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Monday January 17th. 1763. - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]

Edition used:

Lectures On Jurisprudence, ed. R.. L. Meek, D. D. Raphael and P. G. Stein, vol. V of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982).

Part of: The Glasgow Edition of the Works and Correspondence of Adam Smith, 7 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Monday January 17th. 1763.

I come now to the last method of acquiring property, viz voluntary transference. To this there are two things necessary: 1st., the will of the proprieter or transferrer, distinctly signified, that the thing should be transferred to the transferré; and IIdly, tradition, that is, that <the> thing the property of which is transferred should be put into the power of him to whom it is transferred. The will of the proprieter, without transference, can signify only that he has a design of giving the property to the other; but unless the transferre has got the subject once into his power he can not be said | to have got the property of it. As occupation, by which property is originally acquired, can not take places unless the subject has been brought once at least into the power of the occupant, and becomes by that means seperated from the commont ones, so a thing that is the property of a certain personu can not become the property of another unless it be given into his power.

As the will of the proprieter and tradition are both absolutely requisite, so the effects are also different when they are seperate and when they are both conjoined. The declaration of the proprieters will conveys to the transferreé (if we may be allowed the expression) a personall action against the proprieter, by which he can demand and compell him to fulfill the engagement he has come under; but does by no means give him a real right to the thing of which the proprieter made the declaration; that right is acquired only when tradition is joined to the declaration of the pro|prieter. (For we are to observe that tradition [without that tradition] without a declaration [without a declaration] of the will of the proprieter can constitute no right to the thing transferred.) If e.g. a man should sell one his horse and receivev the price, should even show him the horse in the stable, but did not deliver him into the power of the byer, if he should afterwards sell and deliver him to an other, the first purchaser would have an action against the seller for the price and what damages he might have sustain’d, but he could not claim the horse from the 2d byer, as he had never properly been in his possession. But if after the bargain was concluded the proprieter should deliver the horse into the power of the other, and if he should only touch the reins or any other way signify his having got him in his power, but should afterwards desirew the proprieter to keep him for some time, and thex seller should in that time sell him to another, the first purchaser could then claim him as his (by a real action) from | any possessor. Grotius71 disputes the constant necessity of tradition, affirming that there are some cases where they bare will of the proprieter is sufficient to transfer the property. The instances he gives are, when the property of the mortgage is transferred to the mortgagee, of the pawn to him who has it pledged, of the depositum or trust to the trusteé. In all these cases, he says, the will of thez proprieter without any tradition transferrs the property. But let us consider for what purpose is it that tradition is required and what end it serves;a for no other cause than to give the transferree the power over the subject. Now in all these cases the subject is already deliverd into the power of the person to whom the property is transferred; the pawn broker is already in possession of the pledge, the trustee of the thing trusted, etc., so that in all these tradition is unnecessary, because it has already preceded the will of the proprieter to transferr the property. He quotes also a law of the Wisigoths, a barbarous nation who settled in the south–west of France, which enacts that property should thereafter begin from the time of | the delivery ofb {a contract or writ of livery, which when writing came to be in use was taken in place of a verbal declaration.} But we find the following part of the law, which he has not quoted, that the legislator, tho willing to begin property from the declaration of the proprieters will, yet he found this not easily reconciled to all the different circumstances. For in case that the transferree should die before the tradition was made, he determines after some hesitation that the property of the subject should remain with the proprieter and his heirs; whereas if the property had been transferred from the delivery of the writ the property must have belonged intirely to the transferree and his heirs, without any connection with the former proprieter. We are to take notice also that as the laws of these nations were regulated by the clergy, they were formed on the plan of the cannon law, that is, on the novelles of Justinian, to which the cannonists chiefly adhere;c both of which laws, as well the imperiall as the civill, endeavour to extend the effect of contracts | and obligations of all sorts much farther <than> they naturally do, or would have done amongst a barbarous people left to their own disc<r>etion. {The ancient Roman law plainly affirms that property is transferred only usucapionibus and traditionibus.72 } We can easily conceive in what manner the tradition of moveable subjects should be performed,d as a horse, a book, etc., as these subjects can easily be put into the power of the transferree. But it is not so easy to conceive how the larger subjects, as houses or land, should be transferred by tradition, as the other can not take possession of every part of these. The way in which this has always been performed is by a symbolicall tradition; as thee delivery of the keys of the house and the opening of the door give the possession to the transferree. In the same manner, the keys of a granary. In this country when a crop is sold, if it be standing the delivery of a single stalk, or if it be cut down of a single sheaf, is supposed to give possession of all the stalks or all the sheaves. | In the same manner the tradition of a land estate is made by the delivery of a turf and a stone; and if it be to be held by esquirage, a staf<f> and a shield. Bacculus et parma are delivered along with it.—{In England a land estate may be transferred with<out> the transferree’s being actually upon it, by its being only pointed out at a distance; but this does not serve for a delivery unless he afterwards take possession of it.—In England also it is necessary that when one alienates an estate the new acquirer should be infeft by him in every part, if it so happen that it should not be contiguous. But in Scotland the levery of one part serves to convey the property of the whole, whether the severall parts lie in the s[h]ame shire or not. For every one in the same manor (or baronny or lordship) is supposed to know what is doing in all the different parts of it, and in the same manner all in the same shire are supposed to know what is doing in it; and for this reason also there is but one registration required. — — —}

It is to be observed here that in the first times of the feudall government, when it was in its full vigour, no vassal whether of the king or of any lord could alienate his lands without the consent of his superior, either to hold of himself,f or to hold of his superior in the same manner as he did. For as they held by military tenure, it was not just that they should have it in their power to alter the persons who should be his servants. It was however pretty soon introduced that the vassals could give their lands to others to hold of them, tho they were prohibited from alienating the right they had to it.—In the same manner as the vassals were prohibited from alienating the right they had to the use and profit of the land, so the superior was prohibited from alienating the property he had in the land without the consent | of the possessors, whether they held by the noble tenures of military service or by the ignoble ones, as soccage, which was before explain’d.73 For if they were of the noble sort, it would not only be hard that the master whom he should serve was to be at anothers disposal, but also it would often happen that his master, having been at variance with any of his neighbours, might make peace with his enemy, who dropt his resentment against the master but perhaps retained it against the vassall, who by this means would often have been ruined. If they held by the ignoble tenures the 1st argument is equally strong, as they held their landsg for ever [as]; or even altho they held but for their own life time, as was the case in the first beginnings of the feudall government.—There were in this manner two properties conjoined in the feudal governmen<t>, one of which was vested in the lord and consisted in certain casualities or services which he had a title to from the vassall, | and the vassal had on the other hand the benefit of the land and its fruits, in his own property; and (as is the case of all conjunct proprieters<)> neither of them had the power of alienating their part without the consent of the other. When the vassal designed to alienate his property, in any part of his possessions, he must surrender it into the hands of the superior,h74 either in Blank in MS.75 or in favorem. In the first case the land returned into the intire property of the proprietor, who was thereafter vested both in the domin. directum et utile. In the other case it was resigned to the superiors in favor of some third person who was to hold it in the same manner as the present vassall did, and to whom the superior was desired to transfer it. In this later case if the superior should not incline to transfer it to the person specified, it returned to the vassall in the same manner as it was before, notwithstanding of the surrendering. The consent of the superior was at first altogether voluntary. The 1st case in which he was obliged to grant his consent wasi that the estate might be sur|rendered to creditors. After this was enacted, it might easily be brought about at any time that the superior should be obliged to grant his consent. For the vassal who had a mind to alienate his estate had no more to doj after he had received the value of the estate than to grant a bond to that extent to the bargainneé, to whom as a creditor adjudger the superior was obliged to grant the lands.—On the other hand the superior came in time to have the power of alienating his part of thek estate without the contour Blank in MS.76 of the vassal. This was gradually introduced after the fiefs came to be considered as property and the superiority only as a small burthen, and when the vassals were not intirely dependent on the protection of their superior but were protected in their part of the property by <the> law of the land, whatever master they were under. In this case their contour77 of the vassall need not be looked on as so absolutely necessary. We may observe here also that in England the consent | of the superior to the alienation of the vassals land was very soon dispensed with; and it was but of late that the contournement of the vassal was not thought requisite to the superior. On the other hand in Scotland the cont Blank in MS.78 of the vassal has been thought unnecessary for 300 or 400 years, whereas it was not till the end of 16 or beginning of the 17th century that the method of alienation by the purchaser claiming to be infeft by the character of a creditor adjudger <?>; and this is the form which is in some measure still kept up.

There wasl a method of transferring property latelym in use in England wherein tradition was not necessary. It was thus introduced. In the feudal government, the landholders being often called out to war and obliged to leave their estate, they found it necessary in order to preserve their estates to transfer the use of it to some persons who should possess it till they came to claim it. When this was the condition of uses, the bargainer who sold an estate might begin79 continue the use of the estate to the | bargainee but could not be considered as possessing it for him. And if he should during the time of this use sell it to another person, the bargainee would have a personall action against him for the value of estate he had had and for damages, but would have no real action for it, a quocunque possessore. But when it was declared by the statute of Uses80 that use continued possession, tradition was no longer necessary as it then possession of the former proprietor, who came then to be considered after the sale as the bargainees servant or attorney, was the same as if he had possessed it himself, and when he took actuall possession of it it was noto considered as if he took possession of what had been an others till that timep but only as a continuation of his own.—The bargainer possessing it for him from the time of the sale.

There is also another method of transferring property now in common use in England where no tradition is requisite; viz. by lease and release. That is, the bargainer gives the bargainee | a lease of the estate he designs to alienate in his favours for a certain gratuity, reserving to himself certain burthens and services; of these he releases by a subsequent deed, wherein he declares that he shall be free from all the burthens or duties he had reserved to himself in the preceding lease. From that time then the bargainee becomes fully proprietor of the estate. This is the method generally in use in England,q or rather a method where the method by sale and use is joined with it. For it being often inconvenient that the bargainèe should come and take possession of the estate betwixt the making of the lease and the release, it is now customary that the proprietor shall be supposed to possess it for him.

Having now gone thro all the 5 different methods of acquiring property, I come to consider the 2d species of real rights, viz.

| SERVITUDES.

Servitudes are burthens or claims that one man has on the property of another. The Romans considered servitudes as being either real or personal; i.e. as being due by a certain person or by a certain thing. They divided them also into servitutes urbanorum praediorum and servitutes rust. praed. The 1st are those that are due by one farm in the country to another, as servitus aquae, etc. The other such as were due by one praedium in the town to another. It is to be observed that all servitudes were originally personall; and this will easily appear if we consider the manner in which they have been introduced. Thus to take a common instance, we shall suppose that the farm of one man lies betwixt the high way or the market town and the farm of his neighbour. Here it will be very convenient if not highly necessary that the possessor of the former farm should have the liberty of a road thro the farm of his neighbour. This he may obtain for a certain gratuity from the possessor; and take his obligation to grantr him | that liberty in time to come. Thiss would be given him not as being such a man but as being possessor of such a farm, and would be stipulated not only for him but for his heirs and successors likewise. And if he should afterwards sell or dispose of his farm he would account that liberty as a part of his possessions, and demand some reasonable compensation for it from the purchaser as well as for the farm itself.—But let us suppose that the proprietor of the servient farm should dispose of his farm, and that he should according to agreement with the owner of the dom. praed.81 take the purchaser bound to grant him the liberty stipulated; that the farm in this manner passes thro three or four different hands; and that the 4th possessor refuses to grant him the liberty stipulated.t In what manner shall he compel him to perform it. He is bound indeed to the third possessor, but not to him, so that the dom. prae. dom.82 can have no action | against him. He can only come at his right by raising an action against the first possessor, to make him perform the obligation he had come under. He again might compell the 2d, and he the third, and he the 4th; or he might raise an action against the 1st to oblige him to cede to him the obligation the 2d had come under, and then the 2d the 3d and so on. To prevent such a multiplicity of actions, which would often be very troublesome, it came to be enacted byu actio servitia, and afterwards by thev actio quasi servit.,83 first that some and afterwards that the greater part of servitudes should be consider<ed> as real rights.

There were a great number of different servitudes amongst the Romans, both urbane and rustic.84 Amongst the latter are jus itin. act. and via jus aquaehaust. and ad aquam appellendi, etc. 2d, jus stillicidii, tigni injiciendi, oneris ferendi, etc.85 Most of these besides many others are in use amongst us. { The life rent or 2dly the use of a house or other subject, as the opera servorum, may also be considered as servitudes as soon as it is lawfull, as it certainly may be, to sell a superiority with such a burthen.} It is to be observed that all feudall hold|ingsw may be considered as servitudes and in like manner were at first personal. The vassals at first held their lands by military and other such service during pleasure or for lives,x and were intirely dependent on the proprietor of the land. The property was vested in him and the other had only the use of the land for the time he pleased or for the numbery <?>. After the feudal government was introduced and the holdings came to bez hereditary the dominium directum was still in the hands of the superior; the vassal, for the smallest defect of service or trespass on the property of the superior or other land which he had not in his holding, was liable to be turned out and his lands forfeited to the superior. The lands could not be alienated to another without the consent of the superior and the performance of the same services on the part of the new vassall which the former one had payd him. In the same manner the heir could not enter to an inheritance unless he performed homage and swore fealty to his superior, and if the heir | happen’d to be a minor he could not enter to the inheritance, but the whole profits of the estate during hisa minority fell to the superior, nor could he reasume the estate unless he payd the relief, which was at first arbitrary. From this it evidently appears that the property was lodged in the superior burthen’d with a servitude to the vassal which in effect was only personall, as the holding was so precarious.—But in progress of time (by a progress we shall explain more fully explain’db <)> the vassal came to be more secure in his estate; the casualties due by the vassal were converted into ac setledd rent or escuage,86 and the relief was fixt to a certain sum, which were all of very small value compared to the value of the estate. {Which they paid either to the king or to some one who held of him, for all in time held of him either mediately or immediately.} So that here which ever of them we consider as having the dom. dire. the vassal had the profit,e which was burthend only by a small servitude due to the superior. In the same <manner> | as these above mentiond, all other valuable and necessary servitudes came to be reckoned real; those that are of less value being only for pleasure are now, and were amongst the Romans, considered only as personal. We shall by and by show that this conversion begun with a sort of servitudes which of all others should havef last, and inde<e>d ought never to have been a real one.

All burthens on property, as they can only have taken their rise from a contract, must have originally been personall, as was said, for a contract can produce nothing but a personall right. They became real only by the intervention of the law. This holds equally with regard to the 3d species of real rights, viz

Pledges

That is, a subjectg which is given or pledged to an other for the security of a debt due to him. Now if this subject was to be any way abstracted so that the pawnee had it not in his power to make his payment, from whom could he claim | it? If he should claim it from any possessor he wouldh refuse to restore it; as he was not the proprietor so he could have no action against the possessor; the only way was for him to demand it from the pawner, who could as proprietor claim it a quocumque possessore. To prevent this troublesome circuit it was established that pledges should be esteemed to constitute a real right. The difference betwixt a pawn or pledge and a hypotheque is that in the former case [that in the former case] the thing from whence the security is given is put into the hands of the pawnee, and in the other case it is allowed to remain with the pawner. This distinction may be as well considered as being a division of pledges into those of moveable and small subjects and of immoveable ones.i Moveables when pledged are generally put into the possession of the pawnee. Thus if one wants to borrow 5 guineas he gives the lender his watch which may be worth 10,j and tells him that if he does not pay it he may keep that watch. | Now there is nothing in such an agreement which can properly be called unlawfull, for the parties can make any agreement they incline with regard to the disposal of their own property. If they made this agreement there can be no reason why they should not stand to it. It is a well known maxim that uti contrahentes verbis nuncupaverant ita jus esto.87 The agreement of alienatingk the subject may be considered as a wager that {they should pay against such a time, asl people in low88 circumstances are very ready as they commonly expect that they will be able to perform more than what they find is the case.}

Now in these cases, beforem the lex commissoria,89 if the payment was not made at the time appointed, or if there was no time specified, in a certain time after the payment had been demanded the whole pawn fell to the pawnee, to the great loss of the pawner as these pawns would often be of much greater value than the debt and interest could amount to. But it being found that this was allmost always the case, as debtors are often inclined to please themselves when the creditors do not push them, and for this <?reason> are generally inclined to be slow in paying the debts, it was enacted as more equitable that if the debt was not payd at the time appointd or in a certain | time after it was demanded, [that] the pawn should not from that day be the pawnees but that he should be allowed to sell it at a reasonable price, and take payment of principall and interest and the costs of his suit, {the rest being restored to the pawner or his heirs.} This is the case too in Scotland; but in England the pawn brokers as they are called, but more properly the pawn–takers, as they do not deal in broking, if the pledge be not redeemed, which is often not easily done, as they take a most extravangt interest, at the day appointed or before the death of the pawner, take the whole subject pawned. So that neither the persons themselves nor their heirs have any claim against him. For as the persons who enter into such agreements, who would pawn their cloaths, etc., are not inclined that their transactions should be known, there90 is commonly known, as it is an evident sign of their poverty and low circumstances <?>. The licensce of pawn brokers is therefore, as shall be shewn hereafter, one of the greatest nuisances in the English constitution, especially | in great cities. With regard to immoveable pledges the constitutions in Romen and Scotland are the same as with regard to moveables. An heritable bond on an estate does not commonly bear any time at which payment shall be made, but only that it shall be paid when demanded. Therefore in a certain time after the demand the creditor may sell the estate, having it adjudged to him for the principall and interest and a 5th part of what was due at the time of demand as costs and damages. In England on the other hand if the debt was not pay’d at the time when it was demanded, the lands or other immoveables fall immediately to the mortgager; but by the statute law all landso are redeemable for forty years, and then prescribe. But the Chancellor declared that in this case he will allow the pawner to redeem them for twenty years,91 counted from the time the debt was demanded. Besides these that are constituted by agreement there were amongst the Romans a great many tacit hypotheques, | many of which are received amongst us. But all of these have no other effect than to constitute a preferable claim to the person who has such a hypotheque. Thus one who lets a house has no other security for his rent than the furniture and goods of the tenent, from whic<h> he can take his payment preferably to any other creditor. Anciently in this country he would have had an preferablep action not only againstt those goods which were in his own hands but preferable to all others. After the cultivation of lands by villains or slaves was not used, the most common sort <of> farms were those which held by what is called steel–bow, and in French Blank in MS.92 . The method was that the landlord when he set the land at the same time gave him a plough of oxen, 5 or 6 yoke, which he was obliged to returnq as many and of equal value according to the judgement of some honest man. At the end of every harvest the lord and the tenent divided the crop equally | sheaf by sheaf. In this case the lord had equall property in all his goods and crops,r and if he alienated any part of it without his consent, and before he had got his payment, he could claim it as his own from any possessor. This method of letting land, which as shall be shown hereafter is one of the worst that have ever been in use, is now laid aside in most parts of this country, unless some of the remoter parts, but is that which is practised over more than 5/6 of France. But even after thats method oft letting land came to be laid aside, the landlord was still considered as having a property in the goods so that he could claim them if sold without his consent. This however has not long ago been restricted by a decree of the Court of Session, continued by Act of Parliament;93 so that now the land<l>ord has only a preferable debt to all other debtors, but can not [but can not] claim the goods if alienated without his consent, especially if the purchaser be bona fide, that is, had no intention | by his bargain to defraud the landlord of his rent and had entered into no such scheme with the tenent.94 (The Romans had also many other tacit hypothecs, which are not admitted by our law. Thus if one borrow’d money with which he built a ship or a house, as there was something in this house or ship which was purchased by his money, so he was supposed to have a preferable claimu to that of all other debtors. But this is not now admitted.) (The lands in Italy were in the same manner cultivated either by servi, slaves which were the property of the landlord, or by coloni, which were in much the same condition as the holders by steel bow or Blank in MS.95 ; and the landlord had a joint property with the colonus and consequently could <?claim> the goods alienated before payment without his consent.<)>

We come now the 4th real right, viz — — —

| Exclusive Priviledges.

The four real rights treated of in the civil law are the three we have already mentioned, Property, Servitude, Pledge, and fourthly, Haereditas, or Inheritance.

It is plain that this can not be considered as a different species of real right after the heir has entered to the inheritance, for then he has the same right that the defunct had and is considered as the same person, having full property in every respect. It can be in no other case than during the timev betwixt the death of the last proprietor and the entrance of the heir that the inheritance can be considered as giving a new species of a real right. Now what right is it that the heir has before his entrance? No other but that of excluding all others from the possession untill he determine in whether he will enter heir or not. Before this determination the other heirs who follow after him can not have any claim for the | inheritance, but after his refusall the subsequent heir has the same right as he had. If therefore inheritance is to be considered as a real right, all other exclusive priviledges have the same title, and appear evidently as well as it to be real rights. Some of them are founded onw natural reason, and others are intirely the creatures of the civil consti<tu>tions of states. This of inheritance is evidently founded on natural reason and equity. There are however some others that owe their origin to it. Thus if one who has a right to hunt starts a deer, and when he is in pursuit another comes in and takes this deer before he [he] has given over hopes of catching him, this 2d person appears evidently to have acted contrary to good manners and may accordingly be punished by the forest laws. It can not however be accounted a breach of property, as that can not begin till the beast is actually brought into | the possession of the pursuer.96 If after that time he should take away the beast this would be considered as a theft or a robbery.—The trespass here is plainly against the exclusive priviledge the hunter has to the chase or pursuit of the beast he has started.—x In the year 1701 an English man[ner] of war came up<on> some French merchantmen under convoy of a man of war, and when he was engaging the war ship a Scots privateer came and pi<t>ched up<o>n the merchantmen. The captain of the man of war sued the privateer before the Scots Privy Council which then subsisted; he represented that without he had engaged the war–ship the privateer could never have taken the mer. men, and that if he had not come up they would inevitably have fallen into his hands. He therefore demanded they should be restored. The Privy Council agreed | and adjudged the privateer to restore them, specifying that he had been guilty of a breach of property.97 But if they had spoke properly they would have said that he had been guilty of a breach of an exclusive priviledge. For if he had broke property he would have been sued not for restitution but have been tried as a pirate, yet <?that> was not the case. The breach was of the exclusive priviledge one has to pursue and take the ships he spiesy andz chases. Had the ships been in tow of the man of war and he cut them off in the night, this would have been piracy and a breach of property.

The greatest part however of exclusive priviledges are the creatures of the civil constitutions of the country. The greatest part of these are greatly prejudicial to society. Some indeed are harmless enough. Thus the inventor of a new machine or | any other invention has the exclusive priviledge of making and vending that invention for the space of 14 years by the law of this country,98 as a reward for his ingenuity, and it is probable that this is as equall an one as could be fallen upon. For if the legislature should appointa pecuniary rewards for the inventors of new machines, etc., they would hardly ever be so precisely proportiond to the merit of the invention as this is.b For here, if the invention be good and such as is profitable to mankind, he will probably make a fortune by it; but if it be of no value he also will reap no benefit. In the same manner the author of a new book has an exclusive priviledge ofc publishing and selling his book for 14 years.98a Some inde<e>d contend that the book is an intire new production of the authors and therefore ought in justice | to belong to him and his heirs for ever, and thatd no one should be allowed to print or sell it but those to whom he has given leave, by the very laws of naturall reason. But it is evident that printing is no more than a speedy way of writing. Now suppose that a man had wrote a book and had lent it to another who took a copy of it, and that he afterwards sold this copy to a third; would there be here any reason to think the writer was injured. I can see none, and the same must hold equally with regard to printing. The only benefit one would have by writing a book, from the natural laws of reason, would be that he would have the first of the market and may be thereby a considerable gainer. The law has however granted him an exclusive priviledge for 14 years, as an encouragement to the labours of learned men. And this is perhaps as well adapted to the real value | of the work as any other, for if the book be a valuable one the demand for it in that time will probably be a considerable addition to his fortune. But if it is of no value the advantage he can reap from it will be very small.—These two priviledges therefore, as they can do no harm and may do some good, are not to be altogether condemned. But there are few so harmless. All monopolies in particular are extremely detrimental.—The wealth of <?a> state consists in the cheapness of provisions and all other necessaries and conveniencies of life; that is, the small proportion they bear to the money payd, considering <the> quantity of money which is in the state; or in other words that they should be easily come at. Its poverty again consists in the uncomeatibleness or difficulty with which the severall necessarys of life are procured. Now all monopolies evidently tend toe promote the poverty or, which comes to the same thing, | the uncomeatibleness of the thing so monopolized. Thus for example if one should get an exclusive priviledge of making and selling all the silk in the kingdom, he would as he had it at his own making greatly increase the price; he would perhaps lessen the quantity made to a tenth part of that now in use; and would raise the price nearly in proportion; and by this means he would make great profit at a less expense of materialls and labour than can be done when many have the same liberty. The price of the commodity is by this means raised, and the quantity of this necessary, ornament, or conveniency of life is at the same time lessend, so that it becomes doubly more uncomeatible than it was before. The same bad consequences follow from all other monopolies. The establishment of corporations and other societies who have an exclusive right is equally detrimental. The severall corporations in towns | have all an exclusive priviledge of exercising that trade within the liberties of the town, {no one being allowed to take up a business but who has served an apprenticeship in the town; formerly no one but whose father had been a burgher.} Now, e.g., the corporation of butchers have the sole liberty of killing and selling all the flesh that is brought to market. Here the priviledge is not vested in the person of one man, but as the number is fixt they will readily enter into compacts to keepf up the price of the commodity and at the same time supply the market but very indifferently with flesh.—In the same manner the bakers, the brewers, the tanners, etc. have all the exclusive priviledge of exercising the severall trades.—Nowg these priviledges must be of a great hurt to the community is very evident, as it makes all sorts of necessarys so much the more uncomeatible. {Besides this the goods themselves are worse; as they know none can undersell them so they keep up the price, and as they know also that no other can sell so they care not what the quality be.} This has never been doubted. But that they are hurtfull to the corporations is not so generally acknowledged. But it is no less true. If there was but one corporation in a place, the profits of that society would be immense as they would be in a state the most profitable of any,h | that of bying cheap and selling dear. But as there are always a great number of such corporations where there is one, the priviledge comes to be of no value. They sell theiri commodity dear, but then they bye every thing else dear also. He hinders indeed this concourse to the market of those who trade in his goods, but at the same time the others hinder the concourse which would be if the trade was free of all other traders; in which the price of every thing would be at the proper and naturall standard, for if one was not inclined to sell at a low price another would. Besides by these corporations the number of inhabitants is greatly diminished; and any who would settle in the city are hindered from so doing. By this means there are generally two or three large villages in the neighbourhood of every city. If a corporation lessens the number of rivalls, it also lessens the number of | customers. These shall be more fully treated of hereafter.

I have now considered the severall real rights, not only property but also servitudes and pledges, and shown that these were originally merely personall rights, tho by the determination of the legislature, to prevent the confusion this was found to produce, they were afterwards changed into real rights. I have also endeavoured to shew that the severall feudall duties were all properly speaking servitudes, and make by far the greatest and most important parts of the servitudes in use in this country. That which is commonly distinguished however by the name of servitude, is indeed no servitude; it isj the obligation that the possessors of some estates are under to grind their corn at a certain milne and no other. This they call being thirrle to the milne, and this burthen is generally called by the lawyers99 the servitude of thirrleage. But it is very evident that this is no servitude, but only an | exclusive priviledge. For that the severall estates in the neighbourhood should be obliged to grind at a certain milne can not be at all answerable to a servitude, which always implies that there is jus in re aliena constitutum. It is an exclusive priviledge of grinding all the corn that shall grow on a certain tract of ground. This is a priviledge that extends over all most all the low parts of Scotland; there is hardly any estate but what is thirlle to some milne. This in the present state of things is one of the old constitutions which had much better been removed; and of this sort there are many. But notwithstanding of this, it may have been very convenient in the first constitution or settlement of milnes. A wind or a water milne dispatches the work much easier and in less time that it could be performed by the hands of men. When therefore some persons set up these machines for the service of the neighbourhood, it was necessary that they should some way <?be> secured in a reasonable profit; and for this end the neighbours for a greater or less distance bound themselves and their heirs to give their work | to that person; and by this means secured him in a tollerable subsistence. But such constitutions at this day are not only altogether useless but very detrimentall, as they discourage industry and improvement of the arts. It is in many places a very considerable grievance and a great burthen on the persons who are under it. And from this it probably has been that the lawyers called it a servitude, meaning that it was a burthen.

In the same mannerk the exclusive privileges of corporation which, as I endeavoured to shew, are now detrimentall to the community, but <?to> the individualls of each corporation may have at first been very convenient and all most necessary. When a set of men agree’d to live together in a community, it was necessary that they should have the power of defending themselves against the incroachments of their neighbours, (that is) that they should have a jurisdiction of a certain extent, which we find accordingly that all cities have. | By this means a provision was made for theirl safety, but it was also necessary to provide for their safety in prosperity. It ism found that society must be pretty far advanced before the different trades can all find subsistence, that is, before those trades which do not immediately procure food of some sort, as bread, flesh, etc., or even most of these, can be depended on for a subsistence. A carpenter or a weaver could not trust intirely to his work in that way; he would only take in this trade as a subsidiary one. And to this day in the remote and deserted parts of the country, a weaver or a smith, besides the exercise of his trade, cultivates a small farm and in that manner exercises two trades, that of a farmer and that of a weaver. To bring aboutn therefore the separation of trades sooner than the progress of society would naturally effect, and prevento the uncertainty of all those who had taken themselves to one trade, it was found necessary to give them a certainty of a comfortable subsistence.— | And for this purpose the legislaturep determined that they should have the priviledge of exercising their seperate trades without the fear of being cut out of their livelyhood by the increase of their rivalls. That this was necessary therefore in the 1st stages of the arts to bring them to their proper perfection, appears very reasonable and is confirmed by this, that it has been the generall practise of all the nations in Europe. But as this end is now fully answered, it were much to <be> wished that these as well as many otherq remains of the old jurisprudence should be removed.

Having now finished all I shall advance at present with regard to real rights, I proceed to consider:—

PERSONAL RIGHTS

That is, the right one has to demand the performance of some sort of service from an other. The former or real rights are by the civillians called jura in re. These are called jura ad rem; or jura personalia; and are | defined to be facultas vel jus competens in personam quo aliquid facere vel dare teneatur.1 It is evident from this that all personall rights must take their origin from some obligation. Now obligations are of three sorts. They proceed either 1st, from contract; or 2dly, from what the civilians call quasi contract, that is, the obligation one is underr restore to the owner whatever of his property has come into his possession either voluntarily or otherwise; or 3dly, from some injury (or delict) he has done what is his.

We shall first consider the obligations which arise from contract or agreement; and before we consider them, it will be proper to considers what it is int a contract which produces an obligation to perform the thing contracted.2 Now it appears evident that a bare declaration of will to do such or such a thing can not produce an obligation. It means no more than that <?it> is the present design of the person who makes such a | declaration to do so and so; and all that is required of him to make such a declaration lawfull is sincerity, that is, that it be really his intention at that time to do as he said. If he should afterwards be induced by circumstances to alter his intention, we could not say that he had violated an obligation; we might indeedu if he did so on slight grounds accuse him of levity, and being easily turned and altered in his designs. The only thing that can make an obligation in this manner is an open and plain declaration that he desires the person to whom he makes the declaration to have a dependance on what he promises. Thev words in which we commonly make such a declaration <?are> I promise to do so and so, you may depend upon it. Thew expectation and dependance of the promittee that he shall obtain what was promised is hear altogether reasonable, and such as an impartial spectator would readily go along with, whereas in the former case the spectator could <?not> go along with him if he formed any great expectation. | If I should say that I intend to give you voluntarily £100 next new years day, but make this declaration in such a manner as plainly shews I don’t intend you should depend upon it, and expressly say, ‘You need not depend upon it, but this is my present design’, the spectator could not here imagine that he to whom I made the promise would have any reasonable expectation; but this without doubt he would, if I should plainly declare that I meant that he should depend upon it.—We are to observe here that the injury done by the breach of a contract is the slightest possible; at least the slightest one can well account to require any satisfaction. It is a common saying, that he who does not pay me what he owes me, does me as great an injury as he who takes as much from me by theft or robbery. It is very true the loss is as great, but we do not naturally <look> upon the injury as at all so heinous. One never has so great dependence on what is at the mercy or depends on the good faith | of another as what depends only on his own skill. The spectator can not think he has so good a ground for expectation of the possessing it. We accordingly find that in the early periods of every society those crimes were punish’d much more severely; in those times no punishment was inflicted but on the more heinous crimes, such as murther, robbery, and theft and other such which were breaches of the peace and disturbed the order of society. All trials in early times were carried on by the whole people assembled together; and this was not so much to inflict a punishment as to bring about a reconciliation and some recompense for the damagex the injured party may have sustained. Even in case of murther the chief business was to procure some concessions from the murtherer in order to attone for the injury done the friends of the deceased, and on the other part to mitigate the resentment of the friends of the murthered person. When all trials | were thus carried on by the assembly of the whole people, which must have been attended with many inconveniences in calling the people from their necessary employments, none but the most important causes wouldy be brought into judgement. The injury arising from the breach of contract would not be thought of consequence enough to put the whole people to the trouble which trials then necessarily occasioned. Besides this there arez several reasons which greatly retard the validity of contracts, asa the uncertainty of language. Language at all times must be somewhat ambiguous, and it would be more so in the state of society we are talking <?about>. This must render it very difficult to conclude with exactness the intention of the contracting parties, and determine whether it was their inclination to produce a reasonable expectation or only to signify a design which they had at that time of acting in such a manner. | 2dly, the small value of the subjects which in an early period would be the objects of contract, would make it not of great consequence whether they were binding or not; and 3dly, the small number of occasions in which they would be requisite.—We find accordingly that in the first periods of society, and even till it had made some considerable advances, contracts were noways binding. Blank in MS.3 of Damascus, an author quoted by Stobaeus (where we have many passages from him very useful with regard to the state of society in the first periods of it) tells us that among some nations in the East Indies no contract was binding, not even that of restoring a depositum, that in which the obligation seems to be strongest as the injury in the breach of it is most glaring; {and they gave as th<e> reason, that by so doing they avoided a multitude of lawsuits which wouldb the validity of contracts follow immediately.c } Aristotle4 tells us also that even as far down as his time, there were severall states in Greece where the validity of contracts was not acknowledged, and that bothd to prevent the multitude of judicial proceedings, and also because, said | they, one who enters into a contract trusts to the fidelity of the person and is supposed to have trust in him. He has himself to blame therefore if he is deceived, and not the law which {does not give him redress.} We see also from our old book the Regiam Majestatem, and from Glannmores book5 which was wrote in the time of Henry 2d, that contracts were just beginning to be regarded at that time, both in Scotland <?and in England>. The Kings Court was then established and took notice of some of the most necessary ones. The author of the Reg. Maj. however tells us that, in matters of so small importance as contracts are, the Kings Court seldom interests itself.6

If we consider now the reasons why contracts were not binding, we will discover also the causes which gradually introduced their validity. The 1st thing I mentioned which obstructed their being allowed to be binding was the uncertainty of language; when therefore this was removd the objection could no longer have any effect. We find accordingly that the first contracts which were binding weree {those wherein the intention of the contracter was plain and uncontroverted; that is, such} as were con|ceived in a certain set form of words which it was agreed expressed the design of the contracter that the other should depend on the performance of what was contracted. {That it was this reasonable expectation of the contracter to whom the promise was made which constituted the obligation appears pretty plainly from this, that for some time after these contracts were reckoned binding the breakers of them were not made liable to perform the thing contracted, but only to pay the damages he might have sustained by the dissapointment of his expectations.} These were called verborum obligationes or verbal contracts.7 They were performed by a set form of words, called stipulationes; on both sides, the question was solemnly asked and solemnly agreed to. Thus in the settling of a dower, Annon manus causeos spondes mihi cum tua filia nomine dotis: Spondeo: Et ego accipio.—In Scotland at this time all contracts of whatever sort are equally binding; a bare promise produces an obligation at law.—This proceeded from the ecclesiasticall law. They at first introduced the custom that contracts of the sort above mentioned should be binding;f not only obliging them to perform the engagements but also enjoining them ecclesiasticall pennances; and even threatening them with excommunication, which at that time was a very | terrible punishment as it not only banished them from all Christian society but also forfeited their estate to the crown. These constitutions soon rendered the contracts effectuall; and to these the ecclesiasticks soon added all contracts whatsoever. In the same manner as all other constitutions introduced by the clergy so the judgement of all matters regarding contracts was by the people, who payd them a very great veneration, devolved back upon them. This veneration however was not a blind superstitious one as we are now aptg to imagine, but a very rational one. The clergy were at that time the chief support of the peoples rights. The civill law of the country was at that time very imperfect, and the cannon or ecclesiasticall law, tho far from perfect, was much preferable to the other; and it was by this the clergy were directed. Their judgements would therefore be most equitable. The whole right of testamentary succession | proceeded from them, as well as the obligation of contracts. They were <the> only obstacle that stood in the way of the nobles; the only thing which made them keep some tollerable decency and moderation to their inferiors. The people saw this; they saw that if that body of men were oppressed, they would be oppressed at the same time. They were therefore as jealous of their liberties as of their own, and with reason paid them a very high degree of veneration. Thus an ecclesiasticall court, which in a country where the regulations of the civill government are arrivd to a considerable perfection is one of the greatest nuisances imaginable, may be of very great benefit in a state where the civil government is baddly regulated; just in the same way as corporations may be very advantageous in a low state of the arts tho of the greatest detriment when they are carried to a considerable length.8

| After these verball obligations the next that were introduced were what are called real obligations.9 We are to observe here that the word realis has very different significations when applied in different ways. Thus a real right is a right to a certain thing in whatever condition. A real servitude, servitus realis, is not ah servitude upon a certain thing, for all servitudes are due in that manner, but a servitude which is due to a person not as being such an one but as being the owner of such a farm; it is said to be due to such a thing. Here again a real contract is not one which gives an action for a certain thing, but one in which there has some thing been actually done. {As an other hindrance of the validity of contracts was the small value of the subjects into which they could enter, so wheni property came to be very valuable they werej of too great impo<r>tance to be overlooked, ask contracts might then extend to a very great value.} These were very soon made binding, as otherwise when a part of the contract was fu<l>filled on one side, if the other did not fulfill his part the loss would have been too considerable. Of this sort were mutuum, a loan, | dipositum, pignus, etc. These whenl one part of the contract was performed became binding for the rest. But if there had been no partm performed the verball agreement was not considered.

The extension of commerce also added several contracts to those already binding. In the first stages of commerce, when it was confined to those at no great distance and amongst them was not very extensive, all sort of commodities were purchased by immediate exchanges. One man gave an other money and got wine, or gave one corn and had <a> horse in exchange, in the same manner as trade is carried on at this day amongst the negroes on the coast of Guinea. At this time no contract could be made but amongst those who actuallyn uttered the wordso by which the contract was comprehended. An oath can only be taken from | one who actually delivers it from his own mouth. A written and signed oath is of no effect. Writing is no naturall expression of our thoughts (which language is,p ) and therefore is more dubious and not so setled in the meaning. Oaths we may observe are most in use amongst barbarous and uncivilized nations; as they are there thought necessary to signify plainly the will of the person; as the language is not fixt in its meaning; and in the state of the greatest barbarity, an oath is thought necessary to confirm every thing that is deliverd. Contracts (as I said) at first could be only madeq betwixt parties who were present; contrahitur tantum inter praesentes non autem inter absentes.10 But when commerce was more extended, it was found necessary to extend the power of making contracts. A merchant11 | at Rome wanted to bye corn of one at Alexandria, but this by the old constitutions he could not do unless he had been present and delivered the money. But that trade might go on the more easily, it came to be in use that all the more necessary contracts were considered as binding, and that whether inter praesentes or absentes. In this manner emptio venditio, locatio conductio, societas, and mandatum were all considered as binding obligations. That is, a contract of sale; one where a thing is hired for a summ of money; societas, a contract of copartnership; and mandatum, whereby one give<s> another a commission to do so and so in his name. These as being most necessary to commerce were alltogether binding; others of less importance were never made binding by the Roman law, they saying that | when those which were necessary were so, there was no great matter with regard to the others. And indeed these would be very extensive. Thus loc. conductio might include the settling a factor, etc., and so of others. These were called nominati contractus, as they had a particular name by being frequently in use; and the others which were not so much in use and had no particular name, innominati. — — —

[s]The last two words replace ‘be supposed’

[t]‘stock’ deleted

[u]The last three words replace ‘another’

[v]Replaces ‘agree on’

[w]Replaces ‘deliver’

[x]‘pro’ deleted

[71 ]II.8.25, citing Lex Visigothorum, V.2.6.

[y]‘is’ deleted

[z]Illegible word deleted

[a]The last five words are entered vertically at the side of the page

[b]‘the subject’ deleted

[c]‘and’ deleted

[72 ]‘By long possession and delivery’: C. 2.3.20.

[d]‘but there is some difficulty in’ deleted

[e]‘proper’ deleted

[f]‘by what they’ is written above the last three words

[73 ]i.144 above.

[g]The last three words replace ‘are proprieters’

[h]‘who’ deleted

[74 ]In Scotland until the rule was abolished by 20 George II, c. 50 (1747).

[75 ]Blank in MS. Ad perpetuam remanentiam: Stair, II.11.1; M’Douall, III.2.2.8.

[i]‘when’ deleted

[j]‘than’ deleted

[k]The last four words replace ‘the’

[76 ]Blank in MS. Contournement: English ‘attornment’, the acknowledgement by the vassal of a change of superior and of his duty of fealty to the new superior. Cf. Dalrymple, 211.

[77 ]Sic. See last note.

[78 ]Blank in MS. See last note but one.

[l]Replaces ‘is’

[m]Replaces ‘now’

[79 ]‘begin’ is interlined. Possibly ‘begin and’ was intended.

[80 ]27 Henry VIII, c. 10 (1536).

[n]Reading doubtful

[o]‘as’ and an illegible letter deleted

[p]The last thirteen words are entered at the side of the page, replacing a number of words which have been struck out in the main text. After ‘considered as’, the words ‘being before that time the property of another’ have been struck out. The words ‘if he took possession’, interlined between ‘as’ and ‘being’, have also been struck out.

[q]‘being found more con’ deleted

[r]Replaces ‘permit’

[s]‘he’ deleted

[81 ]Dominans praedium, ‘the dominant land’ for whose benefit the servitude exists.

[t]‘and’ deleted

[82 ]Dominantis praedii dominus, ‘the owner of the dominant land’.

[u]‘the’ deleted

[v]Illegible word deleted

[83 ]The actio Serviana and actio quasi–Serviana did not enforce servitudes, but enabled a creditor holding a hypothec over property to recover the property from third persons, so making hypothecs ‘real rights’. Servitudes were enforced by actio confessoria.

[84 ]Inst. 2.3.

[85 ]‘Right of way on foot, driving cattle and with vehicles, right of drawing water and of driving cattle to water, etc. 2d, [urban servitudes] right of letting rain–water drip on to another’s land, of inserting a beam in another’s wall, of support for one’s own wall, etc.’

[w]‘were at first’ interlined and deleted

[x]Reading doubtful

[y]Reading doubtful

[z]‘for’ deleted

[a]‘inheritance’ deleted

[b]Sic

[c]‘sma’ interlined and deleted

[d]Reading doubtful

[86 ]Annual rent paid in lieu of knight–service. Cf. i.141 above.

[e]Replaces ‘property’

[f]‘been’ deleted, probably mistakenly

[g]‘from’ deleted

[h]‘not’ deleted

[i]A line reading as follows is here deleted: ‘In the 1st. case [‘was’ interlined] by the old Roman law’

[j]Reading doubtful

[87 ]‘As the contracting parties have declared in words, so let it be in law’, based on Twelve Tables, VI.1: ‘uti lingua nuncupassit, ita jus esto.’

[k]Reading doubtful

[l]Reading doubtful

[88 ]Above the last three words there is written the word ‘agreement’, followed by what appear to be a bracket and the usual contraction for ‘which’. Possibly the words after ‘such a time’ were intended to read something like ‘an agreement which people in low circumstances are very ready to enter into, as they commonly’, etc.

[m]Replaces ‘by’

[89 ]The forfeiture clause, allowing the pledge to vest absolutely in the pawnee if the debt were not repaid on time. It was prohibited by Constantine; the text should read ‘before the lex commissoria was prohibited’.

[90 ]Reading doubtful. Possibly ‘that’ was intended.

[n]Replaces ‘England’

[o]The last two words replace ‘they’

[91 ]M. Bacon, New Abridgement of the Law, s.v. Mortgage, III.654.

[p]Replaces ‘exclusive’

[92 ]Blank in MS. Probably ‘métayage’ was intended.

[q]Illegible word apparently deleted

[r]Reading doubtful

[s]‘right’ deleted

[t]‘giv’ deleted

[93 ]1469, c. 37 (A.P.S. II.96, c. 12); Kames, Law Tracts, I. 233.

[94 ]In between the lines at this point there is inserted a sentence which appears to be ‘Read the next parenthe. before this’. If this reading of the interlineation is correct, it presumably means that the bracketed passage beginning ‘The lands in Italy’, which occurs lower down on 26, should properly come before the bracketed passage which immediately follows ‘with the tenent’. This interpretation is supported by the fact that the number ‘2’ appears in the margin opposite the beginning of the latter bracketed passage, and the number ‘1’ opposite the beginning of the former.

[u]Numbers written above the last two words indicate that their order was intended to be reversed

[95 ]Blank in MS. Probably ‘métayage’ was once again intended.

[v]‘of’ deleted

[w]‘the’ deleted

[96 ]Cf. i.38–44 above.

[x]‘In the same manner we shall find’ deleted

[97 ]King’s Advocate v. Rankine (1677), M. 11930, of which there is an account in Stair, II.1.33. Cf. Sir George Mackenzie’s argument on the case: num navis acquiratur iure civili per prosecutionem sine actuali apprehensione (Works, I (1716), 115).

[y]Reading doubtful

[z]Illegible word deleted

[98 ]Statute of Monopolies, 21 James I, c. 3 (1623).

[a]Reading doubtful

[b]At the side of the page near this point is written ‘Granted him by patent’