conceive from the nature of a sist, or at least the

effect that is usually given to it.

ON THE POOR LAWS, LETTER III.

Continued from p. 145.

On the effect of desuetude in annulling statutes. THAT there are many laws authorising an involuntary poor's rate in Scotland, which stand in the statute book unrepealed, is an undeniable fact but because these are unrepealed, it does by no means follow that they are still in for ce. It is upwards of an hundred years since the last of these laws was enacted; and no maxim in law is more indisputable than that a statute may lose its force by desuetude as effectually as by an actual repeal; so that unlefs it can be made appear, that these laws have not only been enacted, but have been regularly inforced from the time of their enactment, they can only be considered as obsolete laws, which cannot now be revived.

Lawyers have enumerated three modes by which a law may fall into desuetude, and thus lose its force as effectually as if it had been actually repealed: viz.

1. Where the law in question never has been carried into force at all, but has been suffered to sleep from the time of its enactment as a mere dead let

ter.

2. Where, although it had been, for a time, inforced, it had gradually fallen into general disuse;

and had been for many years entirely disregarded. and,

3. Where, although the law had been inforced in certain places, so as still to continue there to have the force of a law, yet, by a contrary practice prevailing for a long time, in other places, this practice has been considered as seperceding the law, and coming in its place, so as there to render the law itself of no avail. I fhall adduce a few examples of all these, by way of illustration.

In regard to the first kind of desuetude; viz that which arises from a continued neglect of the law from the time of its enactment, no examples can be found more apposite, than among the poor laws themselves, the subject of the present difsertation.

There is no act in the statute book, more clear and distinct than that of the year 1672*, or in which the stipulations are more exprefs. By this act "his

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majesty with advice and consent of his estates of parliament, statutes and ordains, that the magis"trates of the burghs following, betwixt and the "term of Whitsunday next, 1673, provide correction houses for receiving and entertaining of the beggars, vagabounds, and idle persons within their burghs, and such as fhall be sent to them out of "the fhires and bounds after specified, and that they "appoint masters and overseers of the same, who

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may set these poor persons to work; viz. one correction house for the burgh of Edinburgh, for those of the town and fhire of Edinburgh," and

*Car. 11. Par. 2 Sefs. 3. Cap. 8.

so on for the following burghs with the fhires and districts annexed by the act to each; viz Haddington, Dunse, Jedburgh, Selkirk, Peebles, Glasgow, Dumfries, Wigton, Kirkudbright, Air, Dumbarton, Rothsay, Paisley, Stirling, Linlithgow, Culross, Perth, Montrose, Aberdeen, Innernefse, Elgin, Inverary, St Andrews, Coupar, Kirkaldy, Dunfermling, Dundee, Bamff, Dornoch, Week, Kirkwal, for the fhire of Orkney, and Zetland; "each of which houses shall "have a large clofs, sufficiently inclosed for keeping "in the said poor people, that they may not be ne"cefsitat to be always within doors, to the hurt or "hazard of their health. And in case the magis"trates of the said burghs, or any of them, fhall not provide and have in readiness, the saids correction "houses betwixt and the said term of Whitsunday "next, they shall incur the pain and penalty of FIVE

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HUNDRED MARKS Scots money, AND THAT QUArterLY, until the correction houses be provided: Which penalties fhall be paid to the commissioners of ex"cise, in the respective fhires or bounds from which "the said poor persons fhall be sent, to the saids "correction houses: And the saids commifsioners "are hereby warranted to raise letters of Horning, "and other execution at their instance, against the "magistrates of the saids burghs." &c. A great number of stipulations follow, authorising the levying of funds for the building of these correction houses, and support of the poor, which it is unnecessary here to enumerate. This act was never repealed; but there is good reason to believe it never was inforced; as no vestiges of these correction houses

207 remain; or records concerning them. Nor will it, f presume, be maintained, that after such a lapse of time, this act could now be legally carried into ef fect.

2. Of desuetude arising from a gradual relinquishment to inforce the law, innumerable instances might be produced. The following are a few examples of this kind, which, as marking a striking change in the progrefs of civilization," agriculture, and trade, may prove entertaining to the reader.

In 1426 there is a statute obliging all men to take their bills of exchange from bankers within the county.

In 1436, there is a law ordaining that none be found in a tavern after 9 o'clock at night.

In 1567, there is a statute which enacts, that all persons guilty of fornication, as well the men, as the women "fhall be tane to the deepest and foulest "pule or water of the parochin, and there to be "thrice douked, and thereafter banished the said "town or parochin for ever."

In 1581, there is a statute, prohibiting horses to be kept at hard meat from the 15th of May to the 15th of October.

In the same year there is an act requiring landed gentlemen to reside at their country seats under a penalty.

In the same, cap. 113. "It is statute and or“dained, bee our soveraine lord the king, with "advise of his estaites and haill body of his present parliament, that nane of his hienes subjectes, man or woman, being under the de

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"grees of dukes, earles, lordes of parliament, * knightes, or landed gentilmen, that hes or may "spend of frie zeirlie rent, twa thousand markes,

or fifty chalders of victual at the least, or their "wives, sonnes or douchteris, sall, after the first "day of May nixt-to-cum, use or weare in their "clething, or apparrel, or lyning thereof, onie "claith of gold, or silver, velvet, satine, damask, "taffataes, or ony begairies, frenzies, pasments, "or broderie of gold, silver, or silk: nor zit layne commerage, or woollen claith, maid, and brocht from onie foreine countries, under the paine of "ane hundred pundes of every gentil-man landed, "ane hundred markes of every gentilman unlan"ded, and fourtie pundes, of ilk zea-man, for every day, that hee, his wife, sonne or douch"ter trangrefsis this present act.”

.86

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The same year, (ib. cap. 114.) certain kinds of food, sweat-meats, &c. are prohibited from being used, except by persons of a certain rank, specially described, under severe penalties.

were

These statutes, and hundreds such, never repealed; but who will say they are now in force?

3. Of laws which, though still in force in many places, have fallen into disuse in other places, by a contrary practice there prevailing for a long time, the following cases will serve as illustrations.

By the statute 1535, it is exprefsly enacted that none can be elected provosts, or bailies of burghs, except residing burgefses. In the town of Dumbar ton a contrary practice had prevailed for time