666 



L A 



Law 42 : but it is an agreed point, that no regard is to be 



L: .,,.!,,., J . -i . ' ' A ?_ 1 1 _ _.V *_! 1 



Natural 



children 



of Scotland. p a ;d to such testimony, if it be made after they have 

 ^^ Y" ' owned the child to be theirs, St. IV. 4,5. 20. A fa- 

 ther has the absolute right of disposing of his children's 

 persons, of directing their education, and of moderate 

 chastisement ; and even after they become puberes, he 

 may compel them to live in family with him, and to 

 contribute their labour and industry while they conti- 

 nue there towards his service ; which power of com- 

 pulsion lasts, in Lord Stair's opinion, I. 5. 13, after 

 their majority. Children, though in family with their 

 father, are capable of receiving sums in gift or legacy, 

 either from strangers, or from the father himself, which 

 thereby become their property. A child who gets a 

 separate stock from the father for carrying on any trade 

 or employment, even though he should continue in the 

 father's house, may be "said to be emancipated or foris- 

 familiated in so far as concerys that stock ; for the pro- 

 fits arising from it are his own. Forisfamiliation, when 

 taken in this sense, is also inferred by the child's mar- 

 riage, or by his living in a separate house, with his fa- 

 ther's permission or good-will, St. I. 5. 13. Children, 

 after their full age of twenty-one years, become ac- 

 cording to the general opinion their own masters ; and 

 from that period are bound to the father only by the 

 natural ties of duty, affection, and gratitude. The mu- 

 tual obligations between parents and children to main- 

 tain each other are explained afterwards, Book II. Tit. 

 6. 2. 



18. Children born out of wedlock are styled natural 

 children or bastards. The state of these persons, while 

 they are alive, must be tried by the commissaries ; but 

 all actions by the King or his donatory for fixing bas- 

 tardy on persons deceased, must, like other declaratory 

 actions, be brought before the session. For the effects 

 of bastardy, see afterwards, B. II. Tit. 11. 11. Bas- 

 tards may be legitimated, or made lawful, either, 1 . By 

 the subsequent marriage of the mother of the child 

 with the father. And this sort of legitimation, though 

 it was not received by our ancient customs, does, by 

 our present practice, entitle the child to all the rights 

 of lawful children. The subsequent marriage which 

 produces legitimation, is considered by the law to have 

 been entered into when the child legitimated was be- 

 gotten ; and hence, if he be a male, he excludes by his 

 right of primogeniture the sons procreated after the 

 marriage, from the succession of the father's heritage, 

 though these sons were lawful children from the birth. 

 Hence also, those children only can be legitimated who 

 are begotten of a woman whom the .father might at that 

 period have lawfully married. Bastards are legitimated 

 by letters of legitimation from the sovereign. 

 Master and 19- As to the power of masters over their servants : 

 Though servants could not, by our old law, be sold by 

 their masters as their property, yet the condition of these 

 called ntitivi, or bondmen, was in most respects as hard 

 as that of the Roman servi. But all servants have now, 

 of a long time, enjoyed the same rights and privileges 

 with other subjects, unless in so far as they are tied 

 down by their engagements of service. Servants are 

 either necessary or voluntary. Necessary are those 

 whom law obliges to work without wages ; of whom 

 immediately, voluntary servants engage without com- 

 pulsion, either for mere subsistence, or also fosi wages. 

 Those who earn theii brei^d in this way, might former- , 

 ly have been compelled to enter into service by the 

 justices of the peace, who had power to fix the rate of 

 their wages, by 1617, 8. 14 16'61, c, 38 ; which sta- 

 tutes are now repealed by 53d Geo. III. c. 40. 



20. Colliers, coal-bearer.?, and salters, and other per- 

 sons necessary to the collieries and saltvworks, as they 

 are particularly described, *lf>6l, c. 56, were, like the 

 adscriptitii gleba of the Roman law, tied dftwn by our 

 former law, to perpetual service at the works to which 

 they had once entered. Upon a sale of the works, the 

 right of their service was transferred to the new pro- 

 prietor. All persons were prohibited to receive them 

 into their service, without a testimonial from their last 

 master ; and if they deserted to another work, and were 

 redemanded within a year thereafter, he who had re- 

 ceived them was obliged to return them within twenty- 

 four hours under a penalty, 1 ''06', c. 1 1 . But by the 

 stat. 15. Geo. III. c. 28, and :^)th Ge. III. c. 56, all 

 colliers, coal-bearers, and salters, are now emancipated 

 from servitude ; and it is declared, that none shall be 

 bound to a colliery or salt-work, in any other way than 

 as a common servant or labourer. 



21. The poor make the lowest class or order of per- 

 sons. Indigent children may, by I(il7, c. 10, be com- 

 pelled to serve any of the king's subjects without wages 

 till the age of thirty years. N'agrants and sturdy beg- 

 gars may also be compelled to serve any manufacturer, 

 by 1663, c. 16. And because few persons were wil- 

 ling to receive them into their service, work-houses 

 are, by 1672, c. 18, ordained to be built for setting them 

 to work. The poor who cannot work, must be main- 

 tained by the parishes in which they were born, 1 535, 

 c. 22 ; and where the place of their nativity is not 

 known, that burden falls upon the parishes where they 

 have had their most common resort for the three years 

 immediately preceding their being apprehended, or their 

 applying for the public charity, IdtiS, c. If 169S c. 

 2 1 . Where the contributions collected at the churches 

 to which they belong are not sufficient for their main- 

 tenance, they are, by 1 672, c. 1 8, to receive badges from 

 the minister and kirk-session ; in virtue of which, they 

 may ask alms at the dwelling-houses of the inhabitants 

 of the parish. 



servant. 



Ordinary 

 servants. 



La 



of Scotlanr 



Collier*, 

 &c. 



Indigent' 

 children. 



Sturdybe; 



gars. 



Poor who 

 cannot 

 work to h 

 maintain- 

 ed. 



BOOK II. 



OF THE RIGHTS ARISING PROM PROPERTY, USUALLY 



CALLED RIGHTS OF THINGS. 



x 



TITLE I. Of Heritable, as distinguished from Moveable 

 Kights. 



1. For the better understanding the doctrine of thii 

 title it may be observed, that though, by the Roman 

 law, the person or persons next of blood to one dying 

 intestate, succeeded to the right of, his whole estate, of 

 whatsoever subjects it might have consisted-; yet, by 

 the law of Scotland, and indeed of most nations of 

 Europe, since the introduction of feus, wherever there 

 are two or more in the same degree of consanguinity to 

 the deceased, who are not all females, such rights as 

 are either properly feudal, or have any resemblance to 

 feudal rights, descend by law wholly to one of them, 

 who is considered as the proper heir of the deceased ; 

 the others, who have die name of next of kin or execu- 

 tors, must be contented with that portion of the estate Rihls 

 which is of a more perishable nature. Hence has arisen p ,, lt ly- 

 the division of rights to be explained under this title ; heritable, 

 the subjects descending to the heir are styled heritable, partly ^ 

 and those that fall to the next of kin mmeabk. 



