“A very natural observation, Edie, and many of your betters would make the same; but it is founded entirely upon ignorance of the feudal system. Hector, be so good as to attend, unless you are looking out for another— Ahem!” (Hector compelled himself to give attention at this hint. ) “And you, Edie, it may be useful to you reram cognoscere causas. The nature and origin of warrant for caption is a thing haud alienum a Scaevolae studiis.—You must know then, once more, that nobody can be arrested in Scotland for debt.”
“I haena muckle concern wi’ that, Monkbarns,” said the old man, “for naebody wad trust a bodle to a gaberlunzie.”
“I pr’ythee, peace, man—As a compulsitor, therefore, of payment, that being a thing to which no debtor is naturally inclined, as I have too much reason to warrant from the experience I have had with my own,—we had first the letters of four forms, a sort of gentle invitation, by which our sovereign lord the king, interesting himself, as a monarch should, in the regulation of his subjects’ private affairs, at first by mild exhortation, and afterwards by letters of more strict enjoinment and more hard compulsion—What do you see extraordinary about that bird, Hector?—it’s but a seamaw.”
“It’s a pictarnie, sir,” said Edie.
“Well, what an if it were—what does that signify at present?—But I see you’re impatient; so I will waive the letters of four forms, and come to the modern process of diligence.—You suppose, now, a man’s committed to prison because he cannot pay his debt? Quite otherwise: the truth is, the king is so good as to interfere at the request of the creditor, and to send the debtor his royal command to do him justice within a certain time—fifteen days, or six, as the case may be. Well, the man resists and disobeys: what follows? Why, that he be lawfully and rightfully declared a rebel to our gracious sovereign, whose command he has disobeyed, and that by three blasts of a horn at the market-place of Edinburgh, the metropolis of Scotland. And he is then legally imprisoned, not on account of any civil debt, but because of his ungrateful contempt of the royal mandate. What say you to that, Hector?—there’s something you never knew before.” *
* The doctrine of Monkbarns on the origin of imprisonment for civil debt in Scotland, may appear somewhat whimsical, but was referred to, and admitted to be correct, by the Bench of the Supreme Scottish Court, on 5th December 1828, in the case of Thom v. Black. In fact, the Scottish law is in this particular more jealous of the personal liberty of the subject than any other code in Europe.
“No, uncle; but, I own, if I wanted money to pay my debts, I would rather thank the king to send me some, than to declare me a rebel for not doing what I could not do.”
“Your education has not led you to consider these things,” replied his uncle; “you are incapable of estimating the elegance of the legal fiction, and the manner in which it reconciles that duress, which, for the protection of commerce, it has been found necessary to extend towards refractory debtors, with the most scrupulous attention to the liberty of the subject.”
“I don’t know, sir,” answered the unenlightened Hector; “but if a man must pay his debt or go to jail, it signifies but little whether he goes as a debtor or a rebel, I should think. But you say this command of the king’s gives a license of so many days—Now, egad, were I in the scrape, I would beat a march and leave the king and the creditor to settle it among themselves before they came to extremities.”
“So wad I,” said Edie; “I wad gie them leg-bail to a certainty.”