Historical Law-Tracts. Henry Home, Lord Kames

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      HISTORICAL

      LAW-TRACTS

      THE FOURTH EDITION.

      WITH ADDITIONS AND CORRECTIONS.

      EDINBURGH:

      Printed for T. CADELL, in the Strand, London;

      and BELL & BRADFUTE, and W. CREECH, Edinburgh.

      MDCCXCII.

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       PREFACE

      The history of man is a delightful subject. A rational enquirer is no less entertained than instructed, in tracing the progress of manners, of laws, of arts, from their birth to their present maturity. Events and subordinate incidents are, in each of these, linked together, and connected in a regular chain of causes and effects. Law in particular, becomes then only a rational study, when it is traced historically, from its first rudiments among savages, through successive changes, to its highest improvements in a civilized society. And yet the study is seldom conducted in that manner. Law, like geography, is taught as if it were a collection of facts merely: the memory is employed to the full, rarely the judgment. This method, were it not rendered familiar by custom, would appear strange and unaccountable. <iv> With respect to the political constitution of Britain, how imperfect must the knowledge be of that man who confines his reading to the present times? If he follow the same method in studying its laws, have we reason to hope that his knowledge of them will be more perfect?

      Such neglect of the history of law, is the more strange, that in place of a dry, intricate, and crabbed science, law treated historically becomes an entertaining study; entertaining not only to those whose profession it is, but to every person who hath any thirst for knowledge. With the generality of men, it is true, the history of law makes not so great a figure, as the history of wars and conquests. Singular events, which by the prevalence of chance or fortune excite wonder, are much relished by the vulgar. But readers of solid judgment find more entertainment, in studying the constitution of a state, its government, its laws, the manners of its <v> people; where reason is exercised in discovering causes and tracing effects through a long train of dependencies.

      The history of law, in common with other histories, enjoys the privilege of gratifying curiosity. It enjoys beside several peculiar privileges. The feudal

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      customs ought to be the study of every man who proposes to reap instruction from the history of modern European nations: because among these nations, public transactions, no less than private property, were some centuries ago regulated by the feudal system. Sovereigns formerly were many of them connected by the relation of superior and vassal. The King of England, for example, held of the French King many fair provinces. The King of Scotland, in the same manner, held many lands of the English King. The controversies among these princes were generally feudal; and without a thorough knowledge of the feudal system, one must be ever at a loss <vi> in forming any accurate notion of such controversies, or in applying to them the standard of right and wrong.

      The feudal system is connected with the municipal law of this island, still more than with the law of nations. It formerly made the chief part of our municipal law, and in Scotland to this day makes some part. In England, indeed, it is reduced to a shadow. Yet, without excepting even England, much of our present practice is evidently derived from it. This consideration must recommend the feudal system, to every man of taste who is desirous to acquire the true spirit of law.

      But the history of law is not confined to the feudal system. It comprehends particulars without end, of which one additional instance shall at present suffice. A statute, or any regulation, if we confine ourselves to the words, is seldom so perspicuous as to prevent errors, perhaps gross <vii> ones. In order to form a just notion of any statute, and to discover its spirit and intendment; we ought to be well informed how the law stood at the time, what defect was meant to be supplied, or what improvement made. These particulars require historical knowledge; and therefore, with respect to statute-law at least, such knowledge appears indispensable.

      In the foregoing respects, I have often amused myself with a fanciful resemblance of law to the river Nile. When we enter upon the municipal law of any country in its present state, we resemble a traveller, who, crossing the Delta, loses his way among the numberless branches of the Egyptian river. But when we begin at the source and follow the current of law, it is in that course no less easy than agreeable; and all its relations and dependencies are traced with no greater difficulty, than are the many streams into which that magni-<viii>ficent river is divided before it is lost in the sea.

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      An author, in whose voluminous writings not many things deserve to be copied, has however handled the present subject with such superiority of thought and expression, that in order to recommend the history of law, I will cite the passage at large.

      I might instance (says he) in other professions the obligation men lieunder of applying themselves to certain parts of history, and I can hardly forbear doing it in that of the law, in its nature the noblest and most beneficial to mankind, in its abuse and debasement the most sordid and the most pernicious. A lawyer now is nothing more, I speak of ninety-nine in a hundred at least, to use some of Tully’s words, nisi leguleius quidem cautus, et acutus praeco actionum, cantor formularum, auceps syllabarum.¹ But there have been lawyers that were orators, philosophers, historians: there <ix> have been Bacons and Clarendons. There will be none such any more, till in some better age, true ambition or the love of fame prevails over avarice; and till men find leisure and encouragement to prepare themselves for the exercise of this profession, by climbing up to the vantage ground, so my Lord Bacon calls it, of science, instead of groveling all their lives below, in a mean, but gainful, application to all the little arts of chicane.² Till this happen, the profession of the law will scarce deserve to be ranked among the learned professions: and whenever it happens, one of the vantage grounds to which men must climb, is metaphysical, and the other, historical knowledge. They must pry into the secret recesses of the human heart, and become well acquainted with the whole moral world, that they may discover the abstract reason of all laws: and they must trace the laws of particular state, especially of their own, <x> from the first rough sketches to the more perfect draughts; from the first causes or occasions that produced them, through all the effects, good and bad, that they produced.^*

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      The following discourses are selected from a greater number, as a specimen of that manner of treating law which is here so warmly recommended. The author flatters himself, that they may tend to excite an historical spirit, if he may use the expression, in those who apply themselves to law, whether for profit or amusement; and for that end solely has he surrendered them to the public.

      An additional motive concurred to the selection here made. The discourses relate, each of them, to subjects common to the law of England and of Scotland; and, in tracing the history of both, tend to intro-<xi>duce both into the reader’s acquaintance. I have often reflected upon it as an unhappy circumstance, that different parts of the same kingdom should be governed by different laws. This imperfection could not be remedied in the union betwixt England and Scotland; for what nation will tamely surrender its laws more than its liberties? But if the thing was unavoidable, its bad consequences were not altogether so. These might have been prevented, and may yet be prevented, by establishing public professors of both laws, and giving suitable encouragement for carrying on together the study of both. To unite both in some such plan of education, will be less difficult than at first view may be apprehended; for the whole island originally was governed by the same law; and even at present, the difference consists more in terms of art than in substance. Difficulties at the same time may be overbalanced by advantages: the proposed plan has great advantages, not only by re-<xii>moving or lessening the foresaid inconvenience, but by introducing