Intromiffion, and the right of the Creditor arifing from it, are all jura vaga, and, by confequence, tat. 63. are jura incognita; and the refult can be no other than a misera fervitus, an uncertainty concerning the event of action, a fervile dependance on private opinion. "It may be urged, and with great plaufibility, that there may be Intromiffion without fraud; which, however true, will by no means juftify an occasional and arbitrary relaxation of the law. The end of law is protection as well as vengeance. Indeed, vengeance is never used but to strengthen protection. That society only is well governed, where life is freed from danger and from fufpicion; where poffeffion is fo fheltered by falutary prohibitions, that violation is prevented more frequently than punished. Such a prohibition was this, while it operated with its original force. The creditor of the deceased was not only without lofs, but without fear. He was not to feek a remedy for an injury fuffered; for, injury was warded off. "As the law has been fometimes adminiftered, it lays us open to wounds, because it is imagined to have the power of healing. To punish fraud when it is detected, is the proper act of vindictive justice; but to prevent frauds, and make punishment unneceffary, is the great employment of legislative wisdom. To permit Intromiffion, and to punish fraud, is to make law no better than a pitfall. To tread upon the brink is fafe; but to come a step further is deftruction. But, furely, it is better to enclose the gulf, and hinder all accefs, than by encouraging us to advance a little, to 1772. Etat. 63. entice us afterwards a little further, and let us perceive our folly only by our destruction. "As law supplies the weak with adventitious ftrength, it likewise enlightens the ignorant with extrinsick understanding. Law teaches us to know when we commit injury, and when we fuffer it. It fixes certain marks upon actions, by which we are admonished to do or to forbear them. Qui fibi bene temperat in licitis, fays one of the fathers, nunquam cadet in illicita. He who never intromits at all, will never intromit with fraudulent intentions. "The relaxation of the law against vicious intromiffion has been very favourably reprefented by a great master of jurifprudence', whose words have been exhibited with unneceffary pomp, and feem to be confidered as irrefiftibly decifive. The great moment of his authority makes it neceffary to examine his pofition. Some ages ago, (fays he,) before the ferocity of the inhabitants of this part of the island was fubdued, the utmost severity of the civil law was neceffary, to restrain individuals from plundering each other. Thus, the man who intermeddled irregularly with the moveables of a perfon deceased, was fubjected to all the debts of the deceased without limitation. This makes a branch of the law of Scotland, known by the name of vicious intromiffion; and fo rigidly was this regulation applied in our Courts of Law, that the most trifling moveable abstracted malâ fide, fubjected the intermeddler to the foregoing confequences, which proved in many instances a most * Lord Kames, in his "Historical Law Tracts," rigorous Etat. 63. rigorous punishment. But this severity was ne- 17726 ceffary, in order to fubdue the undifciplined nature of our people. It is extremely remarkable, that in proportion to our improvement in manners, this regulation has been gradually foftened, and applied by our fovereign Court with a sparing hand.' "I find myself under a neceffity of obferving, that this learned, and judicious writer has not accurately diftinguished the deficiencies and demands of the different conditions of human life, which, from a degree of favagenefs and independence, in which all laws are vain, paffes or may pafs, by innumerable gradations, to a state of reciprocal benignity, in which laws shall be no longer neceffary. Men are first wild and unfocial, living each man to himself, taking from the weak, and lofing to the strong. In their firft coalitions of fociety, much of this original favagene fs is retained. Of general happiness, the product of general confidence, there is yet no thought. Men continue to profecute their own advantages by the nearest way; and the utmost severity of the civil law is neceffary to restrain individuals from plundering each other. The restraints then neceffary, are reftraints from plunder, from acts of publick violence, and undisguised oppreffion. The ferocity of our ancestors, as of all other nations, produced not fraud but rapine. They had not yet learned to cheat, and attempted only to rob. As manners grow more polished, with the knowledge of good, men attain likewise dexterity in evil. Open rapine becomes lefs frequent, and violence gives way to cunning. Thofe Etat. 63. 1772. Thofe who before invaded pastures and ftormed houfes, now begin to enrich themselves by unequal contracts and fraudulent intromiffions. It is not against the violence of ferocity, but the circumventions of deceit, that this law was framed; and I am afraid the increase of commerce, and the inceffant struggle for riches which commerce excites, give us no profpect of an end speedily to be expected of artifice and fraud. It therefore feems to be no very conclufive reasoning, which connects those two propofitions; the nation is become less ferocious, and therefore the laws against fraud and tovin fhall be relaxed.' "Whatever reafon may have influenced the Judges to a relaxation of the law, it was not that the nation was grown lefs fierce; and, I am afraid, it cannot be affirmed, that it is grown lefs fraudulent. "Since this law has been represented as rigorously and unreasonably penal, it seems not improper to confider what are the conditions and qualities that make the justice or propriety of a penal law. "To make a penal law reasonable and just, two conditions are neceffary, and two proper. It is necessary that the law should be adequate to its end; that, if it be obferved, it shall prevent the evil against which it is directed. It is, fecondly, neceffary that the end of the law be of fuch importance, as to deserve the security of a penal fanction. The other conditions of a penal law, which though not abfolutely neceffary, are to a very high degree fit, are, that to the moral violation of the law law there are many temptations, and that of the phyfical obfervance there is great facility. "All thefe conditions apparently concur to juftify the law which we are now confidering. Its end is the fecurity of property; and property very often of great value. The method by which it effests the fecurity is efficacious, because it admits, in its original rigour, no gradations of injury; but keeps guilt and innocence apart, by a diftinct and definite limitation. He that intromits, is criminal; he that intromits not, is innocent. Of the two fecondary confiderations it cannot be denied that both are in our favour. The temptation to intromit is frequent and ftrong; fo ftrong and fo frequent, as to require the utmost activity of justice, and vigilance of caution, to withstand its prevalence; and the method by which a man may entitle himself to legal intromiffion, is fo open and fo facile, that to neglect it is a proof of fraudulent intention for why should a man omit to do (but for reasons which he will not confefs,) that which he can do so easily, and that which he knows to be required by the law? If temptation were rare, a penal law might be deemed unneceffary. If the duty enjoined by the law were of difficult performance, omiffion, though it could not be juftified, might be pitied. But in the present cafe, neither equity nor compaffion operate against it. A useful, a neceffary law is broken, not only without a reasonable motive, but with all the inducements to obedience that can be derived from fafety and facility. I there 1772. Atat. 63. |