prived of the privileges of a wife; and that she ought not to have the aid of a court of equity to make these privileges effectual. The English statute rests obviously upon this equitable foundation; and now that the principles of equity are ripened, the same ought to obtain with us without a statute.*

A statutory penalty cannot be extended beyond the words; but it may be limited within the words, upon circumstances that infer innocence. Captain Forbes, who had no land in the shire of Cromarty, was, however, by act of parliament, appointed commission-er of supply for that shire, under the name and designation of "Captain John Forbes of New, factor

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upon the annexed estate of Cromarty." A complaint being exhibited against him for acting as commissioner of supply, without having the qualification of £100 valued rent, the court judged, That he had no title to act. But in respect he had acted many years without challenge, qua factor, upon the said estate, as former factors had done, and in respect the objection against him was not clear, and, in a similar case, had been found by the court to be no objection, his bona fides was sustained to free him from the penalty. And yet, upon a reclaiming petition, this interlocutor was altered, and he was found liable for the penalty. The judges continued in their former opinion, that he acted bona fide; but the plurality thought that they had no power to mitigate the statutory penalty; which was in effect maintaining a very absurd proposition, That a punishment may be inflicted on an innocent person for an error in judgment merely. The doctrine of bona fides will only hold in statutory penalties; for in a crime against the law of nature, * Elisabeth Clement contra Sinclair, 4th March 1762.

bona fides will never be supposed. And with respect to statutory penalties, many of them are enacted in terms so ambiguous, as to make it extremely doubtful in what cases the penalty is incurred. A man happens to mistake the statute: or rather, happens to judge differently from what is afterward found to be its meaning in a court of law: is it consistent with the rules of morality, or of common justice, to subject this innocent person to the penalty?

Upon the same ground, a conventional penalty is equally subject to mitigation. But in that case, it is sometimes difficult to say, what is to be held a penalty, what not. Take the following instance. A proprietor lets a farm, two-thirds to be in grass; but with liberty to the tenant to add to the corn part upon paying five shillings for each acre taken from grass. This paction has nothing penal in it. But what if, instead of five shillings, £50 be stipulated? This cannot be called properly an oppressive bargain, because the tenant may keep free of it. Nor can it be oppressive in the landlord to afford his tenant an option, however unequal. But now suppose an express prohibition against adding to the corn part, and stipulating a penalty of £50 each acre in case of contravention. This penalty would undoubtedly be mitigated by the Court of Session; and yet the two cases mentioned are fundamentally the same, differing in the form of words only.

PART II.

Powers of a court of equity to remedy the imperfections of common law with respect to matters of justice that are not pecuniary.

THE goods of fortune, such as admit an estimation in money, are the great source of controversy and debate among private persons. And, for that reason, when civil courts were instituted, it was not thought necessary to extend their jurisdiction beyond pecuniary matters the improvement was indeed so great as to be held complete. But time unfolded many interesting articles that are not pecuniary. Some of them, making a figure, are distributed among different courts: a claim of peerage, for example, is determined in the House of Lords; of bearing arms, in the Lyon Court; and of being put upon the roll of freeholders in the court of Barons. Even after this distribution, there remain many rights established by law, and wrongs committed against law, that are not pecuniary; which being left unappropriated, must be determined in a court of equity: for the great principles so often above mentioned, That where there is a right it ought to be made effectual, and where there is a wrong it ought to be repressed, are equally applicable, whether the interest be pecuniary or not pecuniary.

To collect all the rights established and wrongs committed that are not pecuniary, would be an endless labour it would be useless as well as endless; for the remedy is not at all intricate. The only question of difficulty is, In what courts such matters are to be tried? and to this question no general answer

can be given, other than that the Chancery in England and Session in Scotland, are the proper courts, where there is no peculiar court established for determining the point in controversy. Take the following example. The qualifications of a man claiming to be a freeholder, must be judged by the freeholders of the county, convened at their Michaelmas head-court: but the law has provided no remedy for a wrong that may be committed by the freeholders, namely, their forbearing to meet at the Michaelmas head-court in order to prevent a man from applying to be put upon the roll; and, therefore, it is incumbent upon the Court of Session to redress this wrong, by ordering the freeholders to meet under a penalty. Two branches of law come under this part of the work, so extensive as to require different chapters. In the first is treated, how far a covenant or promise in favour of an absent person, is effectual. In the other, immoral acts that are not pecuniary.

CHAP. I.

How far a covenant or promise in favour of an absent person, is effectual.

I AM aware that the interest which arises to the absent from a promise or covenant, being commonly pecuniary, ought in strict form to have been handled above. But the interest of the person who obtains the obligation for behoof of the absent, is not pecuniary; and the connection of these different interests, arising from the same promise or covenant, makes it necessary that they should be handled together.

Promises and covenants are provided by nature for obliging us to be useful to others, beyond the bounds of natural duty. They are perfected by an act of the will, expressed externally by words or by signs. And they are binding by the very constitution of our nature, the moral sense dictating that every rational promise ought to be performed.

No circumstance shows more conspicuously our destination for society than the obligation we are laid under by our very nature to perform our promises and covenants. And to make our engagements the more extensively useful in the social state, we find ourselves bound in conscience, not only to those with whom we contract, but also to those for whose benefit the contract is made, however ignorant of the favour intended them. If John exact from me a promise to pay £100 to James, I stand bound in conscience to perform my promise. It is true, that the promise being made to John, it is in his power to discharge the same; and therefore, if he be silent, without requiring me to perform, my obligation is in the mean time suspended, waiting the result of his will. But as John's death puts an end to his power of relieving me from my obligation, the suspension is thereby removed, and from that moment it becomes my indispensable duty to pay the £100 to James.

The binding quality of a promise goes still farther. If I promise John to educate his children after his death, or to build a monument for him, conscience binds me also in this case: which is wisely ordered by the Author of our nature; for a man would leave this world discontented, if he could not rely upon the promises made to him of fulfilling his will after his death. And though my friend dies without an

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