Scots law

“ Scotland had but little of the constitutional evolution so conspicuous in the history of England. The reason is that while the English kings, with their fiefs and wars in France, had constantly to be asking their parliaments for money, and while Parliament first exacted the redress of grievances, in Scotland the king was expected “to live of his own” on the revenue of crown-lands, rents, feudal aids, fines exacted in Courts of Law, and duties on merchandise. ”

“ If the production of a legal system forms but a small apologia for a Parliament which existed [xxvi] for several centuries, it nevertheless entitles the Scottish Estates to be reckoned among the forces which have made the nation; and it is legitimate cause of satisfaction that, in spite of all the forces of misgovernment which held sway for so long, the peculiarity of the law of Scotland is its regard for the poor and the weak. ”

“ After the War of Independence, Scottish lawyers borrowed little from England, and, gradually, important differences began to emerge. Mr. Hill Burton has pointed out that the statement, frequently made, that the civil [xxiii] law is part of the law of Scotland, "can only be true of those portions which have from time to time been incorporated with it." The selection of these portions and their local adaptation formed part of the work of the Judicial Committee of the Estates. ”

“ Acknowledging that the Scots had suffered much, and were in fact "a very ruined nation," yet what had befallen them had introduced, he hinted, a very desirable change in the constitution of Scottish society. It had enfranchised and encouraged the middle and lower classes. "The meaner sort in Scotland," he said, "love us well, and are likely to come into as thriving a condition as when they were under their own great lords, who made them work for their living no better than the peasants of France;" ”

“ For nothing delights a Scot more than to make this contrast between public and private capacity, like the Scotch magistrate, who said, “In my public capacity I fine you five shillings for the assault; in my private capacity I would have done the same myself.” “As moderator,” said the minister, “I command you to take your place.” “I consent—I consent,” said the Scot, with infinite relish, like a man who had had a wrestling match and had been fairly beaten, and he leant back to a friend behind, saying, “Sall, he's a lad, the moderator,” for this is the way in which a man wins respect from Scots. ”

“ Let the evidence of the present commissioners on the subject be what it may, it cannot be of a kind suited to show that if England should have a poor-law, Scotland should have none. The southern kingdom must and will give us a poor-law; and then shall the selvage of deep poverty which fringes the sea-coasts of Sutherland avenge on the titled proprietor of the county both his mother’s error and 393 his own. If our British laws, unlike those of Switzerland, failed miserably in her day in protecting the vassal, they will more than fail, in those of her successor, in protecting the lord. ”

“ Scottish law varies widely from English. To speak broadly, the Scottish law of sale differs from the English by adhering to the rules of Roman law, while the English common law has worked out rules of its own. Where two countries are so closely connected in business as Scotland and England, it is obviously inconvenient that their laws relating to commercial matters should differ. ”

“ Such an interference with the system established for England would be a manifest and gross injustice to the bankers of this part of the empire. If it should take place, and it should be found impossible to frame a law consistent with sound and just principles of legislation, effectually restricting the circulation of Scotch notes within the limits of Scotland, there will be, in the opinion of your committee, no alternative but the extension to Scotland of the principle which the legislature has determined to apply to this country. ”

“ The act was framed with a regard to the practices of English law, which were wholly unknown and could not be recognised in Scotland. Then as to special impediments—first came the Scotch Court of Exchequer, with a claim under an act of the preceding year, imposing a penalty of five hundred pounds and loss of liferents and whole movables on every suspected man who did not deliver himself up before a certain day: all of the men engaged in the late insurrection had incurred this penalty ”

“ The academic study of the Canon law was prohibited; regius professorships of the civil law were founded; civilians were to sit as judges in the ecclesiastical courts. A little later, the Protector Somerset was deeply interested in the establishment of a great school for civilians at Cambridge. Scottish law was the own sister of English law, and yet in Scotland we may see a reception of Roman jurisprudence which might have been more whole-hearted than it was, but for the drift of two British and Protestant kingdoms towards union. ”

“ The disuse of parliaments, the continued illegal levying of taxes by the king's own will, the rigorous and ruinous prosecutions in the star-chamber and the High Commission Court, the brandings, scourgings, and mutilations of such as dared to dispute the awful tyranny of the government, portended a storm at home ere long, and the Scots found abundance of well-wishers and friends amongst the English patriots. These were every day drawing into their ranks men of the highest position and the most distinguished talents. The earls of Essex, Bedford, and Holland, were men secretly connected with them ”

“ They affirm, that you pretend to inward light, rejecting the restraints of legal magistracy, of national law, and even of common humanity, when in opposition to what you call the spirit within you."
"They do us wrong," answered the Covenanter; "it is they, perjured as they are, who have rejected all law, both divine and civil, and who now persecute us for adherence to the solemn league and covenant between God and the kingdom of Scotland, to which all of them have sworn in former days, save a few popish malignants, and which they now burn in the market-places and tread under foot in derision. ”

“ Building on the solid foundation of the Roman civil law as modified by the equity of the canon, and adapted to modern circumstances by the civilians of France and Holland in the sixteenth and seventeenth centuries, the law of Scotland is, thanks greatly to Stair, a better organised and arranged system of jurisprudence than the law of the sister country. ”

“ It also concerns every one whose children may enter or remain within our territory at a marriageable age; and if the Scotch law is ever to be thoroughly amended, it will be but imperfectly done unless the feelings and rights of our English neighbours are specially attended to in this important point. ”

“ In all extensive governments, where the execution of the laws is feeble, this power naturally falls into the hands of the principal nobility; and the degree of it which prevails cannot be determined so much by the public statutes, as by small incidents in history, by particular customs, and sometimes by the reason and nature of things. The Highlands of Scotland have long been entitled by law to every privilege of British subjects ”

“ To borrow the language of a high authority, relied upon in support of the bill, 'It may be according to the law of Scotland that it is a complete marriage, and so it may be by the law of God; but if the woman is put to prove that marriage after the birth of children, of that she is or may be without proof.' That which, by the law of Scotland and by the law of God, is a marriage, the people of Scotland wish to be allowed to prove by all the evidence of which it is susceptible. ”

“ It now effected, however, some measures which enlightened men had long felt to be wanting for the cause of civilisation. One of these was for a more effectual disarmament of the Highlanders; another for abolishing the use of their tartan habiliments, which it was supposed had a certain effect in keeping up their warlike spirit. There remained two acts of much more importance, passed in 1748. One took away the hereditary sheriffships and other jurisdictions of the nobility and gentry, so as to render the sovereign in Scotland, as heretofore in England, the fountain of all law and justice. ”

“ It is true, we may repeat to ourselves, in alleviation of this poor man’s unhappy action, that his case is a very peculiar one. The country which he inhabits was, in the days of many now alive, inaccessible to the laws, not only of England, which have not even yet penetrated thither, but to those to which our neighbours of Scotland are subjected, and which must be supposed to be, and no doubt actually are, founded upon the general principles of justice and equity which pervade every civilized country. ”

“ As even the Covenanting Baillie wrote, “to this day no man in England has been executed for bearing arms against the Parliament.” The preachers argued that to keep the promises of quarter which had been given to the prisoners was “to violate the oath of the Covenant.” {186b}
The prime object of the English opponents of the king was now “to hustle the Scots out of England.” ”

“ The civil administration of Scotland was in the hands, at first, of parliamentary commissioners, and, after 1655, of a Scottish Council of Nine appointed by the Protector, which included two Scots. Under their vigorous rule, such order was maintained as Scotland had never known before. The Highlands were tamed by the English garrisons, and the mosstroopers of the border hunted down and punished. A man, boasted one of the English officials, might ride all through Scotland with a hundred pounds in his pocket, and nothing but a switch in his hand. ”

“ The seeds of liberty were scattered simultaneously in England and in Scotland; and the initial symptoms of growth in both countries are visible together. When the first Acts of Parliament were passed by the Lancastrian princes against the Lollards—perhaps even earlier—heretics, by the Scotch law, were consigned to the stake. [65] The Glasgow register shows that in 1422, and again in 1431, various persons suffered death for their religion; and under James IV. as many as thirty were indicted whose fate is not discoverable. ”

“ Scotland, the sister kingdom, is toiling without a common law system at all until, in the sixteenth century, James V introduces the law of Justinian as her treasury of common law, and thus gains University training and foreign experience for her lawyers: but England has an ancient system and is content with her own superiority; her common law is of native growth, strengthening with the strength of her people; she sees the nations that have accepted the civil law sinking under absolutism ”

“ Both felt that the question had ceased to be one for Scotland only; they saw that a concession to the Scots must now be fatal to the political and ecclesiastical system they had built up in Ireland and England alike. In both countries those who opposed the Government were looking to the rising in the North. They were suspicious of correspondence between the Puritans in England and the Scotch leaders; and whether these suspicions were true or no, of the sympathy with which the proceedings at Edinburgh were watched south of the Border there could be little doubt. ”

“ Then, rising up, he addressed the company in a style of inflammatory invective against the government and its measures, but especially the Union; a treaty, by means of which, he affirmed, Scotland had been at once cheated of her independence, her commerce, and her honour, and laid as a fettered slave at the foot of the rival against whom, through such a length of ages, through so many dangers, and by so much blood, she had honourably defended her rights. This was touching a theme which found a responsive chord in the bosom of every man present. ”

“ I have given my reasons for opposing this bill, and have made it appear that it is repugnant to the international treaty of union, to the liberty of Scotland, and, reflectively, to that of England, to common justice, to common sense, and to the public interest. Shall the metropolis of Scotland, the capital of an independent nation, the residence of a long line of monarchs, by whom that noble city was graced and dignified—shall such a city, for the fault of an unknown body of rioters, be deprived of its honors and privileges—its gates and its guards? ”

“ The systems existing in Scotland and Ireland are at many points unlike it. In Scotland the distinction between law and equity is virtually unknown and the Common Law of England does not prevail. In Ireland, on the other hand, the Common Law is operative and judicial organization and procedure are roughly similar to the English. ”

“ The Scots desired to see a King of Scottish extraction on the English throne, and they wished also that a system of spiritual and temporal government, such as they had extorted from the King, should be supreme in England also, if only to prevent the possibility of a reaction from thence influencing Scotland. They adhered to hereditary monarchy as a fundamental point: long and bitterly as they had contended against Charles I, they would not let him be overthrown. ”

“ Those states of the United States which have not been mentioned follow the English common law, which also prevails in Ireland, some of the West Indies and part of Canada. In Scotland, on the other hand, the principle of the civil law is followed. In Scotland, bastards could be legitimized in two ways: either by the subsequent intermarriage of the mother of the child with the father, or by letters of legitimation from the sovereign. ”