Law of Scotland

“ At certain points, notably in the regulation of the blood-feud and the construction of a tariff of atonements, the law of one rude folk will always be somewhat like the law of another; but the existing remains of old Welsh and old Irish law stand far remoter from the dooms of Æthelberht and Ine than stand the edicts of Rothari and Liutprand, kings of the Lombards. Indeed, it is very dubious whether distinctively Celtic customs play any considerable part in the evolution of that system of rules of Anglian, Scandinavian and Frankish origin which becomes the law of Scotland. ”

“ 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. ”

“ The law of Scotland is known to all to have been that of the Romans. The municipal and commercial departments were under the control of the Court of the “Four Burghs,” which consisted of representatives from Berwick, Edinburgh, Roxburgh and Stirling; to whom all matters connected with commerce, and the rights and privileges of the burgesses, were referred. The Chamberlain’s Court had also a jurisdiction over the burghs in matters respecting the trade and general policy of the kingdom. ”

“ 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. ”

“ The history of Scotland also gives us a picture of pure and unmixed feudalism. The feudal system which was introduced under the sons of Malcolm and Margaret took much firmer root in Scotland than it ever did in England; and, as it was here untouched by the Common Law and the growth of the constitution which acted as checks upon it in England, it grew to such an excess of power that it quite overshadowed the power of the Crown. The practice of making hereditary jurisdictions, and of granting powers of regality, still further increased the influence of the feudal nobles. ”

“ 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. ”

“ But now that the proposal for a change has been made, and made on the part of Ministers, the people of Scotland will be strangely wanting in duty to themselves, and in fidelity to their country, if they do not insist upon a fair measure of justice. And they must do it early. Upon the arrangement made with regard to the English boroughs, depends our sole chance of increased Scottish representation. If we wait until the English bill has passed into a law, we need not hope to extort from the ministry the concession of a single member. ”

“ 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. ”

“ Of this native gold James the Fourth struck some beautiful coins, which were called bonnet pieces, because they bore the image of the King wearing a bonnet. The state of the people at this time was one of almost serf-like dependence on their lords. But great as the power of the nobles was, there were no forest or game laws in Scotland, nor did they enjoy any privilege of peerage. An offender against the law, if he could be brought to justice, had to "thole an assize," like any peasant, however high his rank might be. ”

“ The act of the Highland justiciars was the more natural, simple, and reasonable, that labourers in mines and at salt-works were regarded by the law of Scotland as ‘necessary servants,’ who, without any paction, by merely coming and taking work in such places, became bound to servitude for life, their children also becoming bound if their fathers in any way used them as assistants. ”

“ 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 ”

“ Queensberry’s one aim was to get Supply voted, for war with France had begun. But the Country and the Cavalier parties refused Supply till an Act of Security for religion, liberty, law, and trade should be passed. The majority decided that, on the death of Anne, the Estates should name as king of Scotland a Protestant representative of the House of Stewart, who should not be the successor to the English crown, save under conditions guaranteeing Scotland as a sovereign state, with frequent Parliaments, and security for Scottish navigation, colonies, trade, and religion (the Act of Security) . ”

“ 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 ”

“ Clans are no longer what they were. The purposes for which they once existed, as tolerated but not as sanctioned societies, are not now lawful. To all practical purposes they cannot legally act, and they do not legally exist. The law knows them not. For peaceful pageantry, social enjoyment, and family traditions, mention may still be made of clans and chiefs of clans; but the Highlands of Scotland, no longer oppressed by arbitrary sway, or distracted by feudal contentions, are now inhabited by loyal, orderly, and peaceful subjects of the Crown of Great Britain ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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. ”

“ Ecclesiastical discipline was strict enough to prevent regularly instituted Scots ministers from assisting at such affairs. But any man would do (for, after all, he was but a witness) , and the first across the Border as well as or better than another. Now, by a well-known principle of international law, the lex loci contractus governs such contracts: the marriage being valid in Scotland where it took place, was also recognised as valid in England where its celebration would have been a criminal offence! ”

“ An Act to amend and regulate the Law of Scotland as to Erasures in Instruments of Sasine and of Resignation ad remanentiam. The Erasures in Deeds (Scotland) Act, 1836. 6 & 7 Will. 4. c. 36. An Act to amend an Act passed in the present Session of Parliament, for consolidating the Laws relating to the Constabulary Force in Ireland. The Constabulary (Ireland) (No. 2.) ”

“ 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. ”

“ By a curious irony of fate, the Scottish Episcopalians were forced by their Jacobite leanings to act with the extreme Presbyterians, and to oppose the scheme of amalgamation with an Episcopalian country. The legal interest was strongly against a proposal that might reduce the importance of Scots law and of Scottish lawyers, while the populace of Edinburgh were furious at the suggestion of a union, whose result must be to remove at once one of the glories of their city and a valuable source of income. ”

“ This great elasticity of the common Scotland. law to include every sort of new crime which might arise was in times past very dangerous to political liberty, as it greatly enlarged the power of the crown to oppress political opponents, but in modern days it has its convenience in facilitating the punishment of persons committing crimes for the punishment of which in England a new act of parliament may be necessary. Criminal procedure in Scotland is regulated by an act of 1887 which greatly simplified indictments and proceedings. ”

“ No clearer statement of the feudal system in its legal relations exists, and it is still, although the law has been much altered, the standard authority in Scotland as to the original condition of its feudal land-law, probably as complete as that of any European country. The ‘Treatise on the Succession,’ like all Craig's works written in Latin, was published in an English translation after his death by James Gatherer in 1703. ”

“ Catholic chapels and monasteries were becoming numerous, their service bells ringing perpetually.
In Scotland, the Chancellorship was bestowed on one of the King’s time-serving converts, Drummond, Earl of Perth. He co-operated with the Earl of Sunderland in England, in driving on James to the most extravagant reactionary measures. By a new court order all persons holding civil offices in Scotland were ordered to resign, and to resume their offices without taking the test oath, ordered in 1681, they taking, for thus breaking the law, a remission of penalties from the Crown ”

“ Among the measures introduced and carried by the lord advocate were an act to abolish religious tests in the Scottish universities, acts to amend the law of entail, to amend the bankruptcy laws, to diminish the number of sheriffs, and to amend the law of evidence. In February 1854 he introduced a bill to establish a uniform system of valuation and rating in Scotland, and an education bill for Scotland, which was rejected. ”

“ It need hardly be said that such a professional judge, assisted in important criminal cases by a jury, and checked in civil suits by right of appeal to his principal, makes a clearer fountain of justice than the Great Unpaid of an English Bench, who with the best intentions as to fairness must often depend on their clerk for law. In some points of procedure, too, the Scottish system sets a good example to the English. ”

“ We find in Scotland, as in Ireland and Wales, the broad distinction between the free and servile classes. Thus in the laws of King William the Lion there is preserved this fragment of the older system ‘of the law that is callyt weregylt. Of euery thief through all Scotland the weregehede is xxxiiii. ky and one half, whether he be a freeman or a serf (liber sive servus) .’ [254]
Classes of freemen. Of the classes of freemen these laws regarding fines afford us complete information. ”