibit the other.

For this purpose, every law may be said to consist of several parts; one, declaratory; whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined and laid down: another, directory; whereby the subject is entrusted and enjoined to observe those rights, and to abstain from the commission of those wrongs: a third, remedial; whereby a method is pointed out to recover a man's private rights, or redress his private wrongs: to which may be added a fourth, usually termed the sanction or vindicatory branch of the law; whereby it is signified what evil or penalty shall be incurred by such as commit any public wrongs, and transgress or neglect their duty.

With regard to the first of these, the declaratory part of the municipal law; this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator. This doctrine, which before was slightly touched, deserves a more particular explication. Those rights, then, which God and nature have established, and are therefore called natural rights, such as are life and liberty, need not the aid of human laws to be more effectually invested in every man than they are; neither do they receive any additional strength when declared by the municipal laws to be inviolable. On the contrary, no human legislature has power to abridge or destroy them, unless the owner shall himself commit some act that amounts to a forfeiture. Neither do divine or natural duties (such as, for instance, the worship of God, the maintenance of children, and the like) receive any stronger sanction from being also declared to be duties by the law of the land. The case is the same as to crimes and misdemeanors, that are forbidden by the superior laws, and therefore styled mala in se, such as murder, theft, and perjury; which contract no additional turpitude from being declared unlawful by the inferior legislature. For that legislature in all these cases acts only, as was before observed, in subordination to the Great Lawgiver, transferring and publishing his precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation at all, with regard to actions that are naturally and intrinsically right or wrong.

But with regard to things in themselves indifferent, the case is entirely altered. These become either right

or wrong, just or unjust, duties or misdemeanors, according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life. Thus our own common law has declared, that the goods of the wife do instantly upon marriage become the property and right of the husband; and our statute law has declared all monopolies a public offence: yet that right, and this offence, have no foundation in nature; but are merely created by the law, for the purposes of civil society. And sometimes, where the thing itself has its rise from the law of nature, the particular circumstances and mode of doing it become right or wrong, as the laws of the land shall direct. Thus, for instance, in civil duties; obedience to superiors is the doctrine of revealed as well as natural religion: but who those superiors shall be, and in what circumstances, or to what degrees they shall be obeyed, is the province of human laws to determine. And so, as to injuries or crimes, it must be left to our own legislature to decide, in what cases the seizing another's cattle shall amount to the crime of robbery; and where it shall be a justifiable action, as when a landlord takes them by way of distress for rent.

Thus much for the declaratory part of the municipal law: and the directory stands much upon the same footing; for this virtually includes the former, the declaration being usually collected from the direction. The law that says, "Thou shalt not steal," implies a declaration that stealing is a crime. And we have seen, that, in things naturally indifferent, the very essence of right and wrong depends upon the direction of the laws to do or to omit them.

The remedial part of a law is so necessary a consequence of the two former, that laws must be very vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed, if there were no method of recovering and asserting those rights when wrongfully withheld or invaded. This is what we mean properly, when we speak of the protection of the law. When, for instance, the declaratory part of the law has said, that the field or inheritance which belonged to Titus's father is vested by his death in Titus, and the directory part has "forbidden any one to enter on another's property without the leave of the owner;" if Gaius after this will presume to take possession of the land, the remedial part of the law will then interpose its office; will make Gaius restore the possession to Titus, and also pay him damages for the invasion.

With regard to the sanction of laws, or the evil that may attend the breach of public duties; it is observed, that human legislators have for the most part chosen to make the sanction of their laws rather vindicatory than retributive, or to consist rather in punishments than in actual particular rewards: Because, in the first place, the quiet enjoyment and protection of all our civil rights and liberties, which are the sure and general consequence of obedience to the municipal law, are in themselves the best and most valuable of all rewards: because also, were the exercise of every virtue to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock enough for so profuse a bounty; and farther, because the dread of evil is a much more forcible

principle of human actions than the prospect of good. For which reasons, though a prudent bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but do constantly come armed with a penalty denounced against transgressors, either expressly defining the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those who are intrusted with the care of putting the laws in execution.

Of all the parts of a law the most effectual is the vindicatory. For it is but lost labour to say, "Do this, or avoid that," unless we also declare, "This shall be the consequence of your noncompliance." We must therefore observe, that the main strength and force of a law consists in the penalty annexed to it. Herein is to be found the principal obligation of human laws.

Legislators and their laws are said to compel and oblige: not that, by any natural violence, they so constrain a man as to render it impossible for him to act otherwise than as they direct, which is the strict sense of obligation; but because, by declaring and exhibiting a penalty against offenders, they bring it to pass that no man can easily choose to transgress the law; since, by reason of the impending correction, compliance is in a high degree preferable to disobedience. And, even where rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to consist in the penalty: for rewards, in their nature, can only persuade and allure; nothing is compulsory but punishment.

It has been held true, and very justly, by the principal of our ethical writers, that human laws are binding upon men's consciences. But if that were the only or most forcible obligation, the good only would regard the laws, and the bad would let them at defiance. And, true as this principle is, it must still be understood with some restriction. It holds, we apprehend, as to rights; and that, when the law has determined the field to belong to Titius, it is a matter of conscience no longer to withhold or to invade it. So also in regard to natural duties, and such offences as are mala in se: here we are bound in conscience, because we are bound by superior laws, before those human laws were in being, to perform the one and abstain from the other. But in relation to those laws which enjoin only positive duties, and forbid only such things as are not mala in se, but mala prohibita merely, without any intermixture of moral guilt, annexing a penalty to noncompliance; here conscience seems to be no farther concerned, than by directing a submission to the penalty, in case of our breach of those laws: for otherwise the multitude of penal laws in a state would not only be looked upon as an impolitic, but would also be a very wicked, thing; if every such law were a share for the conscience of the subject. But in these cases the alternative is offered to every man; "either abstain from this, or submit to such a penalty;" and his conscience will be clear whichever side of the alternative he thinks proper to embrace. Thus, by the statutes for preserving the game, a penalty is denounced against every unqualified person that kills a hare, and against every person who possesses a partridge in August. And so too, by other statutes, pecuniary pe-

nalities are inflicted for exercising trades without serving an apprenticeship thereto, for erecting cottages without annexing four acres of land to each, for not burying the dead in woollen, for not performing statute work on the public roads, and for innumerable other positive misdemeanors. Now these prohibitory laws do not make the transgression a moral offence, or sin: the only obligation in conscience is to submit to the penalty, if levied. It must, however, be observed, that we are here speaking of laws that are simply and purely penal, where the thing forbidden or enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate compensation for the civil inconvenience supposed to rise from the offence. But where disobedience to the law involves in it also any degree of public mischief or private injury, there it falls within our former distinction, and is also an offence against conscience.

We have now gone through the definition laid down of a municipal law; and have shown that it is "a rule—of civil conduct—prescribed—by the supreme power in a state—commanding what is right, and prohibiting what is wrong?" in the explication of which we have endeavoured to interweave a few useful principles, concerning the nature of civil government, and the obligation of human laws. Before we conclude this part, it may not be amiss to add a few observations concerning the interpretation of laws.

When any doubt arose upon the construction of the Roman laws, the usage was to state the case to the interpreters, emperor in writing, and take his opinion upon it. This was certainly a bad method of interpretation. To interrogate the legislature to decide particular disputes, is not only endless, but affords great room for partiality and oppression. The answers of the emperor were called his recripts, and these had in succeeding cases the force of perpetual laws; though they ought to be carefully distinguished, by every rational civilian, from those general constitutions which had only the nature of things for their guide. The emperor Marcus, as his historian Capitolinus informs us, had once resolved to abolish these recripts, and retain only the general edicts: he could not bear that the hasty and crude answers of such princes as Commodus and Caracalla should be reverenced as laws. But Justinian thought otherwise, and he has preserved them all. In like manner the canon laws, or decretal epistles of the popes, are all of them recripts in the strictest sense. Contrary to all true forms of reasoning, they argue from particulars to generals.

The fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law. Let us take a short view of them all.

1. Words are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorf, which forbade a layman to lay hands on a priest, was adjudged to extend to him who had hurt a priest with a weapon. Again: Terms of art, or technical terms, must be taken according to the acceptance of the

the learned in each art, trade, and science. So in the act of settlement, where the crown of England is limited "to the princess Sophia, and the heirs of her body being Protestants," it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words "heirs of her body;" which in a legal sense comprise only certain of her lineal descendants. Lastly, Where words are clearly repugnant in two laws, the latter law takes place of the elder; leges posteriores priores contrarias abrogant, is a maxim of universal law, as well as of our own constitutions. And accordingly it was laid down by a law of the twelve tables at Rome, Quod populus postremum iussit, id ius ratum est.

2. If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proem, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point. Thus, when the law of England declares murder to be felony without benefit of clergy, we must resort to the same law of England to learn what the benefit of clergy is: and, when the common law censures simoniacal contracts, it affords great light to the subject to consider what the canon law has adjudged to be simony.

3. As to the subject-matter, words are always to be understood as having a regard thereto; for that is always supposed to be in the eye of the legislator, and all his expressions directed to that end. Thus, when a law of Edward III. forbids all ecclesiastical persons to purchase provisions at Rome, it might seem to prohibit the buying of grain and other victual; but when we consider that the statute was made to repress the usurpations of the papal fee, and that the nominations to benefices by the pope were called provisions, we shall see that the restraint is intended to be laid upon such provisions only.

4. As to the effects and consequence, the rule is, That where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf, which enacted "that whoever drew blood in the streets should be punished with the utmost severity," was held after long debate not to extend to the surgeon who opened the vein of a person who fell down in the street with a fit.

5. But, lastly, The most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it, or the cause which moved the legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An instance of this is given in a case put by Cicero, or whoever was the author of the rhetorical treatise inscribed to Herennius.

There was a law, That those who in a storm forsook the ship should forfeit all property therein, and the ship and lading should belong entirely to those who staid in it. In a dangerous tempest, all the mariners forsook the ship, except only one sick passenger, who by reason of his disease was unable to get out and escape. By chance the ship came safe to port. The sick man kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man is not within the reason of the law; for the reason of making it was, to give encouragement to such as should venture their lives to save the vessel: but this is a merit which he could never pretend to, who neither staid in the ship upon that account, nor contributed any thing to its preservation.

From this method of interpreting laws by the reason of them, arises what we call equity: which is thus defined by Grotius, "the correction of that, wherein the law (by reason of its universality) is deficient." For since in laws all cases cannot be foreseen or expressed, it is necessary, that, when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of defining those circumstances, which (had they been foreseen) the legislator himself would have expressed. And these are the cases which, according to Grotius, lex non exacle definit, sed arbitrio boni viri permitti.

Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases in an equitable light must not be indulged too far; lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce infinite confusion: as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.

Having thus considered the nature of laws in general, we shall proceed to give a view of the particular law of our own country; 1. Of England; 2. Of Scotland. The English law, however, being too extensive to admit of detail in a body, we can only here give such a sketch of it as may be sufficient to show the connexion of its parts; but the principal of these parts themselves are explained at large, under their proper names, in the general alphabet.—A contrary method is followed with regard to the law of Scotland. This being less extensive, is given in a body, with all its parts not only in regular connexion, but sufficiently explained; these parts, again, not being explained in the order of the alphabet, but marked with numerical references to their explanations in the system.

THE municipal law of England, or the rule of civil conduct prescribed to the inhabitants of that kingdom, may with sufficient propriety be divided into two kinds: the lex non scripta, the unwritten or common law; and the lex scripta, the written or statute law.

50
Common
law.

The lex non scripta, or unwritten law, includes not only general customs, or the common law properly so called; but also the particular customs of certain parts of the kingdom, and likewise these particular laws that are by custom observed only in certain courts and jurisdictions.

In calling these parts of the law leges non scriptae, we would not be understood as if all those laws were at present merely oral, or communicated from the former ages to the present solely by word of mouth. It is true indeed, that in the profound ignorance of letters which formerly overspread the whole western world, all laws were entirely traditional; for this plain reason, that the nations among which they prevailed had but little idea of writing. Thus the Britons as well as the Gallic druids committed all their laws as well as learning to memory; and it is said of the primitive Saxons here, as well as their brethren on the continent, that leges sola memoria et usu retinebant. But, with us at present, the monuments and evidences of our legal customs are contained in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down to us from the times of highest antiquity. However, we therefore style these parts of our law leges non scriptae, because their original institution and authority are not set down in writing, as acts of parliament are; but they receive their binding power, and the force of laws, by long and immemorial usage, and by their universal reception throughout the kingdom: in like manner as Aulus Gellius defines the jus non scriptum to be that which is tacito et illiterato hominum consensu et moribus expressum.

Our ancient lawyers, and particularly Fortescue, insist with abundance of warmth, that these customs are as old as the primitive Britons, and continued down through the several mutations of government and inhabitants, to the present time, unchanged and unadulterated. This may be the case as to some. But in general, as Mr Selden in his notes observes, this assertion must be understood with many grains of allowance; and ought only to signify, as the truth seems to be, that there never was any formal exchange of one system of laws for another: though doubtless, by the intermixture of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans, they must have insensibly introduced and incorporated many of their own customs with those that were before established; thereby, in all probability, improving the texture and wisdom of the whole, by the accumulated wisdom of divers particular countries. Our laws, faith Lord Bacon, are mixed as our language; and as our

language is so much the richer, the laws are the more complete.

And indeed our antiquarians and first historians do all positively assure us, that our body of laws is of this compounded nature. For they tell us, that in the time of Alfred the local customs of the several provinces of the kingdom were grown so various, that he found it expedient to compile his dome book, or liber judicialis, for the general use of the whole kingdom. This book is said to have been extant so late as the reign of Edward IV. but is now unfortunately lost. It contained, we may probably suppose, the principal maxims of the common law, the penalties for misdemeanors, and the forms of judicial proceedings. Thus much may at least be collected from that injunction to observe it, which we find in the laws of King Edward the Elder, the son of Alfred. Omnibus qui reipublice presunt etiam atque etiam mando, ut omnibus equos se prebeant judices perinde ac in judiciali libro scriptum habetur: nec quicquam formident quin jus commune audacter liberique dicant.

But the irruption and establishment of the Danes in England, which followed soon after, introduced new customs, and caused this code of Alfred in many provinces to fall into disuse, or at least to be mixed and debased with other laws of a coarser alloy. So that, about the beginning of the 11th century there were three principal systems of laws prevailing in different districts. 1. The Mercen Lage, or Mercian laws, which were observed in many of the inland counties, and those bordering on the principality of Wales, the retreat of the ancient Britons; and therefore very probably intermixed with the British or Druidical customs. 2. The West Saxon Lage, or laws of the West Saxons, which obtained in the counties to the south and west of the island, from Kent to Devonshire. These were probably much the same with the laws of Alfred above mentioned, being the municipal law of the far most considerable part of his dominions, and particularly including Berkshire, the seat of his peculiar residence. 3. The Dane Lage, or Danish law, the very name of which speaks its original and composition. This was principally maintained in the rest of the midland counties, and also on the eastern coast, the part most exposed to the visits of that piratical people. As for the very northern provinces, they were at that time under a distinct government.

Out of these three laws, Roger Hoveden and Raulphus Cestrensis inform us, King Edward the Confessor extracted one uniform law, or digest of laws, to be observed throughout the whole kingdom; though Hoveden and the author of an old manuscript chronicle assure us likewise, that this work was projected and begun by his grandfather King Edgar. And indeed a general digest of the same nature has been constantly found expedient, and therefore put in practice by other great nations, which were formed from an assemblage of little provinces, governed by peculiar customs. As in Portugal, under King Edward, about the beginning of the 15th century. In Spain, under Alonzo X. who

about the year 1250 executed the plan of his father St Ferdinand, and collected all the provincial customs into one uniform law, in the celebrated code entitled Las Partidas. And in Sweden, about the same era, a universal body of common law was compiled out of the particular customs established by the laghman of every province, and entitled the Land's Lagh, being analogous to the common law of England.

Both these undertakings, of King Edgar and Edward the Confessor, seem to have been no more than a new edition, or fresh promulgation, of Alfred's code or dome book, with such additions and improvements as the experience of a century and a half had suggested. For Alfred is generally styled by the same historians the legum Anglicanarum conditor, as Edward the Confessor is the restitutus. These, however, are the laws which our histories so often mention under the name of the laws of Edward the Confessor; which our ancestors struggled so hardy to maintain, under the first princes of the Norman line; and which subsequent princes so frequently promised to keep and to restore, as the most popular act they could do, when pressed by foreign emergencies or domestic discontents. These are the laws, that so vigorously withstood the repeated attacks of the civil law; which established in the 12th century a new Roman empire over the most of the states on the continent: states that have lost, and perhaps upon that account, their political liberties; while the free constitution of England, perhaps upon the same account, has been rather improved than debased. These, in short, are the laws which gave rise and origin to that collection of maxims and customs which is now known by the name of the common law: A name either given to it, in contradistinction to other laws, as the statute law, the civil law, the law merchant, and the like; or, more probably, as a law common to all the realm, the jur commune or foleright, mentioned by King Edward the Elder, after the abolition of the several provincial customs, and particular laws before mentioned.

But though this is the most likely foundation of this collection of maxims and customs; yet the maxims and customs so collected, are of higher antiquity than memory or history can reach: nothing being more difficult than to ascertain the precise beginning and first spring of an ancient and long established custom. Whence it is, that in our law the goodness of a custom depends upon its having been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of man runneth not to the contrary. This it is that gives it its weight and authority; and of this nature are the maxims and customs which compose the common law, or lex non scripta, of this kingdom.

This unwritten, or common law, is properly distinguishable into three kinds: 1. General customs; which are the universal rule of the whole kingdom, and form the common law in its stricter and more usual signification. 2. Particular customs; which for the most part affect only the inhabitants of particular districts. 3. Certain particular laws; which by custom

are adopted and used by some particular courts, of pretty general and extensive jurisdiction.

1. As to general customs, or the common law properly so called; this is that law, by which proceedings and determinations in the king's ordinary courts of jus-

tice are guided and directed. This, for the most part, settles the course in which lands descend by inheritance; the manner and form of acquiring and transferring property; the solemnities and obligation of contracts; the rules of expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several species of temporal offences, with the manner and degree of punishment, and an infinite number of mischievous particulars, which diffuse themselves as extensively as the ordinary distribution of common justice requires. Thus, for example, that there shall be four superior courts of record, the chancery, the king's bench, the common pleas, and the exchequer; that the eldest son alone is heir to his ancestor; that property may be acquired and transferred by writing; that a deed is of no validity unless sealed and delivered; that wills shall be construed more favourably, and deeds more strictly; that money lent upon bond is recoverable by action of debt; that breaking the public peace is an offence, and punishable by fine and imprisonment: all these are doctrines that are not set down in any written statute or ordinance; but depend merely upon immemorial usage, that is, upon common law, for their support.

Some have divided the common law into two principal grounds or foundations: 1. Established customs; such as that, where there are three brothers, the eldest brother shall be heir to the second, in exclusion of the youngest; and, 2. Established rules and maxims; as, "that the king can do no wrong, that no man shall be bound to accuse himself," and the like. But these seem to be one and the same thing. For the authority of these maxims rests entirely upon general reception and usage; and the only method of proving that this or that maxim is a rule of the common law, is by showing that it hath been always the custom to observe it.

But here a very natural, and very material, question arises: How are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, By the judges in the several courts of justice. They are the depository of the laws; the living oracles who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study; from the viginti annorum lucubratorum, which Fortescue mentions; and from being long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law. The judgement itself, and all the proceedings previous thereto, are carefully registered and preserved under the name of records, in public repositories set apart for that particular purpose; and to them frequent recourse is had, when any critical question arises, in the determination of which former precedents may give light or assistance. And therefore, even so early as the Conquest, we find the præteritorum memoria eventorum reckoned up as one of the chief qualifications of those who were held to be legibus patrie optime instituti. For it is an established rule, To abide by former precedents, where the same points come again in litigation, as well to keep the scale of justice even and steady, and not liable to waver with

31
Of three
kinds.

32
First branch
of the un-
written
law:
General
customs.

with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which is not in the breast of any subsequent judge to alter or vary from according to his private sentiments: he being sworn to determine, not according to his own private judgement, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. Yet this rule admits of exception, where the former determination is most evidently contrary to reason; much more if it be contrary to the divine law. But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined. And hence it is that our lawyers are with justice so copious in their encomiums on the reason of the common law; that they tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that what is not reason is not law. Not that the particular reason of every rule in the law, can at this distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule flatly contradictory to reason, and then the law will presume it to be well founded. And it hath been an ancient observation in the laws of England, that whenever a standing rule of law, of which the reason perhaps could not be remembered or discerned, hath been wantonly broke in upon by statutes or new resolutions, the wisdom of the rule hath in the end appeared from the inconveniences that have followed the innovation.

The doctrine of the law then is this: That precedents and rules must be followed, unless flatly absurd or unjust; for though their reason be not obvious at first view, yet we owe such a deference to former times as not to suppose they acted wholly without consideration. To illustrate this doctrine by examples. It has been determined, time out of mind, that a brother of the half blood shall never succeed as heir to the estate of his half brother, but it shall rather escheat to the king, or other superior lord. Now this is a positive law, fixed and established by custom; which custom is proved by judicial decisions; and therefore can never be departed from by any modern judge without a breach of his oath and the law. For herein there is nothing repugnant to natural justice; though the artificial reason of it, drawn from the feudal law, may not be quite obvious to every body. And therefore on account of a supposed hardship upon the half brother, a modern judge might wish it had been otherwise settled, yet it is not in his power to alter it. But if

any court were now to determine, that an elder brother of the half blood might enter upon and seize any lands that were purchased by his younger brother, no subsequent judges would scruple to declare that such prior determination was unjust, was unreasonable, and therefore was not law. So that the law, and the opinion of the judge, are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law. Upon the whole, however, we may take it as a general rule, "That the decisions of courts of justice are the evidence of what is common law," in the same manner as in the civil law, what the emperor had once determined was to serve for a guide for the future.

The decisions therefore of courts are held in the highest regard, and are not only preserved as authentic records in the treasuries of the several courts, but are handed out to public view in the numerous volumes of reports which furnish the lawyers library. These reports are histories of the several cases, with a short summary of the proceedings, which are preserved at large in the record; the arguments on both sides, and the reasons the court gave for its judgement: taken down in short notes by persons present at the determination. And these serve as indexes to, and also to explain, the records; which always, in matters of consequence and nicety, the judges direct to be searched. The reports are extant in a regular series from the reign of King Edward II. inclusive; and from his time to that of Henry VIII. were taken by the prothonotaries, or chief scribes of the court, at the expense of the crown, and published annually, whence they are known under the denomination of the year books. And it is much to be wished that this beneficial custom had, under proper regulations, been continued to this day; for though King James I. at the instance of Lord Bacon, appointed two reporters, with a handsome stipend, for this purpose; yet that wise institution was soon neglected, and from the reign of Henry VIII. to the present time this task has been executed by many private and contemporary hands; who sometimes through haste and inaccuracy, sometimes through mistake and want of skill, have published very crude and imperfect (perhaps contradictory) accounts of one and the same determination. Some of the most valuable of the ancient reports are those published by Lord Chief Justice Coke; a man of infinite learning in his profession, though not a little infected with the pedantry and quaintness of the times he lived in, which appear strongly in all his works. However, his writings are so highly esteemed, that they are generally cited without the author's name (A).

Besides these reporters, there are also other authors, to whom great veneration and respect are paid by the students of the common law. Such are Glanvil and Bracton, Britton, and Fleta, Littleton and Fitzherbert, with

(A) His reports, for instance, are styled, cur' i'geyer, "the reports;" and in quoting them we usually say, 1 or 2 Rep. not 1 or 2 Coke's Rep. as in citing other authors. The reports of Judge Croke are also cited in a peculiar manner, by the name of those princes in whose reigns the cases reported in his three volumes were determined; viz. Queen Elizabeth, King James, King Charles I.; as well as by the number of each volume. For sometimes we call them 1, 2, and 3 Cro. 3 but more commonly Cro. Eliz. Cro. Jac. and Cro. Car.

with some others of ancient date, whose treatises are cited as authority; and are evidence that cases have formerly happened in which such and such points were determined, which are now become settled and first principles. One of the last of these methodical writers in point of time, whose works are of any intrinsic authority in the courts of justice, and do not entirely depend on the strength of their quotations from older authors, is the same learned judge we have just mentioned, Sir Edward Coke; who hath written four volumes of Institutes, as he is pleased to call them, though they have little of the institutional method to warrant such a title. The first volume is a very extensive comment upon a little excellent treatise of tenures, compiled by Judge Littleton in the reign of Edward IV. This comment is a rich mine of valuable common law learning, collected and heaped together from the ancient reports and year books, but greatly defective in method. (B). The second volume is a comment upon many old acts of parliament, without any systematical order; the third, a more methodical treatise of the pleas of the crown; and the fourth, an account of the several species of courts (C).

And thus much for the first ground and chief cornerstone of the laws of England; which is generally immemorial custom, or common law, from time to time declared in the decisions of the courts of justice; which decisions are preserved among the public records, explained in the reports, and digested for general use in the authoritative writings of the venerable sages of the law.

The Roman law, as practised in the times of its liberty, paid also a great regard to custom; but not so much as our law: it only then adopting it when the written law was deficient; though the reasons alleged in the Digest will fully justify our practice in making it of equal authority with, when it is not contradicted by, the written law. "For since (says Julianus) the written law binds us for no other reason but because it is approved by the judgement of the people, therefore those laws which the people have approved without writing ought also to bind every body. For where is the difference, whether the people declare their assent to a law by suffrage, or by a uniform course of acting accordingly?" Thus did they reason while Rome had some remains of her freedom; but, when, the imperial tyranny came to be fully established, the civil laws speak a very different language. Quod principi placuit legis habet vigorem, cum populus ei et in eum omne suum imperium et potestatem conferat, says Ulpian. Imperator solus est conditor et interpret legis existimator, says the code. And again, Sacrillegii instar est rescripto principis obviare. And indeed it is one of the characteristic marks of British liberty, that the common law depends upon custom: which carries this internal evidence of freedom along with it, that it probably was introduced by the voluntary consent of the people.

VOL. XI. Part II.

II. The second branch of the unwritten laws of England are particular customs, or laws which affect only the inhabitants of particular districts.

These particular customs, or some of them, are without doubt the remains of that multitude of local customs before mentioned, out of which the common law, as it now stands, was collected at first by King Alfred, and afterwards by King Edgar and Edward the Confessor: each district mutually sacrificing some of its own special usages, in order that the whole kingdom might enjoy the benefit of one uniform and universal system of laws. But, for reasons that have been now long forgotten, particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege of abiding by their own customs, in contradistinction to the rest of the nation at large: which privilege is confirmed to them by several acts of parliament.

Such is the custom of gavelkind in Kent and some other parts of the kingdom (though perhaps it was also general till the Norman conquest); which ordains among other things, that not the eldest son only of the father shall succeed to his inheritance, but all the sons alike; and that, though the ancestor be attainted and hanged, yet the heir shall succeed to his estate, without any escheat to the lord.—Such is the custom that prevails in divers ancient boroughs, and therefore called borough English, that the youngest son shall inherit the estate, in preference to all his elder brothers.—Such is the custom in other boroughs, that a widow shall be entitled, for her dower, to all her husband's lands; whereas at the common law she shall be endowed of one-third part only.—Such also are the special and particular customs of manors, of which every one has more or less, and which bind all the copyhold tenants that hold of the said manors.—Such likewise is the custom of holding divers inferior courts, with power of trying causes, in cities and trading towns; the right of holding which, when no royal grant can be shown, depends entirely upon immemorial and established usage.—Such, lastly, are many particular customs within the city of London, with regard to trade, apprentices, widows, orphans, and a variety of other matters. All these are contrary to the general law of the land, and are good only by special usage; though the customs of London are also confirmed by act of parliament.

To this head may most properly be referred a particular system of customs used only among one set of the king's subjects, called the custom of merchants, or lex mercatoria: which, however different from the general rules of the common law, is yet ingrafted into it, and made a part of it; being allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions; for it is a maxim of law, that civiliter in sua arte credendum est.

The rules relating to particular customs regard either

4 F

ther

(B) It is usually cited either by the name of Co. Litt. or as 1 Inst.

(C) These are cited as 2, 3, or 4 Inst. without any author's name. An honorary distinction, which, we observed, is paid to the works of no other writer; the generality of reports and other tracts being quoted in the name the compiler, as 2 Ventris, 4 Leonard, 1 Siderfin, and the like.

ther the proof, of their existence; their legality when proved; or their usual method of allowance. And first we will consider the rules of proof.

As to gavelkind and borough English, the law takes particular notice of them; and there is no occasion to prove, that such customs actually exist, but only that the lands in question are subject thereto. All other private customs must be particularly pleaded; and as well the existence of such customs must be shown, as that the thing in dispute is within the customs alleged. The trial in both cases (both to show the existence of the custom, as, "That in the manor of Dale lands shall descend only to the heirs male, and never to the heirs female;" and also to show "that the lands in question are within that manor") is by a jury of twelve men, and not by the judges; except the same particular custom has been before tried, determined, and recorded, in the same court.

The customs of London differ from all others in point of trial: for if the existence of the custom be brought in question, it shall not be tried by a jury, but by a certificate from the lord mayor and aldermen by the mouth of their recorder; unless it be such a custom as the corporation is itself interested in, as a right of taking toll, &c. for then the law permits them not to certify on their own behalf.

When a custom is actually proved to exist, the next inquiry is into the legality of it; for if it is not a good custom, it ought to be no longer used. Malus usus abolendus est, is an established maxim of the law. To make a particular custom good, the following are necessary requisites:—

1. That it have been used so long, that the memory of man runneth not to the contrary. So that if any one can show the beginning of it, it is no good custom. For which reason, no custom can prevail against an express act of parliament; since the statute itself is a proof of a time when such a custom did not exist.

2. It must have been continued. Any interruption would cause a temporary ceasing: the revival gives it a new beginning, which will be within time of memory, and thereupon the custom will be void. But this must be understood with regard to an interruption of the right: for an interruption of the possession only for 10 or 20 years, will not destroy the custom. As if the inhabitants of a parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed, though they do not use it for 10 years; it only becomes more difficult to prove: but if the right be anyhow discontinued for a day, the custom is quite at an end.

3. It must have been peaceable, and acquiesced in; not subject to contention and dispute. For as customs owe their original to common consent, their being immemorially disputed, either at law or otherwise, is a proof that such consent was wanting.

4. Customs must be reasonable; or rather, taken negatively, they must not be unreasonable. Which is not always, as Sir Edward Coke says, to be understood of every unlearned man's reason; but of artificial and legal reason, warranted by authority of law. Upon which account a custom may be good, though the particular reason of it cannot be assigned; for it sufficeth, if no good legal reason can be assigned against it.

Thus a custom in a parish, that no man shall put his beasts into the common till the third of October, would be good; and yet it would be hard to show the reason why that day in particular is fixed upon rather than the day before or after. But a custom, that no cattle shall be put in till the lord of the manor has first put in his, is unreasonable, and therefore bad; for peradventure the lord will never put in his; and then the tenants will lose all their profits.

5. Customs ought to be certain. A custom, that lands shall descend to the most worthy of the owner's blood, is void; for how shall this worth be determined? but a custom to descend to the next male of the blood, exclusive of females, is certain, and therefore good. A custom to pay twopence an acre in lieu of tithes, is good; but to pay sometimes twopence and sometimes threepence, as the occupier of the land pleases, is bad for its uncertainty. Yet a custom, to pay a year's improved value for a fine on a copyhold estate, is good; though the value is a thing uncertain: for the value may at any time be ascertained; and the maxim of law is, Id certum est, quod certum reddi potest.

6. Customs, though established by consent, must be (when established) compulsory; and not left to the option of every man, whether he will use them or no. Therefore a custom, that all the inhabitants shall be rated toward the maintenance of a bridge, will be good; but a custom, that every man is to contribute thereto at his own pleasure, is idle and absurd, and indeed no custom at all.

7. Lastly, Customs must be consistent with each other. One custom cannot be set up in opposition to another. For if both are really customs, then both are of equal antiquity, and both established by mutual consent: which to say of contradictory customs, is absurd. Therefore, if one man prescribes that by custom he has a right to have windows looking into another's garden; the other cannot claim a right by custom to stop up or obstruct those windows: for these two contradictory customs cannot both be good, nor both stand together. He ought rather to deny the existence of the former custom.

Next, as to the allowance of special customs. Customs, in derogation of the common law, must be construed strictly. Thus, by the custom of gavelkind, an infant of 15 years may by one species of conveyance (called a deed of feoffment) convey away his lands in fee simple, or for ever. Yet this custom does not empower him to use any other conveyance, or even to lease them for seven years: for the custom must be strictly pursued. And, moreover, all special customs must submit to the king's prerogative. Therefore, if the king purchases lands of the nature of gavelkind, where all the sons inherit equally; yet, upon the king's demise, his eldest son shall succeed to those lands alone. And thus much for the second part of the leges non scriptæ, or those particular customs which affect particular persons or districts only.

III. The third branch of them are those peculiar laws which by custom are adopted and used only in certain peculiar courts and jurisdictions. And by these are understood the civil and canon laws.

It may seem a little improper, at first view, to rank these laws under the head of leges non scriptæ, or unwritten laws, seeing they are set forth by authority in their

their pandects, their codes, and their institutions; their councils, decrees, and decretals; and enforced by an immense number of expositions, decisions, and treatises of the learned in both branches of the law. But this is done after the example of Sir Matthew Hale, because it is most plain, that it is not on account of their being written laws, that either the canon law, or the civil law, have any obligation within this kingdom: neither do their force and efficacy depend upon their own intrinsic authority; which is the case of our written laws or acts of parliament. They bind not the subjects of England, because their materials were collected from popes or emperors, were digested by Justinian, or declared to be authentic by Gregory. These considerations give them no authority here: for the legislature of England doth not, nor ever did, recognize any foreign power, as superior or equal to it in this kingdom; or as having the right to give law to any the meanest of its subjects. But all the strength that either the papal or imperial laws have obtained in this realm (or indeed in any other kingdom in Europe) is only because they have been admitted and received by immemorial usage and custom in some particular cases, and some particular courts; and then they form a branch of the leges non scriptae, or customary law: or else, because they are in some other cases introduced by consent of parliament, and then they owe their validity to the leges scriptae, or statute law. This is expressly declared in those remarkable words of the statute 25 Hen. VIII. c. 21, addressed to the king's royal majesty:—"This your grace's realm, recognizing no superior under God but only your grace, hath been and is free from subjection to any man's laws, but only to such as have been devised, made, and ordained within this realm for the wealth of the same; or to such other as, by suffrage of your grace and your progenitors, the people of this your realm have taken at their free liberty, by their own consent, to be used among them; and have bound themselves by long use and custom to the observance of the same: not as to the observance of the laws of any foreign prince, potentate, or prelate; but as to the customed and ancient laws of this realm, originally established as laws of the same, by the said suffrage, consents, and custom; and none otherwise."

1. By the civil law, absolutely taken, is generally understood the civil or municipal law of the Roman empire, as comprised in the Institutes, the Code, and the Digest of the emperor Justinian, and the novel constitutions of himself and some of his successors; of which it may not be amiss to give a short and general account.

The Roman law (founded first upon the regal constitutions of their ancient kings, next upon the 12 tables of the decemviri, then upon the laws or statutes enacted by the senate or people, the edicts of the praetor, and the responsa prudentium or opinions of learned lawyers, and lastly upon the imperial decrees or constitutions of successive emperors) had grown to so great a bulk, or, as Livy expresses it, tam imensus altarium super alias aerevarum legum cumulus, that they were computed to be many camels load by an author who preceded Justinian. This was in part remedied by the collections of three private lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theo-

dofus the younger, by whose orders a code was compiled, A. D. 438, being a methodical collection of all the imperial constitutions then in force: which Theodosian code was the only book of civil law received as authentic in the western part of Europe, till many centuries after; and to this it is probable that the Franks and Goths might frequently pay some regard, in framing legal constitutions for their newly erected kingdoms. For Justinian commanded only in the eastern remains of the empire; and it was under his auspices, that the present body of civil law was compiled and finished by Trebonian and other lawyers, about the year 533.

This consists of, 1. The Institutes; which contain the elements or first principles of the Roman law, in four books. 2. The Digests or Pandects, in 50 books; containing the opinions and writings of eminent lawyers, digested in a systematical method. 3. A new code, or collection of imperial constitutions; the lapse of a whole century having rendered the former code of Theodosius imperfect. 4. The Novels, or new constitutions, posterior in time to the other books, and amounting to a supplement to the code: containing new decrees of successive emperors, as new questions happened to arise. These form the body of Roman law, or corpus juris civilis, as published about the time of Justinian: which, however, fell soon into neglect and oblivion, till about the year 1130, when a copy of the Digests was found at Amalfi in Italy; which accident, concurring with the policy of the Roman ecclesiastics, suddenly gave new vogue and authority to the civil law, introduced it into several nations, and occasioned that mighty inundation of voluminous comments, with which this system of law, more than any other, is now loaded.

2. The canon law is a body of Roman ecclesiastical law, relative to such matters as that church either has, or pretends to have, the proper jurisdiction over. This is compiled from the opinions of the ancient Latin fathers, the decrees of general councils, the decretal epistles and bulls of the holy see. All which lay in the same disorder and confusion as the Roman civil law: till, about the year 1151, one Gratian an Italian monk, animated by the discovery of Justinian's Pandects, reduced the ecclesiastical constitutions also into some method, in three books; which he entitled Concordia discordantium canonum, but which are generally known by the name of Decretum Gratiani. These reached as low as the time of Pope Alexander III. The subsequent papal decrees, to the pontificate of Gregory IX, were published in much the same method under the auspices of that pope, about the year 1230, in five books; entitled Decretalia Gregorii nni. A sixth book was added by Boniface VIII. about the year 1298, which is called Sextus Decretalium. The Clementine constitutions, or decrees of Clement V. were in like manner authenticated in 1317 by his successor John XXII; who also published 20 constitutions of his own, called Extravagantes Joannis: all which in some measure answer to the novels of the civil law. To these have been since added some decrees of latter popes, in five books, called Extravagantes Communis. And all these together, Gratian's decree, Gregory's decretals, the sixth decretal, the Clementine constitutions, and the Extravagants of John and his successors,

form the corpus juris canonici, or body of the Roman canon law.

Besides these pontifical collections, which during the times of popery were received as authentic in this island, as well as in other parts of Christendom, there is also a kind of national canon law, composed of legislative and provincial constitutions, and adapted only to the exigencies of this church and kingdom. The legislative constitutions were ecclesiastical laws, enacted in national synods, held under the cardinals Otho and Othobon, legates from Pope Gregory IX. and Pope Clement IV. in the reign of King Henry III. about the years 1220 and 1268. The provincial constitutions are principally the decrees of provincial synods, held under divers archbishops of Canterbury, from Stephen Langton in the reign of Henry III. to Henry Chichele in the reign of Henry V.; and adopted also by the province of York in the reign of Henry VI. At the dawn of the Reformation, in the reign of King Henry VIII. it was enacted in parliament, that a review should be had of the canon law; and till such review should be made, all canons, constitutions, ordinances and synodals provincial, being then already made, and not repugnant to the law of the land or the king's prerogative, should still be used and executed. And, as no such review has yet been perfected, upon this statute now depends the authority of the canon law in England.

As for the canons enacted by the clergy under James I. in the year 1603, and never confirmed in parliament, it has been solemnly adjudged upon the principles of law and the constitution, that where they are not merely declaratory of the ancient canon law, but are introductory of new regulations, they do not bind the laity, whatever regard the clergy may think proper to pay them.

There are four species of courts, in which the civil and canon laws are permitted under different restrictions to be used. 1. The courts of the archbishop and bishops, and their derivative officers; usually called courts Christian, (curie Christianitatis), or the ecclesiastical courts. 2. The military courts. 3. The courts of admiralty. 4. The courts of the two universities. In all, their reception in general, and the different degrees of that reception, are grounded entirely upon custom; corroborated in the latter instance by act of parliament, ratifying those charters which confirm the customary law of the universities. The more minute consideration of them will fall under their proper articles. It will suffice at present to remark a few

particulars relative to them all, which may serve to inculcate more strongly the doctrine laid down concerning them.

1. And first, The courts of common law have the superintendency over these courts; to keep them within their jurisdictions; to determine wherein they exceed them; to restrain and prohibit such excess; and (in case of contumacy) to punish the officer who executes, and in some cases the judge who enforces, the sentence so declared to be illegal.

2. The common law has reserved to itself the exposition of all such acts of parliament, as concern either the extent of these courts, or the matters depending before them. And therefore, if these courts either refuse to allow these acts of parliament, or will expound them in any other sense than what the common law puts upon them, the king's courts at Westminster will grant prohibitions to restrain and controul them.

3. An appeal lies from all these courts to the king, in the last resort; which proves that the jurisdiction exercised in them is derived from the crown of England, and not from any foreign potentate, or intrinsic authority of their own.—And, from these three strong marks and ensigns of superiority, it appears beyond a doubt, that the civil and canon laws, though admitted in some cases by custom in some courts, are only subordinate and leges sub graviore lege; and that thus admitted, restrained, altered, new-modelled, and amended, they are by no means with us a distinct independent species of laws, but are inferior branches of the customary or unwritten laws of England, properly called the king's ecclesiastical, the king's military, the king's maritime, or the king's academical law.

Let us next proceed to the leges scriptae, the written laws of the kingdom; which are statutes, acts, or edicts, made by the king's majesty, by and with the advice of the lords spiritual and temporal and commons in parliament assembled. The oldest of these now extant, and printed in our statute books, is the famous magna charta, as confirmed in parliament 9 Hen. III. though doubtless there were many acts before that time, the records of which are now lost, and the determinations of them perhaps at present currently received for the maxims of the old common law.

The manner of making these statutes being explained under the articles BILL and PARLIAMENT, we shall here only take notice of the different kinds of statutes; and of some general rules with regard to their construction (D).

First, As to their several kinds. Statutes are either

(D) The method of citing these acts of parliament is various. Many of the ancient statutes are called after the name of the place where the parliament was held that made them; as the statutes of Merton and Marlberge, of Westminster, Gloucester, and Winchester. Others are denominated entirely from their subject; as the statutes of Wales and Ireland, the articuli cleri, and the prerogativa regis. Some are distinguished by their initial words, a method of citing very ancient; being used by the Jews, in denominating the books of the Pentateuch; by the Christian church, in distinguishing their hymns and divine offices; by the Romanists, in describing their papal bulls; and in the short by the whole body of ancient civilians and canonists, among whom this method of citation generally prevailed, not only with regard to chapters, but inferior sections also; in imitation of all which we still call some of the old statutes by their initial words, as the statute of Quia emptores, and that of Circumspicite agatis. But the most usual method of citing them, especially since the time of Edward II. is by naming the year of the king's reign in which the statute was made, together with the chapter or particular act, according to its numeral order; as, 9 Geo. II. c. 4. For all the acts of one session,

general or special, public or private. A general or public act is an universal rule that regards the whole community: and of this the courts of law are bound to take notice judicially and ex officio, without the statute being particularly pleaded, or formally set forth, by the party who claims an advantage under it. Special or private acts are rather exceptions than rules, being those which only operate upon particular persons and private concerns; such as the Romans entitled senatus decreta, in contradistinction to the senatus consulta, which regarded the whole community; and of these the judges are not bound to take notice, unless they be formerly shown and pleaded. Thus, to show the distinction, the statute 13 Eliz. c. 10. to prevent spiritual persons from making leases for longer terms than 21 years or three lives, is a public act; it being a rule prescribed to the whole body of spiritual persons in the nation: but an act to enable the bishop of Chester to make a lease to A. B. for 60 years, is an exception to this rule; it concerns only the parties and the bishop's successors, and is therefore a private act.

Statutes also are either declaratory of the common law, or remedial of some defects therein. Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the parliament has thought proper, in perpetuum rei institutionum, and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been. Thus the statute of treasons, 25 Edw. III. cap. 2. doth not make any new species of treasons: but only, for the benefit of the subject, declares and enumerates those several kinds of offence which before were treason at the common law. Remedial statutes are those which are made to supply such defects, and abridge such superfluities, in the common law, as arise either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned judges, or from any other cause whatsoever. And this being done, either by enlarging the common law where it was too narrow and circumscribed, or by restraining it where it was too lax and luxuriant, hath occasioned another subordinate division of remedial acts of parliament into enlarging and restraining statutes. To instance again in the case of treason. Clipping the current coin of the kingdom was an offence not sufficiently guarded against by the common law: therefore it was thought expedient by statute 5 Eliz. c. 11. to make it high treason, which it was not at the common law: so that this was an enlarging statute. At common law, also, spiritual corporations might lease out their estates for any term of years, till prevented by the statute 13 Eliz. before mentioned: this was therefore a restraining statute.

Secondly, The rules to be observed with regard to the construction of statutes are principally these which follow.

1. There are three points to be considered in the

construction of all remedial statutes; the old law, the mischief, and the remedy; that is, how the common law stood at the making of the act; what the mischief was, for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. And it is the business of the judges to construe the act, as to suppress the mischief and advance the remedy. Let us instance again in the same restraining statute of 13 Eliz. c. 10. By the common law, ecclesiastical corporations might let as long leases as they thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment of their successors: the remedy applied by the statute was by making void all leases by ecclesiastical bodies for longer terms than three lives or 21 years. Now in the construction of this statute it is held, that leases, though for a longer term, if made by a bishop, are not void during the bishop's continuance in his see; or, if made by a dean and chapter, they are not void during the continuance of the dean; for the act was made for the benefit and protection of the successor. The mischief is therefore sufficiently suppressed by vacating them after the determination of the interest of the granters; but the leases, during their continuance, being not within the mischief, are not within the remedy.

2. A statute, which treats of things or persons of an inferior rank, cannot by any general words be extended to those of a superior. So a statute, treating of "deans, prebendaries, parsons, vicars, and others having spiritual promotion," is held not to extend to bishops, though they have spiritual promotion; deans being the highest persons named, and bishops being of a still higher order.

3. Penal statutes must be construed strictly. Thus the statute 1 Edw. VI. c. 12. having enacted that those who are convicted of stealing horses should not have the benefit of clergy, the judges conceived that this did not extend to him who should steal but one horse, and therefore procured a new act for that purpose in the following year. And, to come nearer to our own times, by the statute 14 Geo. II. c. 6. stealing sheep or other cattle, was made felony without benefit of clergy. But these general words, "or other cattle," being looked upon as much too loose to create a capital offence, the act was held to extend to nothing but mere sheep. And therefore, in the next session, it was found necessary to make another statute, 15 Geo. II. c. 34. extending the former to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.

4. Statutes against frauds are to be liberally and beneficially expounded. This may seem a contradiction to the last rule: most statutes against frauds being in their consequences penal. But this difference is here to be taken: where the statute acts upon the offender, and inflicts a penalty, as the pillory or a fine, it is then to be taken strictly; but when the statute acts upon the offence, by setting aside the fraudulent transaction, here

session of parliament taken together made properly but one statute: and therefore, when two sessions have been held in one year, we usually mention stat. 1. or 2. Thus the bill of rights is cited, as 1 W. & M. st. 2. c. 2. signifying that it is the second chapter or act of the second statute, or the laws made in the second sessions of parliament held in the first year of King William and Queen Mary.

here it is to be construed liberally. Upon this footing the statute of 13 Eliz. c. 5, which voids all gifts of goods, &c. made to defraud creditors and others, was held to extend by the general words to a gift made to defraud the queen of a forfeiture.

5. One part of a statute must be so construed by another, that the whole may (if possible) stand: ut res magis valeat quam percat. As if land be vested in the king and his heirs by act of parliament, saving the right of A; and A has at that time a lease of it for three years; here A shall hold it for his term of three years, and afterwards it shall go to the king. For this interpretation furnishes matter for every clause of the statute to work and operate upon. But,

6. A saving, totally repugnant to the body of the act, is void. If therefore an act of parliament vests land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of A in the king, saving the right of A: in either of these cases the saving is totally repugnant to the body of the statute, and (if good) would render the statute of no effect or operation; and therefore the saving is void, and the land vests absolutely in the king.

7. Where the common law and a statute differ, the common law gives place to the statute; and an old statute gives place to a new one. And this upon the general principle laid down in the last section, that leges posteriores priores contrarias abrogant. But this is to be understood only when the latter statute is couched in negative terms, or by its matter necessarily implies a negative. As if a former act says, that a juror upon such a trial shall have twenty pounds a-year, and a new statute comes and says he shall have twenty marks; here the latter statute, though it does not express, yet necessarily implies, a negative, and virtually repeals the former. For if twenty marks be made qualification sufficient, the former statute which requires twenty pounds is at an end. But if both the acts be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter sessions, and a latter law makes the same offence indictable at the assizes; here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the offender may be prosecuted at either: unless the new statute subjoins express negative words; as, that the offence shall be indictable at the assizes, and not elsewhere.

8. If a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived, without any formal words for that purpose. So when the statutes of 26 and 35 Henry VIII. declaring the king to be the supreme head of the church, were repealed by a statute 1 and 2 Philip and Mary, and this latter statute was afterwards repealed by an act of 1 Eliz. there needed not any express word of revival in Queen Elizabeth's statute, but these acts of King Henry were impliedly and virtually revived.

9. Acts of parliament derogatory from the power of subsequent parliaments bind not. So the statute 11 Hen. VII. c. 1, which directs, that no person for assisting a king de facto shall be attainted of treason by act of parliament or otherwise, is held to be good only as to common prosecutions for high treason;

but will not restrain or clog any parliamentary attainder. Because the legislator, being in truth the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior upon earth, which the prior legislature must have been if its ordinances could bind the present parliament. And upon the same principle Cicero, in his letters to Atticus, treats with a proper contempt these restraining clauses, which endeavour to tie up the hand of succeeding legislatures. "When you repeal the law itself (says he), you at the same time repeal the prohibitory clause which guards against such repeal."

10. Lastly, Acts of parliament that are impossible to be performed are of no validity: and if there arise out of them collaterally any absurd consequences, manifestly contradictory to common reason, they are with regard to those collateral consequences void. We lay down the rule with these restrictions; though we know it is generally laid down more largely, that acts of parliament contrary to reason are void. But if the parliament will positively enact a thing to be done which is unreasonable, we know of no power that can controul it: and the examples usually alleged in support of this sense of the rule do none of them prove that where the main object of a statute is unreasonable, the judges are at liberty to reject it; for that were to set the judicial power above that of the legislature, which would be subversive of all government. But where some collateral matter arises out of the general words, and happens to be unreasonable; there the judges are in decency to conclude that this consequence was not foreseen by the parliament, and therefore they are at liberty to expound the statute by equity, and only quoad hoc disregard it. Thus if an act of parliament gives a man power to try all causes that arise within his manor of Dale; yet, if a cause should arise in which he himself is party, the act is construed not to extend to that, because it is unreasonable that any man should determine his own quarrel. But, if we could conceive it possible for the parliament to enact, that he should try as well his own causes as those of other persons, there is no court that has power to defeat the intent of the legislature, when couched in such evident and express words as leave no doubt whether it was the intent of the legislature or not.

These are the several grounds of the laws of England: over and above which, equity is also frequently called in to assist, to moderate, and to explain them. What equity is, and how impossible in its very essence to be reduced to stated rules, hath been shown above. It may be sufficient, therefore, to add in this place, that, besides the liberality of sentiment with which our common law judges interpret acts of parliament, and such rules of the unwritten law as are not of a positive kind, there are also courts of equity established for the benefit of the subject, to detect latent frauds and concealments, which the process of the courts of law is not adapted to reach; to enforce the execution of such matters of trust and confidence, as are binding in conscience, though not cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight; and to give a more specific relief, and more adapted to the circumstances of the case, than can always be obtained by the generality of the rules of the positive or common law. This is the business

of the courts of equity, which however are only conversant in matters of property. For the freedom of our constitution will not permit, that in criminal cases a power should be lodged in any judge to construe the law otherwise than according to the letter. This caution, while it admirably protects the public liberty, can never bear hard upon individuals. A man cannot suffer more punishment than the law assigns, but he may suffer less. The laws cannot be strained by partiality to inflict a penalty beyond what the letter will warrant; but, in cases where the letter induces any apparent hardship, the crown has the power to pardon.

The objects of the laws of England are, 1. The rights of persons. 2. The rights of things. 3. Private wrongs. 4. Public wrongs.

CHAP. I. Of the RIGHTS of PERSONS.

SECT. I. Of the Absolute Rights of Individuals.

xlv. (1.) THE objects of the Laws of England are, 1. Rights, 2. Wrongs.

(2.) Rights are the rights of persons, or the rights of things.

(3.) The rights of persons are such as concern, and are annexed to, the persons of men: and, when the person to whom they are due is regarded, they are called (simply) rights; but, when we consider the person from whom they are due, they are then denominated, duties.

(4.) Persons are either natural, that is, such as they are formed by nature; or artificial, that is, created by human policy, as bodies politic or corporations.

(5.) The rights of natural persons are, 1. Absolute, or such as belong to individuals. 2. Relative, or such as regard members of society.

(6.) The absolute rights of individuals regarded by the municipal laws (which pay no attention to duties, of the absolute kind), compose what is called political or civil liberty.

(7.) Political or civil liberty is the natural liberty of mankind, so far restrained by human laws as is necessary for the good of society.

(8.) The absolute rights or civil liberties of Englishmen, as frequently declared in parliament, are principally three: the right of personal security, of personal liberty, and of private property.

(9.) The right of personal security consists in the legal enjoyment of life, limb, body, health, and reputation.

(10.) The right of personal liberty consists in the free power of loco-motion, without illegal restraint or banishment.

(11.) The right of private property consists in every man's free use and disposal of his own lawful acquisitions, without injury or illegal diminution.

(12.) Besides these three primary rights, there are others which are secondary and subordinate; viz. (to preserve the former from unlawful attacks). 1. The constitution and power of parliaments; 2. The limitation of the king's prerogative;—and (to vindicate them when actually violated); 3. The regular administration of public justice; 4. The right of petitioning for redress of grievances; 5. The right of having and using arms for self-defence.

SECT. II. Of the Parliament.

SECT. II. Of the Parliament.

(1.) The relations of persons are, 1. Public; 2. Private. The public relations are those of magistrates and people. Magistrates are superior or subordinate. And of supreme magistrates, in England, the parliament is the supreme legislative, the king the supreme executive.

(2.) Parliaments, in some shape, are of as high antiquity as the Saxon government in this island; and have subsisted, in their present form, at least five hundred years.

(3.) The parliament is assembled by the king's writs, and its sitting must not be intermitted above three years.

(4.) Its constituent parts are the king's majesty, the lords spiritual and temporal, and the commons represented by their members: each of which parts has a negative, or necessary, voice in making laws.

(5.) With regard to the general law of parliament; its power is absolute: each house is the judge of its own privileges; and all the members of either house are entitled to the privilege of speech, of person, of their domestics, and of their lands and goods.

(6.) The peculiar privileges of the lords (besides their judicial capacity), are, to hunt in the king's forests; to be attended by the pages of the law; to make proxies; to enter protests; and to regulate the election of the 16 peers of North Britain.

(7.) The peculiar privileges of the commons are, to frame taxes for the subject; and to determine the merits of their own elections, with regard to the qualifications of the electors and elected, and the proceedings at elections themselves.

(8.) Bills are usually twice read in each house, committed, engrossed, and then read a third time; and when they have obtained the concurrence of both houses, and received the royal assent, they become acts of parliament.

(9.) The houses may adjourn themselves; but the king only can prorogue the parliament.

(10.) Parliaments are dissolved, 1. At the king's will. 2. By the demise of the crown, that is, within six months after. 3. By length of time, or having sat for the space of seven years.

SECT. III. Of the King and his Title.

(1.) The supreme executive power of this kingdom is lodged in a single person; the king or queen.

(2.) This royal person may be considered with regard to, 1. His title. 2. His royal family. 3. His councils. 4. His duties. 5. His prerogative. 6. His revenue.

(3.) With regard to his title; the crown of England, by the positive constitution of the kingdom, hath ever been descendible, and so continues.

(4.) The crown is descendible in a course peculiar to itself.

(5.) This course of descent is subject to limitation by parliament.

(6.) Notwithstanding such limitations, the crown retains

retains its descendible quality, and becomes hereditary in the prince to whom it is limited.

(7.) King Egbert, King Canute, and King William I. have been successively constituted the common stocks, or ancestors, of this descent.

(8.) At the Revolution the convention of estates, or representative body of the nation, declared, that the misconduct of King James II. amounted to an abdication of the government, and that the throne was thereby vacant.

(9.) In consequence of this vacancy, and from a regard to the ancient line, the convention appointed the next Protestant heirs of the blood royal of King Charles I. to fill the vacant throne, in the old order of succession; with a temporary exception, or preference, to the person of King William III.

(10.) On the impending failure of the Protestant line of King Charles I. (whereby the throne might again have become vacant) the king and parliament extended the settlement of the crown to the Protestant line of King James I. viz. to the princess Sophia of Hanover, and the heirs of her body, being Protestants: And she is now the common stock, from whom the heirs of the crown must descend.

SECT. IV. Of the King's Royal Family.

xlvi. (1.) The king's royal family consists, first, of the queen: who is regnant, consort, or dowager.

(2.) The queen consort is a public person, and hath many personal prerogatives and distinct revenues.

(3.) The prince and princess of Wales, and the princess-royal, are peculiarly regarded by the law.

(4.) The other princes of the blood-royal are only entitled to precedence.

SECT. V. Of the Councils belonging to the King.

xlviii. (1.) The king's councils are, 1. The parliament. 2. The great council of peers. 3. The judges, for matters of law. 4. The privy council.

(2.) In privy counsellors may be considered, 1. Their creation. 2. Their qualifications. 3. Their duties. 4. Their powers. 5. Their privileges. 6. Their dissolution.

SECT. VI. Of the King's Duties.

xlxi. (1.) The king's duties, are to govern his people according to law, to execute judgment in mercy, and to maintain the established religion. These are his part of the original contract between himself and the people; founded in the nature of society, and expressed in his oath at the coronation.

SECT. VII. Of the King's Prerogative.

l. (1.) Prerogative is that special power and pre-eminence which the king hath above other persons, and out of the ordinary course of law, in right of his regal dignity.

(2.) Such prerogatives are either direct, or incidental. The incidental, arising out of other matters, are considered as they arise: We now treat only of the direct.

(3.) The direct prerogatives regard, 1. The king's dignity, or royal character; 2. His authority, or regal power; 3. His revenue, or royal income.

(4.) The king's dignity consists in the legal attributes of, 1. Personal sovereignty. 2. Absolute perfection. 3. Political perpetuity.

(5.) In the king's authority, or regal power, consists the executive part of government.

(6.) In foreign concerns; the king, as the representative of the nation, has the right or prerogative, 1. Of sending and receiving ambassadors. 2. Of making treaties. 3. Of proclaiming war or peace. 4. Of issuing reprisals. 5. Of granting safe conducts.

(7.) In domestic affairs; the king is, first, a constituent part of the supreme legislative power; hath a negative upon all new laws; and is bound by no statute, unless specially named therein.

(8.) He is also considered as the general of the kingdom, and may raise fleets and armies, build forts, appoint havens, erect beacons, prohibit the exportation of arms and ammunition, and confine his subjects within the realm, or recall them from foreign parts.

(9.) The king is also the fountain of justice, and general conservator of the peace; and therefore may erect courts (where he hath a legal ubiquity), prosecute offenders, pardon crimes, and issue proclamations.

(10.) He is likewise the fountain of honour, of office, and of privilege.

(11.) He is also the arbiter of domestic commerce; (not of foreign, which is regulated by the law of merchants); and is therefore entitled to the erection of public markets, the regulation of weights and measures, and the coinage or legitimization of money.

(12.) The king is, lastly, the supreme head of the church; and, as such, convenes, regulates, and dissolves synods, nominates bishops, and receives appeals in all ecclesiastical causes.

SECT. VIII. Of the King's Revenue.

(1.) The king's revenue is either ordinary or extraordinary. And the ordinary is, 1. Ecclesiastical. 2. Temporal.

(2.) The king's ecclesiastical revenue consists in, 1. The custody of the temporalities of vacant bishoprics. 2. Corodies and pensions. 3. Extra-parochial tithes. 4. The first fruits and tenths of benefices.

(3.) The king's ordinary temporal revenue consists in, 1. The demesne lands of the crown. 2. The hereditary excise; being part of the consideration for the purchase of his feudal profits, and the prerogatives of purveyance and pre-emption. 3. An annual sum issuing from the duty on wine licences; being the residue of the same consideration. 4. His forests. 5. His courts of justice. 6. Royal fish. 7. Wrecks, and things jetam, flotam, and ligan. 8. Royal mines. 9. Treasure trove. 10. Waifs. 11. Estrays. 12. Forfeitures for offences, and deodands. 13. Escheats of lands. 14. Custody of ideots and lunatics.

(4.) The king's extraordinary revenue, consists in aids, subsidies, and supplies, granted him by the commons in parliament.

(5.) Heretofore these were usually raised by grants of the (nominal) tenth or fifteenth part of the moveables

ables in every township; or by scutages, hydages, and tallages; which were succeeded by subsidies assessed upon individuals, with respect to their lands and goods.

(6.) A new system of taxation took place about the time of the Revolution: our modern taxes are therefore, 1. Annual. 2. Perpetual.

(7.) The annual taxes are, 1. The land tax, or the ancient subsidy raised upon a new assessment. 2. The malt tax, being an annual excise on malt, mum, cyder, and perry.

(8.) The perpetual taxes are, 1. The customs, or tonnage and poundage of all merchandise exported or imported. 2. The excise duty, or inland imposition on a great variety of commodities. 3. The salt duty, or excise on salt. 4. The post office, or duty for the carriage of letters. 5. The stamp duty on paper, parchment, &c. 6. The duty on houses and windows. 7. The duty on licenses for hackney coaches and chairs. 8. The duty on offices and pensions.

(9.) Part of this revenue is applied to pay the interest of the national debt, till the principal is discharged by parliament.

(10.) The produce of these several taxes were originally separate and specific funds, to answer specific loans upon their respective credits; but are now consolidated by parliament into three principal funds, the aggregate, general, and South sea funds, to answer all the debts of the nation: the public faith being also superadded, to supply deficiencies, and strengthen the security of the whole.

(11.) The surpluses of these funds, after paying the interest of the national debt, are carried together, and denominated the sinking fund: which, unless otherwise appropriated by parliament, is annually to be applied towards paying off some part of the principal.

(12.) But, previous to this, the aggregate fund is now charged with an annual sum for the civil list; which is the immediate proper revenue of the crown, settled by parliament on the king at his accession, for defraying the charges of civil government.

SECT. IX. Of Subordinate Magistrates.

iii. (1.) Subordinate magistrates, of the most general use and authority, are, 1. Sheriffs. 2. Coroners. 3. Justices of the Peace. 4. Constables. 5. Surveyors of the highways. 6. Overseers of the poor.

(2.) The sheriff is the keeper of each county, annually nominated in due form by the king; and is (within his county) a judge, a conservator of the peace, a ministerial officer, and the king's bailiff.

(3.) Coroners are permanent officers of the crown in each county, elected by the freeholders; whose office it is to make inquiry concerning the death of the king's subjects, and certain revenues of the crown; and also, in particular cases, to supply the office of sheriff.

(4.) Justices of the peace are magistrates in each county, statutorily qualified, and commissioned by the king's majesty: with authority to conserve the peace; to hear and determine felonies, and other misdemeanors; and to do many other acts committed to their charge by particular statutes.

(5.) Constables are officers of hundreds and townships, appointed at the feet, and empowered to preserve

VOL. XI. Part II.

the peace, to keep watch and ward, and to apprehend offenders.

(6.) Surveyors of the highways are officers appointed annually in every parish; to remove annoyances in, and to direct the reparation of the public roads.

(7.) Overseers of the poor are officers appointed annually in every parish; to relieve such impotent, and employ such sturdy poor, as are settled in each parish,—by birth,—by parentage,—by marriage,—or by 40 days residence; accompanied with, 1. Notice. 2. Renting a tenement of ten pounds annual value. 3. Paying their assessed taxations. 4. Serving an annual office. 5. Hiring and service for a year. 6. Apprenticeship for seven years. 7. Having a sufficient estate in the parish.

SECT. X. Of the People, whether Aliens, Denizens, or Natives.

iii. (1.) The people are either aliens, that is, born out of the dominions or allegiance of the crown of Great Britain; or natives, that is, born within it.

(2.) Allegiance is the duty of all subjects; being the reciprocal tie of the people to the prince, in return for the protection he affords them; and, in natives, this duty of allegiance is natural and perpetual: in aliens, is local and temporary only.

(3.) The rights of natives are also natural and perpetual: those of aliens, local and temporary only; unless they be made denizens by the king, or naturalized by parliament.

SECT. XI. Of the Clergy.

iv. (1.) The people, whether aliens, denizens, or natives, are also either clergy, that is, all persons in holy orders, or in ecclesiastical offices: or laity, which comprehend the rest of the nation.

(2.) The clerical part of the nation, thus defined, are, 1. Archbishops and bishops; who are elected by their several chapters at the nomination of the crown, and afterwards confirmed and consecrated by each other. 2. Deans and chapters. 3. Archdeacons. 4. Rural deans. 5. Parsons (under which are included appropriators) and vicars; to whom there are generally requisite, holy orders, presentation, institution, and induction. 6. Curates. To which may be added, 7. Church wardens. 8. Parish clerks and sextons.

SECT. XII. Of the Civil State.

iv. (1.) The laity are divisible into three states; civil, military, and maritime.

(2.) The civil state (which includes all the nation, except the clergy, the army, and the navy, and many individuals among them also), may be divided into the nobility and the commonalty.

(3.) The nobility are dukes, marquises, earls, viscounts, and barons. These had anciently duties annexed to their respective honours: they are created either by writ, that is, by summons to parliament; or by the king's letters patent, that is, by royal grant: and they enjoy many privileges exclusive of their senatorial capacity.

(4.) The commonalty consist of knights of the garter, knights bannerets, baronets, knights of the bath, knights bachelors, esquires, gentlemen, yeomen, tradesmen, artificers, and labourers.

SECT. XIII. Of the Military and Maritime States.

lvi.

(1.) The military state, by the standing constitutional law, consists of the militia of each county, raised from among the people by lot, officered by the principal landholders, and commanded by the lord lieutenant.

(2.) The more disciplined occasional troops of the kingdom are kept on foot only from year to year by parliament; and, during that period, are governed by martial law, or arbitrary articles of war, formed at the pleasure of the crown.

(3.) The maritime state consists of the officers and mariners of the British navy; who are governed by express and permanent laws, or the articles of the navy, established by act of parliament.

SECT. XIV. Of Master and Servants.

lvii.

(1.) The private, economical, relations, of persons are those of, 1. Master and servants. 2. Husband and wife. 3. Parent and child. 4. Guardian and ward.

(2.) The first relation may subsist between a master and four species of servants; (for slavery is unknown to our laws): viz. 1. Menial servants; who are hired. 2. Apprentices; who are bound by indentures. 3. Labourers; who are casually employed. 4. Stewards, bailiffs, and factors; who are rather in a ministerial state.

(3.) From this relation result divers powers to the master, and emoluments to the servant.

(4.) The master hath a property in the service of his servant; and must be answerable for such acts as the servant does by his express, or implied, command.

SECT. XV. Of Husband and Wife.

lviii.

(1.) The second private relation is that of marriage; which includes the reciprocal rights and duties of husband and wife.

(2.) Marriage is duly contracted between persons, 1. Consenting. 2. Free from canonical impediments, which make it voidable. 3. Free also from the civil impediments,—of prior marriage,—of want of age,—of non-consent of parents or guardians, where requisite,—and of want of reason; either of which make it totally void. And it must be celebrated by a clergyman in due form and place.

(3.) Marriage is dissolved, 1. By death. 2. By divorce in the spiritual court: not à menso et thoro only, but à vinculo matrimonii, for canonical cause existing previous to the contract. 3. By act of parliament, as for adultery.

(4.) By marriage the husband and wife become one person in law; which unity is the principal foundation of their respective rights, duties, and disabilities.

SECT. XVI. Of Parent and Child.

lix.

(1.) The third, and most universal private relation, is that of parent and child.

(2.) Children are, 1. Legitimate; being those who are born in lawful wedlock, or within a competent time after. 2. Bastards, being those who are not so.

(3.) The duties of parents to legitimate children are, 1. Maintenance. 2. Protection. 3. Education.

(4.) The power of parents consists principally in correction, and consent to marriage. Both may after death be delegated by will to a guardian; and the former also, living the parent, to a tutor or master.

(5.) The duties of legitimate children to parents are obedience, protection, and maintenance.

(6.) The duty of parents to bastards is only that of maintenance.

(7.) The rights of a bastard are such only as he can acquire; for he is incapable of inheriting any thing.

SECT. XVII. Of Guardian and Ward.

(1.) The fourth private relation is that of guardian and ward, which is plainly derived from the last; these being, during the continuance of their relation, reciprocally subject to the same rights and duties.

(2.) Guardians are of divers sorts: 1. Guardians by nature, or the parents. 2. Guardians for nurture, assigned by the ecclesiastical courts. 3. Guardians in soccage, assigned by the common law. 4. Guardians by statute, assigned by the father's will. All subject to the superintendence of the court of chancery.

(3.) Full age in male or female for all purposes is the age of 21 years (different ages being allowed for different purposes); till which age the person is an infant.

(4.) An infant, in respect of his tender years, hath various privileges, and various disabilities, in law; chiefly with regard to suits, crimes, estates and contracts.

SECT. XVIII. Of Corporations.

(1.) Bodies politic, or corporations, which are artificial persons, are established for preserving in perpetual succession certain rights; which, being conferred on natural persons only, would fail in process of time.

(2.) Corporations are, 1. Aggregate, consisting of many members. 2. Sole, consisting of one person only.

(3.) Corporations are also either spiritual, erected to perpetuate the rights of the church; or lay. And the lay are, 1. Civil; erected for many temporal purposes. 2. Eleemosynary; erected to perpetuate the charity of the founder.

(4.) Corporations are usually erected and named by virtue of the king's royal charter; but may be created by act of parliament.

(5.) The powers incident to all corporations are, 1. To maintain perpetual succession. 2. To act in their corporate capacity like an individual. 3. To hold lands, subject to the statutes of mortmain. 4. To have a common seal. 5. To make by-laws. Which last power, in spiritual or eleemosynary corporations, may be executed by the king or the founder.

(6.) The duty of corporations is to answer the ends of their institution.

(7.) To enforce this duty, all corporations may be visited: spiritual corporations by the ordinary; lay corporations by the founder, or his representatives; viz. the

Law of England Epitomised. the civil by the king (who is the fundator incipiens of all represented in his court of king's bench; the elemosynary by the endower (who is the fundator perficiens of such), or by his heirs or assigns.

(8.) Corporations may be dissolved, 1. By act of parliament. 2. By the natural death of all their members. 3. By surrender of their franchises. 4. By forfeiture of their charter.

iii. CHAP. II. Of the RIGHTS of THINGS.

SECT. I. Of Property in General.

ivii. (1.) ALL dominion over external objects has its original from the gift of the Creator to man in general.

(2.) The substance of things was, at first, common to all mankind; yet a temporary property in the use of them, might even then be acquired, and continued, by occupancy.

(3.) In process of time a permanent property was established in the substance, as well as the use, of things; which was also originally acquired by occupancy only.

(4.) Left this property should determine by the owner's dereliction or death, whereby the thing would again become common, societies have established conveyances, wills, and heirships, in order to continue the property of the first occupant; and, where by accident such property becomes discontinued or unknown, the thing usually results to the sovereign of the state, by virtue of the municipal law.

(5.) But of some things, which are incapable of permanent substantial dominion, there still subsists only the same transient usufructuary property, which originally subsisted in all things.

SECT. II. Of Real Property; and, first, of Corporeal Hereditaments.

xv. (1.) In this property, or exclusive dominion, consist the rights of things; which are, 1. Things real. 2. Things personal.

(2.) In things real may be considered, 1. Their several kinds. 2. The tenures by which they may be holden. 3. The estates which may be acquired therein. 4. Their title, or the means of acquiring and losing them.

(3.) All the several kinds of things real are reducible to one of these three, viz. lands, tenements, or hereditaments; whereof the second includes the first, and the third includes the first and second.

(4.) Hereditaments, therefore, or whatever may come to be inherited (being the most comprehensive denomination of things real), are either corporeal or incorporeal.

(5.) Corporeal hereditaments consist wholly of lands, in their largest legal sense; wherein they include not only the face of the earth, but every other object of sense adjoining thereto, and subsisting either above or beneath it.

SECT. III. Of Incorporeal Hereditaments.

xvi. (1.) Incorporeal hereditaments are rights issuing out

of things corporeal, or concerning, or annexed to, or exercisable within the same.

(2.) Incorporeal hereditaments are, 1. Advowsons, 2. Tithes. 3. Commons. 4. Ways. 5. Offices. 6. Dignities. 7. Franchises. 8. Corodies or pensions. 9. Annuities. 10. Rents.

(3.) An advowson is a right of presentation to an ecclesiastical benefice; either appendant, or in gross. This may be, 1. Presentative. 2. Collative. 3. Donative.

(4.) Tithes are the tenth part of the increase yearly arising from the profits and stock of lands, and the personal industry of mankind. These, by the ancient and positive law of the land, are due of common right to the parson, or (by endowment) to the vicar; unless specially discharged, 1. By real composition. 2. By prescription, either de modo decimandi, or de non decimando.

(5.) Common is a profit which a man hath in the land of another; being, 1. Common of pasture, which is either appendant, appurtenant, because of vicinage, or in gross. 2. Common of piscary. 3. Common of turbary. 4. Common of elowers, or botes.

(6.) Ways are a right of passing over another man's ground.

(7.) Offices are the right to exercise a public or private employment.

(8.) For dignities, which are titles of honour, see chap. i. sect. 12.

(9.) Franchises are a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject.

(10.) Corodies are allotments for one's sustenance; which may be converted into pensions, see chap. i. sect. 8.

(11.) An annuity is a yearly sum of money, charged upon the person, and not upon the lands of the grantor.

(12.) Rents are a certain profit issuing yearly out of lands and tenements; and are reducible to, 1. Rent-service. 2. Rent-charge. 3. Rent-feck.

SECT. IV. Of the Feodal System.

(1.) The doctrine of tenures is derived from the feodal law; which was planted in Europe by its northern conquerors at the dissolution of the Roman empire.

(2.) Pure and proper feuds were parcels of land allotted by a chief to his followers, to be held on the condition of personally rendering due military service to their lord.

(3.) These were granted by investiture; were held under the bond of fealty; were inheritable only by descendants; and could not be transferred without the mutual consent of the lord and vassal.

(4.) Improper feuds were derived from the other; but differed from them in their original, their services and renders, their descent, and other circumstances.

(5.) The lands of England were converted into feuds, of the improper kind, soon after the Norman conquest; which gave rise to the grand maxim of tenure, viz. That all lands in the kingdom are holden, immediately or immediately, of the king.

(1.) The distinction of tenures consisted in the nature of their services: as, 1. Chivalry, or knight-service; where the service was free, but uncertain. 2. Free soccage; where the service was free, and certain. 3. Pure villenage; where the service was base, and uncertain. 4. Privileged villenage, or villain soccage; where the service was base, but certain.

(2.) The most universal ancient tenure was that in chivalry, or by knight-service; in which the tenant of every knight's fee was bound, if called upon, to attend his lord to the wars. This was granted by livery, and perfected by homage and fealty; which usually drew after them suit of court.

(3.) The other fruits and consequences of the tenure by knight-service were, 1. Aid. 2. Relief. 3. Primer seisin. 4. Wardship. 5. Marriage. 6. Fines upon alienation. 7. Escheat.

(4.) Grand serjeanty differed from chivalry principally in its render, or service; and not in its fruits and consequences.

(5.) The personal service in chivalry was at length gradually changed into pecuniary assessments, which were called scutage by escuage.

(6.) These military tenures (except the services of grand serjeanty) were, at the restoration of King Charles, totally abolished, and reduced to free soccage by act of parliament.

(1.) Free soccage is a tenure by any free, certain, and determinate service.

(2.) This tenure, the relic of Saxon liberty, includes petit serjeanty, tenure in burgage, and gavel-kind.

(3.) Free soccage lands partake strongly of the feudal nature, as well as those in chivalry: being holden; subject to some service, at the least to fealty and suit of court; subject to relief, to wardship, and to escheat, but not to marriage; subject also formerly to aids, primer seisin, and fines for alienation.

(4.) Pure villenage was a precarious and slavish tenure, at the absolute will of the lord, upon uncertain services of the basest nature.

(5.) From hence, by tacit consent or encroachment, have arisen the modern copyholds, or tenure by copy of court-roll: in which lands may be still held at the (nominal) will of the lord, (but regulated) according to the custom of the manor.

(6.) These are subject, like soccage lands, to services, relief, and escheat; and also to heriots, wardship, and fines upon descent and alienation.

(7.) Privileged villenage, or villain soccage, is an exalted species of copyhold tenure, upon base, but certain, services; subsisting only in the ancient demesnes of the crown; whence the tenure is denominated the tenure in ancient demesne.

(8.) These copyholds of ancient demesne have divers immunities annexed to their tenure; but are still held by copy of court-roll, according to the custom of the manor, though not at the will of the lord.

(9.) Frankalmoign is a tenure by spiritual services at large, whereby many ecclesiastical and eleemosynary corporations now hold their lands and tenements; being of a nature distinct from tenure by divine service in certain.

(1.) Estates in lands, tenements, and hereditaments, are such interest as the tenant hath therein; to ascertain which, may be considered, 1. The quantity of interest. 2. The time of enjoyment. 3. The number and connexions of the tenants.

(2.) Estates, with respect to their quantity of interest, or duration, are either freehold, or less than freehold.

(3.) A freehold estate, in lands, is such as is created by livery of seisin at common law; or, in tenements of an incorporeal nature, by what is equivalent thereto.

(4.) Freehold estates are either estates of inheritance, or not of inheritance, viz. for life only: and inheritances are, 1. Absolute, or fee simple. 2. Limited fees.

(5.) Tenant in fee simple is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever.

(6.) Limited fees are, 1. Qualified, or base, fees. 2. Fees conditional at the common law.

(7.) Qualified or base fees are those which, having a qualification subjoined thereto, are liable to be defeated when that qualification is at an end.

(8.) Conditional fees, at the common law, were such as were granted to the donee, and the heirs of his body, in exclusion of collateral heirs.

(9.) These were held to be fees, granted on condition that the donee had issue of his body; which condition being once performed by the birth of issue, the donee might immediately alien the land: but the statute de donis being made to prevent such alteration, thereupon from the division of the fee (by construction of this statute into a particular estate and a reversion, the conditional fees began to be called fees tail).

(10.) All tenements real, or favouring of the realty, are subject to entails.

(11.) Estates tail may be, 1. General, or special; 2. Male, or female; 3. Given in frank marriage.

(12.) Incident to estates tail are, 1. Waite. 2. Dower. 3. Curtesy. 4. Bar;—by fine, recovery, or lineal warranty with assents.

(13.) Estates tail are now, by many statutes and resolutions of the courts, almost brought back to the state of conditional fees at the common law.

(1.) Freeholds, not of inheritance, or for life only, are, 1. Conventional, or created by the act of the parties. 2. Legal, or created by operation of law.

(2.) Conventional estates for life are created by an express grant for term of one's own life, or per autem vie; or by a general grant, without expressing any term at all.

(3.) Incident to this, and all other estates for life, are,

are estovers, and emblements: and to estates per auctoris general occupancy was also incident; as special occupancy still is, if cessuy que vie survives the tenant.

(4.) Legal estates for life are, 1. Tenancy in tail, after possibility of issue extinct. 2. Tenancy by the curtesy of England. 3. Tenancy in dower.

(5.) Tenancy in tail, after possibility of issue extinct, is where an estate is given in special tail; and, before issue had, a person dies from whose body the issue was to spring; whereupon the tenant (if surviving) becomes tenant in tail, after possibility of issue extinct.

(6.) This estate partakes both of the incidents to an estate tail, and those of an estate for life.

(7.) Tenancy by the curtesy of England is where a man's wife is seized of an estate of inheritance; and he by her has issue, born alive, which was capable of inheriting her estate; in which case he shall, upon her death, hold the tenements for his own life, as tenant by the curtesy.

(8.) Tenancy in dower is where a woman's husband is seized of an estate of inheritance, of which her issue might by any possibility have been heir; and the husband dies: the woman is thereupon entitled to dower, or one-third part of the lands and tenements, to hold for her natural life.

(9.) Dower is either by the common law; by special custom; ad obitum ecclesie; or, ex assensu patris.

(10.) Dower may be forfeited or barred, particularly by an estate in jointure.

SECT. IX. Of Estates left than Freehold.

lxxi. (1.) Estates left than freehold are, 1. Estates for years. 2. Estates at will. 3. Estates at sufferance.

(2.) An estate for years is where a man, seized of lands and tenements, letteth them to another for a certain period of time, which transfers the interest of the term; and the lessee enters thereon, which gives him possession of the term, but not legal seisin of the land.

(3.) Incident to this estate are estovers; and also emblements, if it determines before the full end of the term.

(4.) An estate at will is where lands are let by one man to another, to hold at the will of both parties; and the lessee enters thereon.

(5.) Copyholds are estates held at the will of the lord, (regulated) according to the custom of the manor.

(6.) An estate at sufferance is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all.

SECT. X. Of Estates upon Condition.

lxxii. (1.) Estates (whether freehold or otherwise) may also be held upon condition; in which case their existence depends on the happening, or not happening, of some uncertain event.

(2.) These estates are, 1. On condition implied. 2. On condition expressed. 3. Estates in gage. 4. Estates by statute, merchant or staple. 5. Estates by elegit.

(3.) Estates on condition implied are where a grant of an estate has, from its essence and constitution, a

condition inseparably annexed to it; though none be expressed in words.

(4.) Estates on condition expressed are where an express qualification or provision is annexed to the grant of an estate.

(5.) On the performance of these conditions either expressed or implied (if precedent) the estate may be vested or enlarged; or, on the breach of them (if subsequent) an estate already vested may be defeated.

(6.) Estates in gage, in radio, or in pledge, are estates granted as a security for money lent; being, 1. In vero radio, or living gage; where the profits of land are granted till a debt be paid, upon which payment the grantor's estate will revive. 2. In mortuo radio, in dead, or mort gage; where an estate is granted, on condition to be void at a day certain, if the grantor then repays the money borrowed; on failure of which, the estate becomes absolutely dead to the grantor.

(7.) Estates by statute-merchant, or statute-staple, are also estates conveyed to creditors, in pursuance of certain statutes, till their profits shall discharge the debt.

(8.) Estates by elegit are where, in consequence of a judicial writ so called, lands are delivered by the sheriff to a plaintiff, till their profits shall satisfy a debt adjudged to be due by law.

SECT. XI. Of Estates in Possession, Remainder, and Reversion.

lxxiii. (1.) Estates, with respect to their time of enjoyment, are either in immediate possession, or in expectancy; which estates in expectancy are created at the same time, and are parcel of the same estates, as those upon which they are expectant. These are, 1. Remainders. 2. Reversions.

(2.) A remainder is an estate limited to take effect, and be enjoyed, after another particular estate is determined.

(3.) Therefore, 1. There must be a precedent particular estate, in order to support a remainder. 2. The remainder must pass out of the grantor, at the creation of the particular estate. 3. The remainder must vest in the grantee, during the continuance, or at the determination, of the particular estate.

(4.) Remainders are, 1. Vested; where the estate is fixed to remain to a certain person, after the particular estate is spent. 2. Contingent; where the estate is limited to take effect, either to an uncertain person, or upon an uncertain event.

(5.) An executory devise is such a disposition of lands, by will, that an estate shall not vest thereby at the death of the devisor, but only upon some future contingency, and without any precedent particular estate to support it.

(6.) A reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted: to which are incident fealty, and rent.

(7.) Where two estates, the one less, the other greater, the one in possession, the other in expectancy, meet together in one and the same person, and in one and the same right, the less is merged in the greater.

lxxiv. (1.) Estates, with respect to the number and connexions of their tenants, may be held, 1. In severalty. 2. In joint tenancy. 3. In coparcenary. 4. In common.

(2.) An estate in severalty is where one tenant holds it in his own sole right, without any other person being joined with him.

(3.) An estate in joint tenancy is where an estate is granted to two or more persons; in which case the laws construe them to be joint tenants, unless the words of the grant expressly exclude such construction.

(4.) Joint tenants have an unity of interest, of title, of time and of possession: they are seized per my et per tout; and therefore upon the decease of one joint tenant, the whole interest remains to the survivor.

(5.) Joint tenancy may be dissolved, by destroying one of its four constituent unities.

(6.) An estate in coparcenary is where an estate of inheritance descends from the ancestor to two or more persons; who are called parceners, and all together make but one heir.

(7.) Parceners have an unity of interest, title, and possession; but are only seized per my, and not per tout: wherefore there is no survivorship among parceners.

(8.) Incident to this estate is the law of hotchpot.

(9.) Coparcenary may also be dissolved, by destroying any of its three constituent unities.

(10.) An estate in common is where two or more persons hold lands, possibly by distinct titles, and for distinct interests; but by unity of possession, because none knoweth his own severalty.

(11.) Tenants in common have therefore an unity of possession, (without survivorship; being seized per my, and not per tout;) but no necessary unity of title, time, or interest.

(12.) This estate may be created, 1. By dissolving the constituent unities of the two former; 2. By express limitation in a grant: and may be destroyed, 1. By uniting the several titles in one tenant; 2. By partition of the land.

lxxv. (1.) A title to things real is the means whereby a man cometh to the just possession of his property.

(2.) Herein may be considered, 1. A mere or naked possession. 2. The right of possession; which is, 1$\backslash beta$, an apparent, 2$\backslash alpha$, an actual right. 3. The mere right of property. 4. The conjunction of actual possession with both these rights; which constitutes a perfect title.

lxxvi. (1.) The title to things real may be reciprocally acquired or lost, 1. By descent. 2. By purchase.

(2.) Descent is the means whereby a man, on the death of his ancestor, acquires a title to the estate, in right of his representation, as his heir at law.

(3.) To understand the doctrine of descents, we must form a clear notion of consanguinity; which is the connexion, or relation, of persons descended from the same stock or common ancestor; and it is, 1. Lineal, where one of the kinmen is lineally descended from the other. 2. Collateral, where they are lineally descended, not one from the other, but both from the same common ancestor.

(4.) The rules of descent, or canons of inheritance, observed by the laws of England, are these:

1$\backslash beta$, Inheritances shall lineally descend to the issue of the person last actually seized, in infinitum; but shall never lineally ascend.

2$\backslash alpha$, The male issue shall be admitted before the female.

3$\backslash alpha$, Where there are two or more males in equal degree, the eldest only shall inherit; but the females all together.

4$\backslash alpha$, The lineal descendants, in infinitum, of any person deceased shall represent their ancestor; that is, shall stand in the same place as the person himself would have done, had he been living.

5$\backslash alpha$, On failure of lineal descendants, or issue, of the person last seized, the inheritance shall descend to the blood of the first purchaser; subject to the three preceding rules. To evidence which blood, the two following rules are established.

6$\backslash alpha$, The collateral heir of the person last seized must be his next collateral kinsman, of the whole blood.

7$\backslash alpha$, In collateral inheritances, the male stocks shall be preferred to the female; that is, kindred derived from the blood of the male ancestors shall be admitted before those from the blood of the female: unless where the lands have, in fact, descended from a female.

lxxvii. (1.) Purchase, or perquisition, is the possession of an estate which a man hath by his own act or agreement; and not by the mere act of law, or descent from any of his ancestors. This includes, 1. Escheat.

2. Occupancy. 3. Prescription. 4. Forfeiture. 5. Alienation.

(2.) Escheat is where, upon deficiency of the tenant's inheritable blood, the estate falls to the lord of the fee.

(3.) Inheritable blood is wanting to, 1. Such as are not related to the person last seized. 2. His maternal relations in paternal inheritances, and vice versa. 3. His kindred of the half blood. 4. Monsters. 5. Bastards. 6. Aliens, and their issue. 7. Persons attainted of treason or felony. 8. Papists, in respect of themselves only, by the statute law.

(1.) Occupancy is the taking possession of those things which before had no owner.

(2.) Thus, at the common law, where tenant per auter vie died during the life of cestuy que vie, he, who could first enter, might lawfully retain the possession; unless by the original grant the heir was made a special occupant.

(3.) The law of derelictions and allusions has narrowed the title of occupancy.

(1.) Prescription (as distinguished from custom) is a personal immemorial usage of enjoying a right in some incorporeal hereditament, by a man, and either his ancestors or those whose estate of inheritance he hath: of which the first is called prescribing in his ancestors, the latter in a que estate.

(1.) Forfeiture is a punishment annexed by law to some illegal act, or negligence, in the owner of things real; whereby the estate is transferred to another, who is usually the party injured.

(2.) Forfeitures are occasioned, 1. By crimes. 2. By alienation, contrary to law. 3. By lapse. 4. By simony. 5. By nonperformance of conditions. 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy.

(3.) Forfeitures for crimes or misdemeanors, are for, 1. Treason. 2. Felony. 3. Misprision of treason. 4. Premunire. 5. Assaults on a judge, and batteries, fitting the courts. 6. Popish recusancy, &c.

(4.) Alienations, or conveyances, which induce a forfeiture, are, 1. Those in mortmain, made to corporations contrary to the statute law. 2. Those made to aliens. 3. Those made by particular tenants, when larger than their estates will warrant.

(5.) Lapse is a forfeiture of the right of presentation to a vacant church, by neglect of the patron to present within six calendar months.

(6.) Simony is the corrupt presentation of any one to an ecclesiastical benefice, whereby that turn becomes forfeited to the crown.

(7.) For forfeiture by nonperformance of conditions, see Sect. 10.

(8.) Waste is a spoil, or destruction, in any corporeal hereditaments, to the prejudice of him that hath the inheritance.

(9.) Copyhold estates may have also other peculiar causes of forfeiture, according to the custom of the manor.

(10.) Bankruptcy is the act of becoming a bankrupt; that is, a trader who secretes himself, or does certain other acts tending to defraud his creditors, see Sect. 22.

(11.) By bankruptcy all the estates of the bankrupt are transferred to the assignees of his commissioners, to be sold for the benefit of his creditors.

(1.) Alienation, conveyance, or purchase in its more limited sense, is a means of transferring real estates, wherein they are voluntarily resigned by one man, and accepted by another.

(2.) This formerly could not be done by a tenant, without license from his lord; nor by a lord, without assent of his tenant.

(3.) All persons are capable of purchasing; and all that are in possession of any estates, are capable of conveying them: unless under peculiar disabilities by law: as being attainted, non compositis, infants under duresis, feme covert, aliens, or pupils.

(4.) Alienations are made by common assurances; which are, 1. By deed, or matter in pair. 2. By matter of record. 3. By special custom. 4. By devise. Law of England Epitome.

(1.) In assurances by deed may be considered, 1. Its general nature. 2. Its several species.

(2.) A deed, in general, is the solemn act of the parties; being usually a writing sealed and delivered; and it may be, 1. A deed indented, or indenture. 2. A deed poll.

(3.) The requisites of a deed are, 1. Sufficient parties, and proper subject matter. 2. A good and sufficient consideration. 3. Writing on paper, or parchment, duly stamped. 4. Legal and orderly parts: (which are usually, 1st, the premises; 2dly, the habendum; 3dly, the tenendum; 4thly, the reddendum; 5thly, the conditions; 6thly, the warranty, which is either lineal or collateral; 7thly, the covenants; 8thly, the conclusion, which includes the date). 5. Reading it, if desired. 6. Sealing, and, in many cases, signing it also. 7. Delivery. 8. Attestation.

(4.) A deed may be avoided, 1. By the want of any of the requisites before mentioned. 2. By subsequent matter; as, 1st, Rasure, or alteration. 2dly, Defacing its seal. 3dly, Cancelling it. 4thly, Disagreement of those whose consent is necessary. 5thly, Judgement of a court of justice.

(5.) Of the several species of deeds, some serve to convey real property, some only to charge and discharge it.

(6.) Deeds which serve to convey real property, or conveyances, are either by common law, or by statute. And, of conveyances by common law, some are original or primary, others derivative or secondary.

(7.) Original conveyances are, 1. Feoffments. 2. Gifts. 3. Grants. 4. Leases. 5. Exchanges. 6. Partitions. Derivative are, 7. Releases. 8. Confirmations. 9. Surrenders. 10. Assignments. 11. Deedances.

(8.) A feoffment is the transfer of any corporeal hereditament to another, perfected by livery of seisin, or delivery of bodily possession from the seofder to the seofee; without which no freehold estate therein can be created at common law.

(9.) A gift is properly the conveyance of lands in tail.

(10.) A grant is the regular method, by common law, of conveying incorporeal hereditaments.

(11.) A lease is the demise, granting, or letting to farm of any tenement, usually for a less term than the lessor hath therein; yet sometimes possibly for a greater; according to the regulations of the restraining and enabling statutes.

(12.) An exchange is the mutual conveyance of equal interests, the one in consideration of the other.

(13.) A partition is the division of an estate held in joint tenancy, in coparcenary, or in common, between the respective tenants; so that each may hold his distinct part in severality.

(14.) A release is the discharge or conveyance of a man's right, in lands and tenements, to another that hath some former estate in possession therein.

(15.) A confirmation is the conveyance of an estate or right in esse, whereby a voidable estate is made sure, or a particular estate is increased.

(16.) A

(16.) A surrender is the yielding up of an estate for life, or years, to him that hath the immediate remainder or reversion; wherein the particular estate may merge.

(17.) An assignment is the transfer, or making over to another, of the whole right one has in any estate; but usually in a lease, for life or years.

(18.) A defeazance is a collateral deed, made at the same time with the original conveyance; containing some condition, upon which the estate may be defeated.

(19.) Conveyances by statute depend much on the doctrine of uses and trusts: which are a confidence reposed in the terre tenant, or tenant of the land, that he shall permit the profits to be enjoyed, according to the directions of custus que use, or custus que trust.

(20.) The statute of uses, having transferred all uses into actual possession, (or, rather, having drawn the possession to the use,) has given birth to divers other species of conveyance: 1. A covenant to stand seized to use. 2. A bargain and sale enrolled. 3. A lease and release. 4. A deed to lead or declare the use of other more direct conveyances. 5. A revocation of uses; being the execution of a power, reserved at the creation of the use, of recalling at a future time the use or estate so creating. All which owe their present operation principally to the statute of uses.

(21.) Deeds which are used not to convey, but only to charge real property, and discharge it, are, 1. Obligations. 2. Recognizances. 3. Defeazances upon both.

SECT. XXI. Of Alienation by matter of Record.

(1.) Assurances by matter of record are where the sanction of some court of record is called in, to substantiate and witness the transfer of real property. These are, 1. Private acts of parliament. 2. The king's grants. 3. Fines. 4. Common recoveries.

(2.) Private acts of parliament are a species of assurances, calculated to give (by the transcendent authority of parliament) such reasonable powers or relief as are beyond the reach of the ordinary course of law.

(3.) The king's grants, contained in charters or letters patent, are all entered on record, for the dignity of the royal person, and security of the royal revenue.

(4.) A fine (sometimes said to be a seoffment of record) is an amicable composition and agreement of an actual, or fictitious, suit; whereby the estate in question is acknowledged to be the right of one of the parties.

(5.) The parts of a fine are, 1. The writ of covenant. 2. The license to agree. 3. The concord. 4. The note. 5. The foot. To which the statute hath added, 6. Proclamations.

(6.) Fines are of four kinds: Sur cognizance de droit, come ceo quel ad de son done. 2. Sur cognizance de droit tantum. 3. Sur concessu. 4. Sur done, grant, et render; which is a double fine.

(7.) The force and effect of fines (when levied by such as have themselves any interest in the estate) are to assure the lands in question to the cognizee, by barring the respective rights of parties, privies, and strangers.

(8.) A common recovery is by an actual, or fictitious, suit or action for land, brought against the tenant of the freehold; who thereupon vouches another, who undertakes to warrant the tenant's title: but, upon such vouchee's making default, the land is recovered by judgement at law against the tenant; who, in return obtains judgement against the vouchee to recover lands of equal value in recompense.

(9.) The force and effect of a recovery are to assure lands to the recoverer, by barring estates tail, and all remainders and reversions expectant thereon; provided the tenant in tail either suffers, or is vouched in, such recovery.

(10.) The uses of a fine or recovery may be directed by, 1. Deeds to lead such uses; which are made previous to the levying or suffering them. 2. Deeds to declare the uses; which are made subsequent.

SECT. XXII. Of Alienation by Special Custom.

(1.) Assurances by special custom are confined to the transfer of copyhold estates. lxxxiv.

(2.) This is effected by, 1. Surrender by the tenant into the hands of the lord to the use of another, according to the custom of the manor. 2. Presentment, by the tenants or homage, of such surrender. 3. Admittance of the surrenderee by the lord, according to the uses expressed in such surrender.

(3.) Admittance may also be had upon original grants to the tenant from the lord, and upon decents to the heir from the ancestor.

SECT. XXIII. Of Alienation by Devise.

(1.) Devise is a disposition of lands and tenements, contained in the last will and testament of the owner. lxxxv.

(2.) This was not permitted by the common law, as it stood since the conquest; but was introduced by the statute law, under Henry VIII. since made more universal by the statute of tenures under Charles II. with the introduction of additional solemnities by the statute of frauds and perjuries in the same reign.

(3.) The construction of all common assurances should be, 1. Agreeable to the intention. 2. To the words of the parties. 3. Made upon the entire deed. 4. Bearing strongest against the contractor. 5. Conformable to law. 6. Rejecting the latter of two totally repugnant clauses in a deed, and the former in a will. 7. Most favourable in a case of devise.

SECT. XXIV. Of Things Personal.

(1.) Things personal are comprehended under the general name of chattels; which includes whatever wants either the duration, or the immobility, attending things real. lxxxvi.

(2.) In these are to be considered, 1. Their distribution. 2. The property of them. 3. The title to that property.

(3.) As to the distribution of chattels, they are, 1. Chattels real. 2. Chattels personal.

(4.) Chattels real are such quantities of interest, in things immovable, as are short of the duration of freeholds; being limited to a time certain, beyond which they cannot subsist. (See Sect. 7.)

(5.) Chattels

Law of England
Epitomised
(5.) Chattels personal are things moveable; which may be transferred from place to place, together with the person of the owner.

xxxvii. (1.) Property, in chattels personal, is either in possession, or in action.
(2.) Property in possession, where a man has the actual enjoyment of the thing, is, 1. Absolute. 2. Qualified.
(3.) Absolute property is where a man has such an exclusive right in the thing, that it cannot cease to be his, without his own act or default.
(4.) Qualified property is such as is not, in its nature, permanent; but may sometimes subsist, and at other times not subsist.
(5.) This may arise, 1. Where the subject is incapable of absolute ownership. 2. From the peculiar circumstances of the owners.
(6.) Property in action, is where a man hath not the actual occupation of the thing; but only a right to it, arising upon some contract, and recoverable by an action at law.
(7.) The property of chattels personal is liable to remainders, expectant on estates for life; to joint tenancy; and to tenancy in common.

xxxviii. (1.) The title to things personal may be acquired or lost by, 1. Occupancy. 2. Prerogative. 3. Forfeiture. 4. Custom. 5. Succession. 6. Marriage. 7. Judgement. 8. Gift, or grant. 9. Contract. 10. Bankruptcy. 11. Testament. 12. Administration.
(2.) Occupancy still gives the first occupant a right to those few things which have no legal owner, or which are incapable of permanent ownership. Such as, 1. Goods of alien enemies. 2. Things found. 3. The benefit of the elements. 4. Animals feræ naturæ. 5. Emblements. 6. Things gained by accession; or, 7. By confusion. 8. Literary property.

xxxix. (1.) By prerogative is vested in the crown, or its granters, the property of the royal revenue, (see Chap. I. Sect. 8.); and also the property of all game in the kingdom, with the right of pursuing and taking it.
(2.) By forfeiture, for crimes and misdemeanors, the right of goods and chattels may be transferred from one man to another; either in part or totally.
(3.) Total forfeitures of goods arise from conviction of, 1. Treason, and misprision thereof. 2. Felony. 3. Executable homicide. 4. Outlawry for treason or felony. 5. Flight. 6. Standing mute. 7. Assaults on a judge; and batteries, fitting the courts. 8. Præmunire. 9. Pretended prophecies. 10. Owling. 11. Reading abroad of artificers. 12. Challenges to fight, for debts at play.

(1.) By custom, obtaining in particular places, a right may be acquired in chattels; the most usual of which customs are those relating to, 1. Heriots. 2. Mortuaries. 3. Heir looms.
(2.) Heriots are either heriot service, which differs little from a rent; or heriot custom, which is a customary tribute, of goods and chattels, payable to the lord of the fee on the decease of the owner of lands.
(3.) Mortuaries are a customary gift, due to the minister in many parishes, on the death of his parishioners.
(4.) Heir looms are such personal chattels, as descend by special custom to the heir, along with the inheritance of his ancestor.

(1.) By succession the right of chattels is vested in corporations aggregate; and likewise in such corporations sole as are the heads and representatives of bodies aggregate.
(2.) By marriage the chattels real and personal of the wife are vested in the husband, in the same degree of property, and with the same powers, as the wife when sole had over them; provided he reduces them to possession.
(3.) The wife also acquires, by marriage, a property in her own paraphernalia.
(4.) By judgement, consequent on a suit at law, a man may in some cases, not only recover, but originally acquire, a right to personal property. As, 1. To penalties recoverable by action popular. 2. To damages. 3. To costs of suit.

(1.) A gift, or grant, is a voluntary conveyance of a chattel personal in possession, without any consideration or equivalent.
(2.) A contract is an agreement, upon sufficient consideration, to do or not to do a particular thing; and, by such contract, any personal property (either in possession or in action) may be transferred.
(3.) Contracts may either be express or implied; either executed or executory.
(4.) The consideration of contracts is, 1. A good consideration. 2. A valuable consideration; which is, 1. Do, ut des. 2. Facio, ut facias. 3. Facio, ut des. 4. Do, ut facias.
(5.) The most usual species of personal contracts are, 1. Sale or exchange. 2. Bailment. 3. Hiring or borrowing. 4. Debt.
(6.) Sale or exchange is a transmutation of property from one man to another, in consideration of some recompense in value.
(7.) Bailment is the delivery of goods in trust; upon a contract, express or implied, that the trust shall be faithfully performed by the bailee.
(8.) Hiring or borrowing is a contract, whereby the

Law of
England
Epitome.

possession of chattels is transferred for a particular time, on condition that the identical goods (or sometimes their value) be restored at the time appointed, together with (in case of hiring) a stipend or price for the use.

(9.) This price, being calculated to answer the hazard as well as inconvenience of lending, gives birth to the doctrine of interest, or usury, upon loans; and, consequently, to the doctrine of bottomry or respondentia, and insurance.

(10.) Debt is any contract, whereby a certain sum of money becomes due to the creditor. This is, 1. A debt of record. 2. A debt upon special contract. 3. A debt upon simple contract; which last includes paper credit, or bills of exchange, and promissory notes.

SECT. XXXI. Of Title by Bankruptcy.

xciii. (1.) Bankruptcy (as defined in Sect. 18.) is the act of becoming a bankrupt.

(2.) Herein may be considered, 1. Who may become a bankrupt. 2. The acts whereby he may become a bankrupt. 3. The proceedings on a commission of bankrupt. 4. How his property is transferred thereby.

(3.) Persons of full age, using the trade of merchandise, by buying, and selling, and seeking their livelihood thereby, are liable to become bankrupts; for debts of a sufficient amount.

(4.) A trader, who endeavours to avoid his creditors, or evade their just demands, by any of the ways specified in the several statutes of bankruptcy, doth thereby commit an act of bankruptcy.

(5.) The proceedings on a commission of bankrupt, so far as they affect the bankrupt himself, are principally by, 1. Petition. 2. Commission. 3. Declaration of bankruptcy. 4. Choice of assignees. 5. The bankrupt's surrender. 6. His examination. 7. His discovery. 8. His certificate. 9. His allowance. 10. His indemnity.

(6.) The property of a bankrupt's personal estate is, immediately upon the act of bankruptcy, vested by construction of law in the assignees; and they, when they have collected, distribute the whole by equal dividends among all the creditors.

SECT. XXXII. Of Title by Testament, and Administration.

xciv. (1.) Concerning testaments and administrations, considered jointly, are to be observed, 1. Their original and antiquity. 2. Who may make a testament. 3. Its nature and incidents. 4. What are executors and administrators. 5. Their office and duty.

(2.) Testaments have subsisted in England immemorially; whereby the deceased was at liberty to dispose of his personal estate, reserving anciently to his wife and children their reasonable part of his effects.

(3.) The goods of intestates belonged anciently to the king; who granted them to the prelates to be disposed in pious uses: but, on their abuse of this trust in the times of Popery, the legislature compelled them to delegate their power to administrators expressly provided by law.

(4.) All persons may make a testament unless dis-

abled by, 1. Want of discretion. 2. Want of free will. 3. Criminal conduct.

(5.) Testaments are the legal declaration of a man's intentions, which he wills to be performed after his death. These are, 1. Written. 2. Nuncupative.

(6.) An executor is he, to whom a man by his will commits the execution thereof.

(7.) Administrators are, 1. Durante minore estate of an infant executor or administrator; or durante absentia; or pendente lite. 2. Cam testamento annexo; when no executor is named, or the executor refuses to act. 3. General administrators; in pursuance of the statutes of Edward III. and Henry VIII. 4. Administers de bonis non; when a former executor or administrator dies, without completing his trust.

(8.) The office and duty of executors (and, in many points, of administrators also) are, 1. To bury the deceased. 2. To prove the will, or take out administration. 3. To make an inventory. 4. To collect the goods and chattels. 5. To pay debts; observing the rules of priority. 6. To pay legacies, either general or specific; if they be vested, and not lapsed. 7. To distribute the undivided surplus, according to the statute of distributions.

CHAP. III. Of PRIVATE WRONGS.

SECT. I. Of the Redress of Private Wrongs, by the mere Act of the Parties.

(1.) WRONGS are the privation of right; and are, 1. Private. 2. Public.

(2.) Private wrongs, or civil injuries, are an infringement, or privation, of the civil rights of individuals, considered as individuals.

(3.) The redress of civil injuries is one principal object of the laws of England.

(4.) This redress is effected, 1. By the mere act of the parties. 2. By the mere operation of law. 3. By both together, or suit in courts.

(5.) Redress, by the mere act of the parties, is that which arises, 1. From the sole act of the party injured. 2. From the joint act of the parties.

(6.) Of the first sort are, 1. Defence of one's self, or relations. 2. Recaption of goods. 3. Entry on lands and tenements. 4. Abatement of nuisances. 5. Distress; for rent, for suit or service, for amercements, for damage, or for divers statutory penalties; made of such things only as are legally distrainable; and taken and disposed of according to the due course of law. 6. Seizing of heriots, &c.

(7.) Of the second sort are, 1. Accord. 2. Arbitration.

SECT. II. Of Redress by the mere Operation of Law.

Redress, effected by the mere operation of law, is, 1. In the case of retainer; where a creditor is executor or administrator, and is thereupon allowed to retain his own debt. 2. In the case of remitter; where one, who has a good title to lands, &c. comes into possession by a bad one, and is thereupon remitted to his ancient good title, which protects his ill-acquired possession.

xcvii. (1.) Redress, that is effected by the act both of law and of the parties, is by suit or action in the courts of justice.
(2.) Herein may be considered, 1. The courts themselves. 2. The cognizance of wrongs or injuries therein. And, of courts, 1. Their nature and incidents. 2. Their several species.
(3.) A court is a place wherein justice is judicially administered, by officers delegated by the crown; being a court either of record, or not of record.
(4.) Incidents to all courts are a plaintiff, defendant, and judge; and, with us, there are also usually attorneys; and advocates or counsel, viz. either barristers or sergeants at law.

xcviii. (1.) Courts of justice, with regard to their several species, are, 1. Of a public, or general, jurisdiction throughout the realm. 2. Of a private, or special, jurisdiction.
(2.) Public courts of justice are, 1. The courts of common law and equity. 2. The ecclesiastical courts. 3. The military courts. 4. The maritime courts.
(3.) The general and public courts of common law and equity are, 1. The court of piepoudre. 2. The court-baron. 3. The hundred court. 4. The county court. 5. The court of common pleas. 6. The court of king's bench. 7. The court of exchequer. 8. The court of chancery. (Which two last are courts of equity as well as law). 9. The courts of exchequer chamber. 10. The house of peers. To which may be added, as auxiliaries, 11. The courts of assize and nisi prius.

xcix. (1.) Ecclesiastical courts, (which were separated from the temporal by William the Conqueror), or courts Christian, are, 1. The courts of the archdeacon. 2. The court of the bishop's consistory. 3. The court of arches. 4. The court of peculiars. 5. The prerogative court. 6. The court of delegates. 7. The court of review.
(2.) The only permanent military court is that of chivalry; the courts martial, annually established by act of parliament, being only temporary.
(3.) Maritime courts are, 1. The court of admiralty and vice-admiralty. 2. The court of delegates. 3. The lords of the privy council, and others, authorized by the king's commission, for appeals in prize-causes.

c. Courts of a special or private jurisdiction are, 1. The forest courts; including the courts of attachments, regard, swinmot, and justice feat. 2. The

court of commissioners of sewers. 3. The court of policies of assurance. 4. The court of the marshalsea and the palace court. 5. The courts of the principality of Wales. 6. The court of the duchy chamber of Lancaster. 7. The courts of the counties palatine, and other royal franchises. 8. The flammery courts. 9. The courts of London, and other corporations:—To which may be referred the courts of requests or courts of conscience; and the modern regulations of certain courts baron and county courts. 10. The courts of the two universities.

(1.) All private wrongs or civil injuries are cognizable either in the courts ecclesiastical, military, maritime, or those of common law.
(2.) Injuries cognizable in the ecclesiastical courts are, 1. Pecuniary. 2. Matrimonial. 3. Testamentary.
(3.) Pecuniary injuries, here cognizable, are, 1. Subtraction of tithes. For which the remedy is by suit to compel their payment, or an equivalent; and also their double value. 2. Non-payment of ecclesiastical dues. Remedy: by suit for payment. 3. Spoliation. Remedy: by suit for restitution. 4. Dilapidations. Remedy: by suit for damages. 5. Non-repair of the church, &c.; and non-payment of church-rates. Remedy: by suit to compel them.
(4.) Matrimonial injuries are, 1. Tacititation of marriage. Remedy: by suit for perpetual silence. 2. Subtraction of conjugal rights. Remedy: by suit for restitution. 3. Inability for the marriage state. Remedy: by suit for divorce. 4. Refusal of decent maintenance to the wife. Remedy: by suit for alimony.
(5.) Testamentary injuries are, 1. Disputing the validity of wills. Remedy: by suit to establish them. 2. Obstructing of administrations. Remedy: by suit for the granting them. 3. Subtraction of legacies. Remedy: by suit for the payment.
(6.) The course of proceedings herein is much conformed to the civil and canon law: but their only compulsive process is that of excommunication; which is enforced by the temporal writ of significavit, or de excommunicato capiendo.
(7.) Civil injuries, cognizable in the court military, or court of chivalry, are, 1. Injuries in point of honour. Remedy: by suit for honourable amends. 2. Encroachments in coat-armour, &c. Remedy: by suit to remove them. The proceedings are in a summary method.
(8.) Civil injuries cognizable in the courts maritime, are injuries, in their nature, of common law cognizance, but arising wholly upon the sea, and not within the precincts of any county. The proceedings are herein also much conformed to the civil law.
(9.) All other injuries are cognizable only in the courts of common law: of which in the remainder of this chapter.
(10.) Two of them are, however, committal by these and other inferior courts, viz. 1. Refusal, or neglect, of justice. Remedies: by writ of procedendo, or mandamus. 2. Encroachment of jurisdiction. Remedy: by writ of prohibition.

cii. (1.) In treating of the cognizance of injuries by the courts of common law, may be considered, 1. The injuries themselves, and their respective remedies. 2. The pursuit of those remedies in the several courts.

(2.) Injuries between subject and subject, cognizable by the courts of common law, are in general remedied by putting the party injured into possession of that right whereof he is unjustly deprived.

(3.) This is effected, 1. By a delivery of the thing detained to the rightful owner. 2. Where that remedy is either impossible or inadequate, by giving the party injured a satisfaction in damages.

(4.) The instruments, by which these remedies may be obtained, are suits or actions; which are defined to be the legal demand of one's right: and these are, 1. Personal. 2. Real. 3. Mixed.

(5.) Injuries (whereof some are with, others without, force) are, 1. Injuries to the rights of persons. 2. Injuries to the rights of property. And the former are, 1. Injuries to the absolute, 2. Injuries to the relative, rights of persons.

(6.) The absolute rights of individuals are, 1. Personal security. 2. Personal liberty. 3. Private property: (See Chap. I. Sect. 1.) To which the injuries must be correspondent.

(7.) Injuries to personal security are, 1. Against a man's life. 2. Against his limbs. 3. Against his body. 4. Against his health. 5. Against his reputation.—The first must be referred to the next chapter.

(8.) Injuries to the limbs and body are, 1. Threats. 2. Assault. 3. Battery. 4. Wounding. 5. Mayhem. Remedy: by action of trespass, vi et armis; for damages.

(9.) Injuries to health, by any unwholesome practices, are remedied by a special action of trespass, on the case; for damages.

(10.) Injuries to reputation are, 1. Slanderous and malicious words. Remedy: by action on the case; for damages. 2. Libels. Remedy: the same. 3. Malicious prosecutions. Remedy: by action of conspiracy, or on the case; for damages.

(11.) The sole injury to personal liberty is false imprisonment. Remedies: 1. By writ of 1st, Mainprize; 2dly, Odio et atia; 3dly, Homine replegiando; 4thly, Habeas corpus; to remove the wrong. 2. By action of trespass; to recover damages.

(12.) For injuries to private property, see the next section.

(13.) Injuries to relatives rights affect, 1. Husbands. 2. Parents. 3. Guardians. 4. Masters.

(14.) Injuries to a husband are, 1. Abduction, or taking away his wife. Remedy: by action of trespass, de uxore rapta et abducta; to recover possession of his wife, and damages. 2. Criminal conversation with her. Remedy: by action on the case; for damages. 3. Bearing her. Remedy: by action on the case, per quod consorsium amisit; for damages.

(15.) The only injury to a parent or guardian is the abduction of their children or wards. Remedy: by action of trespass, de filiis, vel custodiis, rapitis vel abductis; to recover possession of them, and damages.

(16.) Injuries to a master are, 1. Retaining his servants. Remedy: by action on the case; for damages. 2. Beating them. Remedy: by action on the case, per quod servitium amisit; for damages.

(1.) Injuries to the rights of property are either to those of personal or real property. ciii.

(2.) Personal property is either in possession or in action.

(3.) Injuries to personal property in possession are, 1. By dispossession. 2. By damage, while the owner remains in possession.

(4.) Dispossession may be effected, 1. By an unlawful taking. 2. By an unlawful detaining.

(5.) For the unlawful taking of goods and chattels personal, the remedy is, 1. Actual restitution, which (in case of a wrongful distress) is obtained by action of replevin. 2. Satisfaction in damages: 1st, in case of rescous, by action of rescous, poundbreach, or on the case; 2dly, in case of other unlawful takings, by action of trespass or trover.

(6.) For the unlawful detaining of goods lawfully taken, the remedy is also, 1. Actual restitution; by action of replevin or detinue. 2. Satisfaction in damages; by action on the case, for trover and conversion.

(7.) For damage to personal property, while in the owner's possession, the remedy is in damages; by action of trespass vi et armis, in case the act be immediately injurious; or by action of trespass on the case, to redress consequential damage.

(8.) Injuries to personal property, in action, arise by breach of contracts, 1. Express. 2. Implied.

(9.) Breaches of express contracts are, 1. By non-performance of debts. Remedy: 1st, Specific payment recoverable by action of debt. 2dly, Damages for non-payment; recoverable by action on the case. 2. By non-performance of covenants. Remedy: by action of covenant, 1st, to recover damages, in covenants personal; 2dly, to compel performance, in covenants real. 3. By non-performance of promises, or assumpsits. Remedy: by action on the case; for damages.

(10.) Implied contracts are such as arise, 1. From the nature and constitution of government. 2. From reason and the construction of law.

(11.) Breaches of contracts, implied in the nature of government, are by the nonpayment of money which the laws have directed to be paid. Remedy: by action of debt (which, in such cases is frequently a popular frequently a qui tam action); to compel the specific payment;—or, sometimes, by action on the case; for damages.

(12.) Breaches of contracts, implied in reason and construction of law, are by the nonperformance of legal presumptive assumpsits: for which the remedy is in damages; by an action on the case on the implied assumpsits, 1. Of a quantum meruit. 2. Of a quantum valebat. 3. Of money expended for another. 4. Of receiving money to another's use. 5. Of an inimul computassent, on an account stated (the remedy on an account unstated being by action of account). 6. Of performing one's duty, in any employment, with integrity, diligence, and skill. In some of which cases an

an action of deceit (on the case, in nature of deceit) will lie.

Remedy, in both cases: by a mere writ of right, the highest writ in the law.

SECT. X. Of Injuries to Real Property; and, first, of Dispossession, or Ouster, of the Freehold.

SECT. XI. Of Dispossession, or Ouster, of Chattels real.

civ. (1.) Injuries affecting real property are, 1. Ouster, 2. Trespass. 3. Nuisances. 4. Waste. 5. Subtraction. 6. Disturbance.

(2.) Ouster is the amotion of possession; and is, 1. From freeholds. 2. From chattels real.

(3.) Ouster from freeholds is effected by, 1. Abatement. 2. Intrusion. 3. Disseisin. 4. Discontinuance. 5. Deforecement.

(4.) Abatement is the entry of a stranger, after the death of the ancestor, before the heir.

(5.) Intrusion is the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion.

(6.) Disseisin is a wrongful putting out of him that is seised of the freehold.

(7.) Discontinuance is where tenant in tail, or the husband of tenant in fee, makes a larger estate of the land than the law alloweth.

(8.) Deforecement is any other detainer of the freehold from him that hath the property, but who never had the possession.

(9.) The universal remedy for all these is restitution or delivery of possession; and, sometimes, damages for the detention. This is effected, 1. By mere entry. 2. By action possessory. 3. By writ of right.

(10.) Mere entry, on lands, by him who hath the apparent right of possession, will (if peaceable) divest the mere possession of a wrongdoer. But forcible entries are remedied by immediate restitution, to be given by a justice of the peace.

(11.) Where the wrongdoer hath not only mere possession, but also an apparent right of possession, this may be divested by him who hath the actual right of possession, by means of the possessory actions of writ of entry or assize.

(12.) A writ of entry is a real action, which disproves the title of the tenant, by showing the unlawful means under which he gained or continues possession. And it may be brought either against the wrongdoer himself, or in the degrees called the per, the per and cui, and the post.

(13.) An assize is a real action, which proves the title of the demandant, by showing his own or his ancestor's possession. And it may be brought either to remedy abatements; viz. the assize of mort d'ancestor, &c.: Or to remedy recent disseisins; viz. the assize of novel disseisin.

(14.) Where the wrongdoer hath gained the actual right of possession, he who hath the right of property can only be remedied by a writ of right, or some writ of a similar nature. As, 1. Where such right of possession is gained by the discontinuance of tenant in tail. Remedy, for the right of property: by writ of formodon. 2. Where gained by recovery in a possessory action, had against tenants of particular estates by their own default. Remedy: by writ of quod ei deforceat. 3. Where gained by recovery in a possessory action, had upon the merits. 4. Where gained by the statute of limitations.

(1.) Ouster from chattels real is, 1. From estates by statute and elegit. 2. From an estate for years.

(2.) Ouster from estates by statute or elegit, is effected by a kind of disseisin. Remedy: restitution, and damages; by assize of novel disseisin.

(3.) Ouster from an estate for years, is effected by a like disseisin, or ejectment. Remedy: restitution, and damages, 1. By writ of ejectione firme. 1. By writ of quare eject infra terminum.

(4.) A writ of ejectione firme, or action of trespass in ejectment, lieth where lands, &c. are let for a term of years, and the lessee is ousted or ejected from his term; in which case he shall recover possession of his term, and damages.

(5.) This is now the usual method of trying titles to land, instead of an action real: viz. By 1. The claimant's making an actual (or supposed) lease upon the land to the plaintiff. 2. The plaintiff's actual (or supposed) entry thereupon. 3. His actual (or supposed) ouster and ejectment by the defendant. For which injury this action is brought either against the tenant, or (more usually) against some casual or fictitious ejector; in whose stead the tenant may be admitted defendant, on condition that the lease, entry, and ouster, be confessed, and that nothing else be disputed but the merits of the title claimed by the lessor of the plaintiff.

(6.) A writ of quare eject infra terminum is an action of a similar nature; only not brought against the wrongdoer or ejector himself, but such as are in possession under his title.

SECT. XII. Of Trespass.

Trespass is an entry upon, and damage done to, another's lands, by one's self, or one's cattle; without any lawful authority, or cause of justification: which is called a breach of his close. Remedy: damages; by action of trespass, quare clausum fecit; besides that of distress, damage feasant. But, unless the title to the land came chiefly in question, or the trespass was wilful or malicious, the plaintiff (if the damages be under forty shillings) shall recover no more costs than damages.

SECT. XIII. Of Nuisance.

(1.) Nuisance, or annoyance, is any thing that worketh damage or inconvenience: and it is either a public and common nuisance, of which in the next chapter; or, a private nuisance, which is any thing done to the hurt or annoyance of, 1. The corporeal; 2. The incorporeal, hereditaments of another.

(2.) The remedies for a private nuisance (besides that of abatement) are, 1. Damages; by action on the case; (which also lies for special prejudice by a public nuisance). 2. Removal thereof, and damages; by assize of nuisance. 3. Like removal, and damages; by writ of Quod permitat prosterne.

SECT.

(1.) Waste is a spoil and destruction in lands and tenements, to the injury of him who hath, 1. An immediate interest (as, by right of common) in the lands. 2. The remainder of reversion of the inheritance.

(2.) The remedies, for a commoner, are restitution, and damages; by assize of common: Or damages only; by action on the case.

(3.) The remedy, for him in remainder, or reversion, is, 1. Preventive: by writ of espacement at law, or injunction out of chancery; to stay waste. 2. Corrective: by action of waste; to recover the place wasted, and damages.

ix. (1.) Subtraction is when one, who owes services to another, withdraws or neglects to perform them. This may be, 1. Of rents, and other services, due by tenure. 2. Of those due by custom.

(2.) For subtraction of rents and services, due by tenure, the remedy is, 1. By distress; to compel the payment or performance. 2. By action of debt. 3. By assize. 4. By writ de consuetudinibus et servitiis;—to compel the payment. 5. By writ of effavit;—and, 6. By writ of right sur disclaimer;—to recover the land itself.

(3.) To remedy the oppression of the land, the law has also given, 1. The writ of Ne injuste vexes. 2. The writ of mesne.

(4.) For subtraction of services, due by custom, the remedy is, 1. By writ of Scita ad molendinum, furnum torrale, &c. to compel the performance, and recover damages. 2. By action on the case; for damages only.

xx. (1.) Disturbance is the hindering, or disquieting, the owners of an incorporeal hereditament, in their regular and lawful enjoyment of it.

(2.) Disturbances are, 1. Of franchises. 2. Of commons. 3. Of ways. 4. Of tenure. 5. Of patronage.

(3.) Disturbance of franchises is remedied by a special action on the cases; for damages.

(4.) Disturbance of commons, is, 1. Intercommoning without right. Remedy: damage; by an action of the case, or of trespass; besides distress, damage feasant; to compel satisfaction. 2. Surcharging the common. Remedies: distress, damage feasant; to compel satisfaction: action on the case; for damages: or, writ of admeasurement of pasture; to apportion the common. and writ de secunda superoneratione; for the supernumerary cattle, and damages. 3. Enclosure, or obstruction. Remedies: restitution of the common and damages; by assize of novel disseisin, and by writ of quod admittat; or, damages only; by action on the case.

(5.) Disturbance of ways, is the obstruction, 1. Of a way in gross, by the owner of the land. 2. Of a way appendant, by a stranger. Remedy, for both: damages; by action on the case.

(6.) Disturbance of tenures, by driving away tenants, is remedied by a special action on the case; for damages.

(7.) Disturbance of patronage, is the hindrance of a patron to present his clerk to a benefice; whereof usurpation, within six months is now become a species.

(8.) Disturbers may be, 1. The pseudo-patron, by his wrongful presentation. 2. His clerk, by demanding institution. 3. The ordinary, by refusing the clerk of the true patron.

(9.) The remedies are, 1. By assize of darrein presentation; 2. By writ of quare impedit,—to compel institution and recover damages: Consequent to which are the writs of quare incumbavit, and quare non admittit; for subsequent damages. 3. By writ of right of advowson; to compel institution, or establish the permanent right.

(1.) Injuries to which the crown is a party are, 1. Where the crown is the aggressor. 2. Where the crown is the sufferer. cal.

(2.) The crown is the aggressor, whenever it is in possession of any property to which the subject hath a right.

(3.) This is remedied, 1. By petition of right; where the right is grounded on facts disclosed in the petition itself. 2. By monstrans de droit; where the claim is grounded on facts, already appearing on record. The effect of both which is to remove the hands (or possession) of the king.

(4.) Where the crown is the sufferer, the king's remedies are, 1. By such common law actions as are consistent with the royal dignity. 2. By inquest of office, to recover possession: which, when found, gives the king his right by solemn matter of record; but may afterwards be traversed by the subject. 3. By writ of seire socias, to repeal the king's patent or grant. 4. By information of intrusion, to give damages for any trespass on the lands of the crown; or of debt, to recover moneys due upon contract, or forfeited by the breach of any penal statute; or sometimes (in the latter case) by information in rem: all filed in the exchequer ex officio by the king's attorney general. 5. By writ of quo warranto, or information in the nature of such writ; to seize into the king's hands any franchise usurped by the subject, or to oust an usurper from any public office. 6. By writ of mandamus, unless cause; to admit or restore any person entitled to a franchise or office: to which, if a false cause be returned, the remedy is by traverse, or by action on the case for damages; and, in consequence, a peremptory mandamus, or writ of restitution.

(1.) The pursuit of the several remedies furnished by the laws of England, is, 1. By action in the courts of common law. 2. By proceedings in the courts of equity. cal.

(2.) Of an action in the court of common pleas (originally

Law of England Epitomized. finally the proper court for prosecuting civil suits) the orderly parts are, 1. The original writ. 2. The proceeds. 3. The pleadings. 4. The issue or demurrer. 5. The trial. 6. The judgement. 7. The proceedings in nature of appeal. 8. The execution.

(3.) The original writ is the beginning or foundation of a suit, and is either optional (called a præcipe), commanding the defendant to do something in certain, or otherwise show cause to the contrary; or peremptory (called a si fecerit te securum), commanding, upon security given by the plaintiff, the defendant to appear in court, to show wherefore he hath injured the plaintiff: both issuing out of chancery under the king's great seal, and returnable in bank during term time.

exiii. (1.) Proceſſes are the means of compelling the defendant to appear in court.

(2.) This includes, 1. Summons. 2. The writ of attachment, or pone; which is sometimes the first or original proceſſes. 3. The writ of distingas, or distrefs infinite. 4. The writs of copias ad respondendum, and testatum copias: or, instead of these, in the king's bench, the bill of Middlesex, and writ of latitans:—and, in the exchequer, the writ of quo minus. 5. The alias and pluries writs. 6. The exigent, or writ of exigi facias, proclamations, and outlawry. 7. Appearance, and common bail. 8. The arrest. 9. Special bail, first to the sheriff, and then to the action.

exiv. Pleadings are the mutual alterations of the plaintiff and defendant in writing; under which are comprised, 1. The declaration of court; (wherein, incidentally, of the visne, nonſuit, retraxit, and discontinuance.) 2. The defence, claim of cognizance, impanelance, view, oyer, aid-prayer, voucher, or age. 3. The plea; which is either a dilatory plea (1^st, to the jurisdiction; 2^dy, in disability of the plaintiff; 3^dy, in abatement), or it is a plea to the action; sometimes confessing the action either in whole or in part; (wherein of a tender, paying money into court, and set off): but usually denying the complaint, by pleading either, 1^st, the general issue: or, 2^dy, a special bar (wherein of justifications, the statutes of limitation, &c.) 4. Replication, rejoinder, surrejoinder, rebutter, surrebutter, &c. Therein of etoppels, colour, duplicity, departure, new assignment, protestation, averment, and other incidents of pleading.

exv. (1.) Issue is where the parties, in a course of pleadings, come to a point affirmed on one side and denied on the other; which, if it be a matter of law, is called a demurrer; if it be a matter of fact, still it retains the name of an issue, of fact.

(2.) Continuance is the detaining of the parties in court from time to time, by giving them a day certain to appear upon. And, if any new matter arises since the last continuance or adjournment, the defendant may take advantage of it, even after demurrer or issue, by alleging it in a plea puis darrein continuance.

(3.) The determination in an issue of law, or demurrer, is by the opinion of the judges of the court which is afterwards entered on record.

(1.) Trial is the examination of the matter of fact put in issue. exvi.

(2.) The species of trial are, 1. By the record. 2. By inspection. 3. By certificate. 4. By witnesses. 5. By wager of battle. 6. By wager of law. 7. By jury.

(3.) Trial by the record is had, when the existence of such record is the point in issue.

(4.) Trial by inspection or examination is had by the court, principally when the matter in issue is the evident object of the senses.

(5.) Trial by certificate is had in those cases, where such certificate must have been conclusive to a jury.

(6.) Trial by witnesses (the regular method in the civil law) is only used on a writ of dower, when the death of the husband is in issue.

(7.) Trial by wager of battle, in civil cases, is only had on a writ of right; but, in lieu thereof, the tenant may have at his option, the trial by the grand assize.

(8.) Trial by wager of law is only had, where the matter in issue may be supposed to have been privily transacted between the parties themselves, without the intervention of other witnesses.

(1.) Trial by jury is, 1. Extraordinary; as, by the grand assize, in writs of right; and by the grand jury, in writs of attainder. 2. Ordinary. exvii.

(2.) The method and proceſſes of the ordinary trial by jury is, 1. The writ of venire facias to the sheriff, coroners, or elisors; with the subsequent compulsive proceſſes of habeas corpora, or distingas. 2. The carrying down of the record to the court of nisi prius. 3. The sheriff's return; or panel of, 1^st, special; 2^dy, common jurors. 4. The challenges; 1^st, to the array; 2^dy, to the polls of the jurors; either propter honori respectum, propter defectum, propter affectum, (which is sometimes a principal challenge, sometimes to the favour), or propter delictum. 5. The tales de circumstantibus. 6. The oath of the jury. 7. The evidence; which is either by proofs, 1^st, written; 2^dy, parole:—or, by the private knowledge of the jurors. 6. The verdict; which may be, 1^st, privy; 2^dy, public; 3^dy, special.

(1.) Whatever is transacted at the trial in the court of nisi prius, is added to the record under the name of a postea: consequent upon which is the judgement. exviii.

(2.) Judgement may be arrested or stayed for causes, 1. Extrinsic, or debors the record; as in the case of new trials. 2. Intrinsic, or within it; as where the declaration varies from the writ, or the verdict from the pleadings, and issue; or where the case, laid in the declaration, is not sufficient to support the action in point of law.

(3.) Where the issue is immaterial or insufficient, the court may award a repleader.

Law of
England
Epitomised.

(4.) Judgement is the sentence of the law, pronounced by the court, upon the matter contained in the record.

(5.) Judgements are, 1. Interlocutory; which are incomplete till perfected by a writ of inquiry. 2. Final.

(6.) Costs, or expences of suit, are now the necessary consequence of obtaining judgement.

SECT. XXV. Of Proceedings, in the Nature of Appeals.

xxix.

(1.) Proceedings, in the nature of appeals from judgement, are, 1. A writ of attaint; to impeach the verdict of a jury; which of late has been superseded by new trials. 2. A writ of audita querela; to discharge a judgement by matter that has since happened. 3. A writ of error, from one court of record to another; to correct judgements, erroneous in point of law, and not helped by the statutes of amendment and joofs.

(2.) Writs of error lie, 1. To the court of king's bench, from all inferior courts of record; from the court of common pleas at Westminster; and from the court of king's bench in Ireland. 2. To the courts of exchequer chamber, from the law side of the courts of exchequer; and from proceedings in the court of king's bench by bill. 3. To the house of peers, from proceedings in the court of king's bench by original, and on writs of error; and from the several courts of exchequer chamber.

SECT. XXVI. Of Execution.

xxx.

Execution is the putting in force of the sentence or judgement of the law. Which is effected, 1. Where possession of any hereditament is recovered: by writ of habere facias seisinam, possessionem, &c. 2. Where any thing is awarded to be done or rendered, by a special writ for that purpose: as, by writ of abatement, in case of nuisance; retorna habendo and copias in witeram, in replevin; disringas and seire facias, in detinue. 3. Where money only is recovered; by writ of, 1st, Copias ad satisfaciendum, against the body of the defendant; or in default thereof, seire facias against his bail. 2dly, Fieri facias, against his goods and chattels. 3dly, Levari facias, against his goods and the profits of his lands. 4thly, Elegit, against his goods, and the possession of his lands. 5thly, Extendi facias, and other process, on statutes, recognizances, &c. against his body, lands, and goods.

SECT. XXVII. Of Proceedings in the Courts of Equity.

xxxi.

(1.) Matters of equity which belong to the peculiar jurisdiction of the court of chancery, are, 1. The guardianship of infants. 2. The custody of idiots and lunatics. 3. The superintendence of charities. 4. Commissions of bankrupts.

(2.) The court of exchequer and the duchy court of Lancaster, have also some peculiar causes, in which the interest of the king is more immediately concerned.

(3.) Equity is the true sense and sound interpretation of the rules of law; and, as such, is equally attended to by the judges of the courts both of common law and equity.

(4.) The essential differences, whereby the English courts of equity are distinguished from the courts of law, are, 1. The mode of proof, by a discovery on the oath of the party; which gives a jurisdiction in matters of account, and fraud. 2. The mode of trial; by depositions taken in any part of the world. 3. The mode of relief; by giving a more specific and extensive remedy than can be had in the courts of law; as, by carrying agreements into execution, staying waste or other injuries by injunction, directing the sale of encumbered lands, &c. 4. The true construction of securities for money, by considering them merely as a pledge. 5. The execution of trusts, or second uses, in a manner analogous to the law of legal estates.

(5.) The proceedings in the court of chancery (to which those in the exchequer, &c. very nearly conform) are, 1. Bill. 2. Writ of subpoena; and, perhaps, injunction. 3. Process of contempt; viz. (ordinarily) attachment, attachment with proclamations, commission of rebellion, sergeant at arms, and sequestrations. 4. Appearance. 5. Demurrer. 6. Plea. 7. Answer. 8. Exceptions; amendments; cross, or supplemental, bills; bills of revivor, interpleader, &c. 9. Replication. 10. Issue. 11. Depositions, taken upon interrogatories; and subsequent publication thereof. 12. Hearing. 13. Interlocutory decree; feigned issue, and trial; reference to the master, and report; &c. 14. Final decree. 15. Rehearing, or bill of review. 16. Appeal to parliament.

CHAP. IV. Of PUBLIC WRONGS.

SECT. I. Of the Nature of Crimes, and their Punishments.

(1.) In treating of public wrongs may be considered, 1. The general nature of crimes and punishments. 2. The persons capable of committing crimes. 3. Their several degrees of guilt. 4. The several species of crimes, and their respective punishments. 5. The means of prevention. 6. The method of punishment.

(2.) A crime, or misdemeanor, is an act committed, or omitted, in violation of a public law either forbidding or commanding it.

(3.) Crimes are distinguished from civil injuries, in that they are a breach and violation of the public rights, due to the whole community, considered as a community.

(4.) Punishments may be considered with regard to, 1. The power; 2. The end; 3. The measure;—of their infliction.

(5.) The power, or right, of inflicting human punishments for natural crimes, or such as are mala in se, was by the law of nature veiled in every individual; but, by the fundamental contract of society, is now transferred to the sovereign power; in which also is vested, by the same contract, the right of punishing positive offences, or such as are mala prohibita.

(6.) The end of human punishments is to prevent future offences; 1. By amending the offender himself. 2. By deterring others through his example. 3. By depriving him of the power to do future mischief.

(7.) The measure of human punishments must be determined by the wisdom of the sovereign power, and not

not by any uniform universal rule: though that wisdom may be regulated, and assisted, by certain general, equitable, principles.

SECT. II. Of the Persons capable of Committing Crimes.

XXIV. (1.) All persons are capable of committing crimes, unless there be in them a defect of will: for, to constitute a legal crime, there must be both a vicious will, and a vicious act.

(2.) The will does not concur with the act, 1. Where there is a defect of understanding. 2. Where no will is exerted. 3. Where the act is constrained by force and violence.

(3.) A vicious will may therefore be wanting, in the cases of, 1. Infancy. 2. Idiocy, or lunacy. 3. Drunkenness; which doth not, however, excuse. 4. Misfortune. 5. Ignorance, or mistake of fact. 6. Compulsion, or necessity; which is, 1st, that of civil subjection; 2dly, that of duress per minas; 3dly, that of choosing the least pernicious of two evils, where one is unavoidable; 4thly, that of want, or hunger; which is no legitimate excuse.

(4.) The king, from his excellence and dignity, is also incapable of doing wrong.

SECT. III. Of Principals and Accessories.

XXV. (1.) The different degrees of guilt in criminals are, 1. As principals. 2. As accessories.

(2.) A principal in a crime is, 1. He who commits the fact. 2. He who is present at, aiding, and abetting, the commission.

(3.) An accessory is he who doth not commit the fact, nor is present at the commission; but is in some sort concerned therein, either before or after.

(4.) Accessories can only be in petit treason, and felony: in high treason, and misdemeanors, all are principals.

(5.) An accessory, before the fact, is one who, being absent when the crime is committed, hath procured, counselled, or commanded, another to commit it.

(6.) An accessory after the fact, is where a person, knowing a felony to have been committed, receives, relieves, comforts, or assists, the felon. Such accessory is usually entitled to the benefit of clergy; where the principal, and accessory before the fact, are excluded from it.

SECT. IV. Of Offences against God and Religion.

XXVI. (1.) Crimes and misdemeanors cognizable by the laws of England are such as more immediately offend, 1. GOD, and his holy religion. 2. The law of nations. 3. The king, and his government. 4. The public, or commonwealth. 5. Individuals.

(2.) Crimes more immediately offending GOD and religion are, 1. Apostasy. For which the penalty is incapacity, and imprisonment. 2. Heresy. Penalty, for one species thereof: the same. 3. Offences against the established church:—Either, by reviling its ordinances. Penalties: fine; deprivation; imprisonment; forfeiture.—Or, by nonconformity to its worship;

VOL. XI. Part II.

1st, Through total irreligion. Penalty: fine. 2dly, Through Protestant dissenting. Penalty: suspended by the toleration act. 3dly, Through Popery, either in professors of the popish religion, popish recusants, convicts, or popish priests. Penalties: incapacity; double taxes; imprisonment; fines; forfeitures; abjuration of the realm; judgement of felony, without clergy; and judgement of high treason. 4. Blasphemy. Penalty: fine, imprisonment, and corporal punishment. 5. Profane swearing and cursing. Penalty: fine, or house of correction. 6. Witchcraft; or, at least, the pretence thereto. Penalty: imprisonment, and pillory. 7. Religious impostures. Penalty: fine, imprisonment, and corporal punishment. 8. Simony. Penalties: forfeiture of double value; incapacity. 9. Sabbath-breaking. Penalty: fine. 10. Drunkenness. Penalty: fine or stocks. 11. Lewdness. Penalties: fine; imprisonment; house of correction.

SECT. V. Of Offences against the Law of Nations.

(1.) The law of nations is a system of rules, deducible by natural reason, and established by universal consent, to regulate the intercourse between independent states.

(2.) In England, the law of nations is adopted in its full extent, as part of the law of the land.

(3.) Offences against this law are principally incident to whole states or nations; but, when committed by private subjects, are then the objects of the municipal law.

(4.) Crimes against the law of nations, animadverted on by the laws of England, are, 1. Violation of safe conduct. 2. Infringement of the rights of ambassadors. Penalty, in both: arbitrary. 3. Piracy. Penalty: judgement of felony, without clergy.

SECT. VI. Of High Treason.

(1.) Crimes and misdemeanors more peculiarly offending the king and his government are, 1. High treason. 2. Felonies injurious to the prerogative. 3. Premunire. 4. Other misprisions and contempts.

(2.) High treason may, according to the statute of Edward III. be committed, 1. By compassing or imagining the death of the king, or queen-consort, or their eldest son and heir: demonstrated by some overt act. 2. By violating the king's companion, his eldest daughter, or the wife of his eldest son. 3. By some overt act of levying war against the king in his realm. 4. By adherence to the king's enemies. 5. By counterfeiting the king's great or privy seal. 6. By counterfeiting the king's money, or importing counterfeit money. 7. By killing the chancellor, treasurer, or king's justices, in the execution of their offices.

(3.) High treasons, created by subsequent statutes, are such as relate, 1. To Popists: as, the repeated defence of the pope's jurisdiction; the coming from beyond sea of a natural born popish priest; the renouncing of allegiance, and reconciliation to the pope or other foreign power. 2. To the courage, or other dignities of the king: as, counterfeiting (or, importing and uttering counterfeit) foreign coin, here current; forging the sign-manual, privy signet, or privy seal; falsifying, &c. the current coin. 3. To the Protestant

Law of
England
Excluded.

Protestant succession; as, corresponding with, or remitting to, the late Pretender's sons; endeavouring to impede the succession; writing or printing in defence of any pretender's title, or in derogation of the act of settlement, or of the power of parliament to limit the descent of the crown.

(4.) The punishment of high treason, in males, is (generally) to be, 1. Drawn. 2. Hanged. 3. Embowelled alive. 4. Beheaded. 5. Quartered. 6. The head and quarters to be at the king's disposal. But, in treasons relating to the coin, only to be drawn, and hanged till dead. Females, in both cases, are to be drawn, and burned alive.

SECT. VII. Of Felonies injurious to the King's Prerogative.

EXXIX. (1.) Felony is that offence which occasions the total forfeiture of lands or goods, at common law; now usually also punishable with death, by hanging; unless through the benefit of clergy.

(2.) Felonies injurious to the king's prerogative (of which some are within, others without clergy) are, 1. Such as relate to the coin: as, the wilful uttering of counterfeit money, &c.; (to which head some inferior misdemeanors affecting the coinage may be also referred). 2. Conspiring or attempting to kill a privy counsellor. 3. Serving foreign states, or insinuating soldiers for foreign service. 4. Embezzling the king's armour or stores. 5. Desertion from the king's armies by land or sea.

SECT. VIII. Of Premunire.

EXXX. (1.) Premunire, in its original sense, is the offence of adhering to the temporal power of the pope, in derogation of the regal authority. Penalty: outlawry, forfeiture, and imprisonment: which hath since been extended to some offences of a different nature.

(2.) Among these are, 1. Importing Popish trinkets. 2. Contributing to the maintenance of Popish seminaries abroad, or Popish priests in England. 3. Molesting the possessors of abbey lands. 4. Acting as broker in an usurious contract, for more than ten per cent. 5. Obtaining any stay of proceedings in suits for monopolies. 6. Obtaining an exclusive patent for gunpowder or arms. 7. Exertion of purveyance or pre-emption. 8. Asserting a legislative authority in both or either house of parliament. 9. Sending any subject a prisoner beyond sea. 10. Refusing the oaths of allegiance and supremacy. 11. Preaching, teaching, or advised speaking, in defence of the right of any pretender to the crown, or in derogation of the power of parliament to limit the succession. 12. Treating of other matters by the assembly of peers of Scotland, convened for electing their representatives in parliament. 13. Unwarrantable undertakings by unlawful subscriptions to public funds.

SECT. IX. Of Misdemeanors and Contempts affecting the King and Government.

EXXXI. (1.) Misdemeanors and contempts are all such high offences as are under the degree of capital.

(2.) These are, 1. Negative, in concealing what ought

to be revealed. 2. Positive, in committing what ought not to be done.

(3.) Negative misdemeanors are, 1. Misdemeanor of treason. Penalty: forfeiture and imprisonment. 2. Misdemeanor of felony. Penalty: fine and imprisonment. 3. Concealment of treasure trove. Penalty: fine and imprisonment.

(4.) Positive misdemeanors or high misdemeanors and contempts, are, 1. Mal-administration of public trusts, which includes the crime of peculation. Usual penalties: banishment; fines; imprisonment; disability. 2. Contempts against the king's prerogative. Penalty: fine, and imprisonment. 3. Contempt against his person and government. Penalty: fine, imprisonment, and infamous corporal punishment. 4. Contempts against his title. Penalties: fine, and imprisonment; or fine, and disability. 5. Contempts against his palaces, or courts of justice. Penalties: fine; imprisonment; corporal punishment; loss of right hand; forfeiture.

SECT. X. Of Offences against Public Justice.

EXXXII. (1.) Crimes especially affecting the commonwealth are offences, 1. Against the public justice. 2. Against the public peace. 3. Against the public trade. 4. Against the public health. 5. Against the public police or economy.

(2.) Offences against the public justice, are, 1. Embezzling or vacating records, and personating others in courts of justice. Penalty: judgement of felony, usually without clergy. 2. Compelling prisoners to become approvers. Penalty: judgement of felony. 3. Obstructing the execution of process. 4. Escapes. 5. Breach of prison. 6. Refuse. Which four may (according to the circumstances) be either felonies, or misdemeanors punishable by fine and imprisonment. 7. Returning from transportation. This is felony, without clergy. 8. Taking rewards to help one to his stolen goods. Penalty: the same as for the theft. 9. Receiving stolen goods. Penalties: transportation; fine; and imprisonment. 10. Theft. 11. Common barretry and suing in a feigned name. 12. Maintenance. 13. Champerty. Penalty, in these four: fine, and imprisonment. 14. Compounding prosecutions on penal statutes. Penalty: fine, pillory, and disability. 15. Conspiracy; and threats of accusation in order to extort money, &c. Penalties: the villainous judgement; fine; imprisonment; pillory; whipping; transportation. 16. Perjury, and subornation thereof. Penalties: infamy; imprisonment; fine, or pillory; and, sometimes, transportation or house of correction. 17. Bribery. Penalty: fine, and imprisonment. 18. Embracery. Penalty: infamy, fine, and imprisonment. 19. False verdict. Penalty: the judgement in attaint. 20. Negligence of public officers, &c. Penalty: fine, and forfeiture of the office. 21. Oppression by magistrates. 22. Extortion of officers. Penalty, in both: imprisonment, fine, and sometimes forfeiture of the office.

SECT. XI. Of Offences against the Public Peace.

EXXXIII. Offences against the public peace, are, 1. R riotous assemblies to the number of twelve. 2. Appearing armed,

Law of England Epitomized. armed, or hunting in disguise. 3. Threatening, or demanding any valuable thing by letter.—All these are felonies, without clergy. 4. Destroying of turnpikes, &c. Penalties: whipping; imprisonment; judgement of felony, with and without clergy. 5. Affrays. 6. Riots, routs, and unlawful assemblies. 7. Tumultuous petitioning. 8. Forcible entry, and detainer. Penalty, in all four: fine, and imprisonment. 9. Going unusually armed. Penalty: forfeiture of arms, and imprisonment. 10. Spreading false news. Penalty: fine, and imprisonment. 11. Pretended prophecies. Penalties: fine; imprisonment; and forfeiture. 12. Challengers to fight. Penalty: fine, imprisonment, and sometimes forfeiture. 13. Libels. Penalty: fine, imprisonment, and corporal punishment.

ccxxiv. Offences against the public trade, are, 1. Owling. Penalties: fine; forfeiture; imprisonment, loss of left hand; transportation; judgement of felony. 2. Smuggling. Penalties: fines; loss of goods; judgement of felony, without clergy. 3. Fraudulent bankruptcy. Penalty: judgement of felony without clergy. 4. Usury. Penalty: fine, and imprisonment. 5. Cheating. Penalties: fine; imprisonment; pillory; tumbrel; whipping, or other corporal punishment; transportation. 6. Forestalling. 7. Regraining. 8. Engrossing. Penalties, for all three: loss of goods; fine; imprisonment; pillory. 9. Monopolies and combinations to raise the price of commodities. Penalties: fines; imprisonment; pillory; loss of car; infamy; and, sometimes the pains of præmunire. 10. Exercising a trade, not having served as an apprentice. Penalty: fine. 11. Transporting, or residing abroad of artificers. Penalties: fine; imprisonment; forfeiture; incapacity; becoming aliens.

ccxxv. (1.) Offences against the public health, are, 1. Irregularity, in the time of the plague, or of quarantine. Penalties: whipping; judgement of felony, with and without clergy. 2. Selling unwholesome provisions. Penalties: amercement; pillory; fine; imprisonment; abjuration of the town.

(2.) Offences against the public police and economy or domestic order of the kingdom, are, 1. Those relating to clandestine and irregular marriages. Penalties: judgement of felony, with and without clergy. 2. Bigamy, or (more properly) polygamy. Penalty: judgement of felony. 3. Wandering, by soldiers or mariners. 4. Remaining in England, by Egyptians; or being in their fellowship one month. Both these are felonies, without clergy. 5. Common nuisances, &c. By annoyances or purpressures in highways, bridges, and rivers; 2dly, By offensive trades and manufactures; 3dly, By disorderly houses; 4thly, By lotteries; 5thly, By cottages; 6thly, By fireworks; 7thly, By evel-dropping. Penalty: in all fine. 8thly, By common scolding. Penalty: the cucking stool. 6. Idleness, disorder, vagrancy, and incorrigible roguery. Penalties: imprisonment; whipping; judgement of felony. 7. Luxury, in diet. Penalty, discretionary. 8. Gaming. Penalties:

to gentlemen, fine; to others, fine and imprisonment; to cheating gamblers, fine, infamy, and the corporal pains of perjury. 9. Destroying the game. Penalties: fines, and corporal punishment.

(1.) Crimes especially affecting individuals, are, 1. Against their persons. 2. Against their habitations. 3. Against their property.

(2.) Crimes against the persons of individuals, are, 1. By homicide, or destroying life. 2. By other corporal injuries.

(3.) Homicide is, 1. Justifiable. 2. Excusable. 3. Felonious.

(4.) Homicide is justifiable. 1. By necessity, and command of law. 2. By permission of law; 3dly, For the furtherance of public justice; 2dly, For prevention of some forcible felony.

(5.) Homicide is excusable. 1. Per infortunium, or by misadventure. 2. Se defendendo or in self-defence, by chance-medley. Penalty, in both: forfeiture of goods; which however is pardoned of course.

(6.) Felonious homicide is the killing of a human creature without justification or excuse. This, is, 1. Killing one's self. 2. Killing another.

(7.) Killing one's self, or self-murder, is where one deliberately, or by any unlawful malicious act, puts an end to his own life. This is felony; punished by ignominious burial, and forfeiture of goods and chattels.

(8.) Killing another is, 1. Manslaughter. 2. Murder.

(9.) Manslaughter is the unlawful killing of another, without malice, express or implied. This is either, 1. Voluntary, upon a sudden heat. 2. Involuntary, in the commission of some unlawful act. Both are felony, but within clergy; except in the case of stabbing.

(10.) Murder is when a person, of sound memory and discretion, unlawfully killeth any reasonable creature, in being, and under the king's peace; with malice aforethought, either express or implied. This is felony, without clergy; punished with speedy death, and hanging in chains, or dissection.

(11.) Petit treason (being an aggravated degree of murder) is where the servant kills his master, the wife her husband, or the ecclesiastical his superior. Penalty: in men, to be drawn and hanged; in women, to be drawn and burned.

Crimes affecting the persons of individuals, by other corporal injuries not amounting to homicide, are, 1. Mayhem; and also shooting at another. Penalties: fine; imprisonment; judgement of felony, without clergy. 2. Forcible abduction, and marriage or defilement, of an heiress; which is felony: also, stealing, and deflowering or marrying, any woman child under the age of sixteen years; for which the penalty is imprisonment, fine, and temporary forfeiture of her lands. 3. Rape, and also carnal knowledge, of a woman child under the age of ten years. 4. Burglary, with man or beast. Both these are felonies, without clergy. 5. Assault. 6. Battery; especially of clergymen. 7. Wounding. Penalties, in all three: fine; imprisonment; and other corporal

Law of
England
Epitomised.

poral punishment. 8. Falsé imprisonment. Penalties: fine; imprisonment; and (in some atrocious cases) the pains of praemunire, and incapacity of office or pardon. 9. Kidnapping, or forcibly stealing away the king's subjects. Penalty: fine; imprisonment; and pillory.

SECT. XVI. Of Offences against the Habitations of Individuals.

cxxxviii. (1.) Crimes affecting the habitations of individuals are, 1. Arson. 2. Burglary.

(2.) Arson is the malicious and wilful burning of the house, or out-house, of another man. This is felony: in some cases within, in others without, clergy.

(3.) Burglary is the breaking and entering, by night, into a mansion house: with intent to commit a felony. This is felony, without clergy.

SECT. XVII. Of Offences against Private Property.

cxxxix. (1.) Crimes affecting the private property of individuals are, 1. Larceny. 2. Malicious mischief. 3. Forgery.

(2.) Larceny is, 1. Simple. 2. Mixed or compound.

(3.) Simple larceny is the felonious taking, and carrying away, of the personal goods of another. And it is, 1. Grand larceny; being above the value of twelve pence. Which is felony; in some cases within, in others without, clergy. 2. Petit larceny; to the value of twelvepence or under. Which is also felony, but not capital; being punished with whipping, or transportation.

(4.) Mixed, or compound, larceny, is that wherein the taking is accompanied with the aggravation of being, 1. From the house. 2. From the person.

(5.) Larcinies from the house, by day or night, are felonies without clergy, when they are, 1. Larcinies, above twelve pence, from a church; or by breaking a tent or booth in a market or fair, by day or night, the owner or his family being therein;—or by breaking a dwelling house by day, any person being therein;—or from a dwelling house by day, without breaking, any person therein being put in fear;—or from a dwelling house by night, without breaking, the owner, or his family being therein and put in fear. 2. Larcinies, of five shillings, by breaking the dwelling house, shop, or warehouse by day, though no person be therein;—or, by privately stealing in any shop, warehouse, coach-house, or stable, by day or night, without breaking, and though no person be therein. 3. Larcinies, of forty shillings, from a dwelling house or its out-houses, without breaking, and though no person be therein.

(6.) Larceny from the person is, 1. By privately stealing, from the person of another, above the value of twelve pence. 2. By robbery; or the felonious and forcible taking, from the person of another, in or near the highway, goods or money of any value, by putting him in fear. These are both felonies without clergy. An attempt to rob is also felony.

(7.) Malicious mischief, by destroying dykes, goods, cattle, ships, garments, fish ponds, trees, woods, churches, chapels, meeting-houses, houses, out-houses, corn, hay, straw, sea or river banks, hop-binds, coal-mines (or engines thereunto belonging), or any fences for enclo-

tures by act of parliament, is felony; and, in most cases, without benefit of clergy.

(8.) Forgery is the fraudulent making or alteration of a writing, in prejudice of another's right. Penalties: fine; imprisonment; pillory; loss of nose and ears; forfeiture; judgement of felony, without clergy.

SECT. XVIII. Of the Means of Preventing Offences.

(1.) Crimes and misdemeanors may be prevented, by compelling suspected persons to give security; which is effected by binding them in a conditional recognizance to the king, taken in court, or by a magistrate.

(2.) These recognizances may be conditioned, 1. To keep the peace. 2. To be of good behaviour.

(3.) They may be taken by any justice or conservator of the peace, at his own discretion; or, at the request of such as are entitled to demand the same.

(4.) All persons, who have given sufficient cause to apprehend an intended breach of the peace, may be bound over to keep the peace; and all those, that be not of good fame, may be bound to the good behaviour; and may, upon refusal in either case, be committed to gaol.

SECT. XIX. Of Courts of Criminal Jurisdiction.

(1.) In the method of punishment may be considered, 1. The several courts of criminal jurisdiction. 2. The several proceedings therein.

(2.) The criminal courts are, 1. Those of a public and general jurisdiction throughout the realm. 2. Those of a private and special jurisdiction.

(3.) Public criminal courts are, 1. The high court of parliament; which proceeds by impeachment. 2. The court of the lord high steward; and the court of the king in full parliament: for the trial of capitally indicted peers. 3. The court of king's bench. 4. The court of chivalry. 5. The court of admiralty, under the king's commission. 6. The courts of oyer and terminer, and general gaol delivery. 7. The court of quarter sessions of the peace. 8. The sheriff's tourn. 9. The court left. 10. The court of the coroner. 11. The court of the clerk of the market.

(4.) Private criminal courts are, 1. The court of the lord steward, &c. by statute of Henry VII. 2. The court of the lord steward, &c. by statute of Henry VIII. 3. The university courts.

SECT. XX. Of Summary Convictions.

(1.) Proceedings in criminal courts are, 1. Summary. 2. Regular.

(2.) Summary proceedings are such, whereby a man may be convicted of divers offences, without any formal process or jury, at the discretion of the judge or judges appointed by act of parliament, or common law.

(3.) Such are, 1. Trials of offences and frauds against the laws of excise and other branches of the king's revenue. 2. Convictions before justices of the peace upon a variety of minute offences, chiefly against the

Law of England Epitomised. the public police. 3. Attachments for contempts to the superior courts of justice.

calii. (1.) Regular proceedings in the courts of common law, are, 1. Arrest. 2. Commitment and bail. 3. Prosecution. 4. Procest. 5. Arraignment, and its incidents. 6. Plea and issue. 7. Trial and conviction. 8. Clergy. 9. Judgement, and its consequences. 10. Reversal of judgement. 11. Reprieve or pardon. 12. Execution.

(2.) An arrest is the apprehending, or restraining, of one's person; in order to be forthcoming to answer a crime whereof one is accused or suspected.

(3.) This may be done, 1. By warrant. 2. By an officer, without warrant. 3. By a private person, without warrant. 4. By hue and cry.

caliv. (1.) Commitment is the confinement of one's person in prison, for safe custody, by warrant from proper authority; unless, in bailable offences, he puts in sufficient bail, or security for his future appearance.

(2.) The magistrate is bound to take reasonable bail, if offered; unless the offender be not bailable.

(3.) Such are, 1. Persons accused of treason; or, 2. Of murder; or, 3. Of manslaughter, by indictment; or if the prisoner was clearly the slayer. 4. Prison breakers, when committed for felony. 5. Outlaws. 6. Those who have abjured the realm. 7. Approvers, and appellees. 8. Persons taken with the mainour. 9. Persons accused of arson. 10. Excommunicated persons.

(4.) The magistrate may, at his discretion, admit to bail, or otherwise, persons not of good fame, charged with other felonies, whether as principals or as accessories.

(5.) If they be of good fame, he is bound to admit them to bail.

(6.) The court of king's bench, or its judges in time of vacation, may bail in any case whatsoever.

calv. (1.) Prosecution, or the manner of accusing offenders, is either by a previous finding of a grand jury; as, 1. By presentment. 2. By indictment. Or, without such finding. 3. By information. 4. By appeal.

(2.) A presentment is the notice taken by a grand jury of any offence, from their own knowledge or observation.

(3.) An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented on oath by, a grand jury; expressing with sufficient certainty, the person, time, place, and offence.

(4.) An information is, 1. At the suit of the king and a subject, upon penal statutes. 2. At the suit of the king only. Either, 1. Filed by the attorney general ex officio, for such misdemeanors as affect the

king's person or government: or, 2. Filed by the master of the crown office (with leave of the court of king's bench) at the relation of some private subject for other gross and notorious misdemeanors. All differing from indictments in this; that they are exhibited by the informer, or the king's officer; and not on the oath of a grand jury.

(5.) An appeal is an accusation or suit, brought by one private subject against another, for larceny, rape, mayhem, arson, or homicide: which the king cannot discharge or pardon, but the party alone can release.

calvi. (1.) Procest to bring in an offender, when indicted in his absence, is, in misdemeanors, by venire facias, distress infinite, and copias: in capital crimes, by copias only: and, in both, by outlawry.

(2.) During this stage of proceedings, the indictment may be removed into the court of king's bench from any inferior jurisdiction, by writ of certiorari facias: and cognizance must be claimed in places of exclusive jurisdiction.

calvii. (1.) Arraignment is the calling of the prisoner to the bar of the court, to answer the matter of the indictment.

(2.) Incident hereunto are, 1. The standing mute of the prisoner: for which, in petit treason, and felonies of death, he shall undergo the peine fort et dure. 2. His confession; which is either simple, or by way of approvement.

calviii. (1.) The plea, or defensive matter alleged by the prisoner, may be, 1. A plea to the jurisdiction. 2. A demurrer in point of law. 3. A plea in abatement. 4. A special plea in bar; which is, 1st, Auterfois acquit; 2dly, Auterfois convict; 3dly, Auterfois attaint; 4thly, A pardon. 5. The general issue, not guilty.

(2.) Hereupon issue is joined by the clerk of the arraigns, on behalf of the king.

calix. (1.) Trials of offences, by the laws of England, were and are, 1. By ordeal, of either fire or water. 2. By the corfued. Both these have been long abolished. 3. By battel, in appeals and improvements. 4. By the peers of Great Britain. 5. By jury.

(2.) The method and procest of trial by jury is, 1. The impannelling of the jury. 2. Challenges; 1st, for cause; 2dly, peremptory. 3. Tales de circumstantibus. 4. The oath of the jury. 5. The evidence. 6. The verdict, either general or special.

(3.) Conviction is when the prisoner pleads, or is found guilty: whereupon, in felonies, the prosecutor is entitled to, 1. His expenses. 2. Restitution of his goods.

(1.) Clergy, or the benefit thereof, was originally derived from the usurped jurisdiction of the Popish ecclesiastics; but hath since been new-modelled by several statutes.

(2.) It is an exemption of the clergy from any other secular punishment for felony, than imprisonment for a year, at the court's discretion; and it is extended likewise, absolutely, to lay peers, for the first offence; and to all lay-commoners, for the first offence also, upon condition of branding, imprisonment, or transportation.

(3.) All felonies are entitled to the benefit of clergy, except such as are now casted by particular statutes.

(4.) Felons, on receiving the benefit of clergy, (though they forfeit their goods to the crown), are discharged of all clergyable felonies before committed, and restored in all capacities and credits.

clii. (1.) Judgement (unless any matter be offered in arrest thereof) follows upon conviction; being the pronouncing of that punishment which is expressly ordained by law.

(2.) Attainder of a criminal is the immediate consequence, 1. Of having judgement of death pronounced upon him. 2. Of outlawry for a capital offence.

(3.) The consequences of attainder are, 1. Forfeiture to the king. 2. Corruption of blood.

(4.) Forfeiture to the king is, 1. Of real estates, upon attainder;—in high treason, absolutely, till the death of the late Pretender's sons;—in felonies, for the king's year, day, and waste;—in misprision of treason, assaults on a judge, or battery fitting the courts; during the life of the offender. 2. Of personal estates, upon conviction; in all treason, misprision of treason, felony, excusable homicide, petit larceny, standing mute upon arraignment, the above-named contempts of the king's courts, and flight.

(5.) Corruption of blood is an utter extinction of all inheritable quality therein: so that, after the king's forfeiture is first satisfied, the criminal's lands escheat to

the lord of the fee; and he can never afterwards inherit, be inherited, or have any inheritance derived through him.

cliii. (1.) Judgements, and their consequences, may be avoided, 1. By falsifying, or reversing, the attainder. 2. By reprieve, or pardon.

(2.) Attainders may be satisfied, or reversed, 1. Without a writ of error; for matter dehors the record. 2. By writ of error; for mistakes in the judgement, or record. 3. By act of parliament; for favour.

(3.) When an outlawry is reversed, the party is restored to the same plight as if he had appeared upon the copias. When a judgement, on conviction, is reversed, the party stands as if never accused.

cliii. (1.) A reprieve is a temporary suspension of the judgement, 1. Ex arbitrio judicis. 2. Ex necessitate legis; for pregnancy, infancy, or the trial of identity of person, which must always be tried instante.

(2.) A pardon is a permanent avoide of the judgement by the king's majesty, in offences against his crown and dignity; drawn in due form of law, allowed in open court, and thereby making the offender a new man.

(3.) The king cannot pardon, 1. Imprisonment of the subject beyond the seas. 2. Offences prosecuted by appeal. 3. Common nuisances. 4. Offences against popular or penal statutes, after information brought by a subject. Nor is his pardon pleadable to an impeachment by the commons in parliament.

cliv. (1.) Execution is the completion of human punishment, and must be strictly performed in the manner which the law directs.

(2.) The warrant for execution is sometimes under the hand and seal of the judge; sometimes by writ from the king; sometimes by rule of court; but commonly by the judges signing the calendar of prisoners, with their separate judgements in the margin.

clvi.
Municipal
law.

1. THE municipal law of Scotland, as of most other countries, consists partly of statutory or written law, which has the express authority of the legislative power; partly of customary or unwritten law, which derives force from its presumed or tacit consent.

Statutory
law.
Acts of par-
liament.

2. Under our statutory or written law is comprehended, (1.) Our acts of parliament: not only those which were made in the reign of James I. of Scotland, and from thence down to our union with England in 1707, but such of the British statutes enacted since the Union as concerned this part of the united kingdom.

3. The remains of our ancient written law were published by Sir John Skene, clerk register, in the beginning of the last century, by license of parliament. The books of Regiam Majestatem, to which the whole collection owes its title, seem to be a system of Scots law, written by a private lawyer at the command of David I.; and though no express confirmation of that treatise by the legislature appears, yet it is admitted to have been the ancient law of our kingdom by express statutes. The borough laws, which were also enacted by the same King David, and the statutes of William, Alexander II. David II. and the three Roberts, are universally allowed to be genuine. Our parliaments have once and again appointed commissions to revise and amend.

Law of Scotland. amend the Regiam Majestatem, and the other ancient books of our law, and to make their report: but as no report appears to have been made, nor consequently any ratification by parliament, none of these remains are received, as of proper authority, in our courts; yet they are of excellent use in proving and illustrating our most ancient customs.

Acts of federunt. 4. Our written law comprehends, (2.) The acts of federunt, which are ordinances for regulating the forms of proceeding before the court of session in the administration of justice, made by the judges, who have a delegated power from the legislature for that purpose. Some of these acts dip upon matter of right, which declare what the judges apprehend to be the law of Scotland, and what they are to observe afterwards as a rule of judgement.

Authority of the civil and canon laws. 5. The civil, or Roman and canon laws, though they are not perhaps to be deemed proper parts of our written law, have undoubtedly had the greatest influence in Scotland. The powers exercised by our sovereigns and judges have been justified upon no other ground, than that they were conformable to the civil or canon laws; and a special statute was judged necessary, upon the Reformation, to rescind such of their constitutions as were repugnant to the Protestant doctrine. From that period, the canon law has been little respected, except in questions of tithes, patronages, and some few more articles of ecclesiastical right: but the Roman continues to have great authority in all cases where it is not derogated from by statute or custom, and where the genius of our law suffers us to apply it.

Customary or common law. 6. Our unwritten or customary law, is that which without being expressly enacted by statute, derives its force from the tacit consent of king and people; which consent is presumed from the ancient custom of the community. Custom, as it is equally founded in the will of the lawgiver with written law, has therefore the same effects: hence, as one statute may be explained or repealed by another, so a statute may be explained by the uniform practice of the community, and even go into disuse by a posterior contrary custom. But this power of custom to derogate from prior statutes is generally confined by lawyers to statutes concerning private right, and does not extend to those which regard public policy.

Decisions of the session. 7. An uniform tract of the judgements or decisions of the court of session is commonly considered as part of our customary law; and without doubt, where a particular custom is thereby fixed or proved, such custom of itself constitutes law: but decisions, though they bind the parties litigating, have not, in their own nature, the authority of law in similar cases; yet, where they continue uniform, great weight is justly laid on them. Neither can the judgements of the house of peers of Great Britain reach farther than to the parties in the appeal, since in these the peers act as judges, not as lawgivers.

Promulgation of laws. 8. Though the laws of nature are sufficiently published by the internal suggestion of natural light, civil laws cannot be considered as a rule for the conduct of life, till they are notified to those whose conduct they are to regulate. The Scots acts of parliament were, by our most ancient custom, proclaimed in all the different shires, boroughs, and baron courts, of the kingdom.

But after our statutes came to be printed, that custom was gradually neglected; and at last, the publication of our laws, at the market-cross of Edinburgh, was declared sufficient; and they became obligatory 40 days thereafter. British statutes are deemed sufficiently notified, without formal promulgation; either because the printing is truly a publication; or because every subject is, by a maxim of the English law, party to them, as being present in parliament, either by himself or his representative. After a law is published, no pretence of ignorance can excuse the breach of it.

9. As laws are given for the rule of our conduct, they can regulate future cases only; for past actions, being out of our power, can admit of no rule. Declaratory laws form no exception to this; for a statute, where it is declaratory of a former law, does no more than interpret its meaning; and it is included in the notion of interpretation, that it must draw back to the date of the law interpreted.

10. By the rules of interpreting statute law received in Scotland, an argument may be used from the title of the act itself, à rubro ad nigrum; at least, where the rubric has either been originally framed, or afterwards adopted by the legislature. The preamble or narrative, which recites the inconveniences that had arisen from the former law; and the causes inducing the enactment, may also lead a judge to the general meaning of the statute. But the chief weight is to be laid on the statutory words.

11. Laws, being directed to the unlearned as well as the learned, ought to be construed in their most obvious meaning, and not explained away by subtle distinctions; and no law is to suffer a figurative interpretation, where the proper sense of the words is as commodious, and equally fitted to the subject of the statute. Laws ought to be explained so as to exclude absurdities, and in the sense which appears most agreeable to former laws, to the intention of the lawgiver, and to the general frame and structure of the constitution. In prohibitory laws, where the right of acting is taken from a person, solely for the private advantage of another, the consent of him, in whose behalf the law was made, shall support the act done in breach of it; but the consent of parties immediately interested has no effect in matters which regard the public utility of a state. Where the words of a statute are capable but of one meaning, the statute must be observed, however hard it may bear on particular persons. Nevertheless, as no human system of laws can comprehend all possible cases, more may sometimes be meant by the lawgiver than is expressed; and hence certain statutes, where extension is not plainly excluded, may be extended beyond the letter, to similar and omitted cases: others are to be confined to the statutory words.

12. A strict interpretation is to be applied, (1.) To corrective statutes, which repeal or restrict former laws; and to statutes which enact heavy penalties, or restrain the natural liberties of mankind. (2.) Laws, made on occasion of present exigencies in a state, ought not to be drawn to similar cases, after the pressure is over. (3.) Where statutes establish certain solemnities as requisite to deeds, such solemnities are not supplyable by equivalents; for solemnities lose their nature, when they are not performed specifically. (4.) A statute, which enumerates special cases, is, with difficulty, to be extended.

tended to cases not expressed; but, where a law does not descend to particulars, there is greater reason to extend it to similar cases. (5.) Statutes, which carry a dispensation or privilege to particular persons or societies, suffer a strict interpretation; because they derogate from the general law, and imply a burden upon the rest of the community. But at no rate can a privilege be explained to the prejudice of those in whose behalf it was granted. As the only foundation of customary law is usage, which consists in fact, such law can go no farther than the particular usage has gone.

13. All statutes, concerning matters specially favoured by law, receive an ample interpretation; as laws for the encouragement of commerce, or of any useful public undertaking, for making effectual the wills of dying persons, for restraining fraud, for the security of creditors, &c. A statute, though its subject matter should not be a favourite of the law, may be extended to similar cases, which did not exist when the statute was made; and for which, therefore, it was not in the lawgiver's power to provide.

14. Every statute, however unfavourable, must receive the interpretation necessary to give it effect: and, on the other hand, in the extension of favourable laws, scope must not be given to the imagination, in discovering remote resemblances; the extension must be limited to the cases immediately similar. Where there is ground to conclude that the legislature has omitted a case out of the statute purposely, the statute cannot be extended to that case, let it be ever so similar to the cases expressed.

15. The objects of the laws of Scotland, according to Mr Erskine, one of the latest writers on the subject, are, Persons, Things, and Actions.

CHAP. I. Of PERSONS.

AMONG persons, judges, who are invested with jurisdiction, deserve the first consideration.

SECT. I. Of Jurisdiction and Judges in General.

Jurisdiction is a power conferred upon a judge or magistrate, to take cognizance of and decide causes according to law, and to carry his sentences into execution. That tract of ground, or district, within which a judge has the right of jurisdiction, is called his territory: and every act of jurisdiction exercised by a judge without his territory, either by pronouncing sentence, or carrying it into execution, is null.

2. The supreme power, which has the right of enacting laws, falls naturally to have the right of erecting courts, and appointing judges, who may apply these laws to particular cases: but, in Scotland, this right has been always intrusted with the crown, as having the executive power of the state.

3. Jurisdiction is either supreme, inferior, or mixed. That jurisdiction is supreme, from which there lies no appeal to a higher court. Inferior courts are those whose sentences are subject to the review of the supreme courts, and whose jurisdiction is confined to a particular territory. Mixed jurisdiction participates of the nature both of the supreme and inferior: thus the judge of the high court of admiralty, and the com-

missaries of Edinburgh, have an universal jurisdiction over Scotland, and they can review the decrees of inferior admirals and commissaries: but since their own decrees are subject to the review of the courts of session or judiciary, they are, in that respect, inferior courts.

4. Jurisdiction is either civil or criminal: by the first, questions of private right are decided; by the other, crimes are punished. But, in all jurisdiction, though merely civil, there is a power inherent in the judge to punish either corporally, or by a pecuniary fine, those who offend during the proceedings of the court, or who shall afterwards obstruct the execution of the sentence.

5. Jurisdiction is either privative or cumulative. Privative jurisdiction, is that which belongs only to one court, to the exclusion of all others. Cumulative, otherwise called concurrent, is that which may be exercised by any one of two or more courts, in the same cause. In civil cumulative jurisdiction, the private pursuer has the right of election before which of the courts he shall sue; but as, in criminal questions which are prosecuted by a public officer of court, a collision of jurisdiction might happen, through each of the judges claiming the exercise of their right, that judge, by whose warrant the delinquent is first cited or apprehended (which is the first step of jurisdiction), acquires thereby (jure preventoris) the exclusive right of judging the cause.

6. All rights of jurisdiction, being originally granted in consideration of the fitness of the grantee, were therefore personal, and died with himself. But, upon the introduction of the feudal system, certain jurisdictions were annexed to lands, and descended to heirs, as well as the lands to which they were annexed; but now all heritable jurisdictions, except those of admiralty and a small pittance reserved to barons, are either abolished, or resumed and annexed to the crown.

7. Jurisdiction is either proper or delegated. Proper jurisdiction, is that which belongs to a judge or magistrate himself, in virtue of his office. Delegated, is that which is communicated by the judge to another who acts in his name, called a depute or deputy. Where a deputy appoints one under him, he is called substitute. No grant of jurisdiction, which is an office requiring personal qualifications, can be delegated by the grantee to another, without an express power in the grant.

8. Civil jurisdiction is founded, 1. Ratione domicili, Civil jurisdiction, if the defender has his domicile within the judge's territory. A domicile is the dwelling place where a person lives with an intention to remain; and custom has fixed it as rule, that residence for 40 days founds jurisdiction. If one has no fixed dwelling place, e. g. a soldier, or a travelling merchant, a personal citation against him within the territory is sufficient to found the judge's jurisdiction over him, even in civil questions. As the defender is not obliged to appear before a court to which he is not subject, the pursuer must follow the defender's domicile.

9. It is founded, 2. Ratione rei sitae, if the subject in question lie within the territory. If that subject be immovable, the judge, whose jurisdiction is founded in this way, is the sole judge competent, excluding the judge of the domicile.

Law of Scotland. 10. Where one, who has not his domicile within the territory, is to be sued before an inferior court, ratione rei sitae, the court of session must be applied to, whose jurisdiction is universal, and who, of course, grants letters of supplement to cite the defender to appear before the inferior judge. Where the party to be sued resides in another kingdom, and has an estate in this, the court of session is the only proper court, as the commune forum to all persons residing abroad; and the defender, if his estate be heritable, is considered as lawfully summoned to that court, by a citation at the market cross of Edinburgh, and pier and shore of Leith: but where a stranger, not a native of Scotland, has only a moveable estate in this kingdom, he is deemed to be so little subject to the jurisdiction of our courts, that action cannot be brought against him till his effects be first attached by an arrestment jurisdictionis fundandae causa; which is laid on by a warrant issuing from the supreme courts of session, or admiralty, or from that within whose territory the subject is situated, at the suit of the creditor.

Arrestment of strangers. 11. A judge may, in special cases, arrest or secure the persons of such as have neither domicile nor estate within his territory, even for civil debts. Thus, on the border between Scotland and England, warrants are granted of course by the judge-ordinary of either side, against those who have their domicile upon the opposite side, for arresting their persons, till they give caution judicio filii; and even the persons of citizens or natives may be so secured, where there is just reason to suspect that they are in meditatione fugae, i. e. that they intend suddenly to withdraw from the kingdom; upon which suspicion, the creditor who applies for the warrant must make oath. An inhabitant of a borough-royal, who has furnished one who lives without the borough in meat, clothes, or other merchandise, and who has no security for it but his own account book, may arrest his debtor, till he give security judicio filii.

Grounds of incompetency. 12. A judge may be declined, i. e. his jurisdiction disowned judicially, 1. Ratione causae, from his incompetency to the special cause brought before him. 2. Ratione suspecti judicis; where either the judge himself, or his near kinsman, has an interest in the suit. No judge can vote in the cause of his father, brother, or son, either by consanguinity or affinity; nor in the cause of his uncle or nephew by consanguinity. 3. Ratione privilegii; where the party is by privilege exempted from their jurisdiction.

Prorogated jurisdiction. 13. Prorogated jurisdiction (jurisdictione in consentienter) is that which is, by the consent of parties, conferred upon a judge, who without such consent, would be incompetent. Where a judge is incompetent, every step he takes must be null, till his jurisdiction be made competent by the party's actual submission to it. It is otherwise where the judge is competent, but may be declined by the party upon privilege.

14. In order to prorogation, the judge must have jurisdiction, such as may be prorogated. Hence, prorogation cannot be admitted where the judge's jurisdiction is excluded by statute. Yet where the cause is of the same nature with those to which the judge is competent, though law may have confined his jurisdiction within a certain sum, parties may prorogate it above that sum unless where prorogation is prohibited. Prorogation is not admitted in the king's causes; for the

interest of the crown cannot be hurt by the negligence of its officers.

Oaths of judges. 15. All judges must at their admission swear, 1. The oath of allegiance, and subscribe the assurance; 2. The oath of abjuration; 3. The oath of supremacy; lastly, The oath de fideli administratione.

16. A party who has either properly declined the Letters of jurisdiction of the judge before whom he had been cited-advocation, or who thinks himself aggrieved by any proceedings in the cause, may, before decree, apply to the court of session to issue letters of advocation for calling the action from before the inferior court to themselves. The grounds, therefore, upon which a party may pray for letters of advocation, are incompetency and iniquity. Under incompetency, is comprehended not only defect of jurisdiction, but all the grounds of declining a jurisdiction, in itself competent, arising either from suspicion of the judge, or privilege in the parties. A judge is said to commit iniquity, when he either delays justice, or pronounces sentence, in the exercise of his jurisdiction, contrary to law.

17. That the court of session may not waste their Advocates time in trifles, no cause for a sum below twelve pounds how limit-sterling can be advocated to the court of session from the inferior judge competent: but if an inferior judge shall proceed upon a cause to which he is incompetent, the cause may be carried from him by advocation, let the subject be ever so inconsiderable.

SECT. II. Of the Supreme Judges and Courts of Scotland.

1. The king, who is the fountain of jurisdiction, might by our constitution have judged in all causes, either in his own person, or by those whom he was pleased to vest with jurisdiction.

2. The parliament of Scotland, as our court of the Parliament, last resort, had the right of reviewing the sentences of all our supreme courts.

3. By the treaty of Union, 1707, the parliaments of Parliament Scotland and England are united into one parliament of Great Britain. From this period, the British house of peers, as coming in place of the Scots parliament, is become our court of the last resort, to which appeals lie from all the supreme courts of Scotland: but that court has no original jurisdiction in civil matters in which they judge only upon appeal. By art. 22. of that treaty, the Scots share of the representation in the house of peers is fixed to 16 Scots peers elective; and in the house of commons, to 45 commoners, of which 30 are elected by the freeholders of counties, and 15 by the royal boroughs. The Scots privy council was also thereupon abolished, and sunk into that of Great Britain, which for the future is declared to have no other powers than the English privy council had at the time of the union.

4. A court was erected in 1425, consisting of certain persons to be named by the king, out of the three estates of parliament, which was vested with the jurisdiction formerly lodged in the council, and got the name of the session, because it was ordained to hold annually a certain number of sessions at the places to be specially appointed by the king. This court had a jurisdiction, cumulative with the judge ordinary, in spurious, and other possessory actions, and in debts; but

but they had no cognizance in questions of property of heritable subjects. No appeal lay from its judgements to the parliament. The judges of this court served by rotation, and were changed from time to time, after having sat 40 days; and became so negligent in the administration of justice, that it was at last thought necessary to transfer the jurisdiction of this court to a council to be named by the king, called the daily council.

5. The present model of the court of session, or college of justice, was formed in the reign of James V. The judges thereof, who were vested with an universal civil jurisdiction, consisted originally of seven churchmen, seven laymen, and a president, whom it behoved to be a prelate; but spiritual judges were in 1584 partly, and in 1640 totally, prohibited. The judges of session have been always received by warrants from the crown. Anciently his majesty seems to have transferred to the court itself the right of choosing their own president; and in a federunt recorded June 26. 1593, the king condescended to present to the lords, upon every vacancy in the bench, a list of three persons, out of which they were to choose one. But his majesty soon resumed the exercise of both rights, which continued with the crown till the usurpation; when it was ordained that the king should name the judges of the session, by the advice of parliament. After the Restoration, the nomination was again declared to be solely in the sovereign.

6. Though judges may, in the general case, be named at the age of 21 years, the lords of session must be at least 25. No person can be named lord of session, who has not served as an advocate or principal clerk of session for five years, or as a writer to the signet for ten; and in the case of a writer to the signet, he must undergo the ordinary trials upon the Roman law, and be found qualified two years before he can be named. Upon a vacancy in the bench, the king presents the successor by a letter addressed to the lords, wherein he requires them to try and admit the person presented. The powers given to them to reject the presentee upon trial are taken away, and a bare liberty to remonstrate substituted in its place.

7. Besides the 15 ordinary judges, the king was allowed to name three or four lords of his great council, who might sit and vote with them. These extraordinary lords were suppressed in the reign of Geo. I.

8. The appellation of the college of justice is not confined to the judges, who are distinguished by the name of senators; but comprehends advocates, clerks of session, writers to the signet, and others, as described, Act S. 23d Feb. 1687. Where, therefore, the college of justice is entitled to any privilege, it extends to all the members of the college. They are exempted from watching, warding, and other services within borough; and from the payment of ministers stipends, and of all customs, &c. imposed upon goods carried to or from the city of Edinburgh. Part of these privileges and immunities were lately called in question by the city of Edinburgh; but they were found by the court of session (affirmed upon appeal) to be in full force.

9. Though the jurisdiction of the session be properly limited to civil causes, the judges have always sustained themselves as competent to the crime of falsehood.

Where the falsehood deserves death or demembration, they, after finding the crime proved, remit the criminal to the court of justice. Special statute has given to the court of session jurisdiction in contraventions of law-burrows, deforcements, and breach of arrestment; and they have been in use to judge in battery pendente lite, and in usury.

10. In certain civil causes, the jurisdiction of the session is exclusive of all inferior jurisdictions; as in declarators of property, and other competitions of heritable rights, proving of the tenor, cessiones bonorum, restitution of minors, reductions of decrees or of writings, sales of the estates of minors or bankrupts, &c. In a second class of causes, their jurisdiction can be only exercised in the way of review, after the cause is brought from the inferior court; as in maritime and consistorial causes, which must be pursued in the first instance before the admiral or commissary; and in actions, below twelve pounds sterling, which must be commenced before the judge ordinary. In all civil actions, which fall under neither of these classes, the jurisdiction of the session is concurrent, even in the first instance, with that of the judge ordinary. The session may proceed as a court of equity by the rules of conscience, in abating the rigour of law, and giving aid in proper cases to such as in a court of law can have no remedy: and this power is inherent in the supreme court of every country, where separate courts are not established for law and for equity.

This court formerly met upon the 12th day of June and rose upon the 11th day of August for the summer session; but now, in consequence of an act passed in the session of parliament 1790, it meets on the 12th of May and rises on the 11th of July for the summer session; the winter federunt still remaining as formerly, viz. from the 12th of November to the 11th of March inclusive.

11. The supreme criminal judge was styled the Judiciary Justiciar; and he had anciently an universal civil jurisdiction, even in matters of heritage. He was obliged to hold two justice courts or ayres yearly at Edinburgh or Peebles, where all the freeholders of the kingdom were obliged to attend. Besides this universal court, special justice ayres were held in all the different shires in the kingdom twice in the year. These last having gone into disuse, eight deputies were appointed, two for every quarter of the kingdom, who should make their circuits over the whole in April and October.

12. The office of deputies was suppressed in 1672; and five lords of session were added, as commissioners of judiciary, to the justice general and justice clerk. The justice general, if present, is constant president of the court, and in his absence the justice clerk. The kingdom is divided into three districts, and two of the judges are appointed to hold circuits in certain boroughs of each district twice in the year; one judge may proceed to business in the absence of his colleague. In trials before this court the evidence was always taken down in writing till the act 23d Geo. III. was passed; by which the judges may try and determine all causes by the verdict of an assize upon examining the witnesses circa voce, without reducing the testimony into writing, unless it shall appear more expedient to proceed in the

the former way, which they have it in their power to do. This act was at first temporary, but is now made perpetual by 27th Geo. III. cap. 18.

13. By an old statute, the crimes of robbery, rape, murder and wilful fire-raising (the four pleas of the crown), are said to be referred to the king's court of justice; but the only crime in which, de pravi, the jurisdiction of justice became at last exclusive of all inferior criminal jurisdiction, was that of high treason. The court of justice, when sitting at Edinburgh, has a power of advocating causes from all inferior criminal judges, and of suspending their sentences.

14. The circuit court can also judge in all criminal causes which do not infer death or demembration, upon appeal from any inferior court within their district; and has a supreme civil jurisdiction, by way of appeal, in all causes not exceeding twelve pounds sterling, in which their decrees are not subject to review; but no appeal is to lie to the circuit, till the cause be finally determined in the inferior court.

15. The court of exchequer, as the king's chamberlain court, judged in all questions of the revenue. In pursuance of the treaty of Union, that court was abolished, and a new court erected, consisting of the lord high treasurer of Great Britain, and a chief baron, with four other barons of exchequer; which barons are to be made of sergeants at law, English barristers, or Scots advocates of five years standing. This court has a privative jurisdiction conferred upon it, as to the duties of customs, excise, or other revenues appertaining to the king or prince of Scotland, and as to all honours and estates that may accrue to the crown; in which matters, they are to judge by the forms of proceeding used in the English court of exchequer, under the following limitations: That no debt due to the crown shall affect the debtor's real estate in any other manner than such estate may be affected by the laws of Scotland, and that the validity of the crown's titles to any honours or lands shall continue to be tried by the court of session. The barons have the powers of the Scots court transferred to them, of passing the accounts of sheriffs, or other officers who have the execution of writs issuing from, or returnable to, the court of exchequer, and of receiving resignations, and passing signatures of charters, gifts of casualties, &c. But though all these must pass in exchequer, it is the court of session only who can judge of their preference after they are completed.

16. The jurisdiction of the admiral in maritime causes was of old concurrent with that of the session. The high admiral is declared the king's justice general upon the seas, on fresh water within flood mark, and in all harbours and creeks. His civil jurisdiction extends to all maritime causes: and so comprehends questions of charter parties, freights, salvages, bottomies, &c. He exercises this supreme jurisdiction by a delegate, the judge of the high court of admiralty; and he may also name inferior deputies, whose jurisdiction is limited to particular districts, and whose sentences are subject to the review of the high court. In causes which are declared to fall under the admiral's cognizance, his jurisdiction is sole; inasmuch, that the session itself, though it may review his decrees by suspension or reduction, cannot carry a maritime question from him by advocacy. The admiral has acquired, by usage, a ju-

risdiction in mercantile causes, even where they are not strictly maritime, cumulative with that of the judge ordinary.

17. All our supreme courts have seals or signets, proper to their several jurisdictions. The courts of session and justice used formerly the same signet, which was called the king's, because the writs issuing from them run in the king's name; and though the justice got at last a separate signet for itself, yet that of the session still retains the appellation of the king's signet. In this office are sealed summonses for citation, letters of executory diligence, or for staying or prohibiting of diligence, and generally whatever passes by the warrant of the session, and is to be executed by the officers of the court. All these must, before sealing, be signed by the writers or clerks of the signet: But letters of diligence, where they are granted in a depending process, merely for probation, though they pass by the signet, must be subscribed by a clerk of session. The clerks of the signet also prepare and subscribe all signatures of charters, or other royal grants, which pass in exchequer.

SECT. III. Of inferior Judges and Courts of Scotland.

1. Sheriff (from reeve governor, and sher to cut or divide) is the judge ordinary constituted by the crown over a particular division or county. The sheriff's jurisdiction, both civil and criminal, was, in ancient times, nearly as ample within his own territory as that of the supreme courts of session and justice was over the whole kingdom.

2. His civil jurisdiction now extends to all actions upon contracts, or other personal obligations; forfeitures, poundings of the ground, mails and duties; and to all possessory actions, as removing, ejectments, spulizies, &c. to all briefs issuing from the chancery, as of inquest, terce, division, tutory, &c. and even to adjudications of land estates, when proceeding on the renunciation of the apparent heir. His present criminal jurisdiction extends to certain capital crimes, as theft, and even murder, though it be one of the pleas of the crown; and he is competent to most questions of public police, and has a cumulative jurisdiction with justices of the peace in all riots and breaches of the peace.

3. Sheriffs have a ministerial power, in virtue of which they return juries, in order to a trial of causes that require juries. The writs for electing members of parliament have been, since the union, directed to the sheriffs, who, after they are executed, return them to the crown office from whence they issued. They also execute writs issuing from the court of exchequer; and in general, take care of all estates, duties, or casualties that fall to the crown within their territory, for which they must account to the exchequer.

4. A lord of regality was a magistrate who had a grant of lands from the sovereign, with royal jurisdiction annexed thereto. His civil jurisdiction was equal to that of a sheriff; his criminal extended to the four pleas of the crown. He had a right to repledge or reclaim all criminals, subject to his jurisdiction, from any other competent court, though it were the justice itself, to his own. He had also right, according to the most common opinion, to the single escheat of all de-

Law of
Scotland.
Stewart.

nounced persons residing within his jurisdiction, even though such privilege had not been expressed in the grant of regality.

5. The stewart was the magistrate appointed by the king over such regality lands as happened to fall to the crown by forfeiture, &c. and therefore the stewart's jurisdiction was equal to that of a regality. The two stewartries of Kirkcudbright, and of Orkney and Zetland, make shires and counties by themselves, and send each a representative to parliament.

Bailie.

6. Where lands not erected into a regality fell into the king's hands, he appointed a bailie over them, whose jurisdiction was equal to that of a sheriff.

Prince of
Scotland.

7. By the late jurisdiction act, 20 Geo. II. all heritable regalities and bailiaries, and all such heritable sheriffships and stewartries as were only parts of a shire, are dissolved; and the powers formerly vested in them are made to devolve upon such of the king's courts as these powers would have belonged to if the jurisdictions dissolved had never been granted. All sheriffships and stewartries that were no part of a shire, where they had been granted, either heritably or for life, are resumed and annexed to the crown. No high sheriff or stewart can hereafter judge personally in any cause. One sheriff or stewart-depute is to be appointed by the king in every shire, who must be an advocate of three years standing; and whose office as sheriff or stewart-depute is now by 28 Geo. II. held ad vitam aut culpam.

8. The appanage, or patrimony, of the prince of Scotland, has been long erected into a regality jurisdiction, called the Principality. It is personal to the king's eldest son, upon whose death or succession it returns to the crown. The prince has, or may have, his own chancery, from which his writs issue, and may name his own chamberlain and other officers for receiving and managing his revenue. The vassals of the prince are entitled to elect, or to be elected, members of parliament for counties, equally with those who hold of the crown.

9. Justices of the peace are magistrates named by the sovereign over the several counties of the kingdom, for the special purpose of preserving the public peace. Anciently their power reached little farther than to bind over disorderly persons for their appearance before the privy council or judiciary; afterwards they were authorized to judge in breaches of the peace, and in most of the laws concerning public policy. They may compel workmen or labourers to serve for a reasonable fee, and they can condemn masters in the wages due to their servants. They have power to judge in questions of highways, and to call out the tenants with their cottars and servants to perform six days work yearly for upholding them. It has been lately, however, found by the court of session, that justices have no jurisdiction whatever in common actions for debt. So that it now seems fixed, that they are incompetent in such actions, except where they are declared competent by special statute.

10. Since the union, our justices of the peace, over and above the powers committed to them by the laws of Scotland, are authorized to exercise whatever belong to the office of an English justice, in relation to the public peace. From that time, the Scots and the English commissions have run in the same style, which contains powers to inquire into and judge

in all capital crimes, witchcraft, felonies, and several others specially enumerated; with this limitation subjoined, of which justices of the peace may lawfully inquire. Two justices can constitute a court. Special statute has given the cognizance of several matters of excise to the justices, in which their sentences are final. As to which, and the powers thereby vested in them, the reader must of necessity be referred to the excise laws; it not falling within the plan of this work, to enter into so very minute a detail as that would prove.

11. A borough is a body corporate, made up of the inhabitants of a certain tract of ground, erected by the sovereign, with jurisdiction annexed to it. Boroughs are erected, either to be holden of the sovereign himself, which is the general case of royal boroughs; or of the superior of the lands erected, as boroughs of regality and barony. Boroughs royal have power, by their charters, to choose annually certain office bearers or magistrates; and in boroughs of regality and barony, the nomination of magistrates is, by their charter, lodged sometimes in the inhabitants, sometimes in the superior. Bailies of boroughs have jurisdiction in matters of debt, services, and questions of possession betwixt the inhabitants. Their criminal jurisdiction extends to petty riots, and reckless fire-raising. The dean of guild is that magistrate of a royal borough who is head of the merchant company; he has the cognizance of mercantile causes within borough; and the inspection of buildings, that they encroach neither on private property, nor on the public streets; and he may direct insufficient houses to be pulled down. His jurisdiction has no dependence on the court of the borough, or bailie court.

12. A baron, in the large sense of that word, is one who holds his lands immediately of the crown; and, as such, had, by our ancient constitution, right to a seat in parliament, however small his freehold might have been. The lesser barons were exempted from the burden of attending the service of parliament. This exemption grew insensibly into an utter disability in all the lesser barons from sitting in parliament, without election by the county; though no statute is to be found expressly excluding them.

13. To constitute a baron in the strict law sense, his lands must have been erected, or at least confirmed, by the king in liberam baroniam; and such baron had a certain jurisdiction, both civil and criminal, which he might have exercised, either in his own person, or by his bailie.

14. By the late jurisdiction act, the civil jurisdiction of a baron is reduced to the power of recovering from his vassals and tenants, the rents of his lands, and of condemning them in mill services; and of judging in causes where the debt and damages do not exceed 40s. sterling. His criminal jurisdiction is, by the same statute, limited to assaults, batteries, and other smaller offences, which may be punished by a fine not exceeding 20s. sterling, or by setting the offender in the stocks in the day time not above three hours; the fine to be levied by poinding, or one month's imprisonment. The jurisdiction formerly competent to proprietors of mines, and coal or salt works, over their workmen, is reserved; and also that which was competent to proprietors who had the right of fairs or markets,

markets, for correcting the disorders that might happen during their continuance; provided they shall exercise no jurisdiction infringing the loss of life or demembration.

Constabularies. 15. The high constable of Scotland had no fixed territorial jurisdiction, but followed the court; and had, jointly with the marischal, the cognizance of all crimes committed within two leagues of it. All other constabularies were dependent on him: these had castles, and sometimes boroughs, subject to their jurisdiction, as Dundee, Montrose, &c. and among other powers, now little known, they had the right of exercising criminal jurisdiction within their respective territories during the continuance of fairs. By the late jurisdiction act, all jurisdictions of constabulary are dissolved, except that of high constable.

Lyon king at arms. 16. The office of the Lyon king of arms was chiefly ministerial, to denounce war, proclaim peace, carry public messages, &c. But he has also a right of jurisdiction, whereby he can punish all who usurp arms contrary to the law of arms, and deprive or suspend messengers, heralds, or pursuivants, (who are officers named by himself); but he has no cognizance of the damage arising to the private party through the messenger's fault. Messengers are subservient to the supreme courts of Session and Justiciary; and their proper business is to execute all the king's letters either in civil or criminal causes. They must find caution for the proper discharge of their duty qua messengers; and in case of any malversation, or neglect, by which damage arises to their employers, their sureties may be recurred upon for indemnification. These sureties, however, are not answerable for the conduct of the messenger in any other capacity but qua such; and therefore, if a messenger is authorised to uplift payment from a debtor, and fails to account to his employer, the cautioner is not liable; his obligation extending only to the regular and proper duties of the office in executing the diligence, or the like.

Sentence money. 17. Our judges had, for a long time, no other salaries or appointments than what arose from the sentences they pronounced. Our criminal judges applied to their own use the fines or illicits of their several courts; and regalties had a right to the single escheat of all persons denounced, who resided within their jurisdiction; and our civil judges got a certain proportion of the sum contained in the decree pronounced. But these were all prohibited upon regular salaries being settled upon them.

SECT. V. Of Ecclesiastical Persons.

clix. The pope. 1. The pope, or bishop of Rome, was long acknowledged, over the western part of Christendom, for the head of the Christian church. The papal jurisdiction was abolished in Scotland anno 1560. The king was, by act 1669, declared to have supreme authority over all persons, and in all causes ecclesiastical; but this act was repealed by 1690, as inconsistent with Presbyterian church government, which was then upon the point of being established.

clxx. Clergy. 2. Before the reformation from Popery, the clergy was divided into secular and regular. The secular had a particular tract of ground given them in charge,

within which they exercised the pastoral office of bishop, presbyter, or other church officer. The regular clergy had no cure of souls; but were tied down to residence in their abbeys, priories, or other monasteries; and they got the name of regular, from the rules of mortification to which they were bound, according to the institution of their several orders. Upon the vacancy of any benefice, whether secular or regular, commendators were frequently appointed to levy the fruits, as factors or stewards during the vacancy. The pope alone could give the higher benefices in commendam; and at last, from the plenitude of his power, he came to name commendators for life, and without any obligation to account. After the Reformation, several abbeys and priories were given by James VI. in perpetuum commendam, to laics.

3. Upon abolishing the pope's authority, the regular clergy were totally suppressed; and in place of all the different degrees which distinguished the secular clergy, we had at first only parochial presbyters or ministers and superintendents, who had the oversight of the church within a certain district; soon thereafter the church government became episcopal by archbishops, bishops, &c.; and after some intermediate turns, is now Presbyterian by kirk sessions, presbyteries, synods, and general assemblies.

4. Prelate, in our statutes, signifies a bishop, abbot, or other dignified clergyman, who in virtue of his office had a seat in parliament. Every bishop had his chapter, which consisted of a certain number of the ministers of the diocese, by whose assistance he managed the affairs of the church within that district. The nomination of bishops to vacant sees has been in the crown since 1540, though under the appearance of continuing the ancient right of election, which was in the chapter. The confirmation by the crown under the great seal, of the chapter's election, conferred a right to the spirituality of the benefice; and a second grant upon the consecration of the bishop-elect, gave a title to the temporality; but this second grant fell soon into disuse.

5. He who founded or endowed a church was entitled to the right of patronage thereof, or advocatus ecclesie; whereby, among other privileges, he might present a churchman to the cure, in case of a vacancy. The presentee, after he was received into the church, had a right to the benefice proprio jure; and if the church was parochial, he was called a parson. The pope claimed the right of patronage of every kirk to which no third party could show a special title; and, since the Reformation, the crown, as coming in place of the pope, is considered as universal patron, where no right of patronage appears in a subject. Where two churches are united, which had different patrons, each patron presents by turns.

6. Gentlemen of estates frequently founded colleges or collegiate churches; the head of which got the name of provost, under whom were certain prebendaries, or canons, who had their several stalls in the church, where they sang masses. Others of lesser fortunes founded chaplainries, which were donations granted for the singing of masses for deceased friends at particular altars in a church. Though all these were suppressed upon the Reformation, their founders continued patrons.

Law of
Scotland.

trons of the endowments; out of which they were allowed to provide bursars, to be educated in any of the universities.

7. Where a fund is gifted for the establishment of a second minister in a parish where the cure is thought too heavy for one, the patronage of such benefice does not belong to the donor, but to him who was patron of the church, unless either where the donor has reserved to himself the right of patronage in the donation, or where he and his successors have been in the constant use of presenting the second minister, without challenge from the patron. The right of presenting incumbents was by 1690, c. 23. taken from patrons, and vested in the heritors and elders of the parish, upon payment to be made by the heritors to the patron of 600 merks; but it was again restored to patrons, 10 An. c. 12. with the exception of the presentation sold in purisance of the former act.

Patrons.

8. Patrons were not simply administrators of the church; for they held the fruits of the vacant benefice as their own for some time after the Reformation. But that right is now no more than a trust in the patron, who must apply them to pious uses within the parish, at the sight of the heritors, yearly as they fall due. If he fail, he loses his right of administering the vacant stipend for that and the next vacancy. The king, who is exempted from this rule, may apply the vacant stipend of his churches to any pious use, though not within the parish. If one should be ordained to a church, in opposition to the presentee, the patron, whose civil right cannot be affected by any sentence of a church court, may retain the stipend as vacant. Patrons are to this day entitled to a seat and burial place in the churches of which they are patrons, and to the right of all the teinds of the parish not heritably disposed.

9. That kirks may not continue too long vacant, the patron must present to the presbytery (formerly to the bishop) a fit person for supplying the cure, within six months from his knowledge of the vacancy, otherwise the right of presentation accrues to the presbytery jure devoluto. Upon presentation by the patron, the bishop collated or conferred the benefice upon the presentee by a writing, in which he appointed certain ministers of the diocese to induce or institute him into the church; which induction completed his right, and was performed by their placing him in the pulpit, and delivering to him the Bible and keys of the church. The bishop collated to the churches of which himself was patron, pleno jure, or without presentation: which he also did in menial churches, whose patronages were sunk, by the churches being appropriated to him, as part of his patrimony. Since the Revolution, a judicial act of admission by the presbytery, proceeding either upon a presentation, or upon a call from the heritors and elders, or upon their own jur devolutum, completes the minister's right to the benefice.

Provisions
for the re-
formed
clergy.

10. Soon after the Reformation, the Popish churchmen were prevailed upon to resign in the sovereign's hands a third of their benefices; which was appropriated, in the first place, for the subsistence of the reformed clergy. To make this fund effectual, particular localities were assigned in every benefice, to the extent of a third, called the assumption of thirds; and for the farther support of ministers, Queen Mary made a grant

in their favour of all the small benefices not exceeding 300 merks. Bishops, by the act which restored them to the whole of their benefices, were obliged to maintain the ministers within their dioceses, out of the thirds; and in like manner, the laic titulars, who got grants of the teinds, became bound, by their acceptance thereof, to provide the kirks within their erections in competent stipends.

11. But all those expedients for the maintenance of the clergy having proved ineffectual, a commission of parliament was appointed in the reign of James VI. for planting kirks, and modifying stipends to ministers out of the teinds; and afterwards several other commissions were appointed, with the more ample powers of dividing large parishes, erecting new ones, &c. all of which were, in 1707, transferred to the court of session, with this limitation, that no parish should be disjoined, nor new church erected, nor old one removed to a new place, without the consent of three-fourths of the heritors, computing the votes, not by their numbers, but by the valuation of their rents within the parish. The judges of session, when sitting in that court, are considered as a commission of parliament, and have their proper clerks, maces, and other officers of court, as such.

12. The lowest stipend that could be modified to a minister by the first commission, was 300 merks, or five chalders of victual, unless where the whole teinds of the parish did not extend so far: and the highest was 1000 merks, or ten chalders. The parliament 1633 raised the minimum to eight chalders of victual, and proportionably in silver; but as neither the commission appointed by that act, nor any of the subsequent ones, was limited as to the maximum, the commissioners have been in use to augment stipends considerably above the old maximum, where there is sufficiency of free teinds, and the cure is burdensome, or living expensive.

13. Where a certain quantity of stipend is modified to a minister out of the teinds of a parish, without proportioning that stipend among the several heritors, the decree is called a decree of modification; but where the commissioners also fix the particular proportions payable by each heritor, it is a decree of modification and locality. Where a stipend is only modified, it is secured on the whole teinds of the parish, so that the minister can insist against any one heritor to the full extent of his teinds; such heritor being always entitled to relief against the rest for what he shall have paid above his just share: but where the stipend is also localised, each heritor is liable in no more than his own proportion.

14. Few of the reformed ministers were, at first, provided with dwelling houses; most of the Popish clergy having, upon the first appearance of the Reformation, let their manes in feu, or in long tack: ministers therefore got a right, in 1563, to as much of these manes as would serve them, notwithstanding such feus or tacks. Where there was no parson's nor vicar's manse, one was to be built by the heritors, at the sight of the bishop, (now the presbytery), the charge not exceeding 1000l. Scots, nor below 500 merks. Under a manse are comprehended stable, barn, and byre, with a garden; for all which it is usual to allow half an acre of ground.

15. Every incumbent is entitled at his entry to have his manse put in good condition; for which purpose, the presbytery may appoint a visitation by tradesmen, and order estimates to be laid before them of the sums necessary for the repairing, which they may proportion among the heritors according to their valuations. The presbytery, after the manse is made sufficient, ought, upon application of the heritors, to declare it a free manse; which lays the incumbent under an obligation to uphold it in good condition during his incumbency, otherwise he or his executors shall be liable in damages; but they are not bound to make up the loss arising from the necessary decay of the building by the waste of time.

16. All ministers, where there is any landward or country parish, are, over and above their stipend, entitled to a glebe, which comprehends four acres of arable land, or sixteen fowms of pasture ground where there is no arable land (a fowm is what will graze ten sheep or one cow); and it is to be designed or marked by the bishop or presbytery out of such kirklands within the parish as lie nearest to the kirk, and, in default of kirklands, out of temporal lands.

17. A right of relief is competent to the heritors, whose lands are set off for the manse or glebe, against the other heritors of the parish. Manses and glebes being once regularly designed, cannot be feued or sold by the incumbent in prejudice of his successors, which is in practice extended even to the case where such alienation evidently appears profitable to the benefice.

18. Ministers, beside their glebe, are entitled to grafs for a horse and two cows. And if the lands, out of which the grafs may be designed, either lie at a distance, or are not fit for pasture, the heritors are to pay to the minister 20s. Scots yearly as an equivalent. Ministers have also freedom of foggage, pasture, fuel, fest, divot, loaning, and free ish and entry, according to use and wont: but what these privileges are, must be determined by the local custom of the several parishes.

19. The legal terms at which stipends become due to ministers are Whitunday and Michaelmas. If the incumbent be admitted to his church before Whitunday (till which term the corns are not presumed to be fully sown), he has right to that whole year's stipend; and, if he is received after Whitunday, and before Michaelmas, he is entitled to the half of that year; because, though the corns were sown before his entry, he was admitted before the term at which they are presumed to be reaped. By the same reason, if he dies or is transported before Whitunday, he has right to no part of that year; if before Michaelmas, to the half; and if not till after Michaelmas, to the whole.

20. After the minister's death, his executors have right to the annat; which, in the sense of the canon law, was a right reserved to the pope of the first year's fruits of every benefice. Upon a threatened invasion from England anno 1547, the annat was given by our parliament, notwithstanding this right in the pope, to the executors of such churchmen as should fall in battle in defence of their country: but the word annat or ann, as it is now understood, is the right which law gives to the executors of ministers, of half

a year's benefice over and above what was due to the minister himself for his incumbency.

21. The executors of a minister need make up no title to the ann by confirmation: neither is the right assignable by the minister, or affectable with his debts; for it never belonged to him, but is a mere gratuity given by law to those whom it is presumed the deceased could not sufficiently provide; and law has given it expressly to executors: and if it were to be governed by the rules of succession in executory, the widow, in case of no children, would get one half, the other would go to the next of kin; and where there are children, she would be entitled to a third, and the other two thirds would fall equally among the children. But the court of session, probably led by the general practice, have in this last case divided the ann into two equal parts; of which one goes to the widow, and the other among the children in capita.

22. From the great confidence that was, in the first ages of Christianity, reposed in churchmen, dying persons frequently committed to them the care of their estates, and of their orphan children; but these were simply rights of trust, not of jurisdiction. The clergy soon had the address to establish to themselves a proper jurisdiction, not confined to points of ecclesiastical right, but extending to questions that had no concern with the church. They judged not only in teinds, patronages, testaments, breach of vow, scandal, &c. but in questions of marriage and divorce, because marriage was a sacrament; in tochers, because these were given in consideration of marriage; in all questions where an oath intervened, on pretence that oaths were a part of religious worship, &c. As churchmen came, by the means of this extensive jurisdiction, to be diverted from their proper functions, they committed the exercise of it to their officials or commissaries: hence the commissary court was called the bishop's court, and curia Christianitatis; it was also styled the consistorial court; from consistory, a name first given to the court of appeals of the Roman emperors, and afterwards to the courts of judicature held by churchmen.

23. At the Reformation, all episcopal jurisdiction, exercised under the authority of the bishop of Rome, was abolished. As the course of justice in consistorial causes was thereby stopped, Q. Mary, besides naming a commissary for every diocese, did, by a special grant, establish a new commissary court at Edinburgh, consisting of four judges or commissaries. This court is vested with a double jurisdiction; one diocesan, which is exercised in the special territory contained in the grant, viz. the counties of Edinburgh, Haddington, Linlithgow, Peebles, and a great part of Stirlingshire; and another universal, by which the judges confirm the testaments of all who die in foreign parts, and may reduce the decrees of all inferior commissaries, provided the reduction be pursued within a year after the decree. Bishops, upon their re-establishment in the reign of James VI. were restored to the right of naming their several commissaries.

24. As the clergy, in time of Popery, assumed a jurisdiction independent of the civil power or any secular court, their sentences could be reviewed only by the pope, or judges delegated by him; so that, with regard

regard to the courts of Scotland, their jurisdiction was supreme. But, by an act 1560, the appeals from the bishops' courts, that were then depending before the court of session: and by a posterior act, 1609, the session is declared the king's great consistory, with power to review all sentences pronounced by the commissaries. Nevertheless, since that court had no inherent jurisdiction in consistorial causes prior to this statute, and since the statute gives them a power of judging only by way of advocacy, they have not, to this day, any proper consistorial jurisdiction in the first instance; neither do they pronounce sentence in any consistorial cause brought from the commissaries but remit it back to them with instructions. By the practice immediately subsequent to the act before quoted, they did not admit advocations from the inferior commissaries till the cause was first brought before the commissaries of Edinburgh; but that practice is now in disuse.

25. The commissaries retain to this day an exclusive power of judging in declarators of marriage, and of the nullity of marriage; in actions of divorce and of non-adherence, of adultery, bastardy, and confirmation of testaments; because all these matters are still considered to be properly consistorial. Inferior commissaries are not competent to questions of divorce, under which are comprehended questions of bastardy and adherence, when they have a connexion with the lawfulness of marriage, or with adultery.

26. Commissaries have now no power to pronounce decrees in absence for any sum above 401. Scots, except in causes properly consistorial: but they may authenticate tutorial and curatorial inventories; and all bonds, contracts, &c. which contain a clause for registration in the books of any judge competent, and protests on bills, may be registered in their books.

SECT. VI. Of Marriage.

clx.
Marriage.

1. Persons, when considered in a private capacity, are chiefly distinguished by their mutual relations; as husband and wife, tutor and minor, father and child, master and servant. The relation of husband and wife is constituted by marriage; which is the conjunction of man and wife, vowing to live inseparably till death.

2. Marriage is truly a contract, and so requires the consent of parties. Idiots, therefore, and furious persons, cannot marry. As no person is presumed capable of consent within the years of pupillarity, which, by our law, lasts till the age of 14 in males, and 12 in females, marriage cannot be contracted by pupils; but if the married pair shall cohabit after puberty, such acquiescence gives force to the marriage. Marriage is fully perfected by consent; which, without consummation, founds all the conjugal rights and duties. The consent requisite to marriage must be de presenti. A promise of marriage (stipulatio sponsalitatis) may be resiled from, as long as matters are entire; but if any thing be done by one of the parties, whereby a prejudice arises from the non-performance, the party resiling is liable in damages to the other. The canons, and after them our courts of justice, explain a

espousa subsequent to a promise of marriage into actual marriage.

3. It is not necessary that marriage should be celebrated by a clergyman. The consent of parties may be declared before any magistrate, or simply before witnesses; and though no formal consent should appear, marriage is presumed from the cohabitation, or living together at bed and board, of a man and woman who are generally reputed husband and wife. One's acknowledgment of his marriage to the midwife whom he called to his wife, and to the minister who baptized his child, was found sufficient presumptive evidence of marriage, without the aid either of cohabitation or of habit and repute. The father's consent was, by the Roman law, essential to the marriage of children in familia: but, by our law, children may enter into marriage, without the knowledge, and even against the remonstrances, of a father.

4. Marriage is forbidden within certain degrees of Forbidden blood. By the law of Moses (Leviticus xviii.), which degrees, by the act 1567. c. 15. has been adopted by us, seconds in blood, and all remoter degrees, may all lawfully marry. By seconds in blood are meant first cousins. Marriage in the direct line is forbidden in infinitum; as it is also in the collateral line, in the special case where one of the parties is loco parentis to the other, as grand uncle, great grand uncle, &c. with respect to his grand niece, &c. The same degrees that are prohibited in consanguinity, are prohibited in affinity; which is the tie arising from marriage betwixt one of the married pair and the blood relations of the other. Marri- Other grounds of age also, where either of the parties is naturally unfit for generation, or stands already married to a third person, is ipso jure null.

5. To prevent bigamy and incestuous marriages, Proclamation the church has introduced proclamations of bans; tion of which is the ceremony of publishing the names and bans designations of those who intend to intermarry in the churches where the bride and bridegroom reside, after the congregation is assembled for divine service; that all persons who know any objection to the marriage may offer it. When the order of the church is observed, the marriage is called regular; when otherwise, clandestine. Marriage is valid when entered into in either of these ways; but when clandestine, there are certain penalties imposed upon the parties as well as the celebrator and witnesses.

6. By marriage, a society is created between the married pair, which draws after it a mutual communication of their civil interests, in as far as is necessary for maintaining it. As the society lasts only for the joint lives of the secu; therefore rights that have the nature of a perpetuity, which our law styles heritable, are not brought under the partnership or communion of goods; as a land estate, or bonds bearing a yearly interest: it is only moveable subjects, or the fruits produced by heritable subjects during the marriage, that become common to man and wife.

7. The husband, as the head of the wife, has the Jus mariti. sole right of managing the goods in communion, which is called jus mariti. This right is so absolute, that it bears but little resemblance to a right of administering a common subject. For the husband can, in virtue thereof, sell, or even gift, at his pleasure, the whole goods

goods falling under communion; and his creditors may affect them for the payment of his proper debts: so that the jus mariti carries all the characters of an assignation, by the wife to her husband, of her moveable estate. It arises ipso jure from the marriage; and therefore needs no other constitution. But a stranger may convey an estate to a wife, so as it shall not be subject to the husband's administration; or the husband himself may, in the marriage contract, renounce his jus mariti in all or any part of his wife's moveable estate.

8. From this right are excepted paraphernal goods, which, as the word is understood in our law, comprehends the wife's wearing apparel, and the ornaments proper to her person; as necklaces, ear-rings, breast or arm jewels, buckles, &c. These are neither alienable by the husband, nor affectable by his creditors. Things of promiscuous use to husband and wife, as plate, medals, &c. may become paraphernalia, by the husband's giving them to the wife, at or before marriage; but they are paraphernal only in regard to that husband who gave them as such, and are esteemed common moveables, if the wife, whose paraphernalia they were, be afterwards married to a second husband; unless she shall in the same manner appropriate them to her.

9. The right of the husband to the wife's moveable estate, is burdened with the moveable debts contracted by her before marriage; and as his right is universal, so also is his burden; for it reaches to her whole moveable estate, though they should far exceed her moveable estate. Yet the husband is not considered as the true debtor in his wife's debts. In all actions for payment, she is the proper defender: the husband is only cited for his interest: that is, as curator to her, and administrator of the society goods. As soon therefore as the marriage is dissolved, and the society goods thereby suffer a division, the husband is no further concerned in the share belonging to his deceased wife: and consequently is no longer liable to pay her debts, which must be recovered from her representatives or her separate estate.

10. This obligation upon the husband is, however, perpetuated against him, (1.) Where his proper estate, real or personal, has been affected, during the marriage, by complete legal diligence; in which case, the husband must, by the common rules of law, relieve his property from the burden with which it stands charged; but the utmost diligence against his person is not sufficient to perpetuate the obligation; nor even incomplete diligence against his estate. (2.) The husband continues liable, even after the wife's death, in so far as he is lucratius or profited by her estate: Still, however, the law does not consider a husband who has got but a moderate touch with the wife as lucratius by the marriage; it is the excess only which it considers as lucrum, and that must be estimated by the quality of the parties and their condition of life:—As he was as no time the proper debtor in his wife's moveable debts; therefore, though he should be lucratius, he is, after the dissolution, only liable for them subsidiarie, i. e. if her own separate estate is not sufficient to pay them off.

11. Where the wife is debtor in that sort of debt, which, if it had been due to her, would have excluded

the jus mariti, e. g. in bonds bearing interest, which, as we shall afterwards see (c. lxxiii. 4.), continues heritable as to the rights of husband and wife, notwithstanding of the enactment of the statute 1662, which renders them moveable in certain other respects, the husband is liable only for the bygone interests, and those that may grow upon the debt during the marriage; because his obligation for her debts must be commensurate to the interest he has in her estate. It is the husband alone who is liable in personal diligence for his wife's debts, while the marriage subsists: the wife, who is the proper debtor, is free from all personal execution upon them while she is vestita viro.

12. The husband by marriage becomes the perpetual curator of the wife. From this right it arises, 1. That no suit can proceed against the wife till the husband be cited for his interest. 2. All deeds, done by a wife without the husband's consent, are null; neither can she sue in any action without the husband's concurrence. Yet, where the husband refuses, or by reason of forfeiture, &c. cannot concur; or where the action is to be brought against the husband himself, for performing his part of the marriage articles; the judge will authorize her to sue in her own name. The effects arising from this curatorial power discover themselves even before marriage, upon the publication of banns; after which the bride, being no longer sui juris, can contract no debt, nor do any deed, either to the prejudice of her future husband, nor even to her own. But in order to this, it is necessary that the banns shall have been published in the bride's parish church as well as in that of her husband.

13. If the husband should either withdraw from his separate wife, or turn her out of doors; or if, continuing in family with her, he should by severe treatment endanger her life; the commissaries will authorize a separation à mensa et thoro, and give a separate alimony to the wife, suitable to her husband's estate, from the time of such separation until either a reconciliation or a sentence of divorce.

14. Certain obligations of the wife are valid, notwithstanding her being sub cura mariti; ex. gr. obligations arising from delict; for wives have no privilege to commit crimes. But if the punishment resolves into a pecuniary mulct, the execution of it must, from her incapacity to fulfil, be suspended till the dissolution of the marriage, unless the wife has a separate estate exempted from the jus mariti.

15. Obligations arising from contract, affect either the person or the estate. The law has been so careful to protect wives while sub cura mariti, that all personal obligations granted by a wife, though with the husband's consent, as bonds, bills, &c. are null; with the following exceptions: (1.) Where the wife gets a separate peculium or stock, either from her father or a stranger, for her own or her children's alimony, she may grant personal obligations in relation to such stock; and by stronger reason, personal obligations granted by a wife are good, when her person is actually withdrawn from the husband's power by a judicial separation. (2.) A wife's personal obligation, granted in the form of a deed, inter vivos, is valid, if it is not to take effect till her death. (3.) Where the wife is by the husband proposita negotiis, entrusted with the management either of a particular branch of business or

Law of
Scotland.

of his whole affairs, all the contracts she enters into in the exercise of her præpositura are effectual, even though they be not reduced to writing, but should arise merely ex re, from furnishing⁸ made to her: but such obligations have no force against the wife; it is the husband only, by whose commission the acts, who is thereby obliged.

16. A wife, while she remains in family with her husband, is considered as præposita negotiis domesticis, and consequently may provide things proper for the family; for the price whereof the husband is liable, though they should be misapplied, or though the husband should have given her money to provide them elsewhere. A husband who suspects that his wife may hurt his fortune by high living, may use the remedy of inhibition against her; by which all persons are interpellated from contracting with her, or giving her credit. After the completing of this diligence, whereby the præpositura falls, the wife cannot bind the husband, unless for such reasonable furnishings as he cannot instruct that he provided her with alunae. As every man, and consequently every husband, has a right to remove his managers at pleasure, inhibition may pass at the suit of the husband against the wife, though he should not offer to justify that measure by an actual proof of the extravagance or profusion of her temper.

Inhibition
against a
wife.

Rights af-
fecting her
estate.

17. As to rights granted by the wife affecting her estate, she has no moveable estate, except her paraphernalia; and these she may alien or impignor, with consent of her husband. She can, without the husband, bequeath by testament her share of the goods in communion; but she cannot dispose of them inter vivos; for she herself has no proper right to them while the marriage subsists. A wife can lawfully oblige herself, in relation to her heritable estate, with consent of her husband: for though her person is in some sense sunk by the marriage, she continues capable of holding a real estate; and in such obligations her estate is considered, and not her person. A husband, though he be curator to his wife, can, by his acceptance or intervention, authorize rights granted by her in his own favour: for a husband's curatory differs in this respect from the curatory of minors, for it is not merely intended for the wife's advantage, but is considered as a mutual benefit to both.

Donations
revocable
and irrevocable.

18. All donations, whether by the wife to the husband or by the husband to the wife, are revocable by the donor; but if the donor dies without revocation, the right becomes absolute. Where the donation is not pure, it is not subject to revocation: thus, a grant made by the husband, in consequence of the natural obligation that lies upon him to provide for his wife, is not revocable, unless in so far as it exceeds the measure of a rational settlement; neither are remuneratory grants revocable, where mutual grants are made in consideration of each other, except where an onerous cause is simulated, or where what is given hinc inde bears no proportion to each other. All voluntary contracts of separation, by which the wife is provided in a yearly alimony, are effectual as to the time past, but revocable either by the husband or wife.

Ratification
by wives.

19. As wives are in the strongest degree subject to the influence of their husbands, third parties, in whose favours they had made grants, were frequently vexed with actions of reduction, as if the grant had been ex-

torted from the wife through the force or fear of the husband. To secure the grantees against this danger, ratifications were introduced, whereby the wife, appearing before a judge, declares upon oath, her husband not present, that she was not induced to grant the deed ex vi aut metu. A wife's ratification is not absolutely necessary for securing the grantee: law indeed allows the wife to bring reduction of any deed she has not ratified, upon the head of force or fear; of which, if she bring sufficient evidence, the deed will be set aside; but if she fails in the proof, it will remain effectual to the receiver.

20. Marriage, like other contracts, might, by the Dissolution of Roman law, be dissolved by the contrary consent of parties; but by the law of Scotland, it cannot be dissolved till death, except by divorce, proceeding either upon the head of adultery or of wilful desertion.

21. Marriage is dissolved by death, either within year and day from its being contracted, or after year and day. If it is dissolved within year and day, all rights granted in consideration of the marriage (unless guarded against in the contract) become void, and things return to the same condition in which they stood before the marriage; with this restriction, that the husband is considered as a bona fide possessor, in relation to what he has consumed upon the faith of his right; but he is liable to repay the tocher, without any deduction, in consideration of his family expence during the marriage. If things cannot be restored on both sides, equity hinders the restoring of one party and not the other. In a case which was lately before the court of session, it was determined after a long hearing in presence, that where a marriage had been dissolved within the year without a living child, by the death of the husband, the widow was entitled to be alimented out of an estate of which he died possessed, though there were no conventional provisions stipulated in favour of the wife.

22. Upon the dissolution of a marriage, after year and day, the surviving husband becomes the irrevocable proprietor of the tocher; and the wife, where she survives, is entitled to her jointure, or to her legal provisions. She has also right to mournings, suitable to the husband's quality; and to alimony from the day of his death till the term at which her liferent provision, either legal or conventional, commences. If a living child be procreated of the marriage, the marriage has the same effect as if it had subsisted beyond the year. A day is adjected to the year, in majorem evidentiam, that it may clearly appear that the year itself is elapsed; and therefore, the running of any part of the day, after the year, has the same effect as if the whole were elapsed. The legal right of courtesy competent to the surviving husband is explained below, N^o clxx. 28.

23. Divorce is such a separation of married persons, during their lives, as looses them from the nuptial tie, and leaves them at freedom to intermarry with others. But neither adultery, nor wilful desertion, are grounds which must necessarily dissolve marriage; they are only handles, which the injured party may take hold of to be free. Cohabitation, therefore, by the injured party, after being in the knowledge of the acts of adultery, implies a passing from the injury; and no divorce can proceed, which is carried on by collusion between

twixt

twixt the parties, lest, contrary to the first institution of marriage, they might disengage themselves by their own consent; and though, after divorce, the guilty person, as well as the innocent, may contract second marriages; yet, in the case of divorce upon adultery, marriage is by special statute (1600. c. 20.) prohibited betwixt the two adulterers.

24. Where either party has deserted from the other for four years together, that other may sue for adherence. If this has no effect, the church is to proceed, first by admonition, then by excommunication; all which previous steps are declared to be a sufficient ground for pursuing a divorce. De praxi, the commissaries pronounce sentence in the adherence, after one year's desertion; but four years must intervene between the first desertion and the decree of divorce.

25. The legal effects of divorce on the head of desertion are, that the offending husband shall restore the tocher, and forfeit to the wife all her provisions, legal and conventional; and, on the other hand, the offending wife shall forfeit to the husband her tocher, and all the rights that would have belonged to her in the case of her survivance. This was also esteemed the rule in divorces upon adultery. But by a decision of the court of session 1662, founded on a tract of ancient decisions recovered from the records, the offending husband was allowed to retain the tocher.

1. The stages of life principally distinguished in law are, popularity, puberty or minority, and majority. A child is under popularity, from the birth to 14 years of age if a male, and till 12 if a female. Minority begins where popularity ends, and continues till majority; which, by the law of Scotland, is the age of 21 years complete, both in males and females: but minority, in a large sense, includes all under age, whether pupils or puberes. Because pupils cannot in any degree act for themselves, and minors seldom with discretion, pupils are put by law under the power of tutors, and minors may put themselves under the direction of curators. Tutory is a power and faculty to govern the person, and administer the estate, of a pupil. Tutors are either nominate, of law, or dative.

2. A tutor nominate is he who is named by a father, in his testament or other writing, to a lawful child. Such tutor is not obliged to give caution for the faithful discharge of his office; because his fidelity is presumed to have been sufficiently known to the father.

3. If there be no nomination by the father, or if the tutors nominate do not accept, or if the nomination falls by death or otherwise, there is a place for a tutor of law. This sort of tutory devolves upon the next agnate; by which we understand he who is nearest related by the father, though females intervene.

4. Where there are two or more agnates equally near to the pupil, he who is entitled to the pupil's legal succession falls to be preferred to the others. But as the law suspects that he may not be over careful to preserve a life which stands in the way of his own interest, this sort of tutor is excluded from the custody of the pupil's person; which is commonly committed to the

mother, while a widow, until the pupil be seven years old; and, in default of the mother, to the next cognate, i. e. the nearest relation by the mother. The tutor of law must (by act 1474) be at least 25 years of age. He is served or declared by a jury of sworn men, who are called upon a brief issuing from the chancery, which is directed to any judge having jurisdiction. He must give security before he enters upon the management.

5. If no tutor of law demands the office, any person, even a stranger, may apply for a tutory dative. But because a tutor in law ought to be allowed a competent time to deliberate whether he will serve or not, no tutory dative can be given till the elapsing of a year from the time at which the tutor of law had first a right to serve. It is the king alone, as the father of his country, who gives tutors dative, by his court of exchequer; and by act 1672, no gift of tutory can pass in exchequer, without the citation or consent of the next of kin to the pupil, both by the father and mother, nor till the tutor give security, recorded in the books of exchequer. There is no room for a tutor of law, or tutor dative, while a tutor nominate can be hoped for: and tutors of law or dative, even after they have begun to act, may be excluded by the tutor nominate, as soon as he offers to accept, unless he has expressly renounced the office. If a pupil be without tutors of any kind, the court of session will, at the suit judicial of any kinsman, name a factor (steward) for the management of the pupil's estate.

6. After the years of popularity are over, the minor is considered as capable of acting by himself, if he has confidence enough of his own capacity and prudence. The only two cases in which curators are imposed upon minors are, (1.) Where they are named by the father, in a state of health. (2.) Where the father is himself alive; for a father is ipse sur, without any service, administrator, that is, both tutor and curator of law to his children, in relation to whatever estate may fall to them during their minority. This right in the father does not extend to grandchildren, nor to such even of his immediate children as are foris-familiated. Neither has it place in subjects which are left by a stranger to the minor exclusive of the father's administration. If the minor chooses to be under the direction of curators, he must raise and execute a summons, citing at least two of his next of kin to appear before his own judge ordinary, upon nine days warning (by act 1555.) At the day and place of appearance, he offers to the judge a list of those whom he intends for his curators: such of them as resolve to undertake the office must sign their acceptance, and give caution; upon which an act of curatory is extracted.

7. These curators are styled ad negotia; to distinguish them from another sort called curators ad lites, who are authorized by the judge to concur with a pupil or minor in actions of law, either where he is without tutors and curators, or where his tutors and curators are parties to the suit. This sort is not obliged to give caution, because they have no intermeddling with the minor's estate: they are appointed for a special purpose; and when that is over, their office is at an end. Whodochar. Women are capable of being tutors and curators under red from the following restrictions: (1.) The office of a female tutor and ca-

Law of
Scotland.

tutor or curator fails by her marriage, even though the nomination should provide otherwise; for she is no longer sui juris, and incapable of course of having another under her power. (2.) No woman can be tutor of law. Papists are (by act 1700) declared incapable of tutory or curatory. Where the minor has more tutors and curators than one, who are called in the nomination to the joint management, they must all concur in every act of administration; where a certain number is named for a quorum, that number must concur: where any one is named sine quo non, no act is valid without that one's special concurrence. But if they are named without any of these limitations, the concurrence of the majority of the nominees then alive is sufficient.

Difference
between tu-
tory and cu-
ratory.

8. In this, tutory differs from curatory, that as pupils are incapable of consent, they have no person capable of acting; which defect the tutor supplies: but a minor pater can act for himself. Hence, the tutor subscribes alone all deeds of administration: but in curatory, it is the minor who subscribes as the proper party; the curator does no more than consent. Hence also, the persons of pupils are under the power either of their tutors or of their nearest cognates; but the minor, after pupillarity, has the disposal of his own person, and may reside where he pleases. In most other particulars, the nature, the powers, and the duties of the two offices, coincide. Both tutors and curators must, previous to their administration, make a judicial inventory, subscribed by them and the next of kin, before the minor judge ordinary, of his whole estate personal and real; of which, one subscribed duplicate is to be kept by the tutors or curators themselves; another, by the next of kin on the father's side; and a third by the next of kin on the mother's. If any estate belonging to the minor shall afterwards come to their knowledge, they must add it to the inventory within two months after their attaining possession thereof. Should they neglect this, the minor's debtors are not obliged to make payment to them: they may be removed from their offices as suspected; and they are entitled to no allowance for the sums disbursed by them in the minor's affairs (act 1672), except the expence laid out upon the minor's entertainment, upon his lands and houses, and upon completing his titles.

9. Tutors and curators cannot grant leases of the minor's lands, to endure longer than their own office; nor under the former rental, without either a warrant from the court of session, or some apparent necessity.

10. They have power to sell the minor's moveables; but cannot sell their pupil's land estate, without the authority of a judge: yet this restraint reaches not to such alienations as the pupil could by law be compelled to grant, e.g. to renunciations of wadsets upon redemption by the reverser; for in such case, the very tenor of his own right lays him under the obligation; nor to the renewal of charters to heirs; but the charter must contain no new right in favour of the heir. The alienation, however, of heritage by a minor, with consent of his curators, is valid.

11. Tutors and curators cannot, contrary to the nature of their trust, authorize the minor to do any deed for their own benefit; nor can they acquire any debt affecting the minor's estate: and, where a tutor or curator makes such acquisition, in his own name, for a

less sum than the right is entitled to draw, the benefit thereof accrues to the minor. It seems, however, that such purchase would be considered as valid, provided it were bona fide acquired at a public sale; for in such case it occurs that the tutor or curator is in fact meliorating the situation of his ward by enhancing the value of his property by a fair competition. In general, it seems to be the genius and spirit of our law, that tutors and curators shall do every thing in their power towards the faithful and proper discharge of their respective offices.

12. By the Roman law, tutory and curatory, being their obl. manera publica, might be forced upon every one who garrisoned had not a relevant ground of excuse: but, with us, the persons named to these offices may either accept or decline: and where a father, in liege poufite (when in a state of health), names certain persons both as tutors and curators to his children, though they have acted as tutors, they may decline the office of curatory. Tutors and curators having once accepted, are liable in diligence, that is, are accountable for the consequences of their neglect in any part of their duty from the time of their acceptance. They are accountable singuli in solidum, i. e. every one of them is answerable, not only for his own diligence, but for that of his co-tutors; and any one may be sued without citing the rest: but he who is condemned in the whole, has action of relief against his co-tutors.

13. From this obligation to diligence, we may except, (1.) Fathers or administrators-in-law, who, from the presumption that they act to the best of their power for their children, are liable only for actual intromissions. (2.) Tutors and curators named by the father in consequence of the act 1696, with the special provisos, that they shall be liable barely for intromissions, not for omissions; and that each of them shall be liable only for himself, and not in solidum for the co-tutors: but this power of exemption from diligence is limited to the estate descending from the father himself. Tutors or curators are not entitled to any salary or allowance for pains, unless a salary has been expressly contained in the testator's nomination; for their office is presumed gratuitous.

14. Though no person is obliged to accept the office of tutor or curator; yet having once accepted, he cannot throw it up or renounce it without sufficient cause; but, if he should be guilty of misapplying the minor's money, or fail in any other part of his duty, he may be removed at the suit of the minor's next in kin, or by a co-tutor or co-curator. Where the misconduct proceeds merely from indolence or inattention, the court, in place of removing the tutor, either joins a curator with him, or, if he be a tutor nominate, they oblige him to give caution for his past and future management.

15. The offices of tutory and curatory expire also by the pupil's attaining the age of puberty, or the minor's attaining the age of 21 years complete; and by the death either of the minor, or of his tutor and curator. Curatory also expires by the marriage of a female minor, who becomes thereby under the coverture of her own husband. After expiry of the office, reciprocal actions lie at the instance both of the tutors and curators, and of the minor. That at the instance of the minor is called actio tutelae directa, by which he can com-

pel

pel the tutors to account; that at the instance of the tutors, actio tutelae contraria, by which the minor can be compelled to repeat what has been profitably expended during the administration; but this last does not lie till after accounting to the minor; for till then the tutors are presumed intus habere to the effects in their own hands for answering their disbursements.

16. Deeds either by pupils, or by minors having curators without their consent, are null; but they oblige the granters in as far as relates to sums profitably applied to their use. A minor under curators can indeed make a testament by himself; but whatever is executed in the form of a deed inter vivos, requires the curator's consent. Deeds by a minor who has no curators, are as effectual as if he had had curators, and signed them with their consent; he may even alien his heritage, without the interposition of a judge.

17. Minors may be restored against all deeds granted in their minority, that are hurtful to them. Deeds, in themselves void, need not the remedy of restitution; but where hurtful deeds are granted by a tutor in his pupil's affairs, or by a minor, who has no curators, as these deeds subsist in law, restitution is necessary; and even where a minor, having curators, executes a deed hurtful to himself with their consent, he has not only action against the curators, but he has the benefit of restitution against the deed itself. The minor cannot be restored, if he does not raise and execute a summons for reducing the deed, ex capite minorennitatis et laesionis, before he be 25 years old. These four years, between the age of 21 and 25, called quadrennium utile, are indulged to the minor, that he may have a reasonable time, from that period, when he is first presumed to have the perfect use of his reason, to consider with himself what deeds done in his minority have been truly prejudicial to him.

18. Questions of restitution are proper to the court of session. Two things must be proved by the minor, in order to the reduction of the deed: (1.) That he was minor when it was signed: (2.) That he is hurt or misled by the deed. This lesion must not proceed merely from accident; for the privilege of restitution was not intended to exempt minors from the common misfortunes of life; it must be owing to the imprudence or negligence of the minor, or his curator.

19. A minor cannot be restored against his own deed or fraud; e. g. if he should induce one to bargain with him by saying he was major. (1.) Restitution is excluded, if the minor, at any time after majority, has approved of the deed, either by a formal ratification, or tacitly by payment of interest, or by other acts inferring approbation. (2.) A minor, who has taken himself to business, as a merchant-shopkeeper, &c. cannot be restored against any deed granted by him in the course of that business, especially if he was proximus majorrennitate at signing the deed. (3.) According to the more common opinion, a minor cannot be restored in a question against a minor, unless some gross unfairness shall be qualified in the bargain.

20. The privilege of restitution does not always die with the minor himself. (1.) If a minor succeeds to a minor, the time allowed for restitution is governed by the minority of the heir, not of the ancestor. (2.) If a minor succeeds to a major, who was not full 25, the privilege continues with the heir during his minority;

but he cannot avail himself of the anni utiles, except in so far as they were unexpired at the ancestor's death. (3.) If a major succeeds to a minor, he has only the quadrennium utile after the minor's death, and if he succeeds to a major dying within the quadrennium, no more of it can be profitable to him than what remained when the ancestor died.

21. No minor can be compelled to state himself as Minor non tenetur placitare a defender, in any action, whereby his heritable estate flowing from ascendants may be evicted from him, by one pretending a preferable right.

22. This privilege is intended merely to save minors from the necessity of disputing upon questions of preference. It does not therefore take place, (1.) Where the action is pursued on the father's falsehood or delict. (2.) Upon his obligation to convey heritage. (3.) On his liquid bond for a sum of money, though such action should have the effect to carry off the minor's estate by adjudication. (4.) Not in actions pursued by the minor's superior, upon feudal casualties. (5.) This privilege cannot be pleaded in bar of an action which had been first brought against the father, and is only continued against the minor; nor where the father was not in the peaceable possession of the heritable subject at his death. Before the minor can plead it, he must be served heir to his father. The persons of pupils are by said act 1696 protected from imprisonment on civil debts.

23. Curators are given, not only to minors, but in general to every one who, either through defect of judgement, or unfitness of disposition, is incapable of rightly managing his own affairs. Of the first sort, are idiots and furious persons. Idiots, or fatui, are entirely deprived of the faculty of reason. The distemper of the furious person does not consist in the defect of reason; but in an overheated imagination, which obstructs the application of reason to the purposes of life. Curators may be also granted to lunatics; and even to persons dumb and deaf, though they are of sound judgement, where it appears that they cannot exert it in the management of business. Every person, who is come of age, and is capable of acting rationally, has a natural right to conduct his own affairs. The only regular way, therefore, of appointing this sort of curators, is by a jury summoned upon a brief from the chancery; which is not, like the brief of common tutory, directed to any judge ordinary, but to the judge of the special territory where the person alleged to be fatuous or furious resides; that, if he is truly of sound judgement, he may have an opportunity to oppose it; and for this reason, he ought to be made a party to the brief. The curatory of idiots and furious persons belongs to the nearest agnate; but a father is preferred to the curatory of his fatuous son, and the husband to that of his fatuous wife, before the agnate.

24. A clause is inserted in the brief, for inquiring how long the fatuous or furious person has been in that condition; and the verdict to be pronounced by the inquest has a retrospective effect: for it is declared a sufficient ground, without further evidence, for reducing all deeds granted after the period at which it appeared by the proof that the fatuity or fury began. But, as fatuous and furious persons are, by their very state, incapable of being obliged, all deeds done by them may be declared void, upon proper evidence of the

their fatuity at the time of signing, though they should never have been cognosced idiots by an inquest.

25. We have some few instances of the sovereign's giving curators to idiots, where the next agnate did not claim; but such gifts are truly deviations from our law, since they pass without any inquiry into the state of the person upon whom the curatory is imposed.—Hence the curator of law to an idiot serving quandocumque, is preferred, as soon as he offers himself, before the curator-dative. This sort of curatory does not determine by the lucid intervals of the person sub cura; but it expires by his death, or perfect return to a found judgement; which last ought regularly to be declared by the sentence of a judge.

26. Persons, let them be ever so profuse, or liable to be imposed upon, if they have the exercise of reason, can effectually oblige themselves, till they are fettered by law. This may be done by Interdiction, which is a legal restraint laid upon such persons from signing any deed to their own prejudice, without the consent of their curators or interdictors.

27. There could be no interdiction by our ancient practice, without a previous inquiry into the person's condition. But as there were few who could bear the shame that attends judicial interdiction, however, necessary the restraint might have been, voluntary interdiction has received the countenance of law; which is generally executed in the form of a bond, whereby the granter obliges himself to do no deed that may affect his estate, without the consent of certain friends therein mentioned. Though the reasons inductive of the bond should be but gently touched in the recital, the interdiction stands good. Voluntary interdiction, though it be imposed by the sole act of the person interdicted, cannot be recalled at his pleasure: but it may be taken off, (1.) By a sentence of the court of session, declaring, either that there was from the beginning no sufficient ground for the restraint; or that the party is, since the date of the bond, become rei sui providus. (2.) It falls, even without the authority of the lords, by the joint act of the person interdicted, and his interdictors, concurring to take it off. (3.) Where the bond of interdiction requires a certain number as a quorum, the restraint ceases, if the interdictors shall by death be reduced to a lesser number.

28. Judicial interdiction is imposed by a sentence of the court of session. It commonly proceeds on an action brought by a near kinsman to the party; and sometimes from the nobile officium of the court, when they perceive, during the pendency of a suit, that any of the litigants is, from the facility of his temper, subject to imposition. This sort must be taken off by the authority of the same court that imposed it.

29. An interdiction need not be served against the person interdicted; but it must be executed, or published by a messenger, at the market cross of the jurisdiction where he resides, by publicly reading the interdiction there, after three oveltes made for convoking the lieges. A copy of this execution must be affixed to the cross; and thereafter, the interdiction, with its execution, must (by the act 1581) be registered in the books both of the jurisdiction where the person interdicted resides and where his lands lie, or (by the act 1600) in the general register of the session, within 40 days from the publication. An interdiction, before

is registered, has no effect against third parties, though they should be in the private knowledge of it; but it operates against the interdictors themselves, as soon as it is delivered to them.

30. An interdiction, duly registered, has this effect, that all deeds done thereafter, by the person interdicted, without the consent of his interdictors, affecting his heritable estate, are subject to reduction. Registration in the general register secures all his lands from alienation, wherever they lie; but where the interdiction is recorded in the register of a particular shire, it covers no lands except those situated in that shire. But persons interdicted have full power to dispose of their moveables, not only by testament, but by present deeds of alienation: And creditors, in personal bonds granted after interdiction, may use all execution against their debtor's person and moveable estate: such bonds being only subject to reduction in so far as diligence against the heritable estate may proceed upon them.

31. All onerous or rational deeds granted by the person interdicted, are as effectual, even without the consent of the interdictors, as if the granter had been laid under no restraint; but he cannot alter the succession of his heritable estate, by any settlement, let it be ever so rational. No deed, granted with consent of the interdictors, is reducible, though the strongest lesion or prejudice to the granter should appear: the only remedy competent, in such case, is an action by the granter against his interdictors, for making up to him what he has lost through their undue consent. It is no part of the duty of interdictors to receive sums or manage any estate; they are given merely ad auctoritatem profandum, to interpose their authority to reasonable deeds: and so are accountable for nothing but their fraud or fault, in consenting to deeds hurtful to the person under their care.

32. The law concerning the state of children falls next to be explained. Children are either born in wedlock, or out of it. All children born in lawful marriage or wedlock, are presumed to be begotten by the person to whom the mother is married; and consequently to be lawful children. This presumption is so strongly founded, that it cannot be defeated but by direct evidence that the mother's husband could not be the father of the child, e.g. where he is impotent, or was absent from the wife till within six lunar months of the birth. The canonists indeed maintain, that the concurring testimony of the husband and wife, that the child was not procreated by the husband, is sufficient to elide this legal presumption for legitimacy: but it is an agreed point, that no regard is to be paid to such testimony, if it be made after they have owned the child to be theirs. A father has the absolute right of disposing of his children's person, of directing their education, and of moderate chastisement; and even after they become paberes, he may compel them to live in family with him, and to contribute their labour and industry, while they continue there, towards his service. A child who gets a separate stock from the father for carrying on any trade or employment, even though he should continue in the father's house, may be said to be emancipated or forisfamiliarized, in so far as it concerns that stock; for the profits arising from it are his own. Forisfamiliarization, when taken in this sense, is also inferred

Law of Scotland. red by the child's marriage, or by his living in a separate house, with his father's permission or good will. Children, after their full age of twenty-one years, become, according to the general opinion, their own masters; and from that period are bound to the father only by the natural ties of duty, affection, and gratitude. The mutual obligations between parents and children to maintain each other, are explained afterwards, N^o clxxiii. 4.

Bastards. 33. Children born out of wedlock, are styled natural children, or bastards. Bastards may be legitimated or made lawful. (1.) By the subsequent intermarriage of the mother of the child with the father. And this sort of legitimation entitles the child to all the rights of lawful children. The subsequent marriage, which produces legitimation, is considered by the law to have been entered into when the child legitimated was begotten; and hence, if he be a male, he excludes, by his right of primogeniture, the sons procreated after the marriage, from the succession of the father's heritage, though the sons were lawful children from the birth. Hence, also, those children only can be thus legitimated, who are begotten of a woman whom the father might at that period have lawfully married. (2.) Bastards are legitimated by letters of legitimation from the sovereign. N^o clxxxii. 3.

Servants. 34. As to the power of masters over their servants: All servants now enjoy the same rights and privileges with other subjects, unless in so far as they are tied down by their engagements of service. Servants are either necessary or voluntary. Necessary are those whom law obliges to work without wages, of whom immediately. Voluntary servants engage without compulsion, either for mere subsistence, or also for wages. Those who earn their bread in this way, if they should stand off from engaging, may be compelled to it by the justices of the peace, who have power to fix the rate of their wages.

Colliers and salters. 35. Colliers, coal-bearers, salters, and other persons necessary to colliers and salt works, as they are particularly described by act 1661, were formerly tied down to perpetual service at the works to which they had once entered. Upon a sale of the works, the right of their service was transferred to the new proprietor. All persons were prohibited to receive them into their service, without a testimonial from their last master; and if they deserted to another work, and were redemanded within a year thereafter, he who had received them was obliged to return them within twenty-four hours, under a penalty. But though the proprietor should neglect to require the deserter within the year, he did not by that short prescription, lose his property in him. Colliers, &c. where the colliery to which they were restricted was either given up, or not sufficient for their maintenance, might lawfully engage with others; but if that work should be again set a going, the proprietor might reclaim them back to it.

Restrains lately taken off. 36. But by 13 Geo. III. c. 28. these restraints, the only remaining vestiges of slavery in the law of Scotland, are abrogated; and, after the 1st July 1775, all colliers, coal-bearers, and salters, are declared to be upon the same footing with other servants or labourers. The act subjects those who are bound prior to the 1st July 1775, to a certain number of years service for their freedom, according to the age of the person.

37. The poor make the lowest class or order of persons. Indigent children may be compelled to serve any of the king's subjects without wages, till the age of thirty years. Vagrants and sturdy beggars may be also compelled to serve any manufacturer. And because few persons were willing to receive them into their service, public workhouses are ordained to be built for setting them to work. The poor who cannot work, must be maintained by the parishes in which they were born; and where the place of their nativity is not known, that burden falls upon the parishes where they have had their most common resort, for the three years immediately preceding their being apprehended or their applying for the public charity. Where the contributions collected at the churches to which they belong are not sufficient for their maintenance, they are to receive badges from the minister and kirk session, in virtue of which they may ask alms at the dwelling-houses of the inhabitants of the parish.

CHAP. II. Of THINGS.

THE things, or subjects, to which persons have right, are the second object of law.

SECT. I. Of the Division of Rights, and the several ways by which a Right may be acquired.

1. The right of enjoying and disposing of a subject at Property one's pleasure, is called property. Proprietors are restrained by law from using their property emulously to their neighbour's prejudice. Every state or sovereign has a power over private property, called, by some lawyers, dominium eminent, in virtue of which, the proprietor may be compelled to sell his property for an adequate price, where an evident utility on the part of the public demands it.

2. Certain things are by nature itself incapable of appropriation; as the air, the light, the ocean, &c.; none of which can be brought under the power of any one person, though their use be common to all. Others are by law exempted from private commerce, in respect of the uses to which they are destined. Of this last kind are, (1.) Res publicae, as navigable rivers, highways, bridges, &c. the right of which is vested in the king, chiefly for the benefit of his people, and they are called regalia. (2.) Res universitatis, things which belong in property to a particular corporation or society, and whose use is common to every individual in it, but both property and use are subject to the regulations of the society; as town houses, corporation halls, market places, churchyards, &c. The lands or other revenue belonging to a corporation do not fall under this class, but are juris privati, quoad the corporation.

3. Property may be acquired, either by occupation or accession; and transferred by tradition or prescription; but prescription being also a way of losing property, falls to be explained under a separate title. OCCUPATION, or occupancy, is the appropriating of things which have no owner, by apprehending them, or seizing their possession. This was the original method of acquiring property: and continued, under certain restrictions, the doctrine of the Roman law, Quod nullius est, fit occupantis: but it can have no room in the feudal plan,

Law of
Scotland.

plan, by which the king is looked on as the original proprietor of all the lands within his dominions.

4. Even in that sort of moveable goods which are presumed to have once had an owner, this rule obtains by the law of Scotland, Quod nullius est, fit domini regis. Thus, the right of treasure hid under ground is not acquired by occupation, but accrues to the king.— Thus also, where one finds strayed cattle or other moveables, which have been lost by their former owner, the finder acquires no right in them, but must give public notice thereof; and if, within year and day after such notice, the proprietor does not claim his goods, they fall to the king, sheriff, or other person to whom the king has made a grant of such escheats.

5. In that sort of moveables which never had an owner, as wild beasts, fowls, fishes, or pearls found on the shore, the original law takes place, that he who first apprehends, becomes proprietor; inasmuch, that though the right of hunting, fowling, and fishing, be restrained by statute, under certain penalties, yet all game, even what is caught in contravention of the law, becomes the property of the catcher (unless where the confiscation thereof is made part of the penalty), the contravener being obnoxious, however, to the penal enactment of the statutes in consequence of his transgression. It was not for a long time a fixed point whether a person, though possessed of the valued rent by law entitling him to kill game, could hunt upon another person's grounds without consent; but it was lately found by the court of session, and affirmed upon appeal, that he could not; it being repugnant to the idea of property, that any person, however qualified, should have it in his power to traverse and hunt upon another's grounds without consent of the proprietor. Although certain things became the property of the first occupant, yet there are others which fall not under this rule. Thus, whales thrown in or killed on our coasts, belong neither to those who kill them, nor to the proprietor of the grounds on which they are cast; but to the king, providing they are so large as that they cannot be drawn by a wain with six oxen.

Accession.

6. ACCESSION is that way of acquiring property, by which, in two things which have a connexion with, or dependence on, one another, the property of the principal thing draws after it the property of its accessory. Thus the owner of a cow becomes the owner of the calf; a house belongs to the owner of the ground on which it stands, though built with materials belonging to and at the charge of another; trees taking root in our ground, though planted by another become ours. Thus also the insensible addition made to one's ground by what a river washes from other grounds, (which is called alluvio), accrues to the master of the ground which receives the addition; but where it happened that a large piece of ground was disjoined and annexed to another person's by the force of a river or any other accident, and which was by the Romans called avulsio, they considered the owner's right of property still to subsist, § 21. Inst. de rer. divisi; and it is probable that, in a similar case, our courts would countenance the distinction. The Romans excepted from this rule the case of paintings drawn on another man's board or canvas, in consideration of the excellency of the art; which exception our practice has for a like reason extended to similar cases.

7. Under accession is comprehended SPECIFICATION; by which is meant, a person's making a new species or subject, from materials belonging to another. Where the new species can be again reduced to the matter of which it was made, law considers the former mass as still existing; and therefore, the new species, as an accessory to the former subject, belongs to the proprietor of that subject: but where the thing made cannot be so reduced, as in the case of wine, which cannot be again turned into grapes, there is no place for the felio juris; and therefore the workmanship draws after it the property of the materials. But the person who thus carries the property from the other is bound to indemnify him according to the true value; and in case it was done mala fide, he may be made liable in the pretium affectionis or utmost value.

8. Though the new species should be produced from the COMMIXTION or confusion of different substances belonging to different proprietors, the same rule holds; but where the mixture is made by the common consent of the owner, such consent makes the whole a common property, according to the shares that each proprietor had formerly in the several subjects. Where things of the same sort are mixed without the consent of the proprietors, which cannot again be separated; e. g. two hogheads of wine, the whole likewise becomes a common property; but, in the after division, regard ought to be had to the different quality of the wines: if the things so mixed admit of a separation, e. g. two flocks of sheep, the property continues distinct.

9. Property is carried from one to another by TRANSDITION; which is the delivery of possession by the proprietor, with an intention to transfer the property to the receiver. Two things are therefore requisite, in order to the transmitting of property in this way: 1. The intention or consent of the former owner to transfer it on some proper title of alienation, as sale, exchange, gift, &c. (2.) The actual delivery in pursuance of that intention. The first is called the causa, the other the modus transferendi domini; which last is so necessary to the acquiring of property, that he who gets the last right, with the first tradition, is preferred, according to the rule, Traditionibus, non iuris pactis, transferuntur rerum domini.

10. Tradition is either real, where the ipsa corpora of moveables are put into the hands of the receiver; or symbolical, which is used where the thing is incapable of real delivery, or even when actual delivery is only inconvenient. Where the possession or custody of the subject has been before with him to whom the property is to be transferred, there is no room for tradition.

11. Possession, which is essential both to the acquisition and enjoyment of property, is defined, the detention of a thing, with a design or animus in the detainer of holding it as his own. It cannot be acquired by the sole act of the mind, without real detention; but, being once acquired, it may be continued solo animo. Possession is either natural, or civil. Natural possession is, when one possesses by himself: thus, we possess lands by cultivating them and reaping their fruits, houses by inhabiting them, moveables by detaining them in our hands. Civil possession is our holding the thing, either by the sole act of the mind, or by the hands of another who

Law of Scotland. who holds it in our name: thus, the owner of a thing lent possesses it by the borrower; the proprietor of lands, by his tackman, trustee, or steward, &c. The same subject cannot be possessed entirely, or in solidum, by two different persons at one and the same time: and therefore possession by an act of the mind ceases, as soon as the natural possession is so taken up by another, that the former possessor is not suffered to re-enter. Yet two persons may, in the judgement of law, possess the same subject, at the same time, on different rights: thus, in the case of a pledge, the creditor possesses it in his own name, in virtue of the right of impignoration; while the proprietor is considered as possessing, in and through the creditor, in so far as is necessary for supporting his right of property. The same doctrine holds in literenters, tacksmen, and, generally, in every case where there are rights affecting a subject distinct from the property.

bona fide. 12. A bona fide possessor is he who, though he is not really proprietor of the subject, yet believes himself proprietor on probable grounds. A mala fide possessor is he who knows, or is presumed to know, that what he possesses is the property of another. A possessor bona fide acquired right, by the Roman law, to the fruits of the subject possessed, that had been reaped and consumed by himself, while he believed the subject his own. By our customs, perception alone, without consumption, secures the possessor: nay, if he has sown the ground, while his bona fides continued, he is entitled to reap the crop, propter curam et culturam. But this doctrine does not reach to civil fruits, e.g. the interest of money, which the bona fide receiver must restore, together with the principal, to the owner.

13. Bona fides necessarily ceaseth by the conscientia rei alienae in the possessor, whether such consciousness should proceed from legal interpellation, or private knowledge. Mala fides is sometimes induced by the true owner's bringing his action against the possessor, sometimes not till litiscontestation, and, in cases uncommonly favourable, not till the sentence be pronounced against the possessor.

Effects of possession. 14. The property of moveable subjects is presumed by the bare act of possession, until the contrary be proved; but possession of an immovable subject, though for a century of years together, if there is no seisin, does not create even a presumptive right to it: Nulla sefina, nulla terra. Such subject is considered as ex-propriary, and so accrues to the sovereign. Where the property of a subject is contested, the lawful possessor is entitled to continue his possession, till the point of right be discussed; and, if he has lost it by force or stealth, the judge will upon summary application, immediately restore it to him.

15. Where a possessor has several rights in his person, affecting the subject possessed, the general rule is, that he may ascribe his possession to which of them he pleases; but one cannot prescribe his possession to a title other than that on which it commenced, in prejudice of him from whom his title flowed.

SECT. II. Of Heritable and Moveable Rights.

CLIX. 1. For the better understanding the doctrine of this title, it must be known, that by the law of Scotland, and indeed of most nations of Europe since the intro-
VOL. XI. Part II.

duction of feus, wherever there are two or more in the same degree of consanguinity to one who dies intestate, and who are not all females, such rights belonging to the deceased as are either properly feudal, or have any resemblance to feudal rights, descend wholly to one of them, who is considered as his proper heir; the others, who have the name of next of kin or executors, must be contented with that portion of the estate which is of a more perishable nature. Hence has arisen the division of rights to be explained under this title: the subjects descending to the heir are styled heritable; and those that fall to the next of kin moveable.

2. All rights of, or affecting lands, under which are Division of comprehended houses, mills, fillings, teinds; and all rights into rights of subjects that are fundo annexa, whether completed by seisin or not, are heritable ex sua natura. On the other hand, every thing that moves itself or can be moved, and in general whatever is not united to land, is moveable; as household furniture, corns, cattle, cash, arrears of rent and of interest, even though they should be due on a right of annual rent; for though the arrears last mentioned are secured on land, yet being presently payable, they are considered as cash.

3. Debts, (nomina debitorum), when due by bill, promissory note, or account, are moveable. When constituted by bond, they do not all fall under any one head; but are divided into heritable and moveable, by the following rules. All debts constituted by bond bearing an obligation to infest the creditor in any heritable subject in security of the principal sum and annual rent, or annual rent only, are heritable; for they not only carry a yearly profit, but are secured upon land.

4. Bonds merely personal, though bearing a clause of interest, are, by act 1661, declared to be moveable as to succession; i. e. they go, not to the heir, but to the next of kin or executors; but they are heritable with respect to the silk, and to the rights of husband and wife; that is, though by the general rule, moveable rights fall under the communion of goods consequent upon marriage, and the moveables of denounced persons fall to the crown or silk by single escheat, yet such bonds do neither, but are heritable in both respects.

5. Bonds taken payable to heirs and assignees, excluding executors, are heritable in all respects, from the destination of the creditor. But a bond, which is made payable to heirs, without mention of executors, descends, not to the proper heir in heritage, though heirs are mentioned in the bond, but to the executor; for the word heir, which is a generic term, points out him who is to succeed by law in the right; and the executor, being the heir in nobilibus, is considered as the person to whom such bond is taken payable. But where a bond is taken to heirs male, or to a series of heirs, one after another, such a bond is heritable, because its destination necessarily excludes executors.

6. Subjects originally moveable become heritable, How move-
(1.) By the proprietor's destination. Thus, a jewel- able rights or any other moveable subject, may be provided to the heir, from the right competent to every proprietor to settle his property on whom he pleases. (2.) Moveable rights may become heritable, by the supervening of an heritable security: Thus, a sum due by a personal bond becomes heritable, by the creditor's accept-
ing

Law of Scotland.

ing an heritable right for securing it, or by adjudging upon it.

7. Heritable rights do not become moveable by accessory moveable securities; the heritable right being in such case the jus nobilitus, which draws the other after it.

Rights partly heritable, partly moveable.

8. Certain subjects partake, in different respects, of the nature both of heritable and moveable. Personal bonds are, by the above cited act 1661, moveable in respect of succession; but heritable as to the life, and the rights of husband and wife. All bonds, whether merely personal, or even heritable, on which no seisin has followed, may be affected at the suit of creditors, either by adjudication, which is a diligence proper to heritages, or by arrestment, which is peculiar to moveables. Bonds excluding executors, though they descend to the creditor's heir, are payable by the debtor's executors, without relief against the heir; since the debtor's succession cannot be affected by the destination of the creditor.

What period makes a subject heritable or moveable.

9. All questions, whether a right be heritable or moveable, must be determined according to the condition of the subject at the time of the ancestor's death. If it was heritable at that period, it must belong to the heir; if moveable, it must fall to the executor, without regard to any alterations that may have affected the subject in the intermediate period between the ancestor's death and the competition.

I. HERITABLE RIGHTS.

SECT. III. Of the Constitution of Heritable Rights by Charter and Seisin.

Origin of the feudal law.

1. Heritable rights are governed by the feudal law, which owed its origin, or at least its first improvements, to the Longobards; whose kings, upon having penetrated into Italy, the better to preserve their conquests, made grants to their principal commanders of great part of the conquered provinces, to be again subdivided by them among the lower officers, under the conditions of fidelity and military service.

2. The feudal constitutions and usages were first reduced into writing about the year 1150, by two lawyers of Milan, under the title of Consuetudines Feudorum. None of the German emperors appear to have expressly confirmed this collection by their authority: but it is generally agreed, that it had their tacit approbation, and was considered as the customary feudal law of all the countries subject to the empire. No other country has ever acknowledged these books for their law; but each state has formed to itself such a system of feudal rules, as best agreed with the genius of its own constitution. In feudal questions, therefore, we are governed, in the first place, by our own statutes and customs; where these fail us, we have regard to the practice of neighbouring countries, if the genius of their law appears to be the same with ours; and should the question still remain doubtful, we may have recourse to those written books of the feus, as to the original plan on which all feudal systems have proceeded.

Definition of feus.

3. This military grant got the name, first of beneficium, and afterwards of feudum; and was defined a

gratuitous right to the property of lands, made under the conditions of fealty and military service, to be performed to the grantor by the receiver; the radical right of the lands still remaining in the grantor. Under lands, in this definition, are comprehended all rights or subjects so connected with land, that they are deemed a part thereof; as houses, mills, fishings, jurisdictions, patronages, &c. Though feus in their original nature were gratuitous, they soon became the subject of commerce; services of a civil or religious kind were frequently substituted in place of military; and now, of a long time, services of every kind have been entirely dispensed with in certain feudal tenures. He who makes the grant is called the superior, and he who receives it superior the vassal. The subject of the grant is commonly called the feu; though that word is at other times, in our law, used to signify one particular tenure. (See Sect. iv. 2.) The interest retained by the superior in the feu is styled dominium directum, or the superiority; and the interest acquired by the vassal, dominium utile, or the property. The word fee is promiscuously applied to both.

4. Allodial goods are opposed to feus; by which allodial goods are understood goods enjoyed by the owner, independent of a superior. All moveable goods are allodial; lands only are so when they are given without the condition of fealty or homage. By the feudal system, the sovereign, who is the fountain of feudal rights, reserves to himself the superiority of all the lands of which he makes the grant; so that, with us, no lands are allodial, except those of the king's own property, the superiorities which the king reserves in the property-lands of his subjects, and manes and glebes, the right of which is completed by the presbytery's designation, without any feudal grant.

5. Every person who is in the right of an immovable subject, provided he has the free administration of his estate, and is not debarred by statute, or by the nature of his right, may dispose of it to another. Nay, a vassal, though he has only the dominium utile, can subfeud his property to a subvassal by a subaltern right, and thereby raise a new dominium directum in himself, subordinate to that which is in his superior; and so in infinitum. The vassal who thus subfeud is called the subvassal's immediate superior, and the vassal's superior is the subvassal's mediate superior.

6. All persons who are not disabled by law, may acquire and enjoy feudal rights. Papists cannot purchase a land estate by any voluntary deed. Aliens, who owe allegiance to a foreign prince, cannot hold a feudal right without naturalization: and therefore, where such privilege was intended to be given to favoured nations or persons, statutes of naturalization were necessary, either general or special; or at least, letters of naturalization by the sovereign.

7. Every heritable subject capable of commerce, may be granted in feu. From this general rule are excepted, 1. The annexed property of the crown, which is not alienable without a previous dissolution in parliament. 2. Tailzied lands, which are devised under condition that they shall not be aliened. 3. An estate in hereditate jacente cannot be effectually aliened by the heir-apparent (i. e. not entered); but such alienation becomes effectual upon his entry, the supervening right

right accruing in that case to the purchaser; which is a rule applicable to the alienation of all subjects not belonging to the venter at the time of the sale.

8. The feudal right, or, as it is called, investiture, is constituted by charter and seisin. By the charter, we understand that writing which contains the grant of the feudal subject to the vassal, whether it be executed in the proper form of a charter, or of a disposition. Charters by subject superiors are granted, either, 1. A me de superiore meo, when they are to be holden, not of the grantor himself, but of his superior. This sort is called a public holding, because vassals were in ancient times publicly received in the superior's court before the paries curia or co-vassals. Or, 2. De me, where the lands are to be holden of the grantor. These were called sometimes base rights, from bas, lower: and sometimes private, because, before the establishment of our records, they were easily concealed from third parties; the nature of all which will be more fully explained, Sect. vii. An original charter is that by which the fee is first granted: A charter by progress is a renewed disposition of that fee to the heir or assignee of the vassal. All doubtful clauses in charters by progress ought to be construed agreeably to the original grant; and all clauses in the original charter are understood to be implied in the charters by progress, if there be no express alteration.

9. The first clause in an original charter, which follows immediately after the name and designation of the grantor, is the narrative or recital, which expresses the causes inductive of the grant. If the grant be made for a valuable consideration, it is said to be onerous; if for love and favour, gratuitous. In the dispositive clause of a charter, the subjects made over are described either by special boundaries or march stones, (which is called a bounding charter), or by such other characters as may sufficiently distinguish them. A charter regularly carries right to no subjects but what are contained in this clause, though they should be mentioned in some other clause of the charter. It has been however found, that a right to salmon fishing was carried by a clause cum piscariis in the tenendas of a charter, the same having been followed with possession.

10. The clause of tenendas (from its first words tenendas predictas terras) expresses the particular tenure by which the lands are to be holden. The clause of reddendo (from the words reddendo inde annuatim) specifies the particular duty or service which the vassal is to pay or perform to the superior.

11. The clause of warrandice is that by which the grantor obliges himself that the right conveyed shall be effectual to the receiver. Warrandice is either personal or real. Personal warrandice, where the grantor is only bound personally, is either, 1. Simple, that he shall grant no deed in prejudice of the right; and this sort, which is confined to future deeds, is implied even in donations. 2. Warrandice from fact and deed, by which the grantor warrants that the right neither has been, nor shall be, hurt by any fact of his. Or, 3. Absolute warrandice contra omnes mortales, whereby the right is warranted against all legal defects in it which may carry it off from the receiver either wholly or in part. Where a sale of land proceeds upon an onerous cause, the grantor is liable in absolute warran-

dice, though no warrandice be expressed; but in assignments to debts or decrees, no higher warrandice than from fact and deed is implied.

12. Gratuitous grants by the crown imply no warrandice; and though warrandice should be expressed, the clause is ineffectual, from a presumption that it has crept in by the negligence of the crown's officers. But where the crown makes a grant, not jure coronae, but for an adequate price, the sovereign is in the same case with his subjects.

13. Absolute warrandice, in case of eviction, affords an action to the grantee against the grantor, for making up to him all that he shall have suffered through the defect of the right; and not simply for his indemnification, by the grantor's repayment of the price to him. But as warrandice is penal, and consequently stricti juris, it is not easily presumed, nor is it incurred from every light servitude that may affect the subject; far less does it extend to burdens which may affect the subject posterior to the grant, nor to those imposed by public statute, whether before or after, unless specially warranted against.

14. Real warrandice is either, 1. Express, whereby, in security of the lands principally conveyed, other lands, called warrandice lands, are also made over, to which the receiver may have recourse in case the principal lands be evicted. Or, 2. Tacit, which is constituted by the exchange or excambion of one piece of ground with another; for, if the lands exchanged are carried off from either of the parties, the law itself, without any action, gives that party immediate recourse upon his own first lands, given in exchange for the lands evicted.

15. The charter concludes with a precept of seisin, which is the command of the superior grantor of the right to his bailie, for giving seisin or possession to the vassal, or his attorney, by delivering to him the proper symbols. Any person, whose name may be inserted in the blank left in the precept for that purpose, can execute the precept as bailie; and whoever has the precept of seisin in his hands, is presumed to have a power of attorney from the vassal for receiving possession in his name.

16. A seisin is the instrument or attestation of a notary, that possession was actually given by the superior or his bailie, to the vassal or his attorney; which is considered as so necessary a solemnity, as not to be suppliable, either by a proof of natural possession, or even of the special fact that the vassal was duly entered to the possession by the superior's bailie.

17. The symbols by which the delivery of possession is expressed, are, for lands, earth, and stone; for rights of annual rent payable forth of land, it is also earth and stone with the addition of a penny money: for parsonage, teinds, a sheaf of corn; for jurisdictions, the book of the court; for patronages, a psalm book, and the keys of the church; for fishings, net and coble; for mills, clap and happer, &c. The seisin must be taken upon the ground of the lands, except where there is a special dispensation in the charter from the crown.

18. All seisins must be registered within 60 days after their date, either in the general register of seisins at Edinburgh, or in the register of the particular shire appointed by the act 1617; which, it must be observ-

ed, is not, in every case, the thire within which the lands lie. Burgage feissins are ordained to be registered in the books of the borough.

19. Unregistered feissins are ineffectual against third parties, but they are valid against the granters and their heirs. Seissins regularly recorded, are preferable not according to their own dates, but the dates of their registration.

20. Seisin necessarily supposes a superior by whom it is given; the right therefore which the sovereign, who acknowledges the superior, has over the whole lands of Scotland, is constituted jure coronæ without seisin. In several parcels of land that lie contiguous to one another, one seisin serves for all, unless the right of the several parcels be either holden of different superiors, or derived from different authors, or enjoyed by different tenures under the same superior. In discontinuous lands, a separate seisin must be taken on every parcel, unless the sovereign has united them into one tenantry by a charter of union; in which case, if there is no special place expressed, a seisin taken on any part of the united lands will serve for the whole, even though they be situated in different shires. The only effect of union is, to give the discontinuous lands the same quality as if they had been contiguous or naturally united; union, therefore, does not take off the necessity of separate seissins, in lands holden by different tenures, or the rights of which flow from different superiors, these being incapable of natural union.

21. The privilege of barony carries a higher right than union does, and consequently includes union in it as the lesser degree. This right of barony can neither be given, nor transmitted, unless by the crown; but the quality of simple union, being once conferred on lands by the sovereign, may be communicated by the vassal to a subvassal. Though part of the lands united or erected into a barony be sold by the vassal to be holden à me, the whole union is not thereby dissolved: what remains unfold retains the quality.

22. A charter, not perfected by seisin, is a right merely personal, which does not transfer the property (see N^o clxxiii. 1.); and a seisin of itself bears no faith without its warrant: It is the charter and seisin joined together that constitutes the feudal right, and secures the receiver against the effect of all posterior seissins, even though the charters on which they proceed should be prior to his.

23. No quality which is designed as a lien or real burden on a feudal right, can be effectual against singular successors, if it be not inserted in the investiture. If the creditors in the burden are not particularly mentioned, the burden is not real; for no perpetual unknown encumbrance can be created upon lands. Where the right itself is granted with the burden of the sum therein mentioned, or where it is declared void if the sum be not paid against a day certain, the burden is real; but where the receiver is simply obliged by his acceptance to make payment, the clause is effectual only against him and his heirs.

SECT. IV. Of the several kinds of Holding.

1. Feudal subjects are chiefly distinguished by their different manners of holding, which were either ward, blanch, feu, or burgage. Ward-holding, (which is now

abolished by 20 Geo. II. c. 53.) was that which was granted for military service. Its proper reddendo was services, or services used and wont; by which last was meant the performance of service whenever the superior's occasions required it. As all feudal rights were originally held by this tenure, ward-holding was in duobus presumed. Hence, though the reddendo had contained some special service or yearly duty, the holding was presumed ward, if another holding was not particularly expressed.

2. Feu-holding is that whereby the vassal is obliged to pay to the superior a yearly rent in money or grain, and sometimes also in services proper to a farm, as ploughing, reaping, carriages for the superior's use, &c. nomine feudi firme. This kind of tenure was introduced for the encouragement of agriculture, the improvement of which was considerably obstructed by the vassal's obligation to military service. It appears to have been a tenure known in Scotland as far back as leges burgorum.

3. Blanch-holding is that whereby the vassal is to pay to the superior an elusory yearly duty, as a penny money, a rose, a pair of gilt spurs, &c. merely in acknowledgment of the superiority, nomine alba firma. This duty, where it is a thing of yearly growth, if it be not demanded within the year, cannot be exacted thereafter; and where the words si petatur tantum are subjoined to the reddendo, they imply a release to the vassal, whatever the quality of the duty may be, if it is not asked within the year.

4. Burgage-holding is that, by which boroughs royal hold of the sovereign the lands which are contained in their charters of erection. This, in the opinion of Craig, does not constitute a separate tenure, but is a species of ward-holding; with this speciality, that the vassal is not a private person, but a community: and indeed, watching and warding, which is the usual service contained in the reddendo of such charters, might be properly enough said, some centuries ago, to have been of the military kind. As the royal borough is the king's vassal, all burgage-holders hold immediately of the crown: the magistrates, therefore, when they receive the resignations of the particular burgesses, and give seisin to them, act, not as superiors, but as the king's bailies specially authorized thereto.

5. Feudal subjects, granted to churches, monasteries, or other societies for religious or charitable uses, are said to be mortified, or granted ad manum mortuam; either because all casualties must necessarily be lost to the superior, where the vassal is a corporation, which never dies; or because the property of these subjects is granted to a dead hand, which cannot transfer it to another. In lands mortified in times of Popery to the church, whether granted to prelates for the behoof of the church, or in puram elemosynam; the only services prestable by the vassals were prayers, and singing of masses for the souls of the deceased, which approaches nearer to blanch-holding than ward. The purposes of such grants having been, upon the Reformation, declared superstitious, the lands mortified were annexed to the crown: but mortifications to universities, hospitals, &c. were not affected by that annexation; and lands may, at this day, be mortified to any lawful purpose, either by blanch or by feu holding:

ing: But as the superior must lose all the casualties of superiority in the case of mortifications to churches, universities, &c. which, being considered as a corporation, never dies; therefore lands cannot be mortified without the superior's consent. Craig, lib. i. dieg. 11. § 21.

1. The right of the superior continues unimpaired, notwithstanding the feudal grant, unless in so far as the dominium utile, or property, is conveyed to his vassal. The superiority carries a right to the services and annual duties contained in the reddendo of the vassal's charter. The duty payable by the vassal is a debitum fundi, i. e. it is recoverable, not only by a personal action against himself, but by a real action against the lands.

2. Besides the constant fixed rights of superiority, there are others which, because they depend upon uncertain events, are called casualties.

3. The casualties proper to a ward-holding, while that tenure subsisted, were word, recognition, and marriage, which it is now unnecessary to explain, as by the late statutes 20 and 25 Geo. II. for abolishing ward-holdings, the tenure of the lands holden ward of the crown or prince is turned into blanch, for payment of one penny Scots yearly, si petatur tantum; and the tenure of those holden of subjects into feu, for payment of such yearly feu duty in money, victual, or cattle, in place of all services, as should be fixed by the court of session. And accordingly that court, by act of federunt Feb. 8. 1749, laid down rules for ascertaining the extent of these feu duties. A full history of their casualties, and of the effects consequent upon their falling to the superior, will be found in Erskine's large Institute, B. 2. t. 5. § 5. et sequen.; to which the reader is referred.

4. The only casualty, or rather forfeiture, proper to feu-holding, is the loss or tinsel of the feu right, by the neglect of payment of the feu duty for two full years. Yet where there is no conventional irritancy in the feu right, the vassal is allowed to purge the legal irritancy at the bar; that is, he may prevent the forfeiture, by making payment before sentence; but where the legal irritancy is fortified by a conventional, he is not allowed to purge, unless where he can give a good reason for the delay of payment.

5. The casualties common to all holdings are non-entry, relief, livery escheat, disclaimation, and purpresture. NON-ENTRY is that casualty which arises to the superior out of the rents of the feudal subject, through the heirs neglecting to renew the investiture after his ancestor's death. The superior is entitled to this casualty, not only where the heir has not obtained himself invest, but where his retour or investment is set aside upon nullities. The heir, from the death of the ancestor, till he be cited by the superior in a process of general declarator of non-entry, loses only the returned duties of his lands, (see next parag.); and he forfeited these, though his delay should not argue any contempt of the superior, because the casualty is considered to fall, as a condition implied in the feudal right, and not as a penalty of transgression: but rea-

sonable excuses are now admitted to liberate even from the returned duties before citation.

6. For understanding the nature of returned duties, it must be known, that there was anciently a general valuation of all the lands in Scotland, designed both for regulating the proportion of public subsidies, and for ascertaining the quantity of non-entry and relief duties payable to the superior; which appears, by a contract between K. R. Bruce and his subjects anno 1327, preserved in the library of the Faculty of Advocates, to have been settled at least as far back as the reign of Alexander III. This valuation became in the course of time, by the improvement of agriculture, and perhaps also by the brightening of the nominal value of our money, from the reign of Robert I. downwards to that of James III. much too low a standard for the superior's casualties; wherefore, in all services of heirs, the inquest came at last to take proof likewise of the present value of the lands contained in the brief (quantum nunc valent), in order to fix these casualties. The first was called the old, and the other the new, extent. Old and Though both extents were ordained to be specified in new ex-all retours made to the chancery upon briefs of in- tents. quest; yet by the appellation of returned duties in a question concerning casualties, the new extent is always understood. The old extent continued the rule for levying public subsidies, till a tax was imposed by new proportions, by several acts made during the usurpation. By two acts of Cromwell's parliament, held at Westminster in 1656, imposing taxations on Scotland, the rates laid upon the several counties are precisely fixed. The subsidy granted by the act of convention 1667 was levied on the several counties, nearly in the same proportions that were fixed by the usurper in 1656; and the sums to which each county was subjected were subdivided among the individual landholders in that county, according to the valuations already settled, or that should be settled by the commissioners appointed to carry that act into execution. The rent fixed by these valuations, is commonly called the valued rent; according to which the land tax and most of the other public burdens, have been levied since that time.

7. In feu-holdings, the feu duty is returned as the rent, because the feu duty is presumed to be, and truly was at first, the rent. The superior therefore of a feu-holding gets no non-entry, before citation in the general declarator; for he would have been entitled to the yearly feu duty, though the fee had been full, i. e. though there had been a vassal invest in the lands. The superior of teinds gets the fifth part of the returned duty as non-entry, because the law considers teinds to be worth a fifth part of the rent. In rights of annualrent which are holden of the granter, the annualrenter becomes his debtor's vassal; and the annualrent contained in the right is returned to the blanch or other duty contained in the right before declarator.

8. It is because the returned duty is the presumed rent, that the non-entry is governed by it. If therefore no retour of the lands in non-entry can be produced, nor any evidence brought of the returned duty, the superior is entitled to the real, or at least to the valued, rent, even before citation. In lands formerly holden ward of the king, the heir, in place of the re-

tonred duties, is subjected only to the annual payment of one per cent. of the valued rent.

9. The heir, after he is cited by the superior in the action of general declarator, is subjected to the full rents till his entry, because his neglect is less excusable after citation. The decree of declarator, proceeding on this action, entitles the superior to the possession, and gives him right to the rents downward from the citation. As this sort of non-entry is properly penal, our law has always restricted it to the returned duties, if the heir had a probable excuse for not entering.

10. Non-entry does not obtain in burghage-holdings, because the incorporation of inhabitants holds the whole incorporated subjects of the king; and there can be no non-entry duty in lands granted to communities, because there the vassal never dies. This covers the right of particulars from non-entry: for if non-entry be excluded with regard to the whole, it cannot obtain with regard to any part. It is also excluded, as to a third of the lands, by the terce, during the widow's life; and as to the whole of them, by the courtesy during the life of her husband. But it is not excluded by a precept of seisin granted to the heir till seisin be taken thereupon.

11. RELIEF is that casualty which entitles the superior to an acknowledgment or consideration from the heir for receiving him as vassal. It is called relief, because, by the entry of the heir, his fee is relieved out of the hands of the superior. It is not due in feu-holdings flowing from subjects, unless where it is expressed in the charter by a special clause for doubling the feu duty at the entry of an heir; but in feu rights holden of the crown, it is due, though there should be no such clause in the charter. The superior can recover this casualty, either by a poinding of the ground, as a debitum fundi, or by a personal action against the heir. In blanch and feu-holdings, where this casualty is expressly stipulated, a year's blanch or feu duty is due in name of relief, beside the current year's duty payable in name of blanch or feu farm.

12. ESCHEAT (from escheoir, to happen or fall) is that forfeiture which falls through a person's being denounced rebel. It is either single or liferent. Single escheat, though it does not accrue to the superior, must be explained in this place, because of its coincidence with liferent.

13. After a debt is constituted, either by a formal decree, or by registration of the ground of debt, which to the special effect of execution, is in law accounted a decree: the creditor may obtain letters of homing, issuing from the signet, commanding messengers to charge the debtor to pay or perform his obligation, within a day certain. Where homing proceeds on a formal decree of the session, the time indulged by law to the debtor is fifteen days; if upon a decree of the commission of ten or admiral, it is ten; and upon the decrees of all inferior judges, fifteen days. Where it proceeds on a registered obligation, which specifies the number of days, that number must be the rule; and, if no precise number be mentioned, the charge must be given in fifteen days, which is the term of law, unless where special statute interposes; as in bills, upon which the debtor may be charged on six days.

14. The messenger must execute these letters (and

indeed all summonses) against the debtor, either personally or at his dwelling house; and, if he get not access to the house, he must strike six knocks at the gate, and thereafter affix to it a copy of his execution. If payment be not made within the days mentioned in the homing, the messenger, after proclaiming three oyes at the market cross of the head borough of the debtor's domicile, and reading the letters there, blows three blasts with a horn, by which the debtor is understood to be proclaimed rebel to the king for contempt of his authority; after which, he must affix a copy of the execution to the market cross; This is called the publication of the diligence, or a denunciation at the horn. Where the debtor is not in Scotland, he must be charged on sixty days, and denounced at the market cross of Edinburgh, and pier and shore of Leith.

15. Denunciation, if registered within 15 days, consequenter in the sheriff's books, or in the general register, drew after it the rebel's single escheat, i. e. the forfeiture of his moveables to the crown. Persons denounced rebels have not a persona standi in judicio; they can neither sue nor defend in any action. But this incapacity being unfavourable, is personal to the rebel, and cannot be pleaded against his assignee.

16. Persons cited to the court of justice may be denounced rebels, either for appearing there with too great a number of attendants: or, if they fail to appear, they are declared fugitives from the law. Single escheat falls, without denunciation, upon sentence of death pronounced in any criminal trial; and, by special statute, upon one's being convicted of certain crimes, though not capital; as perjury, bigamy, desertion, breach of attestation, and usury. By the late act abolishing ward-holdings, the casualties both of single and liferent escheat are discharged, when proceeding upon denunciation for civil debts; but they still continue, when they arise from criminal causes. All moveables belonging to the rebel at the time of his rebellion, (whether proceeding upon denunciation, or sentence in a criminal trial), and all that shall be afterwards acquired by him until relaxation, fall under single escheat. Bonds bearing interest, because they continue heritable quoad fiscum, fall not under it, nor such fruits of heritable subjects as became due after the term next ensuing the rebellion, these being reserved for the liferent escheat.

17. The king never retains the right of escheat to himself, but makes it over to a donatory, whose gift is not perfected till, upon an action of general declarator, it be declared that the rebel's escheat has fallen to the crown by his denunciation, and that the right of it is now transferred to the pursuer by the gift in his favour. Every creditor therefore of the rebel, whose debt was contracted before rebellion, and who has used diligence before declarator, is preferable to the donatory. But the escheat cannot be affected by any debt contracted, nor by any voluntary deed of the rebel after rebellion.

18. The rebel, if he either pays the debt charged for, or suspends the diligence, may procure letters of relaxation from the horn, which, if published in the same place, and registered 15 days thereafter in the same register with the denunciation, have the effect to restore

Law of Scotland. restore him to his former state; but they have no retrospect as to the moveables already fallen under escheat, without a special clause for that purpose.

Liferent escheat. 19. The rebel, if he continues unrelaxed for year and day after rebellion, is construed to be civilly dead: and therefore, where he holds any feudal right, his superiors, as being without a vassal, are entitled, each of them, to the rents of such of the lands belonging to the rebel as hold of himself, during all the days of the rebel's natural life, by the casualty of LIFERENT ESCHÉAT; except where the denunciation proceeds upon treason or proper rebellion, in which case the liferent falls to the king.

20. It is that estate only, to which the rebel has a proper right of liferent in his own person, that falls under his liferent escheat.

21. Though neither the superior nor his donatory can enter into possession in consequence of this casualty, till decree of declarator; yet that decree, being truly declaratory, has a retrospect, and does not so properly confer a new right, as declare the right formerly constituted to the superior, by the civil death of his vassal. Hence, all charters or heritable bonds, though granted prior to the rebellion, and all adjudications, though led upon debts contracted before that period, are ineffectual against the liferent escheat, unless seisin be taken thereon within year and day after the grantor's rebellion.

22. Here, as in single escheat, no debt contracted after rebellion can hurt the donatory, nor any voluntary right granted after that period, though in security or satisfaction of prior debts.

Disclaim-ation. Purpresture. 23. DISCLAIMATION is that casualty whereby a vassal forfeits his whole feu to his superior, if he disowns or disclaims him, without ground, as to any part of it. PURPRESTURE draws likewise a forfeiture of the whole feu after it; and is incurred by the vassal's encroaching upon any part of his superior's property, or attempting, by building, enclosing, or otherwise, to make it his own. In both these feudal delinquencies, the least colour of excuse saves the vassal.

Signatures. 24. All grants from the crown, whether charters, gifts of casualties, or others, proceed on signatures which pass the signet. When the king resided in Scotland, all signatures were supercribed by him; but, on the accession of James VI. to the crown of England, a cachet or seal was made, having the king's name engraved on it, in pursuance of an act of the privy council, April 4. 1603, with which all signatures were to be afterwards sealed, that the lords of exchequer were empowered to pass; and these powers are transferred to the court of exchequer, which was established in Scotland after the union of the two kingdoms in 1707. Grants of higher consequence, as remission of crimes, gifts proceeding upon forfeiture, and charters of novodamus, must have the king's sign manual for their warrant.

Seal. 25. If lands holding of the crown were to be conveyed, the charter passed, before the union of the kingdoms in 1707, by the great seal of Scotland; and now by a seal substituted in place thereof. Grants of church dignities, during Episcopacy, passed also by the great seal; and the commissions to all the principal officers of the crown, as justice clerk, king's advocate, solicitor, &c. do so at this day. All rights which sub-

jects may transmit by simple assignation, the king transmits by the privy seal: as gifts of moveables, or of casualties that require no seisin. The quarter seal, otherwise called the testimonial of the great seal, is appended to gifts of tutory, commissions of briefs issuing from the chancery, and letters of presentation to lands holding of a subject, proceeding upon forfeiture, bastardy, or ultimus heres.

26. Seals are to royal grants what subscription is to rights derived from subjects, and give them authority; they serve also as a check to gifts procured (subreptione vel obreptione) by concealing the truth, or expressing a falsehood; for, where this appears, the gift may be stopped before passing the seals, though the signature should have been signed by the king. All rights passing under the great or privy seal must be registered in the registers of the great or privy seal respectu, before appending the seal.

SECT. VI. Of the Right which the Vassal acquires by getting the Feu. clxvii

1. Under the dominium utile which the vassal acquires by the feudal right, is comprehended the property of whatever is considered as part of the lands, whether of houses, woods, enclosures, &c. above ground; or of coal, limestone, minerals, &c. under ground. Mills have, by the generality of our lawyers, been deemed a separate tenement, and so not carried by a charter or disposition, without either a special clause conveying mills, or the erection of the lands into a barony. Yet it is certain, that, if a proprietor builds a mill on his own lands, it will be carried by his entail, or by a retour, without mentioning it, although the lands are not erected into a barony. If the lands disposed be afflicted, or thirled to another mill, the purchaser is not allowed to build a new corn mill on his property, even though he should offer security that it shall not hurt the thirle; which is introduced for preventing daily temptations to fraud.

2. Proprietors are prohibited to hold dove-cots, unless their yearly rent, lying within two miles thereof, extend to ten chalders of victual. A purchaser of lands, with a dove-cot, is not obliged to pull it down, though he should not be qualified to build one; but, if it becomes ruinous, he cannot rebuild it. The right of brewing, though not expressed in the grant, is implied in the nature of property; as are also the rights of fishing, fowling, and hunting, in so far as they are not restrained by statute.

3. There are certain rights naturally consequent on Regalia property, which are deemed to be preserved by the crown as regalia; unless they be specially conveyed. Gold and silver mines are of this sort; the first universally; and the other, where three halfpennies of silver can be extracted from the pound of lead, by act 1424, (three halfpennies at that time was equal to about two shillings five pence of our present Scots money). These were by our ancient law annexed to the crown; but they are now dissolved from it; and every proprietor is entitled to a grant of the mines within his own lands, with the burden of delivering to the crown a tenth of what shall be brought up.

4. Salmon fishing is likewise a right understood to be reserved by the crown, if it be not expressly granted: but

but 40 years possession thereof, where the lands are either erected into a barony, or granted with the general clause of fishings, establishes the full right of the salmon fishing in the vassal. A charter of lands within which any of the king's forests lie, does not carry the property of such forest to the vassal.

5. All the subjects which were by the Roman law accounted res publica, as rivers, highways, ports, &c. are, since the introduction of feus, held to be inter regalia, or in patrimonio principis; and hence encroachment upon a highway is said to infer purpreture. No person has the right of a free port without a special grant, which implies a power in the grantee to levy anchorage and shore dues, and an obligation upon him to uphold the port in good condition. In this class of things, our forefathers reckoned fortalices, or small places of strength, originally built for the defence of the country, either against foreign invasions or civil commotions; but these now pass with the lands in every charter.

6. The vassal acquires right by his grant, not only to the lands specially contained in the charter, but to those that have been possessed 40 years as pertinent thereof. But, 1. If the lands in the grant are marked out by special limits, the vassal is circumscribed by the tenor of his own right, which excludes every subject without these limits from being pertinent of the lands. 2. A right possessed under an express infeftment is preferable, ceteris paribus, to one possessed only as pertinent. 3. Where neither party is infeft per expressum, the mutual promiscuous possession by both, of a subject as pertinent, resolves into a commonity of the subject possessed: but if one of the parties has exercised all the acts of property of which the subject was capable, while the possession of the other was confined to pasture only, or to calling seal and divot, the first is to be deemed sole proprietor, and the other to have merely a right of servitude.

7. As barony is a nomen universitatis, and unites the several parts contained in it into one individual right, the general conveyance of a barony carries with it all the different tenements of which it consists, though they should not be specially enumerated (and this holds, even without erection into a barony, in lands that have been united under a special name). Hence, likewise, the possession by the vassal of the smallest part of the barony lands preserves to him the right of the whole.

8. The vassal is entitled, in consequence of his property, to levy the rents of his own lands, and to recover them from his tenants by an action for rent before his own court; and from all other possessors and intromitters, by an action of mails and duties before the sheriff. He can also remove from his lands, tenants who have no leases; and he can grant tacks or leases to others. A tack is a contract of location, whereby the use of land, or any other immovable subject, is set to the lessee or tackman for a certain yearly rent, either in money, the fruits of the ground, or services. It ought to be reduced into writing, as it is a right concerning lands: tacks, therefore, that are given verbally, to endure for a term of years, are good against neither party for more than one year. An obligation to grant a tack is as effectual against the grantor as a formal tack. A liferenter, having a temporary pro-

perty in the fruits, may grant tacks to endure for the term of his own liferent.

9. The tackman's right is limited to the fruits which spring up annually from the subject set, either naturally, or by his own industry; he is not therefore entitled to any of the growing timber above ground, and far less to the minerals, coal, clay, &c. under ground, the use of which consumes the substance. Tacks are, like other contracts, personal rights in their own nature; and consequently ineffectual against singular successors in the lands; but, for the encouragement of agriculture, they were, by act 1449, declared effectual to the tackman for the full time of their endurance, into whose hands soever the lands might come.

10. To give a written tack the benefit of this statute, it must mention the special tack-duty payable to the proprietor, which, though small, if it be not elusory, secures the tackman; and it must be followed by possession, which supplies the want of a feifin. If a tack does not express the term of entry, the entry will commence at the next term after its date, agreeable to the rule, Quod pure debetur, presenti die debetur. If it does not mention the iih, i. e. the term at which it is to determine, it is good for one year only; but, if the intention of parties to continue it for more than one year, should appear from any clause in the tack, e. g. if the tackman should be bound to certain annual prestations, it is sustained for two years as the minimum. Tacks granted to perpetuity, or with an indefinite iih, have not the benefit of the statute. Tacks of houses within borough do not fall within this act, it being customary to let these from year to year.

11. Tacks necessarily imply a delectus persona, a choice Tacks are by the setter of a proper person for his tenant. Hence fructi juris the conveyance of a tack which is not granted to assignees, is ineffectual without the landlord's consent. A right of tack, though it be heritable, falls under the jus mariti, because it cannot be separated from the labouring cattle and implements of tillage, which are moveable subjects. A tack, therefore, granted to a single woman, without the liberty of assigning, falls by her marriage; because the marriage, which is a legal conveyance thereof to the husband, cannot be annulled. This implied exclusion of assignees, is, however, limited to voluntary, and does not extend to necessary, assignments; as an adjudication of a tack by the tackman's creditor: but a tack, expressly excluding assignees, cannot be carried even by adjudication. It was not a fixed point for a long time, whether a tenant could sublet without consent of the landlord; but the court of session, in a case which occurred a few years ago, denied the power of subletting in the tenant. Liferent tacks, because they import a higher degree of right in the tackman than tacks for a definite term, may be assigned, unless assignees be specially excluded.

12. If neither the setter nor tackman shall properly Tack res- discover their intention to have the tack dissolved at the cation. term fixed for its expiration, they are understood, or presumed, to have entered into a new tack upon the same terms with the former, which is called tacet relocationis; and continues till the landlord warns the tenant to remove, or the tenant renounces his tack to the landlord: this obtains also in the case of moveable tenants, who possess from year to year without written tacks.

In judicial tacks, however, by the court of session, tacit relocation neither does nor can take place; for cautioners being interposed to these, they are loosed at the end of the tack: and therefore, where judicial tacksmen possess after expiry of the right, they are accountable as factors.

13. In tacks of land, the fetter is commonly bound to put all the houses and office houses, necessary for the farm, in good condition at the tenant's entry; and the tenant must keep them and leave them so at his removal. But, in tacks of houses, the fetter must not only deliver to the tenant the subject set, in tenantable repair at his entry, but uphold it in that repair during the whole years of the tack, unless it is otherwise covenanted betwixt the parties.

14. If the inclemency of the weather, inundation, or calamity of war, should have brought upon the crop an extraordinary damage (plus quam tolerabile), the landlord had, by the Roman law, no claim for any part of the tack-duty; if the damage was more moderate, he might exact the full rent. It is nowhere defined, what degree of sterility or devastation makes a loss plus quam tolerabile; but the general rule of the Roman law seems to be made ours. Tenants are not obliged to pay any public burdens to which they are not expressly bound by their tack, except mill services.

15. Tacks may be evacuated during their currency, (1.) In the same manner as feu rights, by the tacksmen's running in arrear of his tack duty for two years together. This irritancy may be prevented by the tenant's making payment at the bar before sentence. (2.) Where the tenant either runs in arrear of one year's rent, or leaves his farm uncultivated at the usual season; in which case he may, by act of sederunt 1756, be ordained to give security for the arrears, and for the rent of the five following crops, if the tack shall subsist so long; otherwise to remove, as if the tack were at an end. (3.) Tacks may be evacuated at any time by the mutual consent of parties.

16. The landlord, when he intends to remove a tenant whose tack is expiring, or who possesses without a tack, must, upon a precept signed by himself, warn the tenant forty days preceding the term of Whit-sunday, at or immediately preceding the iiii, personally or at his dwelling house, to remove at that term, with his family and effects. This precept must be also executed on the ground of the lands, and thereafter read in the parish church where the lands lie, after the morning service, and affixed to the most patent door thereof. Whit-sunday, though it be a moveable feast, is, in questions of removing, fixed to the 15th of May. In warnings from tenements within borough, it is sufficient that the tenant be warned forty days before the iiii of the tack, whether it be Whit-sunday or Martinmas; and in these the ceremony of chalking the door is sustained as warning, when proceeding upon a verbal order from the proprietor.

17. This process of warning was precisely necessary for founding an action of removing against tenants, till the act of sederunt 1756, which leaves it in the option of the proprietor, either to use the former method, or to bring his action of removing before the judge ordinary; which, if it be called 40 days before the said term of Whit-sunday, shall be held as equal to a warning. Where the tenant is bound, by an express clause of his

tack, to remove at the iiii without warning, such obligation is, by the said act, declared to be a sufficient warrant for letters of horning; upon which, if the landlord charge his tenant forty days before the said Whit-sunday, the judge is authorized to eject him within six days after the term of removing expressed in the tack.

18. Actions of removing might, even before this act of sederunt, have been pursued without any previous warning, (1.) Against vicious possessors, i. e. persons who had seized the possession by force, or who, without any legal title, had intruded into it, after the last possessor had given it up. (2.) Against possessors who had a naked tolerance. (3.) Against tenants who had run in arrear of rent, during the currency of their tacks. (4.) Against such as had sold their lands, and yet continued to possess after the term of the purchaser's entry. Upon the same ground, warning was not required, in removing against possessors of liferented lands, after the death of the liferenter who died in the natural possession: but if he possessed by tenants, these tenants could not be disturbed in their possessions till the next Whit-sunday, that they might have time to look out for other farms; but they might be compelled to remove at that term, by an action of removing, without warning.

19. A landlord's title in a removing, let it be ever so lame, cannot be brought under question by a tenant whose tack flows immediately from him; but, if he is to insist against tenants not his own, his right must be perfected by infestation, unless it be such as requires no infestation; as terce, &c.

20. The defender, in a removing, must (by act 1555), Violent before offering any defence which is not instantly veri- profits. fied, give security to pay to the fetter the violent profits, if they should be awarded against him. These are so called, because the law considers the tenant's possession after the warning as violent. They are estimated, in tenements within borough, to double the rent; and in lands, to the highest profits the pursuer could have made of them, by possessing them either by a tenant or by himself.

21. If the action of removing shall be passed from, or if the landlord shall, after using warning, accept of rent from the tenant, for any term subsequent to that in. Effect of warning not insisted upon. the removal, he is presumed to have changed his mind, and tacit relocation takes place. All actions of removing against the principal or original tacksmen, and decrees thereupon, if the order be used, which is set forth supra (17.), are, by the act of sederunt 1756, declared to be effectual against the assignees to the tack or subtenants.

22. The landlord has, in security of his tack-duty, Hypothec. over and above the tenant's personal obligation, a tacit pledge or hypothec, not only on the fruits, but on the cattle pasturing on the ground. The corn, and other fruits are hypothecated for the rent of that year whereof they are the crop; for which they remain affected, though the landlord should not use his right for years together. In virtue of this hypothec, the landlord is entitled to a preference over any creditor, though he has actually used a poinding; except in the special case, that the poinding is executed after the term of payment, when the landlord can appropriate the crop for his payment, the poinder in such case being obliged to

to leave as much on the ground as to satisfy the landlord's hypothec; and it was found by the court of session, that this right of the landlord is preferable even to a debt due to the crown, for which a writ of extent had been issued.

23. The whole cattle on the ground, considered as a quantity, are hypothecated for a year's rent, one after another successively. The landlord may apply this hypothec for payment of the past year's rent, at any time within three months from the last conventional term of payment, after which it ceases for that year. As the tenant may increase the subject of this hypothec, by purchasing oxen, sheep, &c. so he can impair it, by selling part of his stock; but if the landlord suspects the tenant's management, he may, by sequestration or poinding, make his right, which was before general upon the whole stock, special upon every individual. A superior has also a hypothec for his feu-duty, of the same kind with that just explained.

24. In tacks of houses, breweries, shops, and other tenements, which have no natural fruits, the furniture, and other goods brought into the subject set are hypothecated to the landlord for one year's rent. But the tenant may by sale impair this hypothec, as he might that of cattle in rural tenements; and indeed, in the particular case of a shop, the tenant rents it for no other purpose than as a place of sale.

SECT. VII. Of the Transmission of Rights, by Confirmation and Resignation.

1. A vassal may transmit his feu either to universal successors, as heirs; or to singular successors, i. e. those who acquire by gift, purchase, or other singular title. This last sort of transmission is either voluntary, by disposition; or necessary, by adjudication.

2. By the first feudal rules, no superior could be compelled to receive any vassal in the lands, other than the heir expressed in the investiture; for the superior alone had the power of ascertaining to what order of heirs the fee granted by himself was to descend. But this right of refusal in the superior did not take place, (1.) In the case of creditors appraisers or adjudgers, whom superiors were obliged to receive upon payment of a year's rent (1469, c. 37. 1672, c. 19.): (2.) In the case of purchasers of bankrupt estates, who were put on the same footing with adjudgers by 1690, c. 20. The crown refuses no voluntary disponee, on his paying a composition to the exchequer of a sixth part of the valued rent. Now, by 20 Geo. II. superiors are directed to enter all singular successors (except incorporations) who shall have got from the vassal a disposition, containing procuratory of resignation: they always receiving the fees or casualties that law entitles them to on a vassal's entry, i. e. a year's rent (A).

3. Base rights, i. e. dispositions to be holden of the donor, are transmissions only of the property, the superiority remaining as formerly. As this kind of right might, before establishing the registers, have been kept quite concealed from all but the granter and receiver, a public right was preferable to it, unless clothed with possession: but as this distinction was no longer necessary after the establishment of the records, all infeftments are declared preferable, according to the dates of their several registrations; without respect to the former distinction of base and public, or of being clothed and not clothed with possession.

4. Public rights, i. e. dispositions to be holden of the Public granter's superior, may be perfected either by confirmation or resignation; and therefore they generally contain both precept of seisin and procuratory of resignation. When the receiver is to complete his right in the first way, he takes seisin upon the precept: but such seisin is ineffectual without the superior's confirmation; for the disponee cannot be deemed a vassal till the superior receive him as such, or confirm the holding. By the usual style in the transmission of lands, the disposition contains an obligation and precept of infeftment, both à me and de me, in the option of the disponee; upon which, if seisin is taken indefinitely, it is construed in favour of the disponee to be a base infeftment, because a public right is null without confirmation: but if the receiver shall afterwards obtain the superior's confirmation, it is considered as if it had been from the beginning a public right.

5. Where two several public rights of the same subject are confirmed by the superior, their preference is governed by the dates of the confirmations, not of the infeftments confirmed; because it is the confirmation which completes a public right.

6. Though a public right becomes, by the superior's confirmation, valid from its date; yet if any impediment intervene betwixt that period and the confirmation, to hinder the two from being conjoined, e. g. if the granter of a public right should afterwards grant a base right to another, upon which seisin is taken before the superior's confirmation of the first, the confirmation will have effect only from its own date; and consequently the base right first completed will carry the property of the lands preferable to the public one.

7. Resignation is that form of law, by which a vassal surrenders his feu to his superior; and it is either ad perpetuam remanentiam, or in favorem. In resignations ad remanentiam, where the feu is resigned, to the effect that it may remain with the superior, the superior, who before had the superiority, acquires, by the resignation, the property also of the lands resigned: and as his infeftment in the lands still subsisted, notwithstanding the right by which he had given his vassal the property; therefore, upon the vassal's resignation, the superior's

(A) It was long matter of doubt how this composition due to the superior upon the entry of singular successors should be regulated. The matter at last received a solemn decision; finding, That the superior is entitled, for the entry of singular successors, in all cases where such entries are not taxed, to a year's rent of the subject, whether lands or houses, as the same are set, or may be set at the time; deducting the feu-duty and all public burdens, and likewise all annual burdens imposed on the lands by consent of the superior, with all reasonable annual repairs to houses and other perishable subjects.

period's right of property revives, and is consolidated with the superiority, without the necessity of a new instrument; but the instrument of resignation must be recorded.

8. Resignations in favorem are made, not with an intention that the property resigned should remain with the superior, but that it should be again given by him, in favour either of the resigner himself, or of a third party; consequently the fee remains in the resigner, till the person in whose favour resignation is made gets his right from the superior perfected by seisin. And because resignations in favorem are but incomplete personal deeds, our law has made no provision for recording them. Hence, the first seisin on a second resignation is preferable to the last seisin upon the first resignation; but the superior, accepting a second resignation, whereupon a prior seisin may be taken in prejudice of the first resignatory, is liable in damages.

9. By our former decisions, one who was vested with a personal right of lands, i. e. a right not completed by seisin, effectually divested himself by disposing it to another; after which no right remained in the disponer, which could be carried by a second disposition, because a personal right is no more than a juris obligatio, which may be transferred by any deed sufficiently expressing the will of the grantor. But this doctrine, at the same time that it rendered the security of the records extremely uncertain, was not truly applicable to such rights as required seisin to complete them; and therefore it now obtains, that the grantor even of a personal right of lands is not so divested by conveying the right to one person, but that he may effectually make it over afterwards to another; and the preference between the two does not depend on the dates of the dispositions, but on the priority of the seisins following upon them.

SECT. VIII. Of Redeemable Rights.

1. An heritable right is said to be redeemable, when it contains a right of reversion, or return, in favour of the person from whom the right flows. Reversions are either legal, which arise from the law itself, as in adjudications, which law declares to be redeemable within a certain term after their date; or conventional, which are constituted by the agreement of parties, as in wadsets, rights of annualrent, and rights in security. A wadset (from wad or pledge) is a right, by which lands, or other heritable subjects, are impignorated by the proprietor to his creditor in security of his debt; and, like other heritable rights, is perfected by seisin. The debtor, who grants the wadset, and has the right of reversion, is called the reverser; and the creditor, receiver of the wadset, is called the wadsetter.

2. Wadsets, by the present practice, are commonly made out in the form of mutual contracts, in which one party sells the land, and the other grants the right of reversion. When the right of reversion is thus incorporated in the body of the wadset, it is effectual without registration; because the singular successor in the wadset is, in that case, sufficiently certified of the reversion, though it be not registered, by looking into his own right, which bears it in gremio. But where

the right of reversion is granted in a separate writing, it is ineffectual against the singular successor of the wadsetter, unless it be registered in the register of seisins within 60 days after the date of the seisin upon the wadset.

3. Rights of reversion are generally esteemed fructus juris; yet they go to heirs, though heirs should not be mentioned, unless there be some clause in the right, discovering the intention of parties, that the reversion should be personal to the reverser himself. In like manner, though the right should not express a power to redeem from the wadsetter's heir, as well as from himself, redemption will be competent against the heir. All our lawyers have affirmed, that reversions cannot be assigned, unless they are taken to assignees; but from the favour of legal diligence, they may be adjudged.

4. Reversions commonly leave the reverser at liberty to redeem the lands quandocunque, without restriction in point of time; but a clause is adjoined to some reversions, that if the debt be not paid against a determinate day, the right of reversion shall be irritated, and the lands shall become the irredeemable property of the wadsetter. Nevertheless the irritancy being penal, as in wadsets, where the sum lent falls always short of the value of the lands, the right of redemption is by indulgence continued to the reverser, even after the term has expired, while the irritancy is not declared. But the reverser, if he does not take the benefit of this indulgence within 40 years after the lapse of the term, is cut out of it by prescription.

5. If the reverser would redeem his lands, he must use an order of redemption against the wadsetter: the first step of which is premonition (or notice given under form of instrument) to the wadsetter, to appear at the time and place appointed by the reversion, then and there to receive payment of his debt, and thereupon to renounce his right of wadset. In the voluntary redemption of a right of wadset holden base, a renunciation duly registered re-establishes the reverser in the full right of the lands. Where the wadset was granted to be holden of the grantor's superior, the superior must receive the reverser, on payment of a year's rent, if he produce a disposition from the wadsetter, containing procuratory of resignation. If, at executing the wadset, the superior has granted letters of regrefs, i. e. an obligation again to enter the reverser upon redemption of the lands, he will be obliged to receive him without payment of the year's rent. But letters of regrefs will not have this effect against singular successors in the superiority, if they are not registered in the register of reversions. All wadsets that remain personal rights, are extinguished by simple discharges, though they should not be recorded.

6. If the wadsetter either does not appear at the redemption time and place appointed, or refuses the redemption money, the reverser must consign it under form of instrument, in the hands of the person appointed in the right of reversion: or, if no person be named, in the hands of the clerk to the bills, a clerk of session, or any responsible person. An instrument of consignation, with the consignatory's receipt of the money consigned, completes the order of redemption, stops the farther currency of interest against the reverser, and

Law of
Scotland.

stands him in an action for declaring the order to be formal, and the lands to be redeemed in consequence of it.

7. After a decree of declarator is obtained, by which the lands are declared to return to the debtor, the assigned money, which comes in place of the lands, becomes the wadsetter's, who therefore can charge the assignatory upon letters of horning to deliver it up to him; but, because the reverser may, at any time before decree, pass from his order, as one may do from any other step of diligence, the assigned sums continue to belong to the reverser, and the wadsetter's interest in the wadset continues heritable till that period.

8. If the wadsetter chooses to have his money rather than the lands, he must require from the reverser, under form of instrument, the sums due by the wadset, in terms of the right. The wadset-sums may be heritable, notwithstanding requisition, which may be passed from the wadsetter even after the reverser has assigned the redemption money in consequence thereof.

9. Wadsets are either proper or improper. A proper wadset is that whereby it is agreed, that the use of the land shall go for the use of the money; so that the wadsetter takes his hazard of the rents, and enjoys them without accounting, in satisfaction, or in solutum of his interest.

10. In an improper wadset, the reverser, if the rent should fall short of the interest, is taken bound to make up the deficiency; if it amounts to more, the wadsetter is obliged to impute the excrecence towards extinction of the capital: And, as soon as the whole sums, principal, and interest, are extinguished by the wadsetter's possession, he may be compelled to renounce, or divest himself in favour of the reverser.

11. If the wadsetter be entitled by his right to enjoy the rents without accounting, and if at the same time the reverser be subjected to the hazard of their deficiency, such contract is justly declared usurious: and also in all proper wadsets wherein any unreasonable advantage has been taken of the debtor, the wadsetter must (by act 1661), during the not requisition of the sum lent, either quit his possession to the debtor, upon his giving security to pay the interest, or subject himself to account for the surplus rents, as in improper wadsets.

12. Insefts of annualrent, the nature of which has been explained, are also redeemable rights. A right of annualrent does not carry the property of the lands; but it creates a real nexus or burden upon the property, for payment of the interest or annualrent contained in the right; and consequently the bygone interests due upon it are debita fundi. The annualrenter may therefore either insist in a real action for obtaining letters of pointing the ground, or sue the tenant in a personal action towards the payment of his past interest: and in a competition for those rents, the annualrenter's preference will not depend on his having used a pointing of the ground, for his right was completed by the seisin; the power of pointing the ground, arising from that antecedent right, is meræ facultatis, and need not be exercised, if payment can be otherwise got. As it is only the interest of the sum lent which is a burden upon the lands, the annualrenter, if he

wants his principal sum, cannot recover it either by pointing or by a personal action against the debtor's tenants; but must demand it from the debtor himself, on his personal obligation in the bond, either by requisition, or by a charge of letters of horning, according as the right is drawn.

13. Rights of annualrent, being servitudes upon the property, and consequently consistent with the right of property in the debtor, may be extinguished without re-signation.

14. Insefts in security are another kind of redeemable rights (now frequently used in place of rights of annualrent), by which the receivers are inseft in the lands themselves, and not simply in an annualrent forth of them, for security of the principal sums, interest, and penalty, contained in the rights. If an inseftment in security be granted to a creditor, he may thereupon enter into the immediate possession of the lands or annualrent for his payment. They are extinguished as rights of annualrent.

15. All rights of annualrent, rights in security, and generally whatever constitutes a real burden on the fee, may be the ground of an adjudication, which is preferable to all adjudications, or other diligences, intervening between the date of the right and of the adjudication deduced on it; not only for the principal sum contained in the right, but also for the whole past interest contained in the adjudication. This preference arises from the nature of real debts, or debita fundi: but in order to obtain it for the interest of the interest accumulated in the adjudication, such adjudication must proceed on a process of pointing the ground.

SECT. IX. Of Servitudes.

1. Servitude is a burden affecting lands, or rather heritable subjects, whereby the proprietor is either restrained from the full use of what is his own, or is obliged to suffer another to do something upon it. Servitudes are either natural, legal, or conventional. Nature itself may be said to constitute a servitude upon inferior tenements, whereby they must receive the water that falls from those that stand on higher ground. Legal servitudes are established by nature or custom, from considerations of public policy; among which may be numbered the restraints laid upon the proprietors of tenements within the city of Edinburgh. There is as great a variety of conventional servitudes, as there are ways by which the exercise of property may be restrained by pacton in favour of another.

2. Conventional servitudes are constituted, either by grant, where the will of the party burdened is expressed in writing: or by prescription, where his consent is presumed from his acquiescence in the burden for 40 years. A servitude constituted by writing, or grant, is not effectual against the grantor's singular successors, unless the grantee has been in the use or exercise of his right: but they are valid against the grantor and his heirs even without use. In servitudes that may be acquired by prescription, 40 years exercise of the rights is sufficient, without any title in writing, other than a charter and seisin of the lands to which the servitude is claimed to be due.

3. Servitudes constituted by grant are not effectual,

in

in a question with the superior of the tenements burdened with the servitude, unless his consent be admitted; for a superior cannot be hurt by his vassal's deed: but where the servitude is acquired by prescription, the consent of the superior, whose right afforded him a good title to interrupt, is implied. A servitude by grant, though followed only by a partial possession, must be governed, as to its extent, by the tenor of the grant; but a servitude by prescription is limited by the measure or degree of the use had by him who prescribes: agreeable to the maxim, Tantum prescriptum, quantum possessum.

4. Servitudes are either predial or personal. Predial servitudes are burdens imposed upon one tenement, in favour of another tenement. That to which the servitude is due is called the dominant, and that which owes it is called the servient tenement. No person can have right to a predial servitude, if he is not proprietor of some dominant tenement that may have benefit by it; for that right is annexed to a tenement, and so cannot pass from one person to another, unless some tenement goes along with it.

5. Predial servitudes are divided into rural servitudes, or of lands; and urban servitudes, or of houses. The rural servitudes of the Romans were iter, actus, via, aqueductus, aquæhaustus, and jus pastendi pecoris. Similar servitudes may be constituted with us, of a foot-road, horse-road, cart-road, dams and aqueducts, watering of cattle, and pasturage. The right of a highway is not a servitude constituted in favour of a particular tenement, but is a right common to all travellers. The care of high-ways, bridges, and ferries, is committed to the sheriffs, justices of peace, and commissioners of supply in each shire.

6. Common pasturage, or the right of feeding one's cattle upon the property of another, is sometimes constituted by a general clause of pasturage in a charter or disposition, without mentioning the lands burdened; in which case, the right comprehends whatever had been formerly appropriated to the lands disposed out of the grantor's own property, and likewise all pasturage due to them out of other lands. When a right of pasturage is given to several neighbouring proprietors, on a moor or common belonging to the grantor, indefinite as to the number of cattle to be pastured, the extent of their several rights is to be proportioned according to the number that each of them can fodder in winter upon his own dominant tenement.

7. The chief servitudes of houses among the Romans were those of support, viz. signi immittendi, and oneris ferendi. The first was the right of fixing in our neighbour's wall, a joist or beam from our house: the second was that of resting the weight of one's house upon his neighbour's wall.

8. With us, where different floors or stories of the same house belong to different persons, as is frequent in the city of Edinburgh, the property of the house cannot be said to be entirely divided; the roof remains a common roof to the whole, and the area on which the house stands supports the whole; so that there is a communication of property, in consequence of which the proprietor of the ground floor must, without the constitution of any servitude, uphold it for the support of the upper, and the owner of the highest story must uphold that as a cover to the lower. When the high-

est is divided into garrets among the several proprietors, each proprietor is obliged, according to this rule, to uphold that part of the roof which covers his own garret.

6. No proprietor can build, so as to throw the rain water falling from his own house, immediately upon his neighbour's ground, without a special servitude, which is called of stillicide; but, if it falls within his own property, though at the smallest distance from the march, the owner of the inferior tenement must receive it.

10. The servitudes altius non tollendi, et non efficiendi luminibus vel prospectui, restrain proprietors from raising their houses beyond a certain height, or from making any building whatsoever that may hurt the light or prospect of the dominant tenement. These servitudes cannot be constituted by prescription alone: for, though a proprietor should have his house ever so low, or should not have built at all upon his grounds for 40 years together, he is presumed to have so for his own convenience or profit; and therefore cannot be barred from afterwards building a house on his property, or raising it to what height he pleases, unless he be tied down by his own consent.

11. We have two predial servitudes to which the Romans were strangers, viz. that of fuel or seal and divot, and of thirlage. The first is a right, by which the owner of the dominant tenement may turn up peats, turfs, seals, or divots, from the ground of the servient, and carry them off either for fuel, or thatch, or the other uses of his own tenement.

12. THIRLAGE is that servitude, by which lands are restricted, or thirled, to a particular mill; and the possessors bound to grind their grain there, for payment of certain multures and sequels as the agreed price of grinding. In this servitude, the mill is the dominant tenement and the lands restricted (which are called also the thirl or sucken) the servient. Multure is the quantity of grain or meal payable to the proprietor of the mill, or to the multurer his tackman. The sequels are the small quantities given to the servants, under the name of knave'ship, bannock, and lock or gowpen. The quantities paid to the mill by the lands not restricted, are generally proportioned to the value of the labour, and are called out-town or out-sucken multures; but those paid by the thirl are ordinarily higher, and are called in-town or in-sucken multures.

13. Thirlage may be constituted by a landholder, when, in the disposition of certain lands, he restricts them to his own mill; or when in the disposition of a mill, he restricts his own lands to the mill disposed; or when in letting his lands, he makes it a condition in the tacks. The grant of a mill with the general clause of multures, without specifying the lands restricted, conveys the thirlage of all the lands formerly restricted to that mill, whether they were the property of the grantor, or of a third party.

14. A less formal constitution serves to restrict barony lands to the mill of the barony, than is necessary in any other thirlage; which perhaps proceeds from the effects of the union betwixt the two. Hence, if a baron makes over the mill of a barony, cum multuris, or cum restrictis multuris, it infers an restriction of the barony lands to the mill conveyed, although they had not formerly been restricted. But if prior to the baron's conveyance

conveyance.

conveyance of his mill cum multuris, he had sold any part of the barony lands to another cum multuris, the first purchaser's lands are not affected by the posterior grant; for a right of lands with the multures, implies a freedom of these lands from thirlage.

15. Thirlage is either, 1. Of grindable corns; or, 2. Of all growing corns; or, 3. Of the inveſta et illata, i. e. of all the grain brought within the thirl, though of another growth. Where the thirlage is of grindable grain, it is in practice restricted to the corns which the tenants have occasion to grind, either for the support of their families, or for other uses; the surplus may be carried out of the thirl unmanufactured, without being liable in multure. Where it is of the grana crescencia, the whole grain growing upon the thirl is affected, with the exceptions, 1. Of seed and horse-corn, which are destined to uses inconsistent with grinding; and, 2. Of the farm duties due to the landlord, if they were delivered in grain not grinded. But, if the rent be payable in meal, flour, or malt, the grain of which these are made must be manufactured in the dominant mill.

16. The thirlage of inveſta et illata is seldom constituted but against the inhabitants of a borough or village, that they shall grind all the unmanufactured grain they import thither at the dominant mill. Multure, therefore, cannot be exacted in a thirlage of inveſta et illata, for flour or oatmeal brought into the servient tenement, unless the importer had bought it in grain, and grinded it at another mill. The same grain that owes multure, as granum crescens, to the mill in whose thirl it grew, if it shall be afterwards brought within a borough where the inveſta et illata are thirled, must pay a second multure to the proprietor of that dominant tenement; but, where the right of these two thirlages is in the same proprietor, he cannot exact both. Where lands are thirled in general terms, without expressing the particular nature of the servitude, the lightest thirlage is presumed, from the favour of liberty; but in the affriction of a borough or village, where there is no growing grain which can be the subject of thirlage, the affriction of inveſta et illata must be necessarily understood.

17. Thirlage, in the general case, cannot be established by prescription alone, for ius que sunt mera facultatis non præscribitur; but where one has paid for 40 years together the heavy in-sucken multures, the lightest title in writing will subject his lands. Thirlage may, contrary to the common rule, be constituted by prescription alone, 1. Where one pays to a mill a certain sum, or quantity of grain yearly, in name of multure, whether he grinds at it or not, (called dry multure). 2. In mills of the king's property; which is constituted jure coronæ, without titles in writing; and, where he derives right from another, his titles are more liable to be lost. This is extended in practice to mills belonging to church lands, where thirty years possession is deemed equivalent to a title in writing, from a presumption that their rights were destroyed at the Reformation. Though thirlage itself cannot be constituted by mere possession, the proportion of multure payable to the dominant tenement may be so fixed.

18. The possessors of the land affected are bound to uphold the mill, repair the dam dykes and aque-

ducts, and bring home the millstones. These services, though not expressed in the constitution, are implied. Law of Scotland.

19. Servitudes, being restraints upon property, are stricti juris: they are not therefore presumed if the stricti acts upon which they are claimed can be explained consistently with freedom: and when servitudes are constituted, they ought to be used in the way least burdensome to the servient tenement. Hence, one who has a servitude of peats upon his neighbour's moss, is not at liberty to extend it for the use of any manufacture which may require an extraordinary expence of fuel: but must confine it to the natural uses of the dominant tenement.

20. Servitudes are extinguished, (1.) Confusione, when the person comes to be proprietor of the dominant and servient tenements; for res sua nomini servit, and the use the proprietor therefore makes of the servient tenement is not jure servitutis, but is an act of property. (2.) By the perishing either of the dominant or servient tenement. (3.) Servitudes are lost non utendo, by the dominant tenement neglecting to use the right of 40 years; which is considered as a dereliction of it, though he who has the servient tenement should have made no interruption by doing acts contrary to the servitude.

21. Personal servitudes are those by which the property of a subject is burdened, in favour, not of a tenement, but of a person. The only personal servitude known in our law, is usufruct or liferent; which is a right to use and enjoy a thing during life, the substance of it being preserved. A liferent cannot therefore be constituted upon things which perish in the use; and though it may upon subjects which gradually wear out by time, as household furniture, &c. yet with us, it is generally applied to heritable subjects. Its whole property is burdened, is usually called the far.

22. Liferents are divided into convention and le-Liferent. Conventional liferents are either simple, or by reservation. A simple liferent, or by a separate constitution, is that which is granted by the proprietor in favour of another: And this sort, contrary to the nature of predial servitudes, requires seisin in order to affect singular successors; for a liferent of lands is, in strict speech, not a servitude, but a right resembling property which constitutes the liferenter vassal for life; and singular successors have no way of discovering a liferent right, which perhaps is not yet commenced, but by the records: whereas, in predial servitudes, the constant use of the dominant tenement makes them public. The proper right of liferent is intransmissible; offibus usufructuarii inheret: When the profits of the liferented subject are transmitted to another, the right becomes merely personal: for it entitles the assignee to the rent, not during his own life, but his cedent's; and is therefore carried by simple assignation, without seisin.

23. A liferent by reservation, is that which a proprietor reserves to himself in the same writing by which he conveys the fee to another. It requires no seisin; for the grantor's former seisin, which virtually included the liferent, still subsists as to the liferent which is expressly reserved. In conjunct infestments taken to husband and wife, the wife's right of conjunct fee resolves, in the general case, into a liferent.

24. Liferents, by law, are the terce and the cour-Terce. 1659.

Law of Scotland. terce. The terce (tertia) is a liferent competent by law to widows, who have not accepted of special provisions, in the third of the heritable subjects in which their husbands died intestate; and takes place only where the marriage has subsisted for year and day, or where a child has been born alive of it (a).

25. The terce is not limited to lands, but extends to tenures, and to servitudes and other burdens affecting lands; thus, the widow is entitled, in the right of her terce, to a liferent of the third of the sums secured, either by rights of annual rent, or by rights in security. In improper wadsets, the terce is a third of the sum lent: In those that are proper, it is a third of the wadset lands; or, in case of redemption, a third of the redemption money. Neither right of reversion, superiority, nor patronage, fall under the terce; for none of these have fixed profits, and so are not proper subjects for the widow's subsistence; nor tacks, because they are not feudal rights. Burgage tenements are also excluded from it, the reason of which is not so obvious. Since the husband's seisin is both the measure and security of the terce, such debts or diligences alone, as exclude the husband's seisin, can prevail over it.

26. Where a terce is due out of lands burdened with a prior terce still subsisting, the second terce has only right to a third of the two thirds that remain unaffected by the first terce. But upon the death of the first widow, whereby the lands are disburdened of her terce, the lesser terce becomes enlarged, as if the first had never existed. A widow, who has accepted of a special provision from her husband, is thereby excluded from the terce, unless such provision shall contain a clause that she shall have right to both.

27. The widow has no title of possession, and so cannot receive the rents in virtue of her terce, till she be served to it; and in order to this, she must obtain a brief out of the chancery, directed to the sheriff, who calls an inquest, to take proof that she was wife to the deceased, and that her husband died intestate in the subjects contained in the brief. The service or sentence of the jury, finding these points proved, does, without the necessity of a return to the chancery, entitle the wife to enter into the possession; but she can only possess with the heir pro indiviso, and so cannot remove tenants till the sheriff kens her to her terce, or divides the lands between her and the heir. In this division, after determining by lot or kail, whether to begin by the sun or the shade, i. e. by the east or the west, the sheriff sets off the two first acres for the heir, and the third for the widow. Sometimes the division is executed, by giving one entire farm to the widow, and two of equal value to the heir. The widow's right is not properly constituted by this service; it was constituted before by the husband's seisin, and fixed by his death;

the service only declares it, and so entitles her to the third part of the rents retro to her husband's death, preferable to any rights that may have affected the lands in the intermediate period between that and her own service. The relief, if she was reputed to be lawful wife to the deceased, must be served, notwithstanding any objections by the heir against the marriage, which may be afterwards tried by the commissary.

28. Courtesy is a liferent given by law, to the surviving husband, of all his wife's heritage in which she died intestate, if there was a child of the marriage born alive. A marriage, though of the longest continuance gives no right to the courtesy, if there was no issue of it. The child born of the marriage must be the mother's heir: If she had a child of the former marriage, who is to succeed to her estate, the husband has no right to the courtesy while such child is alive; so that the courtesy is due to the husband, rather as father to an heir, than as husband to an heiress. Heritage is here opposed to conquest; and so is to be understood only of the heritable rights to which the wife succeeded as heir to her ancestors, excluding what she herself had acquired by singular titles.

29. Because the husband enjoys the liferent of his wife's whole heritage, on a lucrative title, he is considered as her temporary representative; and so is liable in payment of all the yearly burdens chargeable on the subject, and of the current interest of all her debts, real and personal, to the value of the yearly rent he enjoys by the courtesy. The courtesy needs no solemnity to its constitution: That right which the husband had to the rents of his wife's estate during the marriage, jure mariti, is continued with him after her death, under the name of courtesy, by an act of the law itself. As in the terce, the husband's seisin is the ground and measure of the wife's right; so in the courtesy, the wife's seisin is the foundation of the husband's; and the two rights are, in all other respects, of the same nature; if it is not that the courtesy extends to burgage holdings, and to superiorities.

30. All liferenters must use their right salva rei subsistantia: whatever therefore is part of the fee itself, cannot be encroached on by the liferenter, e. g. woods or growing timber, even for the necessary uses of the liferented tenement. But, where a coppice or steva cadua has been divided into bags, one of which was in use to be cut annually by the proprietor, the liferenter may continue the former yearly cuttings; because these are considered as the annual fruits the subject was intended to yield, and so the proper subject of a liferent.

31. Liferenters are bound to keep the subject liferented in proper repair. They are also burdened with the alimony of the heir, where he has not enough for maintaining himself. The bare right of appearance

found

(a) In the case referred to, when treating of the effects of the dissolution of marriage within the year without a living child, and where no special provisions had been granted to, or accepted by, the widow; she did not demand her legal provisions of terce or jus relicte, but merely insisted, that as widow she was entitled to be alimented out of the heritable estate of which her husband died possessed: So that the decision in that case cannot so properly be said to be an alteration in the law, as an equitable interposition of the court of session, in their capacity as a court of equity, in order to grant a subsistence to the widow of a man whose estate was fully sufficient, and who, it could not reasonably be presumed, would have inclined that his widow should be left destitute, when his estate went perhaps to a distant series of heirs.

finds the action against the liferenter. It is a burden personal to the liferenter himself, and cannot be thrown upon his adjudging creditors as coming in his place by their diligences. Liferenters are also subjected to the payment of the yearly cesses, stipends, &c. falling due during their right, and to all other burdens that attend the subject liferented.

32. Liferent is extinguished by the liferenter's death. That part of the rents which the liferenter had a proper right to, before his death, falls to his executors; the rest, as never having been in bonis of the deceased, goes to the far. Martinmas and Whitsunday are, by our custom, the legal terms of the payment of rent: consequently, if a liferenter of lands survives the term of Whitsunday, his executors are entitled to the half of that year's rent, because it was due the term before his death; and if he survives the term of Martinmas, they have right to the whole. If the liferenter, being in the natural possession, and having first sowed the ground, should die, even before Whitsunday, his executors are entitled to the whole crop, in respect that both feed and industry were his. In a liferent of money constituted by a moveable bond, the executors have a right to the interest, down to the very day of the liferenter's death, where no terms are mentioned for the payment thereof; but in the case of an heritable bond, or of a money liferent secured on land, the interests of liferenter and far (or of heir and executor, for the same rules serve to fix the interests of both) are both governed by the legal terms of land rent, without regard to the conventional.

1. Teinds, or tithes, are that liquid proportion of our rents or goods, which is due to churchmen, for performing divine service, or exercising the other spiritual functions proper to their several offices. Most of the canonists affirm, that the precise proportion of a tenth, not only of the fruits of the ground, but of what is acquired by personal industry, is due to the Christian clergy, of divine right, which they therefore call the proper patrimony of the church; though it is certain that tithes, in their infancy, were given, not to the clergy alone, but to lay-monks who were called pauperes, and to other indigent persons. Charles the Great was the first secular prince who acknowledged this right in the church. It appears to have been received with us, as far back as David I.

2. The person employed by a cathedral church or monastery to serve the cure in any church annexed was called a vicar, because he held the church, not in his own right, but in the right or vice of his employers; and so was removable at pleasure, and had no share of the benefice, other than what they thought fit to allow him: but, in the course of time, the appellation of vicar was limited to those who were made perpetual, and who got a stated share of the benefice for their incumbency; from whence arose the distinction of benefices into parsonages and vicarages.

3. Parsonage teinds are the teinds of corn; and they are so called because they are due to the parson or other titular of the benefice. Vicarage teinds are the small teinds of calves, lint, hemp, eggs, &c. which were commonly given by the titular to the vicar who

served the cure in his place. The first sort was universally due, unless in the case of their infeudation to laics, or of a pontifical exemption; but by the customs of almost all Christendom, the lesser teinds were not demanded where they had not been in use to be paid. By the practice of Scotland, the teinds of animals, or of things produced from animals, as lambs, wool, calves, are due though not accustomed to be paid; but roots, herbs, &c. are not titheable, unless use of payment be proved: neither are personal teinds (i. e. the tenth of what one acquires by his own industry) acknowledged by our law: yet they have been found due, when supported by 40 years possession.

4. The parson who was entitled to the teind of corns, made his right effectual, either by accepting of a certain number of teind bolls yearly from the proprietor in satisfaction of it; or, more frequently by drawing or separating upon the field his own tenth part of the corns, after they were reaped, from the stock or the remaining nine-tenths of the crop, and carrying it off to his own granaries; which is called drawn teind.

5. After the Reformation, James VI. considered himself as proprietor of all the church lands; partly because the purposes for which they had been granted were declared superstitious; and partly, in consequence of the resignations which he, and Queen Mary his mother, had procured from the beneficiaries: and even as to the teinds, though our reformed clergy also claimed them as the patrimony of the church, our sovereign did not submit to that doctrine farther than extended to a competent provision for ministers. He therefore erected or secularized several abbacies and priories into temporal lordships; the grantees of which were called sometimes lords of erection, and sometimes titulars, as having by their grants the same title to the erected benefices that the monasteries had formerly.

6. As the crown's revenue suffered greatly by these erections, the temporality of all church benefices (i. e. church lands) was, by 1587, c. 29. annexed to the crown. That statute excepts from the annexation such benefices as were established before the Reformation in laymen, whose rights the legislature had no intention to weaken. Notwithstanding this statute his majesty continued to make farther erections, which were declared null by 1592, c. 119. with an exception of such as had been made in favour of lords of parliament since the general act of annexation in 1587.

7. King Charles I. soon after his succession, raised a reduction of all these erections, whether granted before or after the act of annexation, upon the grounds mentioned at length by Mr Forbes in his Treatise of Tithes, p. 259. At last the whole matter was referred to the king himself by four several submissions or compromises; in which the parties on one side were the titulars and their tacksmen, the bishops with the inferior clergy, and the royal boroughs, for the interest they had in the teinds that were gifted for the provision of ministers, school, or hospitals within their boroughs; and, on the other part, the proprietors who wanted to have the leading of their own teinds. The submission by the titulars contained a surrender into his majesty's hands of the superiorities of their several erections.

8. Upon each of these submissions his majesty pronounced separate decrees arbitral, dated Sept. 2. 1629. which are subjoined to the acts of parliament of his reign.

He made it lawful to proprietors to sue the titulars for a valuation, and if they thought fit for a sale also, of their teinds, before the commissioners named or to be named for that purpose. The rate of teind, when it was possessed by the proprietor jointly with the stock, for payment of a certain duty to the titular, and so did not admit a separate valuation, was fixed at a fifth part of the constant yearly rent, which was accounted a reasonable surrogatum, in place of a tenth of the increase. Where it was drawn by the titular, and consequently might be valued separately from the stock, it was to be valued as its extent should be ascertained, upon a proof before the commissioners; but in this last valuation, the king directed the fifth part to be deducted from the proved teind, in favour of the proprietor, which was therefore called the king's case. The proprietor suing for a valuation gets the leading of his own teinds as soon as his suit commences, providing he does not allow protestation to be extracted against him for not insisting.

9. Where the proprietor insisted also for a sale of his teinds, the titular was obliged to sell them at nine years purchase of the valued teind duty. If the pursuer had a tack of his own teinds, not yet expired; or if the defender was only tackman of the teinds, and so could not give the pursuer an heritable right; an abatement of the price was to be granted accordingly by the commissioners.

10. There is no provision in the decrees arbitral, for selling the teinds granted for the sustentation of ministers, universities, schools, or hospitals; because these were to continue, as a perpetual fund, for the maintenance of the persons or societies to whom they were appropriated; and they are expressly declared not subject to sale, by 1690, c. 30.—1693, c. 23. By the last of these acts, it is also provided, that the teinds belonging to bishops, which had then fallen to the crown upon the abolishing of Episcopacy, should not be subject to sale as long as they remained with the crown not disposed of; nor those which the proprietor, who had right both to stock and teind, referred to himself in a sale or feu of the lands. But, though none of these teinds can be sold, they may be valued.

11. The king, by the decrees arbitral, declared his own right to the superiorities of erection which had been resigned to him by the submission, reserving to the titulars the feu duties thereof, until payment by himself to them of 1000 merks Scots for every chalden of feu victual, and for each 100 merks of feu duty; which right of redeeming the feu duties was afterwards renounced by the crown. If the church vassal should consent to hold his lands of the titular, he cannot thereafter recur to the crown as his immediate superior.

12. In explaining what the constant rent is by which the teind must be valued, the following rules are observed. The rent drawn by the proprietor from the sale of subjects, that are more properly parts of the land than of the fruits, e. g. quarries, minerals, moles, &c. is to be deducted from the rental of the lands; and also the rent of supernumerary houses, over and above what is necessary for agriculture; and the additional rent that may be paid by the tenant, in consideration of the proprietor's undertaking any burden that law imposes on the tenant, e. g. uphold-

ing the tenant's houses, because none of these articles are paid properly on account of the fruits. Orchards must also be deducted, and mill rent, because the profits of a mill arise from industry; and the corns manufactured there suffer a valuation as rent payable by the tenant, and therefore ought not to be valued a second time against the titular as mill rent. The yearly expence of culture ought not to be deducted: for no rent can be produced without it: but, if an improvement of rent is made at an uncommon expence, e. g. by draining a lake, the proprietor is allowed a reasonable abatement on that account.

13. Notwithstanding the several ways of misapplying teinds, some few parochial teinds in the times of Popery, some few benefices remained entire in the hands of the parson. The ministers planted in these, after the Reformation, continued to have the full right to them, as proper beneficiaries: but a power was afterwards granted to the patron, to redeem the whole teind from such beneficiaries, upon their getting a competent stipend modified to them; which teind so redeemed, the patron is obliged to sell to the proprietor, at six years purchase.

14. Some teinds are more directly subject to an allocation for the minister's stipend than others. The teinds in the hands of the lay titular fall first to be allocated, who, since he is not capable to serve the cure in his own person, ought to provide one who can; and if the titular, in place of drawing the teind, has set it in tack, the tack duty is allocated: this sort is called free teind. Where the tack duty, which is the titular's interest in the teinds, falls short, the tack itself is burdened, or, in other words, the surplus teind over and above the tack duty: but, in this case, the commissioners are empowered to recompense the tackman, by prorogating his tack for such a number of years as they shall judge equitable. Where this likewise proves deficient, the allocation falls on the teinds heritably conveyed by the titular, unless he has warranted his grant against future augmentations; in which case, the teinds of the lands belonging in property to the titular himself must be allocated in the first place.

15. Where there is sufficiency of free teinds in a parish, the titular may allocate any of them he shall think fit for the minister's stipend, since they are all his own; unless there has been a previous decree of locality: and this holds, though the stipend should have been paid immemorially out of the teinds of certain particular lands. This right was frequently abused by titulars, who, as soon as a proprietor had brought an action of sale of his teinds, allocated the pursuer's full teind for the stipend, whereby such action became ineffectual; it was therefore provided, that after citation in a sale of teinds, it shall not be in the titular's power to allocate the pursuer's teinds solely, but only in proportion with the other teinds in the parish.

16. Ministers glebes are declared free from the payment of teind. Lands cum decimis inclusis are also exempted from teind. But in order to exempt lands from payment of teind, it is necessary that the proprietor prove his right thereto, cum decimis inclusis, as far back as the above act of annexation 1587.

17. Teinds are debita fructuum, non fundi. The action therefore for bygone teinds is only personal, against those who have intermeddled, unless where the titular

titular is infeft in the lands, in security of the valued teind duty. Where a tenant is, by his tack, bound to pay a joint duty to the landlord for stock and teind, without distinguishing the rent of each, his defence of a bona fide payment of the whole to the landlord has been sustained in a suit at the instance of a laic titular, but repelled where a churchman was pursuer. In both cases the proprietor who receives such rent is liable as intermeddler.

18. In tacks of teinds, as of lands, there is place for tacit relocation: to stop the effect of which, the titular must obtain and execute an inhibition of teinds against the tackman; which differs much from inhibition of lands (explained under the next section), and is intended merely to interpell or inhibit the tackman from farther intermeddling. This diligence of inhibition may also be used at the suit of the titular, against any other possessor of the teinds; and if the tackman or possessor shall intermeddle after the inhibition is executed, he is liable in a spuizie.

19. Lands and teinds pass by different titles: a disposition of lands, therefore, though granted by one who has also right to the teind, will not carry the teind, unless it shall appear from special circumstances that a sale of both was designed by the parties. In lands cum decimis inclusis, where the teinds are consolidated with the stock, the right of both must necessarily go together in all cases.

SECT. XI. Of Inhibitions.

1. The constitution and transmission of feudal rights being explained, and the burdens with which they are chargeable, it remains to be considered how these rights may be affected at the suit of creditors by legal diligence. Diligences are certain forms of law, whereby a creditor endeavours to make good his payment, either by affecting the person of his debtor, or by securing the subjects belonging to him from alienation, or by carrying the property of these subjects to himself. They are either real or personal. Real diligence is that which is proper to heritable or real rights; personal, is that by which the person of the debtor may be secured, or his personal estate affected. Of the first sort we have two, viz. inhibition and adjudication.

2. Inhibition is a personal prohibition, which passes by letters under the signet, prohibiting the party inhibited to contract any debt, or do any deed, by which any part of his lands may be aliened or carried off in prejudice of the creditor inhibiting. It must be executed against the debtor, personally, or at his dwelling house, as summonses, and thereafter published and registered in the same manner with interdictions, (see N^o clxxxiii. 21.)

3. Inhibition may proceed, either upon a liquid obligation, or even on an action commenced by a creditor for making good a claim not yet sustained by the judge; which last is called inhibition upon a depending action. The summons, which constitutes the dependence, must be executed against the debtor before the letters of inhibition pass the signet; for no suit can be said to depend against one till he be cited in it as a defender: but the effect of such inhibition is suspended till decree be obtained in the action against

the debtor; and in the same manner, inhibitions on conditional debts have no effect till the condition be performed. Inhibitions are not granted, without a trial of the cause, when they proceed on conditional debts. And though, in other cases, inhibitions now pass of course, the lords are in use to stay, or recall them, either on the debtor's showing cause why the diligence should not proceed, or even ex officio where the ground of the diligence is doubtful.

4. Though inhibitions, by their uniform style, dis-able the debtor from selling his moveable as well as his heritable estate, their effect has been long limited to heritable, from the interruption that such an embargo upon moveables must have given to commerce; so that debts contracted after inhibition may be the foundation of diligence against the debtor's person and moveable estate. An inhibition secures the inhibitor against the alienation, not only of lands that belonged to his debtor when he was inhibited, but of those that he shall afterwards acquire: but no inhibition can extend to such after-purchases as lie in a jurisdiction where the inhibition was not registered; for it could not have extended to these through they had been made prior to the inhibition.

5. This diligence only strikes against the voluntary debts or deeds of the inhibited person: it does not restrain him from granting necessary deeds, i. e. such as he was obliged to grant anterior to the inhibition, since he might have been compelled to grant these before the inhibitor had acquired any right by his diligence. By this rule, a wadsetter or annualrenter might, after being inhibited, have effectually renounced his right to the reverser on payment, because law could have compelled him to it; but to secure inhibitors against the effect of such alienations, it is declared by act of federant of the court of session, Feb. 19. 1680, that, after intimation of the inhibition to the reverser, no renunciation or grant of redemption shall be sustained, except upon declarator of redemption brought by him, to which the inhibitor must be made a party.

6. An inhibition is a diligence simply prohibitory, so that the debt, on which it proceeds, continues personal after the diligence; and consequently, the inhibitor, in a question with anterior creditors whose debts are not struck at by the inhibition, is only preferable from the period at which his debt is made real by adjudication: and where debts are contracted on heritable security, though posterior to the inhibition, the inhibitor's debt, being personal, cannot be ranked with them; he only draws back from the creditors ranked the sums contained in his diligence. The heir of the person inhibited is not restrained from alienation by the diligence used against his ancestor; for the prohibition is personal, affecting only the debtor against whom the diligence is used.

7. Inhibitions do not of themselves make void the posterior debts or deeds of the person inhibited; they only afford a title to the user of the diligence to set them aside, if he finds them hurtful to him: and even where a debt is actually reduced ex capite inhibitionis, such reduction, being founded solely in the inhibitor's interest, is profitable to him alone, and cannot alter the natural preference of the other creditors.

8. Inhibitions may be reduced upon legal nullities, arising

Law of Scotland.

arising either from the ground of debt or the form of diligence. When payment is made by the debtor to the inhibitor, the inhibition is said to be purged. Any creditor, whose debt is struck at by the inhibition, may, upon making payment to the inhibitor, compel him to assign the debt and diligence in his favour, that he may make good his payment the more effectually against the common debtor.

SECT. XII. Of Comprising, Adjudications, and Judicial Sales.

clxxii. 1. Heritable rights may be carried from the debtor to the creditor, either by the diligence of appraising (now adjudication), or by a judicial sale carried on before the court of session. Appraising, or comprising, was the sentence of a sheriff, or of a messenger who was specially constituted sheriff for that purpose, by which the heritable rights belonging to the debtor were sold for payment of the debt due to the appraiser; so that appraisings were, by their original constitution, proper sales of the debtor's lands to any purchaser who offered. If no purchaser could be found, the sheriff was to appraise or tax the value of the lands by an inquest (whence came the name of appraising), and to make over to the creditor lands to the value of the debt. A full history of appraisings will be found in the beginning of Mr Erskine's large Institute under this title; it being considered as unnecessary to enter into a deduction now no longer necessary, as by the act 1672 adjudications were substituted in their place.

2. That creditors may have access to affect the estate of their deceased debtor, though the heir should stand off from entering, it is made lawful (by 1540, c. 106.) for any creditor to charge the heir of his debtor to enter to his ancestor (year and day being past after the ancestor's death), within 40 days after the charge; and if the heir fails, the creditor may proceed to appraise his debtor's lands, as if the heir had been entered. Custom has so explained this statute, that the creditor may charge the heir, immediately after the death of his ancestor, provided that the summons which is to be founded on the charge be not raised till after the expiry both of the year and of the 40 days next ensuing the year, within which the heir is charged to enter. But this statute relates only to such charges on which appraising is to be led against the ancestor's land; for in those which are to be barely the foundation of a common summons or process against the heir, action will be sustained if the year be elapsed from the ancestor's death before the execution of the summons, though the 40 days should not be also expired. Though the statute authorises such charges against majors only, practice has also extended it against minors, and the rule is extended to the case where the heir is the debtor. One must, in this matter, distinguish between a general and a special charge. A general charge serves only to fix the representation of the heir who is charged, so as to make the debt his which was formerly his ancestor's: but a special charge makes up for the want of a service (N^o clxxx. 25.); and states the heir, filione juris, in the right of the subjects to which he is charged to enter. Where, therefore, the heir is the debtor, a general charge for fixing the representation against him is unnecessary, since the only

concern of the creditor is, that his debtor make up titles to the ancestor's estate, which is done by a special charge: but where the deceased was the debtor, the creditor must first charge his heir to enter in general, that it may be known whether he is to represent the debtor: if he does not enter within forty days, the debt may be fixed against him by a decree of constitution; after which the heritable rights belonging to the ancestor will fall to be attached; in doing which, the diligence to be used is different, according to the state of the titles in the ancestor's person: for if the ancestor stood vested by inheritance, the heir must be charged to enter heir in special; but if the ancestor had but a personal right to the subjects (i. e. not perfected by seisin), which would have been carried to the heir by a general service, then what is called a general special charge must be given to the heir. These charges either special or general special, as the circumstances of the case may require, are by the statute 1540 made equivalent to the heir's actual entry; and therefore an adjudication led after the inducere of the charges are elapsed, effectually carries to the creditor the subjects to which the heir was charged to enter.

3. Appraisings in course of time underwent many adjudications in their form and effect, till at length, by act 1672, c. 19. adjudications were substituted in their place, and are carried on by way of action before the court of session. By that statute, such part of the debtor's lands is to be adjudged as is equivalent to the principal sum and interest of the debt, with the composition due to the superior and expenses of inheritance, and a fifth part more in respect the creditor is obliged to take land for his money. The debtor must deliver to the creditor a valid right of the lands to be adjudged, or transumpt thereof, renounce the possession in his favour, and ratify the decree of adjudication: and law considers the rent of the houses as precisely commensurate to the interest of the debt; so that the adjudger lies under no obligation to account for the surplus rents. In this, which is called a special adjudication, the legal, or time within which the debtor may redeem, is declared to be five years; and the creditor attaining possession upon it can use no farther execution against the debtor, unless the lands be evicted from him.

4. Where the debtor does not produce a sufficient right to the lands, or is not willing to renounce the possession, and ratify the decree (which is the case that has most frequently happened), the statute makes it lawful for the creditor to adjudge all right belonging to the debtor in the same manner, and under the same reversion of ten years, as he could, by the former laws have appraised it. In this last kind, which is called a general adjudication, the creditor must limit his claim to the principal sum, interest, and penalty, without demanding a fifth part more. But no general adjudication can be insisted on, without libelling in the summons the other alternative of a special adjudication; for special adjudications are introduced by the statute in the place of appraisings; and it is only where the debtor refuses to comply with the terms thereof, that the creditor can lead a general adjudication.

5. Abbreviates are ordained to be made of all adjudications, which must be recorded within 60 days after the date of the decree. In every other respect, general

Law of
Scotland.

Two kinds
of adjudica-
tions.

general adjudications have the same effects that appraisings had: adjudgers in possession are accountable for the surplus rents; a citation in adjudications renders the subject litigious; superiors are obliged to enter adjudgers; the legal of adjudications does not expire during the debtor's minority, &c. Only it may be observed, that though appraisings could not proceed before the term of payment, yet where the debtor is vergens ad inopiam, the court ex nobili officio admit adjudication for the debt before it be payable. But this sort being founded solely in equity, subsists merely as a security, and cannot carry the property to the creditor by the lapse of any length of time.

6. There are two kinds of adjudication, which took place at the same time with appraisings, and still obtain; viz. adjudications on a decree cognitionis causa, otherwise called contra hereditatem jacentem; and adjudications in implement. Where the debtor's apparent heir, who is charged to enter, formally renounces the succession, the creditor may obtain a decree cognitionis causa; in which, though the heir renouncing is cited for the sake of form, no sentence condemnatory can be pronounced against him, in respect of his renunciation: the only effect of it is to subject the hereditas jacentis to the creditor's diligence.

7. Adjudications contra hereditatem jacentem, carry not only the lands themselves that belonged to the deceased, but the rents thereof fallen due since his death; for these, as an accessory to the estate belonging to the deceased, would have descended to the heir if he had entered, which rule is applied to all adjudications led on a special charge. This sort of adjudication is declared redeemable within seven years, by any co-adjudging creditor, either of the deceased debtor or of the heir renouncing. The heir himself, who renounces, cannot be restored against his renunciation, nor consequently redeem, if he be not a minor. But even a major may redeem indirectly, by granting a simulative bond to a confident person: the adjudication upon which, when conveyed to himself, is a good title to redeem all other adjudications against the lands belonging to his ancestor.

8. Adjudications in implement are deduced against those who have granted deeds without procuratory of resignation or precept of seisin, and refuse to divest themselves; to the end that the subject conveyed may be effectually vested in the grantee. These adjudications may be also directed against the heir of the grantor, upon a charge to enter. Here there is no place for a legal reversion; for, as the adjudication is led for completing the right of a special subject, it must carry that subject as irredeemably as if the right had been voluntarily completed.

9. All adjudications led within year and day of that one which has been made first effectual by seisin (where seisin is necessary), or exact diligence for obtaining seisin, are preferable pari passu. The year and day runs from the date of the adjudication, and not of the seisin or diligence, for obtaining it. After the days of that period, they are preferable according to their dates. All the co-adjudgers within the year are preferable pari passu, as if one adjudication had been led for all their debts. This makes the seisin or diligence on the first adjudication a common right to the rest, who must therefore refund to the owner of that dili-

gence his whole expence laid out in carrying on and completing it. And though that first adjudication should be redeemed, the diligence upon it still subsists as to the rest. This pari passu preference, however, does not destroy the legal preference of adjudications led on debita fundi (see N^o clxix. 15.); nor does it take place in adjudications in implement.

A new sort of adjudication has been lately introduced into the law of Scotland by the act of the 23d Geo. III. for rendering the payment of the creditors of insolvent debtors more equal and expeditious. Among the many other provisos in that statute for expediting the payment of creditors, and lessening the expence of diligence against the debtor's estate, it is enacted, That upon an order from the court of session or lord ordinary, the bankrupt shall be bound to execute a disposition or dispositions, making over to the trustee or trustees chosen by the creditors the whole estate real and personal, wherever situated; and in case of the bankrupt's refusal, or of the order not being complied with from any other reason, the court or the lord ordinary shall, upon the application of the trustee, issue an act or decree, adjudging the property of the whole sequestrated estate to be in the trustee for behoof of the creditors; which shall have the same effect as if the bankrupt had executed the conveyance: and by a subsequent clause in the statute, it is enacted, that this disposition of the heritable estate, together with the order of the court or lord ordinary on which it proceeds, or failing thereof, the decree of adjudication of the court or the lord ordinary, shall within 60 days of the date thereof be registered in the register of abbreviates of adjudications; and shall have the effect to entitle the trustee for behoof of the whole creditors to rank in the same manner upon the heritable estate as if it had been a proper decree of adjudication, obtained at the date of the interlocutor awarding the sequestration; accumulating the whole debts, principal and interest, as at that period, and adjudging for security or payment thereof, so as to rank pari passu with any prior effectual adjudication, and within year and day of the same. By this act also, in order to lessen the number of adjudications, and consequently the expence upon a bankrupt estate, it is declared, that intimation shall be made of the first adjudication which is called, so as all creditors who are in readiness may, within such a reasonable time as may be allowed, not exceeding twenty sederunt days, produce their grounds of debt, and be conjoined in the decree to follow on said first adjudication. At the same time it may be proper to mention, that this act is only temporary; and after eight years experience, will probably suffer very considerable alterations, when it shall become necessary to digest another bankrupt law for Scotland.

10. Before treating of judicial sales of bankrupts' estates, the nature of sequestration may be shortly explained, which is a diligence that generally ushers in actions of sale. Sequestration of lands is a judicial act of the court of session, whereby the management of an estate is put into the hands of a factor or steward named by the court, who gives security, and is to be accountable for the rents to all having interest. This diligence is competent, either where the right of the lands is doubtful, if it be applied for before either of the competitors has attained possession, or where the estate is heavily

Law of Scotland. heavily charged with debts: but, as it is an unfavourable diligence, it is not admitted, unless that measure shall appear necessary for the security of creditors. Subjects not brought before the court by the diligence of creditors, cannot fall under sequestration; for it is the competition of creditors which alone founds the jurisdiction of the court to take the disputed subject into their possession.

11. The court of session who decrees the sequestration has the nomination of the factor, in which they are directed by the recommendation of the creditors. A factor appointed by the session, though the proprietor had not been in seise of the lands, has a power to remove tenants. Judicial factors must, within six months after extracting their factory, make up a rental of the estate, and a list of the arrears due by tenants, to be put into the hands of the clerk of the process, as a charge against themselves, and a note of such alterations in the rental as may afterwards happen: and must also deliver to the clerk annually a scheme of their accounts, charge and discharge, under heavy penalties. They are, by the nature of their office, bound to the same degree of diligence that a prudent man adhibits in his own affairs; they are accountable for the interest of the rents, which they either have, or by diligence might have, recovered, from a year after their falling due. As it is much in the power of those factors to take advantage of the necessities of creditors, by purchasing their debts at an undervalue, all such purchases made either by the factor himself, or to his behoof, are declared equivalent to an acquittance or extinction of the debt. No factor can warrantably pay to any creditor, without an order of the court of session; for he is, by the tenor of his commission, directed to pay the rents to those who shall be found to have the best right to them. Judicial factors are entitled to a salary, which is generally stated at five per cent. of their intromissions: but it is seldom ascertained till their office expires, or till their accounting; that the court may modify a greater or smaller salary, or none, in proportion to the factor's integrity and diligence. Many cases occur, where the court of session, without sequestration, name a factor to preserve the rents from perishing; e. g. where an heir is deliberating whether to enter, where a minor is without tutors, where a succession opens to a person residing abroad; in all which cases the factor is subjected to the rules laid down in act of sederunt, Feb. 13. 1730.

As to sequestrations under the bankrupt act before recited, the reader must necessarily be referred to the act itself; for being only temporary, as before mentioned, it seems quite inconsistent with the plan of this work to enter into a minute detail of the different regulations thereby laid down in cases of sequestration under it.

12. The word bankrupt is sometimes applied to persons whose funds are not sufficient for their debts; and sometimes, not to the debtor, but to his estate. The court of session are empowered, at the suit of any real creditor, to try the value of a bankrupt's estate, and sell it for the payment of his debts.

13. No process of sale, at the suit of a creditor, can proceed without a proof of the debtor's bankruptcy, or at least that his lands are so charged with debts that no prudent persons will buy from him; and therefore

the summonses of sale must comprehend the debtor's whole estate. The debtor, or his apparent heir, and all the real creditors in possession, must be made parties to the suit; but it is sufficient if the other creditors be called by an edictal citation. The summonses of sale contain a conclusion of ranking, or preference of the bankrupt's creditors. In this ranking, first and second terms are assigned to the whole creditors for exhibiting in court (or producing) their rights and diligences; and the decree of certification proceeding thereupon, against the writings not produced, has the same effect in favour of the creditors who have produced their rights, as if that decree had proceeded upon an action of reduction improbation. See N^o clxxxiii. 3. By the late bankrupt act, the sale may precede the ranking of the creditors, unless the court, upon application of the creditors, or any of them, shall find sufficient cause to delay the sale. The irredeemable property of the lands is adjudged by the court to the highest offerer at the sale. The creditors receiving payment must grant to the purchaser absolute warrant, to the extent of the sum received by them; and the lands purchased are declared disburdened of all debts or deeds of the bankrupt or his ancestors, either on payment of the price by the purchaser to the creditors according to their preference, or on confiscation of it. By the act 1695, purchasers were bound to consign the price in the hands of the magistrates of Edinburgh; but by § 5. of the above act, they may consign it in the Royal Bank or Bank of Scotland. The only remedy provided to such creditors as judge themselves hurt by the sale or division of the price, even though they should be minors, is an action for recovering their share of the price against the creditors who have received it.

14. The expence of these processes is disbursted by the factor out of the rents in his hands; by which the whole burden of such expence falls upon the posterior creditors.

15. Apparent heirs are entitled to bring actions of sale of the estates belonging to their ancestors, whether bankrupt or not; the expence of which ought to fall upon the pursuer, if there is any excrecence of the price, after payment of the creditors: but if there be no excrecence, the creditors, who alone are gainers by the sale, ought to bear the charge of it.

16. As processes of ranking and sale are designed for the common interest of all the creditors, no diligence carried on or completed during their pendency ought to give any preference in the competition; pendente lite, nihil innovandum.

17. It is a rule in all real diligences, that where a creditor is preferable on several different subjects, he cannot use his preference arbitrarily, by favouring one creditor more than another; but must allocate his universal or catholic debt proportionally against all the subjects or parties whom it affects. If it is material to such creditor to draw his whole payment out of any one fund, he may apply his debt so as may best secure himself: but that inequality will be rectified as to the posterior creditors, who had likewise by their rights and diligences, affected the subjects out of which he drew his payment, by obliging him to assign in their favour his right upon the separate subjects which he did not use in the ranking; by which they may recur against these separate subjects for the shares which the debt

debt preferred might have drawn out of them. As the obligation to assign is founded merely in equity, the catholic creditor cannot be compelled to it, if this assigning shall weaken the preference of any separate debt vested in himself, affecting the special subject sought to be assigned. But if a creditor upon a special subject shall acquire from another a catholic right, or a catholic creditor shall purchase a debt affecting a special subject, with a view of creating to the special debt a higher degree of preference than was naturally due to it, by an arbitrary application of the catholic debt, equity cannot protect him from assigning in favour of the creditor excluded by such application, especially if, prior to the purchase, the subject has become litigious by the process of ranking.

II. MOVEABLE RIGHTS.

THE law of heritable rights being explained, Moveable Rights fall next to be considered; the doctrine of which depends chiefly on the nature of obligations.

SECT. XIII. Of Obligations and Contracts in General.

An obligation is a legal tie, by which one is bound to pay or perform something to another. Every obligation on the person obliged implies an opposite right in the creditor, so that what is a burden in regard to the one is right with respect to the other; and all rights founded on obligation are called personal. There is this essential difference between a real and a personal right, that a jus in re, whether of property, or of an inferior kind, as servitude, entitles the person vested with it to possess the subject as his own; or if he is not in possession, to demand it from the possessors; whereas the creditor in a personal right has only jus ad rem, or a right to compel the debtor to fulfil his obligation; without any right in the subject itself, which the debtor is bound to transfer to him. One cannot oblige himself, but by a present act of the will. A bare resolution, therefore, or purpose, to be obliged, is alterable at pleasure.

2. Obligations are either, (1.) Merely natural, where one person is bound to another by the law of nature, but cannot be compelled by any civil action to the performance. Thus, though deeds granted by a minor having curators, without their consent, are null, yet the minor is naturally obliged to perform such deeds; and parents are naturally obliged to provide their children in reasonable patrimonies. Natural obligations entitle the creditor to retain what he has got in virtue thereof, without being subjected to restore it. (2.) Obligations are merely civil, which may be sued upon by an action, but are elided by an exception in equity; this is the case of obligations granted through force or fear, &c. (3.) Proper or full obligations, are those which are supported both by equity and the civil function.

3. Obligations may also be divided into, (1.) Pure, to which neither day nor condition is adjoined. These may be exacted immediately. (2.) Obligations (ex die), which have a day adjoined to their performance. In these, die statim credit, sed non venit; a proper debt arises from the date of the obligation, because it is certain that the day will exist; but the execution is sus-

pended till the lapse of that day. (3.) Conditional obligations; in which there is no proper debt (die non credit) till the condition be purified, because it is possible the condition may never exist; and which therefore are said to create only the hope of a debt; but the grantor, even of these, has no right to resist. An obligation, to which a day is adjoined that possibly may never exist, implies a condition; die incertus pro conditione habetur. Thus, in the case of a provision to a child, payable when he attains to the age of fourteen, if the child dies before that age, the provision falls.

4. Obligations, when considered with regard to their cause, were divided by the Romans into those arising from contract, quasi contract, delict, and quasi delict; but there are certain obligations, even full and proper ones, which cannot be derived from any of these sources, and to which Lord Stair gives the name of obediential. Such as the obligation on parents to aliment or maintain their children; which arises singly from the relation of parent and child, and may be enforced by the civil magistrate. Under parents are comprehended, the mother, grandfather, and grandmother, in their proper order. This obligation on parents extends to the providing of their issue in all the necessaries of life, and giving them suitable education. It ceases, when the children can earn a livelihood by their own industry; but the obligation on parents to maintain their indigent children, and reciprocally on children to maintain their indigent parents, is perpetual. This obligation is, on the father's death, transferred to the eldest son, the heir of the family; who, as representing the father, must aliment his younger brothers and sisters: the brothers are only entitled to alimony till their age of twenty-one, after which they are presumed able to do for themselves; but the obligation to maintain the sisters continues till their marriage. In persons of lower rank, the obligation to aliment the sisters ceases after they are capable of subsisting by any service or employment.

5. All obligations, arising from the natural duty of restitution, fall under this class; thus, things given upon the view of a certain event, must be restored, if that event does not afterwards exist: thus also, things given ob turpem causam, where the turpitude is in the receiver and not in the giver, must be restored. And on the same principle, one upon whose ground a house is built or repaired by another, is obliged, without any covenant, to restore the expence laid out upon it, in so far as it has been profitable to him.

6. A contract is the voluntary agreement of two or more persons, whereby something is to be given or performed upon one part, for a valuable consideration, either present or future, on the other part. Consent, which is implied in agreement, is excluded, (1.) By error in the essentials of the contract: for, in such case, the party does not properly contract, but errs or is deceived; and this may be also applied to contracts which take their rise from fraud or imposition. (2.) Consent is excluded by such a degree of restraint upon any of the contracting parties, as extorts the agreement; for where violence or threatening are used against a person, his will has really no part in the contract.

7. Loan, or mutuum, is that contract which obliges a person, who has borrowed any fungible subject from another, to restore to him as much of the same kind,

and of equal goodness. Whatever receives its estimation in number, weight, or measure, is a fungible; as corn, wine, current coin, &c. The only proper subjects of this contract are things which cannot be used without either their extinction or alienation: hence the property of the thing lent is necessarily transferred by delivery to the borrower, who consequently must run all the hazards either of its deterioration or its perishing, according to the rule, res perit suo domino. Where the borrower neglects to restore at the time and place agreed on, the estimation of the thing lent must be made according to its price at that time and in that place; because it would have been worth so much to the lender, if the obligation had been duly performed. If there is no place nor time stipulated for, the value is to be stated according to the price that the commodity gave when and where it was demanded. In the loan of money, the value put on it by public authority, and not its intrinsic worth, is to be considered. This contract is one of those called by the Romans unilateral, being obligatory only on one part; for the lender is subjected to no obligation: the only action therefore that it produces, is pointed against the borrower, that he may restore as much in quantity and quality as he borrowed, together with the damage the lender may have suffered through default of due performance.

8. Commodate is a species of loan, gratuitous on the part of the lender, where the thing lent may be used, without either its perishing or its alienation. Hence, in this sort of loan, the property continues with the lender; the only right the borrower acquires in the subject is its use, after which he must restore the individual thing that he borrowed; consequently, if the subject perishes, it perishes to the lender, unless it has perished by the borrower's fault. What degree of fault or negligence makes either of the contracting parties liable to the other in damages, is comprehended under the following rules. Where the contract gives a mutual benefit to both parties, each contractor is bound to exhibit a middle sort of diligence, such as a man of ordinary prudence uses in his affairs. Where only one of the parties has benefit by the contract, that party must use exact diligence; and the other who has no advantage by it, is accountable only for dote, or for gross omissions, which the law construes to be dote. Where one employs less care on the subject of any contract which implies an exuberant trust, than he is known to employ in his own affairs, it is considered as dote.

9. Hence it will appear that this is a bilateral contract; the borrower must be exactly careful of the thing lent, and restore it at the time fixed by the contract, or after that use is made of it for which it was lent: if he puts it to any other use, or neglects to restore it at the time covenanted, and if the thing perishes thereafter, even by mere accident, he is bound to pay the value. On the other part the lender is obliged to restore to the borrower such of the expenses disbursed by him on that subject as arose from any uncommon accident, but not those that naturally attend the use of it. Where a thing is lent gratuitously, without specifying any time of redelivery, it constitutes the contract of precarium, which is revocable at the lender's pleasure, and, being entered into from a personal regard to the borrower, ceases by his death,

10. Depositation is also a bilateral contract, by which one who has the custody of a thing committed to him (the depository) is obliged to restore it to the depository. If a reward is bargained for by the depository for his care, it resolves into the contract of location. As this contract is gratuitous, the depository is only answerable for the consequences of gross neglect; but after the deposite is redemanded, he is accountable even for casual misfortunes. He is entitled to a full indemnification for the losses he has sustained by the contract, and to the recovery of all sums expended by him on the subject.

11. An obligation arises without formal pactum, Nautar, tampones, stabularii. barely by a traveller's entering into an inn, ship, or stable, and there depositing his goods, or putting up his horses; whereby the innkeeper, shipmaster, or stable, is accountable, not only for his own facts and those of his servants (which is an obligation implied in the very exercise of these employments), but of the other guests or passengers; and, indeed, in every case, unless where the goods have been lost damno fatali, or carried off by pirates or house-breakers. Not only the masters of ships, but their employers, are liable each of them for the share that he has in the ship; but by the present custom of trading nations, the goods brought into a ship must have been delivered to the master or mate, or entered into the ship books. Carriers fall within the intendment of this law; and practice has extended it to vintners within borough. The extent of the damage sustained by the party may be proved by his own oath in litum.

12. Sequestration, whether voluntarily consented to by the parties, or authorized by the judge, is a kind of depositum; but as to the office of sequestrator, to whose care the subject in dispute is committed, is not considered as gratuitous, he cannot throw it up at pleasure, as a common depository may do; and he is liable in the middle degree of diligence. Confignation of money is also a deposite. It may be made, either where the debt is called in question by the debtor, as in suspensions; or where the creditor refuses to receive his money, as in wadets, &c. The risk of the configned money lies on the configner, where he ought to have made payment, and not confignation; or has configned only a part; or has chosen for confignatory, a person neither named by the parties nor of good credit. The charger, or other creditor, runs the risk, if he has charged for sums not due, or has without good reason refused payment, by which refusal the confignation became necessary. It is the office of a confignatory, to keep the money in safe custody till it be called for: if therefore he puts it out at interest, he must run the hazard of the debtor's insolvency; but for the same reason, though he should draw interest for it, he is liable in none to the configner.

13. Pledge, when opposed to wadset, is a contract, Pledge, by which a debtor puts into the hands of his creditor a special moveable subject in security of the debt, to be redelivered on payment. Where a security is established by law to the creditor, upon a subject which continues in the debtor's possession, it has the special name of an hypothec. Tradesmen and ship carpenters have an hypothec on the house or ship repaired, for the materials and other charges of reparation; but not for the expence of building a new ship. This, however, rusti.

must not now be understood to apply universally: for the court of session, in different cases which lately occurred before them, and founding upon the law and practice of England in similar cases, have found, that no hypothec exists for the expense of repairs done in a home port. Owners of ships have an hypothec on the cargo for the freight; heritors on the fruits of the ground; and landlords on the invecia et illata, for their rents. Writers also, and agents, have a right of hypothec, or more properly of retention, in their constituent's writings, for their claim of pains and disbursements. A creditor cannot, for his own payment, sell the subject impignorated, without applying to the judge ordinary for a warrant to put it up to public sale or roup; and to this application the debtor ought to be made a party.

1. The appellation of verbal may be applied to all obligations to the constitution of which writing is not essential, which includes both real and consensual contracts; but as these are explained under separate titles, obligations by word, in the sense of this rubric, must be restricted, either to promises, or to such verbal agreements as have no special name to distinguish them. Agreement implies the intervention of two different parties, who come under mutual obligations to one another. Where nothing is to be given or performed but on one part, it is properly called a promise; which, as it is gratuitous, does not require the acceptance of him to whom the promise is made. An offer, which must be distinguished from a promise, implies something to be done by the other party; and consequently is not binding on the offerer, till it be accepted, with its limitations or conditions, by him to whom the offer is made; after which, it becomes a proper agreement.

2. Writing must necessarily intervene in all obligations and bargains concerning heritable subjects, though they should be only temporary; as tacks, which, when they are verbal, last but for one year. In these, no verbal agreement is binding, though it should be referred to the oath of the party; for, till writing is adhibited, law gives both parties a right to rescil, as from an unfinished bargain; which is called locus penitentiae. If, upon a verbal bargain of lands, part of the price shall be paid by him who was to purchase, the interventus rei, the actual payment of money, creates a valid obligation, and gives a beginning to the contract of sale; and, in general, wherever matters are no longer entire, the right to rescil seems to be excluded. An agreement, whereby a real right is passed from, or restricted, called pacium liberatorium, may be perfected verbally; for freedom is favourable, and the purpose of such agreement is rather to dissolve than to create an obligation. Writing is also essential to bargains made under condition that they shall be reduced into writing; for in such cases, it is pars contractus, that, till writing be adhibited, both parties shall have liberty to withdraw. In the same manner, verbal or nuncupative testaments are rejected by our law; but verbal legacies are sustained, where they do not exceed 100l. Scots.

3. Anciently, when writing was little used, deeds

were executed by the party appending his seal to them in presence of witnesses. For preventing frauds that might happen by appending seals to false deeds, the subscription also of the granter was afterwards required, and, if he could not write, that of a notary. As it might be of dangerous consequences to give full force to the subscription of the parties by initials, which is more easily counterfeited; our practice, in order to sustain such subscription, seems to require a proof, not only that the granter used to subscribe in that way, but that de facto he had subscribed the deed in question; at least, such proof is required, if the instrumentary witnesses be still alive.

4. As a further check, it was afterwards provided, that all writings carrying any heritable right, and other deeds of importance, be subscribed by the principal parties, if they can subscribe; otherwise, by two notaries, before four witnesses specially designed. The subsequent practice extended this requisite of the designation of the witnesses to the case where the parties themselves subscribed. Custom has construed obligations for sums exceeding 100l. Scots, to be obligations of importance. In a divisible obligation, ex. gr. for a sum of money, though exceeding 100l. the subscription of one notary is sufficient, if the creditor restricts his claim to 100l: But in an obligation indivisible, e. g. for the performance of a fact, if it be not subscribed in terms of the statute, it is void. When notaries thus attest a deed, the attestation or docquest must specially express that the granter gave them a mandate to sign; nor is it sufficient that this be mentioned in the body of the writing.

5. In every deed, the name of him who writes it, with his dwelling place, or other mark of distinction, must be inserted. The witnesses must both subscribe as witnesses, and their names and designations be inserted in the body of the deed. And all subscribing witnesses must know the granter, and either see him subscribe, or hear him acknowledge his subscription; otherwise they are declared punishable as accessory to forgery. Deeds, decrees, and other securities, consisting of more than one sheet, may be written by way of book, in place of the former custom of pasting together the several sheets, and signing the joinings on the margin; provided each page be signed by the granter, and marked by its number, and the testing clause express the number of pages.

6. Instruments of feissn are valid, if subscribed by one notary, before a reasonable number of witnesses; which is extended by practice to instruments of resignation. Two witnesses are deemed a reasonable number to every deed that can be executed by one notary. It is not necessary that the witnesses to a notarial instrument or execution see the notary or messenger sign; for they are called as witnesses to the transaction which is attested, and not to the subscription of the person attesting.

7. A new requisite has been added to certain deeds since the Union, for the benefit of the revenue: They must be executed on stamped paper, or parchment, paying a certain duty to the crown. These duties must also be paid before wrote upon, under a penalty; but they are so numerous and complex, that it would be tedious, even if it fell under our plan, to enter into an enumeration of them. They will be found at length.

length in Swinton's Abridgement, vice Stamps, to which the reader is referred. Certain judicial deeds, such as bail bonds, bonds of cautionary, in suspensions, &c. are exempted, and do not require stamps, as will be seen from the several acts referred to by the compiler of the above abridgement of the statutes.

Blank bonds. 8. The grantor's name and designation are essential, not properly as solemnities, but because no writing can have effect without them. Bonds were, by our ancient practice, frequently executed without filling up the creditor's name; and they passed from hand to hand, like notes payable to the bearer: But as there was no method for the creditor of a person possessed of these to secure them for his payment, all writings taken blank in the creditor's name are declared null, as covers to fraud; with the exception of indorsements of bills of exchange.

Privileged deeds. 9. Certain privileged writings do not require the ordinary solemnities. 1. Holograph deeds (written by the grantor himself) are effectual without witnesses. The date of no holograph writing, except a bill of exchange (see next parag.), can be proved by the grantor's own assertion, in prejudice either of his heir or his creditors, but must be supported by other adminicles. 2. Testaments, if executed where men of skill and business cannot be had, are valid though they should not be quite formal: and let the subject of a testament be ever so valuable, one notary signing for the testator, before two witnesses, is in practice sufficient. Clergymen were frequently notaries before the Reformation; and, though they were afterwards prohibited to act as notaries, the case of testaments is excepted; so that these are supported by the attestation of one minister, with two witnesses. 3. Discharges to tenants are sustained without witnesses, from their presumed rufficity, or ignorance in business. 4. Missive letters in re mercatoria, commissions, and fitted accounts in the course of trade, and bills of exchange, though they are not holograph, are, from the favour of commerce, sustained without the ordinary solemnities.

Bills of exchange. 10. A bill of exchange is an obligation in the form of a mandate, whereby the drawer or mandate desires him to whom it is directed, to pay a certain sum, at the day and place therein mentioned, to a third party. Bills of exchange are drawn by a person in one country to his correspondent in another; and they have that name, because it is the exchange, or the value of money in one place compared with its value in another, that generally determines the precise extent of the sum contained in the draught. The creditor in the bill is sometimes called the possessor, or porteur. As parties to bills are of different countries, questions concerning them ought to be determined by the received custom of trading nations, unless where special statute interposes. For this reason, bills of exchange, though their form admits not of witnesses, yet prove their own dates, in questions either with the heir or creditors of the debtor; but this doctrine is not extended to inland bills payable to the drawer himself.

Their solemnities and obligations. 11. A bill is valid, without the designation either of the drawer or of the person to whom it is made payable: It is enough, that the drawer's subscription appears to be truly his; and one's being possessor of a bill marks him out to be the creditor if he bears the name given in the bill to the creditor: Nay, though

the person drawn on should not be designed, his acceptance presumes that it was he whom the drawer had in his eye. Bills drawn blank, in the creditor's name, fall under the statutory nullity; for though indorsements of bills are excepted from it, bills themselves are not. Not only the person drawn upon must sign his acceptance, but the drawer must sign his draught, before any obligation can be formed against the acceptor: Yet it is sufficient in practice, that the drawer signs before the bill be produced in judgement; though it should be after the death both of the creditor and acceptor. A creditor in a bill may transmit it to another by indorsement, though the bill should not bear to his order; by the same rule that other rights are transmissible by assignment, though they do not bear to assignees.

12. The drawer, by signing his draught, becomes Obligations, liable for the value to the creditor in the bill, in case the person drawn upon either does not accept, or after acceptance does not pay; for he is presumed to have received value from the creditor at giving him the draught, though it should not bear for value received: But, if the drawer was debtor to the creditor in the bill before the draught, the bill is presumed to be given towards payment of the debt, unless it expressly bears for value. The person drawn upon, if he refuse to accept, while he has the drawer's money in his hands, is liable to him in damages. As a bill presumes value from the creditor, indorsement presumes value from the indorsee; who therefore, if he cannot obtain payment from the acceptor, has recourse against the indorser, unless the bill be indorsed in these words, without recourse.

13. Payment of a bill, by the acceptor, acquits both the drawer and him at the hands of the creditor: but it entitles the acceptor, if he was not the drawer's debtor, to an action of recourse against him; and, if he was, to a ground of compensation. Where the bill does not bear value in the hands of the person drawn upon, it is presumed that he is not the drawer's debtor, and consequently he has recourse against the drawer, ex mandato.

14. Bills, when indorsed, are considered as so many bags of money delivered to the onerous indorsee; which therefore carry right to the contents, free of all burdens that do not appear on the bills themselves. Hence, a receipt or discharge, by the original creditor, if granted on a separate paper, does not exempt the acceptor from second payment to the indorsee; hence, also, no ground of compensation competent to the acceptor against the original creditor can be pleaded against the indorsee: but, if the debtor shall prove, by the oath of the indorsee, either that the bill is indorsed to him for the indorser's own behoof, or that he paid not the full value for the indorsement, the indorsee is justly considered as but a name; and therefore all exceptions, receivable against the original creditor, will be sustained against him. A protested bill, after registration, cannot be transmitted by indorsement, but by assignment.

15. Bills must be negotiated by the possessor, against Negotiation, the person drawn upon, within a precise time, in order to preserve recourse against the drawer. In bills payable so many days after sight, the creditor has a discretionary power of fixing the payment somewhat sooner or later, as his occasions shall require. Bills payable on a day certain, need not be presented for acceptance till the day of payment, because that day can neither