Hirical Law Tracts. Edinburgh printed for Millar in Lon 8vo. 2 vols. 9 s. bound. ΤΗ don. HE profeffion of the Law, which, next to Religion, is of the higheft importance to the peace and happi ncís of, fociety, has, from the avarice and incapacity of its profeffors, incurred the reproach of being fordid and illiberal. Bolingbroke fomewhere calls it an unlearned profeffion: and if we reflect with what an inconfiderable ftock of learning many have risen to eminence in the Law, we fhall not, perhaps, think the imputation ill founded. A great Lawyer in the common, we mean the practical, fenfe of the word, is one who is capable of drawing just Conclufions from given Propofitions, without examining whether thofe Propofitions themfelves are right or wrong, or entering into the abftract reasons, on which they are founded. A truly great Lawyer, however, carries his researches further. He confiders the Data of his profeffion, a priori: he examines when and why particular inftitutions were eftablifhed; traces the progreffive alterations they have undergone; reflects on the changes which time or fudden revolutions have occafioned in the fyftem of government; and from thence is enabled to judge, how far the Laws in being are adapted to the prefent ftate of the community. In fhort, a truly great Lawyer fhould be verfed in the art of Legislation. To the attainment of this noble and useful science, a competent knowlege in Philofophy and Hiftory, is indifpenfably requifite. A Legiflator fhould be well fkilled in the human heart: he ought to be intimately acquainted with the paffions and manners of mankind, in different ages, and in different countries; and fhould know what contrary effects have been produced by political inftitutions, according to the various circumstances of divers ftates, and the different difpofitions of the people. It must be owned, however, to the honour of the profeffion, that fome excellent attempts have been lately made to unite History and Philofophy with the ftudy of the Law, and confequently to refcue the latter, from the unfavourable imputations it has long fince laboured under. The very ingenious treatife on the Law of Forfeitures, may be confidered as one of the firft laudable efforts for this purpofe: the Hiftory of Feudal Property does not claim less ac 8 know knowlegement in this refpect: and the Hiftorical Tracts now before us, are equally intitled to the encomiums of the candid and judicious. The learned Author is, indeed, a Lawyer, in the most honourable acceptation of the word. He has traced the Laws from their first fource, in the rude ftate of favage policy, and marked their progrefs and amendment to the prefent period of improvement. The two volumes under prefent confideration, contain fourteen Tracts; viz. Hiftory of the Criminal Law.-History of Promifes and Covenants-Hiftory of Property-Hiftory of Security upon Land, for Payment of Debt-Hiftory of the Privilege which an Heir apparent in a feudal Holding has to continue. the Poffeffion of his Anceftor-Hiftory of Regalities, and of the Privilege of Repledging-Hiftory of Courts-Hiftory of Brieves -Hiftory of Process in Abfence-Hiftory of Execution against Moveables and Land, for Payment of Debt-Hiftory of perfonal Execution for Payment of Debt-History of Execution for obtaining Payment after the Death of the Debtor-Hiftory of the limited and univerfal Reprefentation of Heirs-Old and New Extent. In difcuffing thefe fubjects, the Author difcovers a thorough knowlege of human nature, and a very intimate and extenfive acquaintance with Hiftory and Jurifprudence. He fhews by what flow, yet natural, advances, the Magiftrate became vefted with civil and criminal Jurifdiction. He explains the nature and changes of Property, from the firft fimple and naked title of Poffeffion, to the more refined and complicated Rights which have fince taken place: and he traces the regular progrefs by which private injuries to individuals, became at length to be confidered as crimes against the public. Thefe Difcourfes, as the Author obferves in his Preface, each of them relate to fubjects common to the Law of England, and of Scotland; and, in tracing the Hiftory of both, tend to introduce both into the Reader's acquaintance. They have fuch refemblance, as to bear a comparison almoft in every branch; and they fo differ, as to illuftrate each other by their oppofition. Our Law, (meaning that of Scotland) will admit of many improvements from that of England; and, he adds, we are rich enough to repay with intereft, all we have occafion to borrow. We readily concur with our Author in his favourable fenments of the Scotch Law. In criminal matters especially, we we are perfuaded that their Laws are more agreeable to the principles of Religion, and the dictates of Morality, than our own. It is obfervable, for inftance, that in their divifion of crimes, that of Blafphemy very properly holds the foremoft rank; whereas, according to our arrangement, it only takes place after a multitude of inferior offences, and, by fome, is even poftponed to the imaginary fin of Witch craft. As the Writer, however, profeffes to fhew the analogy between the two Laws, it is to be wifhed, that he had treated his fubject in terms lefs technical; efpecially as his Difcourfes on the heads above enumerated, relate moftly to the Scotch Law, which very few, even Lawyers, among us, are acquainted with. It is but juft to acknowlege, nevertheless, that where our Author fpeaks as a Philofopher, and a Legislator, his ftile is nervous, clear, and copious. Did our limits allow us to give an abstract of such various matters, we are perfuaded that most of them would be too dry and uninteresting to the generality of our Readers. We fhall therefore confine ourfelves to the first head, viz. The Hiftory of the Criminal Law – a subject of general import, and of the higheft concern to every member of a free state; as the prefervation of Liberty depends chiefly on the perfection of the laws in criminal cafes. Our Author very judicioufly opens this fubject, by confidering the feelings imprefled on delinquents by a fenfe of wrong, and the dread of punishment: proceeding in the next place, to analyze the nature of refentment in the party injured. Upon certain actions, he obferves, hurtful to others, the ftamp of impropriety and wrong is impreffed in legible characters, vifible to all, not excepting even the delinquent. Paffing from the Action to its Author, we feel that he is guilty; and we alfo feel that he ought to be punished for his guilt. He himself, having the fame feeling, is filled with remorfe; and his remorfe is accompanied with an anxious dread that the punishment will be inflicted. Correfponding to the dread of punishment, is our indignation at grofs crimes, even when we do not fuffer by them; and next Refentment in the perfon injured, even for the flighteft crime; by which fufficient provifion is made for inflicting the punishment that is dreaded. Refentment, when confined within due bounds, is authorized by Confcience. The de *See Mackenzie's Criminal Laws of Scotland. linquent linquent is fenfible that he may be justly punished; and the perfon injured is entitled to inflict the punishment. Revenge, therefore, when provoked by injury, or voluntary wrong, is a privilege belonging to every one by the Law of Nature: and thus, he concludes, the firft Law of Nature, regarding Society, that of abftaining from doing injury to others, is enforced by the most efficacious fanctions. Thefe reflections are certainly ingenious; and, most of them, juft. We are afraid, however, that the Author attributes feelings to Man in a state of Nature, of which he is only fufceptible in confequence of refined ideas, acquired from civilized fociety. That Savages are affected by dread of punishment, we make no doubt; but that they feel Remorse, or entertain a fenfe of Impropriety and Wrong, whenever they commit actions hurtful to others, we find no room to conclude. Nothing, according to notions generally received, is more hurtful to others, than to deprive the innocent of life. Yet what fhall we fay of human facrifices, which, in many parts of the world were formerly, and are ftill, in effect, authorized by cuftom? What shall we fay of thofe Sayages, who kill their parents, when they are past their labour, instead of labouring themselves for their support? Paffing from these actions to their authors, we, who are civilized, find that they are guilty-guilty of murder and parricide: but they, lefs refined, do not feel the remorfe of guilt; neither have they any fenfe of impropriety and wrong in these actions: Our Author having eftablished the privilege of Revenge, from principles of Nature, proceeds to specify the different degrees in the paffion of Refentment; which, as he obferves, is quiefcent, and quickly vanishes when the injury is done to a ftranger; but is active and keen, when the injury is offered to ourselves and fo in proportion, according to the degree of connection. In the next place, he confiders fome irregularities attending this paffion, which is often excited by involuntary wrongs. Sudden pain is fometimes fufficient to raise this paffion, where no injury is intended. By accidentally ftriking one's foot against a stone, a smart pain ensues, Refentment discovers itself at once, and prompts us to break the ftone to pieces : and yet, fays he, fuch indulgence was by the Athenians given to this irrational emotion, that if a man was killed by the fall of a ftone, or other accident, the inftrument of death was destroyed. Rev. Oct. 1759 Y Here A Here we must obferve, that fomething analogous to this, is the Law of England; by which, when any moveable thing inanimate, or beaft animate, occafions the death of any man by mifchance, that thing, and every thing moving with it, is forfeited to the King, or Grantee of the Crown. The Author continues to fpecify other irregularities attending the paffion of Refentment: fuch as not diftinguishing the innocent from the guilty, by exerting it against the Relations of the criminal, and even against the brute creatures belonging to him. We with, however, that he had extended his reflections on this subject. Certainly nothing can be more favage or irrational, than the confounding the innocent in the punishment of the guilty---A practice, in fome degree, ftill authorized by the policy of moft modern ftates. Having difcourfed of the Nature of Punishment, and of the irregular notions entertained concerning it, he proceeds to attend its progrefs through the different ftages of focial life. Mutual defence,' fays he, against a more powerful neighbour, being, in early times, the chief or fole motive for joining in fociety, individuals never thought of furrendering to the public, any of their natural rights, that could be retained confiftently with their great aim of mutual defence. In particular, the privileges of maintaining their own property, and of avenging their own wrongs, were referved to individuals full and entire. In the dawn of Society, accordingly, we find no traces of a Judge, properly fo called, who hath power to interpofe in differences, and to force perfons at variance, to fubmit to his opinion. If a difpute about property, or about any civil right, could not be adjufted by the parties themfelves, there was no "other method, but to appeal to fome indifferent perfon, whofe opinion fhould be the rule. This method of determining civil differences was imperfect; for what if the * partics did not agree upon an arbiter ? Or what if one of them proved refractory, after the chofen arbiter had given his opinion? To remedy these inconveniencies, it was . found expedient to eftablifh Judges, who, at firft, differed in one circumftance only from Arbiters, that they could not be declined. They had no magifterial authority, not even that of compelling parties to appear before them. This is evident from the Roman Law, which fubsisted many centuries before the notion obtained of a power in a Judge to force a party into Court. To bring a difputable matter to an iflue, no other means occurred, but the makmg it lawful for the complainer to drag his party before the • Judge, |