Historical Law-Tracts. Henry Home, Lord Kames
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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