Page:A biographical dictionary of eminent Scotsmen, vol 4.djvu/325

Rh all its relations and dependencies are traced with no greater difficulty than are the many streams into which that magnificent river is divided before it is lost in the sea." If the philosopher meant to compare his searches after first principles to the investigation of the source of the Nile, the simile was rather unfortunate, and tempts one by a parody to compare his speculations to those of one who will discover the navigability or fertilizing power of a river, by a confused and endless range among its various sources, when he has the grand main body of the river open to his investigations, from which he may find his way, by a sure and undoubted course, to its principal sources, should he deem it worth his while to penetrate them. This work exhibits in singularly strong colours the merits and defects of its author. While his ingenuity has led him into fanciful theories, and prompted him to attribute to the actions of barbarous governments subtle intentions of policy, of which the actors never dreamed, it has enabled him to point out connexions in the history of our law, and to explain the natural causes of anomalies, for which the practical jurisconsult might have long looked in vain. The history of criminal jurisprudence is a prominent part of this work. The author attempts to confute the well founded theories of Voltaire, Montesquieu, and many others, tracing the origin of punishment, and consequently the true principles of criminal jurisprudence, from the feelings of vindictiveness and indignation inherent in human nature when injured, a principle we fear too often followed to require a particular vindication or approval. We cannot pass from this subject without attracting attention to the enlightened views thrown out by lord Kames on the subject of entails, views which he has seen the importance of frequently repeating and inculcating, though with many others he spoke to the deaf adder, who heeded not the wisdom of his words. He proposed the entire repeal of the statute of 1685, which, by an invention of the celebrated Sir Thomas Hope, had been prepared for the purpose of clenching the fetters of Scots entails, in a manner which might put at defiance such efforts as had enabled the lawyers of England to release property from its chains. But the equity of the plan was shown in the manner in which the author proposed to settle the nice point of the adjustment of the claims on estates previously entailed. The regulations enforced by these he proposed should continue in force in as far as respected the interests of persons existing, but should neither benefit nor bind persons unborn at the time of the passing of the act proposed. Such an adjustment, though perhaps the best that could possibly be supposed, can only be put in practice with great difficulty; the circumstance of an heir being expected to be born, nearer than any heir alive, and numberless others of a similar nature, would render the application of the principle a series of difficulties. Lord Kames communicated his views on this subject to lord Hardwick and lord Mansfield, and these great judges admitted their propriety; it had been well had the warning voice been heeded but at that period the allegiance of Scotland might have been endangered by such a measure. The duke of Argjle was then the only Scotsman not a lawyer, who could look without horror on an attempt to infringe on the divine right of the lairds.

In 1760, appeared another philosophically legal work from our author's prolific pen, entitled "Principles of Equity," composed with the ambitious view of reconciling the distinct systems of jurisprudence of the two nations a book which might be of great use in a country where there is no law, and which, though it may now be applied to but little practical advantage in Scotland, it is rather humiliating to think, should have ever been considered requisite as a guide to our civil judges. But the opinions of this volume, which referred to the equity courts of England, received a kindly correction from a masterly hand. In tracing the jurisdiction of the court of chancery, lord Kames pro-