Читать книгу Historical Law-Tracts - Henry Home Lord Kames - Страница 15
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Moral principles, faint among savages, acquire strength by refinement of manners in polished societies.*1 Promises and covenants, in particular, have full authority among nations disciplined in a long course of regular government: But among barbarians it is rare to find a promise or covenant of such authority as to counterbalance, in any considerable degree, the weight of appetite or passion. This circumstance, joined with the imperfection of a language in its infancy, are the causes why engagements are little regarded in original laws.
It is lucky, that among a rude people in the first stages of government, the necessity of engagements is not greater than their authority. Originally, every family subsisted by hunting, and by the natural fruits of the earth. The taming wild animals, and rendering them domestic, multiplied greatly the means of subsistence. The invention of agriculture produced <67> to the industrious a superfluity, with which foreign necessaries were purchased. Commerce originally was carried on by barter or permutation, to which a previous covenant is not necessary. And after money was introduced into commerce, we have reason to believe, that buying and selling also was at first carried on by exchanging goods for money, without any previous covenant. But in the progress of the social life, the wants and appetites of men multiply faster than to be readily supplied by commerce so
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narrow and confined. There came to be a demand for interposed persons, who take care to be informed of what is redundant in one corner, and of what is wanted in another. This occupation was improved into that of a merchant, who provides himself from a distance with what is demanded at home. Then it was, and no sooner, that the use of a covenant came to be recognised; for the business of a merchant cannot be carried on to any extent, or with any success, without previous agreements.
As far back as we can trace the Roman law, we find its authority interposed in behalf of sale, location, and other contracts deemed essential to commerce. And that commerce was advanced in Rome before action was sustained upon such contracts, is evident from the contract of society or partnership put in that class. Other covenants were not regarded, but left upon the <68> obligation of the natural law. One general exception there was: A promise or paction, of whatever nature, executed in a solemn form of words, termed stipulatio, was countenanced with an action. This solemn manner of agreement, testified the deliberate purpose of the parties; and at the same time removed all ambiguity as to their meaning, to which language in its infancy is liable(1). <69>
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Courts of law were a salutary invention in the social state; for by them individuals are compelled to do their duty. This invention, as commonly happens, was originally confined within narrow bounds. To take under the protection of a court, natural obligations of every sort, would, in a new experiment, have been reckoned too bold. It was deemed sufficient to enforce, by legal authority, those particular duties that contribute most to the well-being of society. A regulation so important gave satisfaction; and, while recent, left no desire or thought of any farther improvement. This <70> fairly accounts for what is observed above, that in the infancy of law, promises and agreements which make a figure are countenanced with an action, while others of less utility are left upon conscience. But here it must be remarked, that this distinction is not made where the effect of a promise or agreement is not to create an obligation, but to dissolve it. Pacta liberatoria have, in all ages, been enforced by courts of law. The reason commonly assigned, that liberty is more favourable than obligation, is not satisfactory; for no pactions merit more favour than those which promote the good of society, by obliging individuals to serve and aid each other. The following reason will perhaps be reckoned more solid. There is a wide difference betwixt refusing action even where the claim is just, and sustaining action upon an unjust claim. With respect to the former, all that can be complained of is, that the court is less useful than it might be: The latter would be countenancing, or rather enforcing, iniquity. It is not surprising to find courts confined within too narrow bounds, in point of utility: But it would be strange indeed if it were made their duty to enforce wrong of any sort. Thus where a court refuses to make effectual a gratuitous promise, there is no harm done; matters are left where they were before courts were instituted. But it is undoubtedly unjust to demand payment of a <71> debt after it is discharged, though by a gratuitous promise only. And therefore,
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when in this case an action for payment is brought, the court has no choice: It cannot otherwise avoid supporting this unjust claim, but by sustaining the gratuitous promise as a good defence against the action(2).
One case excepted, similar to the Roman stipulatio, of which afterward, it appears to me that no naked promise or covenant was, by our forefathers, countenanced with an action. A contract of buying and selling was certainly not binding by the municipal law of this island, unless the price was paid, or the thing sold delivered. There was locus poenitentiae even after arles were given; and change of mind was attended with no other penalty, but loss of the arles, or value of them.* Our ancient writers are not so express upon other covenants; but as permutation, or in place of it buying and <72> selling, are of all the most useful covenants in common life, we may reasonably conclude, that if an agreement of this kind was not made effectual by law, other agreements would not be more privileged.
The case hinted above as an exception, is where an agreement is made or acknowledged in the face of court, taken down in writing, and recorded in the books of the court.† For though this was done chiefly to make evidence, the solemn manner of making the agreement probably had the same effect with stipulatio in the Roman law, which tied both parties, and absolutely barred repentance. And indeed the recording a transaction would be an idle solemnity, if the parties were not bound by it.
The occasion of introducing this form, I conjecture to be what follows. In difficult or intricate cases, it was an early practice for judges to interpose, by pressing a transaction betwixt the parties; of which there are instances in the court of session, not far back. This practice brought about many agreements betwixt litigants, which were always recorded in the court where the process depended. The record was compleat evidence of the fact; and
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if either party broke the concord or agreement, a decree went against him without other proof.* The <73> singular advantages of a concord or transaction thus finished in face of court, moved individuals to make all their agreements, of any importance, in that form. And indeed, while writing continued a rare art, skilful artists, except in courts of justice, were not easily found readily to take down a covenant in writing.
So much upon the first head, How far naked covenants and promises were effectual by our old law. What proof of a bargain was required by a court of justice, comes next to be examined. Evidence may justly be distinguished into natural and artificial. To the former belong proof by witnesses, by confession of the party, and by writ. To the latter belong those extraordinary methods invented in days of gross superstition, for bringing out the truth in doubtful cases, such as the trial by fire, the trial by water, and singular battle.
Before writing was invented, or rather while, like painting, it was in the hands of a few artists, witnesses were relied on for evidence in all cases. Witnesses were in particular admitted for proving a debt to what ever extent, as well as for proving payment. But experience discovered both the danger and uncertainty of such evidence; which therefore was confined within narrower bounds gradually as the art of writing became more common. It was first established, that two witnesses were not sufficient <74> to prove a debt above forty shillings; and that there must be a number of witnesses in proportion to the extent of the debt. Afterward, when the art of writing was more diffused, the King’s courts took upon them to confine the proof of debt to writing, and the confession of the party, leaving inferior judges to follow the common law, by admitting debt to be proved by witnesses. This seems to be the import of Quon. Attach. cap. 81. and the only proper sense that it can bear. The burghs adhered the longest to the common law,† by admitting two witnesses to prove debt to any extent(3).
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The King’s courts assumed the like privilege in other actions. Though they admitted witnesses to prove that a contract of sale, for example, or location, was performed in part, in order to be a foundation for decreeing full performance; yet they permitted nothing to be <75> proved by witnesses, but what is customary in every covenant of the sort. If any singular paction was alledged, such an irritancy ob non solutum canonem, witnesses were not admitted to prove such pactions, more than to prove a claim of debt. The proof was confined to writ, or confession of the party.*
The second species of natural evidence, is, confession of the party; which, in the strictest sense, must be a confession; that is, it must be voluntary. For, by the original law of this island, no man was bound to bear testimony against himself, whether in civil or criminal causes. So stands the common law of England to this day; though courts of equity take greater liberty. Our law was the same, till it came to be established, through the influence of the Roman law, that in civil actions, the facts set forth in the libel or declaration may be referred to the defendant’s testimony, and he be held as confessed if he refuse to give his oath. The transition was easy from civil matters, to such slight delinquencies as are punished with pecuniary penalties in a civil court; and in these also, by our present practice, the person accused is obliged to give evidence against himself.
The discovery of truth by oath of party, denied in civil courts, was, in the ecclesiastical court, obtained by a circuit. An action for <76> payment could not be brought before the ecclesiastical court; but in a religious view a complaint could be brought for breach of faith and promise. The party, as in the presence of God, was bound to declare, whether he had not made the promise. The truth being thus drawn from him, he was of course enjoined, not only to do penance, but also to satisfy the complainer. This was in effect a decree, which was followed with the most rigorous execution for obtaining payment of the debt. And this by the by is the foundation of the privilege our commissary-courts have, of judging in actions of debt when the debt is referred to oath.
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The third species of natural evidence is writ; which is of two kinds, viz. record of court, and writ executed privately betwixt parties. The first kind, which has already been mentioned, is in England termed recognisance, because debt is there acknowledged. And here it must be remarked, that this writ is of itself compleat evidence, so as to admit of no contrary averment, as expressed in the English law. But with respect to a private writ, it is laid down, that if the defendant deny the seal, the pursuer must verify the same by witnesses, or by comparison of seals; but that if he acknowledges it to be his seal, he is not permitted to deny the writ.* The presumption lies, that it was he himself who <77> sealed the writ; unless he can bring evidence, that the seal was stolen from him, and put to the writ by another.
A deed hath sprung from the recognisance that requires peculiar attention. In England it is termed a bond in judgment, and with us a bond registrable. When, by peace and regular government, this island came to be better peopled than formerly, it was extremely cumbersome to go before the judge upon every private bargain, in order to minute and record the same. After the art of writing was spread every where, a method was contrived to render this matter more easy. The agreement is taken down in writing; and, with the same breath, a mandate is granted to a procurator to appear in court, and to obtain the writ, to be recorded as the agreement of such and such persons. If the parties happen to differ in performing the agreement, the writ is put upon record by virtue of the mandate; and faith is given to it by the court, equally as if the agreement had been recorded originally. The authority of the mandate is not called in question, being joined with the averment of the procurator. And, from the nature of the thing, if faith be at all given to writ, the mind must rest upon some fact, which is taken for granted without witnesses. A bond, for example, is vouched by the subscription of the granter, and the granter’s subscription by that of one or <78> more witnesses. But the subscription of a witness must be held as true; for otherwise a chain of proof without end would be necessary, and a writ could never be legal evidence. The same solemnity is not necessary to the mandate, which being a relative deed, is supported by the bond or agreement to which it relates; and therefore, of such a mandate
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we do not require any evidence but the subscription of the party. The stile of this mandate was afterward improved, and made to serve a double purpose; not only to be an authority for recording the writ, but also to impower the procurator to confess judgment against his employer; on which a decree passes of course, in order for execution. The mandate was originally contained in a separate writing, which continues to be the practice in England. In Scotland, the practice first crept in of indorsing it upon the bond, and afterward of ingrossing it in the bond at the close, which is our present form(4). <79>
With respect to the evidence of English bonds in judgment, and Scots bonds having a clause of registration, there appears no difference: They bear full faith; and without any extraneous evidence are a sufficient foundation for execution. The laws of England and of Scotland appear also to have been originally the same with respect to writs that need an action to make them effectual. The antient form of testing a writ, was by the party’s seal; and if the defendant denied the seal to be his, the pursuer as above mentioned was bound to prove the same. The law continued the same in both countries, when subscription became necessary as well as the seal: If the defendant denied the subscription to be his, it was incumbent on the pursuer to bring a proof of it, as formerly of the seal. In England to this day, if the defence Non est factum be pleaded, or, in other words, that the writ was not signed and sealed by the defendant, the plaintiff must prove the affirmative. But in Scotland various checks have been introduced to prevent forgery: One of these checks is the subscription of the witnesses, required by act 5. parl. 1681, which vouches the party’s subscription. And as a bond thus fortified bears faith in judgment, the defendant is <80> now deprived of his negative defence, Quod non est factum; he must submit
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to the claim, unless he undertake positively to prove that the subscription is not his.2
I cannot, upon this occasion, overlook a remarkable impropriety in our old statutes, requiring witnesses to the subscription of an obligor, without enjoining the witnesses to subscribe, in token that they did witness the obligor’s subscription. To appoint any act to be done, without requiring any evidence of its having been done, is undoubtedly an idle regulation. The testing clause, it is true, bears, that the obligor subscribed before such and such witnesses. But the testing clause, which in point of time goes before the subscription of the obligor, cannot, otherwise than prophetically, be evidence that the witnesses named saw the obligor subscribe. This blunder is not found in the English law: For though witnesses are generally called, and do often subscribe; yet, according to my information, witnesses are not
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essential by the law of England.3 This blunder in our law is corrected by the statute 1681; enacting, “That none but subscribing witnesses shall be probative, and not witnesses insert not subscribing.” By this regulation the evidence of writ is now with us more compleat than it is in England. The subscriptions of the witnesses are justly held legal evidence of their having <81> witnessed the subscription of the granter of the deed; and the subscriptions must be held to be theirs; otherwise, as above observed, no writ can in any case afford legal evidence. And thus the evidence required in Scotland to give faith to a bond or other deed, is by this statute made proper and rational. It is required that the granter subscribe before witnesses: But we no longer hold the testing clause to be evidence of this fact: the subscription of the witnesses is the evidence, as it properly ought to be.
Of the artificial means used in a process to discover truth, those by fire and water(5) were discharged by Alexander II.* And it is won-<82>derful, that even the grossest superstition could support them so long. But trial by singular battle, introduced by Dagobert king of Burgundy, being more agreeable to the genius of a warlike people, was retained longer in practice.
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And being considered as an appeal to the Almighty, who would infallibly give the cause for the innocent, it continued long a successful method of detecting guilt; for it was rare to find one so hardened in wickedness, as to behave with resolution under the weight of this conviction. But instances of such bold impiety, rare indeed at first, became more frequent. Men of sense began to entertain doubts about this method of trying causes; for why expect a miraculous interposition of Providence upon every slight dispute, that may be decided by the ordinary forms of law? Custom, however, and the superstitious notions of the vulgar, preserved it long in force; and even after it became a public nuisance, it was not directly abolished. All that could be done, was to sap its foundations (6), <83> by substituting gradually in its place another method of trial.
This was the oath of purgation; the form of which is as follows. The defendant brings along with him into court, certain persons called Compurgators; and after swearing to his own innocence, and that he brings the compurgators along with him to make and swear a leil and true oath, they all of them shall swear that this oath is true, and not false.* Considering this form in itself, and that it was admitted where the proof was defective on the pursuer’s part, nothing appears more repugnant to justice. For why should a defendant be so loaded, when there is no proof against him? But considering it with relation to the trial by singular battle, to which it was substituted, it appears to me a rational measure. For in effect it was giving an advantage to the defendant which originally he had not, that of choosing whether he would enter the lists in a warlike manner, or undergo the oath of purgation. That the oath of purgation came in place of singular battle, is not obscurely insinuated, Leges Burgor. cap. 24. and <84> is more directly said, Quon. Attach. cap. 61. “If a man is challenged for theft in the King’s court, or in any court, it is in his will, whether he will defend himself by battle, or by the cleansing of twelve leil men.”† It bears in England the law-term
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of Wager at Law;* that is, waging law instead of waging battle; joining issue upon the oaths of the defendant and compurgators, in place of joining issue upon a duel. But the oath of purgation, invented to soften this barbarous custom of duels, being reckoned not sufficient to repress the evil, duels were afterwards limited to accusations for capital crimes, where there are probable suspicions and presumptions, without direct evidence.† And consequently, if the foregoing conjecture be well founded, the oath of purgation came also to be confined to the same case. By degrees both wore out of use; and, in this country, there are no remaining traces of the oath of purgation, if it be not in ecclesiastical courts.
It is probable, that as singular battle gave place to the oath of purgation, so this oath gave place to juries. The transition was easy, there being no variation, other than that the twelve compurgators, formerly named by the defendant, were now named by the judge. The va-<85>riation proved notably advantageous to the defendant, though in appearance against him. Singular battle wearing out of repute, the injustice of burdening with a proof of innocence every person who is accused, was clearly perceived; and witnesses being now more frequently employed on the part of the prosecutor to prove guilt, than on the part of the defendant to prove innocence, it was thought proper that they should be chosen by the judge, not by the defendant. If it be demanded, Why not by the prosecutor, as at present? it is answered, That at that time the innovation would have been reckoned too violent. However this be, one thing appears from Glanvil,‡ That in all questions concerning the property of land, founded on the brieve of right, a privilege was about that time bestowed on the defendant, to have the cause tried by a jury, instead of singular battle. As this was an innovation authorised by reason, and not by statute, it was probably at first attempted in questions upon the brieve of right only; matters of less importance being left upon the oath of purgation. That a jury trial, and the oath of purgation, were in use both of them at the same time, we have evidence from the Regiam Majestatem,|| compared with the foregoing quotations. But these two me-<86>thods could not long subsist together. The new method of
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trial by jury, was so evidently preferable, that it would soon become universal, and be extended to all cases civil and criminal: In fact, we find it so extended as far back as we have any distinct records.
From this deduction it appears, that a jury was originally a number of witnesses chosen by the judge, in order to declare the truth.* And hence the process against a jury for perjury and wilful error. This explains also why the verdict of a jury is final, even when they are convicted of perjury. Singular battle, from the nature of the thing, was so; the oath of purgation, substituted to singular battle, was so; and a verdict, substituted to an oath of purgation, fell of course to be so. It likewise explains the practice of England, that the jury must be unanimous in their verdict; for it was required, that the compurgators should be so in their oath of purgation. The same rule probably obtained in Scotland: But at present, and as far back as our records carry us, the verdict is fixed by the votes of the majority.
In later times, the nature and office of a jury were altered. Through the difficulty of procuring twelve proper witnesses acquainted with the facts, twelve men of skill and integrity were chosen, to judge of the evidence produced by <87> the litigants. The cause of this alteration may be guessed, supposing only that the present strict forms of a jury-trial were at first not in use. If jurymen, considered as witnesses, differed, or were uncertain about the facts, they would naturally demand extraneous evidence; of which when brought, it belonged to them to judge. It is likely, that for centuries jurymen acted thus both as witnesses and as judges. They may, it is certain, act so at this day; though, for the reason above given, they are commonly chosen by rotation, without being regarded in the character of witnesses. Hence it is, that a jury is now considered chiefly as judges of the fact, and scarce at all as a body of witnesses. And this explains why the process for perjury against them is laid aside: This process cannot take place against judges, but only against witnesses. <88>
