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be necessary either to abandon or to modify the measure. If the prices of commodities be lowered in the same degree that the incomes of landholders are reduced, the opposite conclusion will follow, and a variable land-tax may be substituted in the place of all other taxes whatso'ever.

I am not sure that a variable landtax should be paid wholly by the landlord; I rather think that it ought to be divided between the landlord and the farmer, in such proportions as may appear most reasonable to the parties. At the beginning of a war, the farmers will lose by the increase of the land-tax, and will gain by the increased demand for land produce*. At the beginning of a peace, the tax will be lessened, and prices will fall. The relative wealth of the landlords will be diminished at the beginning of a war, and will be increased at the beginning of a peace; and a powerful principle of pacification will be introduced into the world. The tran

LAND of the mighty dead! whose fame
Hath fill'd the earth with thy great name,
Around thy region lingers yet
The twilight of a sun that's set!
O'er all thy beauteous scene is cast
The hallowing halo of the past,
Reflected from a glorious day,
A long bright Summer past away!
Land of the laurel! faded now
Upon thy pale, dejected brow,
Another wreath is wove for thee,
E'en of the mournful cypress-tree,
Which waves in solitary gloom
Above the dim and mould'ring tomb,
Where the high heart, that beats no more,
Lies cold upon the silent shore !

sea

The music of Eternity!

sition from peace to war, or from war to peace, must change the relative value of incomes t. This is one of the necessary effects of a military expenditure, in whatever way the revenue may be levied. We cannot put an end to the secondary evil, but by removing that great moral evil which produces it.

I have put this paper into the form of Queries, because I am not certain that my ideas are true; and I wish rather to propose the question than to answer it.

Land of the lyre! all silent long,
Thine is the Bard's immortal song,
Whose voice hath peal'd o'er earth and

Greece.

A variable tax on land, substituted in the place of all other taxes, would be much simpler and much more easily intelligible, than any other mode of providing for the expenditure of the State. The financial operations of the Government would be much better understood by the people,-the progress of taxation and its effects would be more clearly seen,-and the prodigality of Government would be more effectually checked. "In vain is the net spread in the sight of the bird."

M.

No more awake thy Minstrel's strains;
They sound not midst a nation's chains;
And lorn, upon the willow hung,
Thy harp is silent and unstrung!

Land of bright forms! that sleep beneath,
But still, in living marble, breathe;
Whate'er our fancy dreams of fair,
Is yet more sweetly pictur'd there.
Shaped by the wonder-working hand,
The gaze of many a distant land;
Things of immortal beauty beam,
The mighty mind's embodied dream!
Land of lost shrines, departing domes,
Of sepulchres, and silent homes!
The spirit of the past pervades
Thy shores, thy mountains, and thy
shades;

And kindling in thy hearts again,
Hath caus'd the Crescent's light to wane;
Soon may it fade o'er field and flood,
And as it rose, so set in blood! J. M.

Perhaps the farmer ought to pay the whole of what is added to the land-tax, at the beginning of a war. Qui habet emolumentum, habeat damnum.

+ It would perhaps be desirable that rents should be re-adjusted at the beginning and the end of every war. This might be accomplished by the agreement of the parties, not by the operation of a general law.

SCOTCH COURTS OF LAW.

IN former Numbers, we took occasion to comment upon a multitude of abuses connected with the administration of law and justice in the Inferior Courts of Scotland. The subject we now propose to discuss can scarcely be considered of lesser importance. The system of recovering debts in Scotland, with reverence be it spoken, is a complete jumble of inconsistencies and senseless fictions; affording a boundless field for rapacity and craft, and productive of much unnecessary delay and ruinous expense. In a commercial view, the evils of such a system are incalculable. It has been too much the custom to consider the expense of legal diligence-in other words, legal compulsitors-only as it affects the interest of debtors; a body of individuals who perhaps receive much less than they merit of popular sympathy. This, however, is a view as mistaken as it is exclusive. Too often it happens, that the debtor, in an agony of despair, upon finding that the debt has been greatly augmented, perhaps doubled or tripled, by what he conceives to be the rigorous proceedings of his creditor, not only makes no effort to relieve himself, but determines to take his vengeance upon the creditor, by going to jail and becoming a bankrupt. This is a thing of every-day occurrence; and thus it will be seen, that legal diligence, from its expensiveness, becomes the means, not only of disappointing creditors of their just claims in many instances, but of imposing upon them very serious expense. Instances, we believe, are not rare, of creditors who have obtained decrees refraining from putting them in force, from the very apprehension, inspired, sometimes by prudence, sometimes by fear, that the certain expense is too great to be risked upon the chance of recovery. The knowledge of all this fortifies the debtor in his contumacy; and he laughs to scorn the threats addressed to him by a person, who, having the means of compelling payment, dare not employ them. Such being the state of the law respecting diligence, it is

VOL. XIV.

obvious that one effect of it must be greatly to circumscribe commercial credit, and, consequently, the range of commercial enterprize. But this is not all: it is not only the particular creditor who drives his debtor to the wall, (the wall of a prison,) but the whole body of that person's creditors, who suffer from the expenses which have been heaped upon him. In all bankruptcies, it is well known, that one heavy item in the state of losses sustained by the bankrupt in the course of his trade, is the expense of diligence which has been raised against him by the more urgent of his creditors. We have been informed of the case of a bankrupt, who stated his losses arising from legal diligence alone, to amount to upwards of £.2000; and when asked, at his examination, where was the evidence of this extraordinary statement? replied, that the want of a horse and cart alone prevented his bringing it along with him.

In the law of Scotland, there are a variety of processes, both judicial and ministerial, for the recovery of debts. There is no species of property, scarcely, possessed by a debtor, which, as well as his person, is not attachable; and, in this respect, our law has a decided pre-eminence over most others. It is of the very essence of justice, that a man who has contracted a debt for an onerous consideration, should part with the last shred of his property to discharge it. In contracting the debt, he virtually pledges his whole means and estate to his creditor; and by withdrawing any part of these beyond his reach, he grossly defrauds him. It has often been questioned, whether it is either expedient or just to add to a creditor's security by investing him with a power over the personal liberty of his debtor. The question is too theoretical for us to discuss at the present moment; but were we called upon for an opinion, we would have no hesitation to say, that, in ninety-nine cases out of a hundred, the creditor gains nothing by having recourse to imprisonment, but only renders the recovery of his

D

debt more desperate At the same time, the expediency of the law of imprisonment is to be judged of by its restraining, as well as its coercive effects, the former of which can not be accurately calculated; but it is not to be doubted, that the terrors of a jail keep many within the pale of honesty, who are not disposed to acknowledge the restraints of honour or conscience. Mitigated as the law has been in its severity by a number of humane provisions, which prevent its being perverted to purposes of personal vengeance, we are disposed to consider the influence of it as salutary, and the maintenance of it as highly expedient. It is useful, did it do no more than give a sanction to principles of honesty in the breasts of the well-intentioned, and a stimulus to their industry and vigilance.

The sytem of legal diligence is naturally divided into two branches; that which affects the real or heritable property of the debtor, and that which operates against his person, and his goods and chattels. The former we mean entirely to throw out of view, because any abuses which may attach to it cannot, in the nature of things, seriously affect the great bulk of the community.

The foundation of personal diligence is the decree of some competent Court. There are two species of decrees; first, those which are actually pronounced in foro; and, second, those decrees which, upon the registration of deeds containing personal obligations in the books of competent Courts, are presumed, by a fiction of law, to be pronounced by those Courts against the obligants, in virtue of a certain clause in the deeds authorizing such interposition of authority. In the latter class may be included the supposititious decrees which follow upon the registration of the notarial instruments of protest of bills and promissory notes; and which decrees are authorized by a wise and salutary act passed in the reign of his late Majesty. It is almost unnecessary to mark the distinction between the two species, since both are enforced by the same

writ proceeds directly from the Court commanding obedience to it. There is only a warrant consequent upon the decree, authorizing letters of horning and caption; (certain writs issued in the King's name, under his signet, which we shall explain afterwards.) The former require the debtor to be charged, to satisfy the creditor, within a certain number of days, and authorize the poinding and arrestment of all his personal property, in the event of his disobedience; for which disobedience, also, it is ordered, that he shall be denounced a rebel to the King, either at the market-cross of Edinburgh, as the commune forum of Scotsmen, or at the market-cross of the head burgh of the county where he resides. Upon the letters of horning, with the return, or execution, by the proper officer, being retarded, letters of caption are issued; which letters authorize the apprehension and imprisonment of the debtor; not as a debtor, but as a rebel against Majesty. In the case of a decree pronounced by a Sheriff, he issues his precept, directing the debtor to be charged, and poinding and arrestment upon expiry of the days of charge. But he is not competent to imprison; and hence the creditor, if resolved upon that measure, has, at the expiry of the days of charge in the Sheriff's precept, to apply to the Supreme Court for warrants authorizing letters of horning and caption, which are consecutively issued the same as upon a Court of Session decree. In the case, again, of a decree by a Burgh Court, the Magistrates issue a precept, directing, upon the expiry of the days of charge, both the attachment of the debtor's personal estate and the imprisonment of his person; for, be it observed, that, by an old Scotch Act, passed for the benefit and encouragement of commerce, the power of civil imprisonment is conferred upon the Magistrates of Burghs. It is, therefore, the peculiar happiness of Scotch Burgesses, that they may be imprisoned for debt, without the superfluous degradation of being denounced rebels. The decrees of Justices of the Peace (when not pronounced under the Small Debt Act) are a sort of capita mortua. They do not warrant imprisonment; and the

means.

In the case of a decree pronounced by the Supreme Court, no precept or

Supreme Court, from some subtlety which we profess not to comprehend, disdain to recognise them, and refuse to reinforce them with horning and caption. The creditor holding one of these decrees, therefore, if he wishes to try the efficacy of imprisonment, is obliged to raise a new action before the Judge-Ordinary of the bounds, founding upon the decrees of the Justices, and obtains what is called a decree conform, upon which he may expede horning and caption. Before concluding this account, it is proper to state, that the days of charge, in hornings and precepts, proceeding upon decrees in foro, are fifteen; but in those which proceed upon the conventional and statutary decrees, which we have already explained, the days are only six.

The course of proceeding which must be followed, in order to attach the person of a debtor, must strike every one as being absurdly circuitous, and ruinously expensive in the extreme. The very mercies which the forms of the proceeding seem to dispense to the debtor, are ingeniously cruel; and which forms, we are bound to say, have given rise to an organized system of legal robbery, which requires only to be exposed, to excite the indignation and abhorrence of the public. In country towns more particularly, there are always to be found some understrappers of the law, who take up the trade of discounting bills with the sole design of realizing fortunes by raising diligence upon such bills as are not punctually paid. So determinate is their design, that they would reject a bill presented to them, the first obligant in which is a man of substance, likely to retire the bill immediately upon its becoming due. All that they require is the name of a man in desperate circumstances, as the accepter, and some good name among the indorsers. This is the grand secret of the trade. When a bill in the hands of these sharpers become due, what is the course of proceeding? In nine cases out of ten, they may be conscious that a charge of payment upon an Inferior Court precept, or at most a poinding, will be sufficient to recover the debt. It is not in Scotland as in England, however, (and we are well pleased that it is so,) where

a creditor must choose between his debtor's person and his effects, his execution being restricted to the one or the other. A Scotch creditor may proceed against both; and, with the class of persons whom we are describing, it is the invariable practice, after obtaining precepts from the Sheriff Court, (to a Burgh Court, having the competent jurisdiction, they never apply,) to raise horning and caption, whether they seriously design to employ the latter species of diligence or not. The profits upon this nefarious traffic are immense; so much so, as to have induced many who belong not to the profession to embark in it. There is a distinct fee for agency, chargeable upon every step of the procedure; and, besides, by a little dexterity, the diligence may be procured and put in force for half fees, while full fees are exacted from the unfortunate debtor. In addition to all this, there are the expences of recovering the expences by an ordinary action.

The same system nearly is acted upon, by the more mercenary part of the profession, with respect to decrees in foro. We have known repeated instances of ultimate diligence being raised upon debts not much exceeding £.2., in some of which instances, the means of imprisonment might have been more expeditiously obtained by an action before a Burgh or a Small-Debt Court. We shall suppose a case, by no means rare, of one of those debtors residing at the distance of fifteen miles from the place of residence of a messenger. The very expence of serving him wit a charge will amount to the same sum as his debt. But, supposing the debtor to be apprehended, and his effects poinded, the sum-total of expence must amount to at least five times more than the debt.

The delay occasioned by the absurd forms of diligence is, of itself, an evil of no small magnitude. Most decrees in foro are obtained from the Sheriff, and, when pronounced in absence, five weeks, at least, must elapse before the debtor's person can be attached. If the case has been litigated, the delay will amount to six weeks. All the intermediate proceedings are so many solemn warnings to a dishonest debtor, either to

interest of the latter to disappoint his creditor. The ceremony of charging, therefore, we consider as of no advantage whatever, as endangering the debt by the delay which it occasions, and as oppressive in the way of expence.

In

It may strike some of our readers with astonishment to be informed, that the present system of ultimate diligence, or diligence directed against the person, had its origin in priestcraft! In remote ages, the laws of Scotland and of England resembled each other in all their great leading features, and particularly in this one, that a man's house was his castle, which could not be forced, in execution of a civil process. Scotland, at that time, as in England at the present day, a debtor was secure against arrest, so long as he remained at home, and kept his door shut against bailiffs. But the priests, who then, they being the only notaries, had the framing of all bonds and similar writings, invented a scheme which fairly deprived a debtor of every sanctuary for his person. They caused the obligant, in a bond, for example, solemnly to swear that he would faithfully implement his obligations; and, upon his failing to do so, the church excommunicated him as a perjured person. Of course, it was then the duty of the secular power to proceed against him; and accordingly letters were obtained from the Sovereign, upon which the debtor was charged to place himself in ward, as a King's prisoner, in some one of the royal castles, within a specified period. In the event of his disobedience, he was denounced a rebel to the King, and letters were issued, directing Sheriffs, and all other official persons, to pursue and apprehend him, and put him in ward. The process being, in its nature, criminal, no house afforded the rebel protection; and an express warrant was granted to break open all lockfast places where he might possibly be lurking. It were needless to describe all the different modifications which this singular process has undergone. Suffice it to say, that, in progress of time, the mere fact of a debtor having disobeyed a charge given him in name of the King, came to be considered a sufficient ground for

abandon the country, or to place his effects beyond the reach of his creditors. No honest debtor is at all benefited by the delay which a charge affords to him. Where the decree proceeds upon an action, his citation to that action is warning sufficient of the danger he incurs by a neglect to pay. Between the date of the citation and of extracting the decree, sufficient time intervenes for the debtor making every fair exertion to provide the means of discharging the debt. The knowledge that a charge must ensue upon the decree only slackens his exertions, disposing him, indeed, to make no serious effort whatever, until the charge is received. The principle, that celerity of execution is of great benefit in a commercial country, was acknowledged by the Legislature itself, when it passed the Act authorizing summary diligence to proceed upon bills and promissory notes; and yet that Act, in accomplishing a great good, created this singular anomaly, that only six days of charge are allowed to the debtor in a bill, who receives no other formal intimation of his creditor's intention to proceed against him than the charge itself; while fifteen days of charge are allowed to the debtor, in a decree in foro, though fourteen days at the very least, previous to the charge, if upon a precept, and thirty, if upon letters of horning, a formal demand must be made upon him in the shape of a summons,-nay, though he may have been litigating the very debt demanded, with his creditor, for a number of years. We are aware it may be said, that the ceremony of a charge serves as a check to the precipitancy of an unfeeling creditor. But a creditor of this description, even with that check, may be too precipitate. The delay of six or fourteen days is scarcely a favour to a debtor who is involved in difficulties, at least it is a favour far too dearly purchased. It strikes us, however, as a general truth, that the discretion of the creditor in using his diligence is more to be relied upon, than the assiduity of the debtor in providing the means of discharging the debt. It is the interest of the former to extend all possible indulgence to his debtor, as it is too often the disposition and

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