Law, Lawyers, and Humanism: Selected Essays on the History of Scots Law, Volume 1 9780748682102

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Law, Lawyers, and Humanism

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EDINBURGH STUDIES IN LAW Series Editor Elspeth Reid (University of Edinburgh) Editorial Board David L Carey Miller (University of Aberdeen) George L Gretton (University of Edinburgh) Hector L MacQueen (University of Edinburgh) Kenneth G C Reid (University of Edinburgh) Reinhard Zimmermann (Max-Planck Institute of Comparative and International Private Law, Hamburg) Volumes in the series: Elspeth Reid and David L Carey Miller (eds), A Mixed Legal System in Transition: T B Smith and the Progress of Scots Law (2005) Hector MacQueen and Reinhard Zimmermann (eds), European Contract Law: Scots and South African Perspectives (2006) John W Cairns and Paul du Plessis (eds), Beyond Dogmatics: Law and Society in the Roman World (2007) William M Gordon, Roman Law, Scots Law and Legal History (2007) Kenneth G C Reid, Marius J de Waal and Reinhard Zimmermann (eds), Exploring the Law of Succession: Studies National, Historical and Comparative (2007) Vernon Valentine Palmer and Elspeth Christie Reid (eds), Mixed Jurisdictions Compared: Private Law in Louisiana and Scotland (2009) John W Cairns and Paul du Plessis (eds), The Creation of the Ius Commune: From Casus to Regula (2010) James Chalmers, Lindsay Farmer and Fiona Leverick (eds), Essays in Criminal Law in Honour of Sir Gerald Gordon (2010) Elaine E Sutherland, Kay E Goodall, Gavin F M Little and Fraser P Davidson (eds), Law Making and the Scottish Parliament (2011) Neil Walker (ed), MacCormick’s Scotland (2012) Eric Descheemaeker (ed), The Consequences of Possession (2014) Remus Valsan (ed), Trusts and Patrimonies (2015) John W Cairns, Law, Lawyers, and Humanism: Selected Essays on the History of Scots Law, Vol 1 (2015) John W Cairns, Enlightenment, Legal Education, and Critique: Selected Essays on the History of Scots Law, Vol 2 (2015) www.euppublishing.com/series/esil

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EDINBURGH STUDIES IN LAW VOLUME 13

Law, Lawyers, and Humanism Selected Essays on the History of Scots Law, Vol 1

John W Cairns

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For Theo & Emilie

Selection and organisation of essays contained in this collection © John W Cairns, 2015 Edinburgh University Press Ltd The Tun, Holyrood Road, 12 (2f) Jackson’s Entry, Edinburgh EH8 8PJ www.euppublishing.com Typeset in New Caledonia by Servis Filmsetting Ltd, Stockport, and printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon CR0 4YY A CIP record for this book is available from the British Library ISBN 978 0 7486 8209 6 (hardback) ISBN 978 0 7486 8210 2 (webready PDF) ISBN 978 0 7486 8211 9 (epub) The right of John W Cairns to be identified as author of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988 and the Copyright and Related Rights Regulations 2003 (SI No 2498).

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Contents Preface Acknowledgements Introduction

vii ix x

FOUNDATION AND CONTINUITY 1 From Claves Curiae to Senators of the College of Justice: Changing Rituals and Symbols in Scottish Courts 2 English Looters and Scottish Lawyers: The Ius Commune and the College of Justice 3 Ius Civile in Scotland, c 1600 4 The Law, the Advocates, and the Universities in Late Sixteenth-Century Scotland 5 Scottish Law, Scottish Lawyers, and the Status of the Union 6 Natural Law, National Laws, Parliaments, and Multiple Monarchies: 1707 and Beyond 7 Attitudes to Codification and the Scottish Science of Legislation, 1600–1830

3 22 34 67 88 115 144

SIGNIFICANCE OF DUTCH HUMANISM 8 Importing our Lawyers from Holland: Netherlands Influences on Scots Law and Lawyers in the Eighteenth Century 9 Three Unnoticed Scottish Editions of Pieter Burman’s Antiquitatum Romanarum brevis descriptio 10 Legal Study in Utrecht in the late 1740s: The Education of Sir David Dalrymple, Lord Hailes

223 242 253

DEVELOPMENT OF THE LEGAL PROFESSION 11 The Formation of the Scottish Legal Mind in the Eighteenth Century: Themes of Humanism and Enlightenment in the Admission of Advocates 12 Advocates’ Hats, Roman Law, and Admission to the Scots Bar, 1580–1812

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13 Alfenus Varus and the Faculty of Advocates: Roman Visions and the Manners that were Fit for Admission to the Bar in the Eighteenth Century

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BLACKSTONE, FEUDALISM, AND INSTITUTIONAL WRITINGS 14 Craig, Cujas, and the Definition of Feudum: Is a Feu a Usufruct? 15 Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State 16 Eighteenth-Century Professorial Classification of English Common Law 17 Blackstone, Kahn-Freund, and the Contract of Employment 18 The Moveable Text of Mackenzie: Bibliographical Problems for the Scottish Concept of Institutional Writing Index

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Preface This is the first of two volumes of selected essays on Scottish legal history. As with many working in this field, I have sometimes published in relatively obscure collections and very specialised journals, making some of the papers presented here difficult to obtain, even in these days of the internet. But to have selected only such papers would have created rather strange and unbalanced volumes, so other articles and chapters have been included, both to form a coherent account of specific topics, and to present a picture, if limited, of my view of Scottish legal history. In each volume there is an introduction to pull the papers together and relate them both to other contributions of my own and to current thinking about legal history in Scotland and elsewhere. In producing these volumes, I have accumulated many debts. First, I must thank Professor Elspeth Reid who encouraged me to think that the publication of such a selection was worthwhile: she has also shown forbearance towards an author who has, as they would have put it in the eighteenth century, a “delaying humour”. I am grateful to Professors Kenneth Reid and Hector MacQueen who also supported me in this project. Dr Karen Baston helped administratively in a variety of ways; and I am obliged to the Editorial Board of Edinburgh Studies in Law for accepting these two volumes. The earliest of the essays in these two volumes was published as long ago as 1984, and the latest as recently as 2010. Their publication therefore covers much of my academic career, and indicates both continuities as well as developments. I completed my doctorate under the supervision of Professor Alan Watson (to whom I owe so much I cannot possibly express it here) and Dr (as he then was) Sandy McCall Smith in December 1980; in October of that year I had had the good fortune to have been appointed a lecturer in the Queen’s University of Belfast in the Department of Jurisprudence. The Department was headed by Professor (now Sir) Colin Campbell, and there I  had as good an introduction to an academic career as I believe to have been possible. This was my situation in 1984. By 2010, I had held a personal Chair of Legal History in the University of Edinburgh for over ten years. In the intervening period, as well as benefiting from the continuing support, friendship and enthusiasm of Alan Watson, I had, as a young scholar, received

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significant encouragement from the late Professor Peter Birks, particularly when he held the Chair of Civil Law in Edinburgh. Hector MacQueen has recently published a paper on “Friendships in the Law”. The choice of this topic is far from surprising to those who know him. I have benefited from Hector’s friendship in the law for nearly four decades. His energy is enviable; his support and generosity as a colleague and scholar seemingly without limit. Dr Paul du Plessis is a more recent friend and colleague; but he has become similarly important to my scholarly life in Edinburgh. Even if one prefers to work on projects on one’s own, the support and friendly criticism of colleagues remains central to scholarly life. In this I have been blessed in both Belfast and Edinburgh. All researchers in Scotland benefit from two excellent research institutions: the National Library of Scotland and the National Records of Scotland (formerly the National Archives of Scotland, and, before that, the Scottish Record Office). Assiduous readers of the footnotes and acknowledgements in both volumes will also note the help received, through access to their archives, manuscripts and rare books, from: the Advocates Library, Edinburgh; the University Libraries of Edinburgh, Glasgow and Aberdeen; the Mitchell Library, Glasgow; the British Library, London; the City of Edinburgh; the University of Glasgow; the Society of Advocates in Aberdeen; and various private individuals. When approached about producing a collection of one’s past papers, it is tempting, in darker moments, to see the suggestion as reflecting a judgement that one has nothing more of value to say; but, like all optimistic scholars, I remain convinced that my best work is still to come. John W Cairns, Old College, August 2013

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Acknowledgements Full details of the date and place of first publication appear on the first page of each chapter. The author, the publishers, and the Editorial Board of Edinburgh Studies in Law would like to thank the various publishers, editors, and presses as follows for kind permission to reproduce material: Ch 1 Ch 2 Ch 3 Ch 4 Ch 5 Ch 6 Ch 7 Ch 8 Ch 9 Ch 10 Chs 11 & 14 Ch 12 Ch 13 Ch 15 Ch 16 Ch 17 Ch 18

Duncker and Humblot, Berlin Scientia Verlag, Amsterdam & Aalen Roman Legal Tradition Scottish Historical Review Cambridge University Press Royal Danish Academy of Sciences and Letters Tulane European and Civil Law Forum Tuckwell Press The Bibliotheck Fundamina: A Journal of Legal History Clarendon Press, Oxford Journal of Legal History Ius Commune: Zeitschrift für Europäisches Rechtsgeschichte Oxford Journal of Legal Studies McGill Law Journal Law Quarterly Review Hart Publishing

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Introduction This selection of essays deals with some linked aspects of the history of Scots law in the early modern period, with a particular focus on the role of the Roman or Civil Law. The volume thus initially deals with the reformation of the legal system in the Renaissance period under the impact of the continuing Reception of Roman law, while also following further transformations in the era of the Enlightenment and beyond; it proceeds to consider the impact of late Dutch Humanism on Scots lawyers, and the dominant place of Roman law in their education, while finally using evidence from Scotland and other Civil-Law legal systems to help explain and understand aspects of English law in the eighteenth century. While not a continuous narrative, the selection gives a strong sense of my views on the development of law in Scotland, and of the continuing importance of the Civil Law in its formation – an importance almost impossible to exaggerate, though it has been at times unduly denigrated.1 The elements and influences that came together to create Scots law were similar to those that created the legal systems of most of early modern western Europe in the high and later Middle Ages: local customs, learned feudal law, Canon Law, and Civil Law.2 In each jurisdiction, of course, the mix was to be unique. Moreover, travel and foreign study along with the circulation of books and ideas meant that there were mutual influences among the legal systems of Europe. One ends up with complex histories, not always easy to disentangle. The essays in the present volume are by one who is an early modern scholar, who has focused mainly on the eighteenth century, and whose primary interests have been in the legal profession and legal education. This means there is little in the way of discussion of, for example, medieval Scots law. I have considered the medieval law in the relevant part of my short, but monograph-length, contribution to Ken Reid and Reinhard

1 J W Cairns and P J du Plessis, “Ten years of Roman law in Scottish courts” 2008 SLT (News) 191. 2 R van Caenegem, An Historical Introduction to Private Law, trans by D E L Johnston (1992) 30–114; R Lesaffer, European Legal History (2009) 192–415.

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Zimmermann’s History of Private Law in Scotland;3 but this was primarily a work of synthesis, and the only originality lies in that synthesis. Readers can much more usefully be referred to the work of Hector MacQueen, David Sellar, and a number of others on medieval Scots law.4 The volume begins with a section entitled “Foundation and Continuity”, which focuses on the intellectual background to the modernisation of Scots law in the sixteenth century under the influence of the ius commune. Central to this was the erection of the College of Justice under papal and parliamentary authority in 1532. Of course, the creation of the College of Justice was in some ways a reform and formalisation of the activities of the Lords of Council and Session in the earlier period; but in an essay (not included here), I argued that, contrary to a view developed out of the earlier work of R K Hannay, we can see that 1532 represented something new.5 The essay involved a close exploration of the institutional history of the foundation of the College, involving a careful reading of the texts of the Papal Bulls, of the legislation, and of other material in a comparative context. I demonstrated that the College was the result of a deliberate policy to create a new court along the lines of other similar courts familiar in contemporary Europe, a policy to ensure establishment of a court manned by judges, some of whom at least had a university training in law.6 The authoritative study of the foundation of the College is now that by Mark Godfrey, in which he demonstrates that it marked what almost amounted to a revolution in the administration of civil justice in Scotland, marking the end of medieval practices, symbolised by the reinforcement of use of Romano-Canonical procedure.7 The first chapter of the volume is one which explores the change of rituals and symbols – and rituals and symbols are very important in law – that marked the transition from the medieval to the early modern law in Scotland. It shows how a focus on the older rituals involving the “keys of the court”, dempsters, serjeants, clerks, and suitors along with rituals such as fencing (defining the space of the court), calling of suits and swearing of

3 J W Cairns, “Historical Introduction”, in K G C Reid and R Zimmermann (eds), A History of Private Law in Scotland: Volume 1: Introduction and Property (2000) 14 (henceforth Cairns, “Historical Introduction”) at 15–48. 4 See, e.g., W D H Sellar, “Celtic law: survival and integration” (1989) 29 Scottish Studies 1; H L MacQueen, Common Law and Feudal Society in Medieval Scotland (1993); H L MacQueen, “Tears of a legal historian: Scottish feudalism and the ius commune” (2003) Juridical Review 1. 5 R K Hannay, College of Justice: Essays, ed by H L MacQueen (1990). 6 J W Cairns, “Revisiting the Foundation of the College of Justice”, in H L MacQueen (ed), Miscellany V, Stair Society vol 52 (2006) 27. 7 A M Godfrey, Civil Justice in Renaissance Scotland: The Origins of a Central Court (2009).

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assizers, with an intense focus on locality, gave way to ceremonies organised around the public display of learning by men trained in a university in the learned laws – in the ius commune consisting of the ius canonicum and ius civile. Here was a new ritual, a ritual focused on university learning in law rather than on the gathering of a local community to do justice, perhaps in its own way signifying the centralising ambitions of the Stuart monarchy. The significance of the ius commune in Scotland is discussed further in the second chapter through the curious episode of the looting of law books from Edinburgh in 1544 by an English knight. The account in the chapter agrees with earlier scholars that the books looted were connected to the Abbey of Cambuskenneth, as a number of the volumes can be linked with, first, Patrick Paniter, Abbot of Cambuskenneth 1513–1519, and, secondly, his successor Alexander Mylne, Abbot 1519–1548. What is interesting about the books is that, along with a magnificent Bible, they constitute a significant part of the main sources of the ius commune, both Canon Law and Civil Law, together with some of the standard commentaries on them. Mylne had been Official, that is ecclesiastical judge, of Dunkeld; but in 1532, he was appointed as the first President of the College of Justice. Were these books from the Cambuskenneth library in Edinburgh in connection with his work on the Session? Supporting this speculation is the fact that the books are comparable to the library possessed by Bishop William Elphinstone as ecclesiastical judge and Lord of Council,8 and also include works which we know, from study of Sinclair’s unpublished Practicks, were consulted by judges in the College of Justice in the 1540s.9 There were many volumes of printed works of the ius commune in Scotland at this time.10 There were also significant collections of Scottish manuscripts of materials of the ius commune, of which the Stair Society has recently published an invaluable survey.11 John Finlay has provided us with excellent insights into the men who used such material.12 8 L J Macfarlane, “William Elphinstone’s Library” (1958) Aberdeen University Review 253 at 256–263; L J Macfarlane, “William Elphinstone’s Library Revisited”, in A A MacDonald, M  Lynch and I B Cowan (eds), The Renaissance in Scotland: Studies in Literature, Religion, History and Culture Offered to John Durkan (1994) 66 at 68–69, 72–80. 9 G Dolezalek, “The Court of Session as a Ius Commune Court – Witnessed by Sinclair’s Practicks”, in H L MacQueen (ed), Miscellany IV, Stair Society vol 49 (2002) 51 (henceforth Dolezalek, “The Court of Session as a Ius Commune Court”) at 72–75; A L Murray, “Sinclair’s Practicks”, in A Harding (ed), Law Making and Law Makers in British History (1980) 90. 10 See, e.g., J Durkan and A Ross, Early Scottish Libraries (1961) passim. 11 G Dolezalek, Scotland Under Ius Commune: Census of Manuscripts of Ius Commune in Scotland, Mainly Between 1500 and 1660, 3 vols (2010) (henceforth Dolezalek, Scotland Under Ius Commune). 12 J Finlay, Men of Law in Pre-Reformation Scotland (2000).

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Gero Dolezalek has described the Court of Session as “a ius commune Court”.13 The College of Justice copied the procedure of the courts of the Church and also shared personnel with the Church. Though a civil court, eight of its fifteen judges, including the President, had to be “ecclesiastics”. We have already noted that the first President, Mylne, was Abbot of Cambuskenneth; the second President was Robert Reid, another ecclesiastical lawyer, who was Bishop of Orkney.14 The extensive role played by the ecclesiastical courts in Scotland enabled and reinforced the application of the ius commune in the College of Justice.15 Indeed their significance is underscored by Tom Green’s study of the Commissary Court.16 In the third chapter, there is an attempt to analyse the changing nature of the references to sources in Scotland in the 100 years or so after the founding of the College of Justice. From Sinclair’s Practicks, it is possible to deduce the type of material used by and before the court in the 1540s. It included a range of Canon Law source material, commentaries, and decisions of ecclesiastical courts, as well as sources of the Civil Law, with commentaries such as those of Bartolus and Baldus. Indeed a rare surviving written pleading from 1503 also shows considerable reliance on Canon Law in litigation over the barony of Kingedward before the Lords of Council. The chapter traces a decline of overt reliance on Canon Law through examination of the sources cited in the Jus feudale of Thomas Craig, written around 1600, and the Practicks of Sir Robert Spottiswoode, collected from the 1620s to the 1640s. What this shows is the continued significance of Canon Law, but a failure to cite it by Spottiswoode, other than in his reliance on it for procedural issues. While Sinclair’s Practicks demonstrate that Scotland had a typical mix of ius commune (Canon and Civil Laws) and ius proprium (Scots customs and statutes), Craig and Spottiswoode’s works suggest that in the intervening period there had been a subtle change, probably due to the politics, intellectual developments and religious upheavals of the sixteenth century, out of which was emerging a competing understanding of the nature of Scots law,

13 Dolezalek, “The Court of Session as a Ius Commune Court” (n 9). 14 J Kirk, “Reid, Robert (d 1558)”, in L Goldman (ed), Oxford Dictionary of National Biography  (2004), available at http://www.oxforddnb.com/view/article/23338, last accessed 23 July 2013. 15 S Ollivant, The Court of the Official in Pre-Reformation Scotland (1982). 16 T Green, “The Court of the Commissaries of Edinburgh: Consistorial Law and Litigation, 1559–1575. Based on the Surviving Records of the Commissaries of Edinburgh”, unpublished PhD thesis, University of Edinburgh (2010) 37–55, available at http://hdl.handle.net/1842/5456, last accessed 23 July 2013.

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located within the structure of the law of nature and nations in a Europe of developing nation states with imperial ambitions.17 I have discussed elsewhere the importance of Craig, his politics, and his work as a scholar.18 As yet, there has been no detailed work on the textual tradition of his Jus feudale, of which there have been three printed editions, the earliest appearing almost half a century after his death.19 That said, Craig is almost certainly best read within the context of the influence of French Humanism (however that may be defined or more exactly understood) in Scotland.20 There has been some tentative exploration of the influence of Legal Humanism on Scots law during the period;21 but the concept of Legal Humanism of course remains to some extent contested and certainly contestable.22 As Chapter 3 demonstrates, Spottiswoode’s collection of Practicks exhibits the use of more modern Humanist authors. Such law teaching as existed was also probably subject to growing Humanist influence. Thus, when the Regent Mary of Guise founded the Royal Lectureships in 1553, she appointed Alexander Sym as “her lectoure and reidar in the lawis or ony utheris sciences”. In June of the same year, Edward Henryson, Doctor of Laws, was appointed to read a lesson in the laws and one on Greek thrice weekly.23 Henryson had been educated at Bourges, noted as a centre for modern, Humanistic study of the laws.24 William Skene, Professor of Law at St Andrews from 1558 to 1582, may also have been 17 For a rewarding further discussion of Spotiswoode, see J D Ford, Law and Opinion in Seventeenth Century Scotland (2007) 181–215 (henceforth Ford, Law and Opinion). 18 J W Cairns, “The Breve Testatum and Craig’s Ius Feudale” (1988) 56 Tijdschrift voor Rechtsgeschiedenis 307; J W Cairns, “Craig, Cujas, and the Definition of feudum; Is a Feu a Usufruct?”, in P Birks (ed), New Perspectives in the Roman Law of Property: Essays for Barry Nicholas (1989) 75; J W Cairns and G McLeod, “Thomas Craig, Sir Martin Wright and Sir William Blackstone: the English discovery of feudalism” (2000) 21, 3 JLH 54 (henceforth Cairns and McLeod, “The English discovery of feudalism”). 19 See Dolezalek, Scotland Under Ius Commune (n 11) vol i, 184; vol ii, 296–297; vol iii, 195. 20 A point well made as long ago as 1957 in J G A Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century: A Reissue with a Retrospect (1987) (henceforth Pocock, The Ancient Constitution and the Feudal Law) 70–90. On Craig’s career at the Bar, hitherto neglected, see now J Finlay, “The early career of Thomas Craig, Advocate” (2004) 8 EdinLR 298. 21 J W Cairns, T D Fergus and H L MacQueen, “Legal Humanism and the History of Scots Law: John Skene and Thomas Craig”, in J MacQueen (ed), Humanism in Renaissance Scotland (1990) 48. 22 See D J Osler, “Images of Legal Humanism” (2001) 9 Surfaces: revue électronique 101.6, available at http://www.pum.umontreal.ca/revues/surfaces/vol9/osler.htm, last accessed 22 July 2013. 23 J Durkan, “The Royal Lectureships under Mary of Lorraine” (1983) 62 Scottish Historical Review 73 at 73–74. 24 M-C Tucker, Maîtres et étudiants écossais à la Faculté de Droit de l’Université de Bourges (1480–1703) (2001) 220–221, 277–278.

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educated there.25 This is the background to the fourth chapter. In 1589, the Lords of Council and Session proposed the foundation of a chair in Law in the recently founded University of Edinburgh. The advocates opposed the innovation. Their motivations were no doubt complex; but it is important to note that among the reasons they gave for opposing the foundation was the claim that there already were functioning chairs in Law in the Universities of Aberdeen and St Andrews. They added that as graduates of these universities they were pledged to support them. They further claimed that, in any event, little benefit had come from these chairs, and just as little was likely to flow from the proposed new foundation in Edinburgh. The advocates’ analysis was probably fair. In Aberdeen, law teaching was unsettled. In St Andrews, Skene did have an interesting law library, including standard works of the ius commune and Humanist texts, but his teaching appears to have been elementary. Nonetheless, the evidence does show the advocates’ determination that intrants to the Bar should have a sophisticated university education in law, at this time only obtainable abroad. A few years later, legal education in St Andrews collapsed completely, as the then professor, William Welwood, became embroiled in political and religious feuds in the town.26 Such residual activity as there was in Aberdeen remains shadowy.27 More detailed study of the period is required; but the focus on the ius commune in Scots legal practice completed a transformation of the earlier medieval legal system.28 Thus, when James VI of Scotland inherited the English throne in 1603, Scots law and English law could readily be understood as opposed to one another. A document prepared to explain Scots law for an English lawyer commented: “There is noe common lawe in Scotland, but the Judge eyther proceedeth accordinge to warrant of the municypall lawe, which is the statutes of Parliament, and that faylinge they have recourse to the ymperiall civill lawe.”29 James was keen to unite his kingdoms further, and quickly adopted the style “King of Great Britain”.30 Whatever may have 25 J Durkan, “The French Connection in the Sixteenth and Early Seventeenth Centuries”, in T C Smout (ed), Scotland and Europe, 1200–1850 (1986) 19 at 25–26. 26 J W Cairns, “Academic feud, bloodfeud and William Welwood: legal education in St Andrews, 1560–1611” (1998) 2 EdinLR 158 (Part I) and 255 (Part II). 27 J W Cairns, “Lawyers, law professors, and localities: the Universities of Aberdeen, 1680–1750” (1985) 46 NILQ 304 at 306–310. 28 Ford talks in terms of a translatio studii from “the continental law schools to the College of Justice”: Ford, Law and Opinion (n 17) 50–51. 29 See, e.g., J D Mackie and W C Dickinson, “Relation of the manner of judicatores in Scotland” (1922) 19 Scottish Historical Review 254 at 268. 30 B P Levack, The Formation of the British State: England, Scotland, and the Union 1603–1707 (1987) 4; B Galloway, The Union of England and Scotland, 1603–1608 (1986) 60–61.

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been his pragmatic aims, his ambitions were also inspired by ideas for an imperial and universal monarchy;31 but the difficulties were formidable. An English commentator claimed that the laws of the two countries were “toto genere in all things different”.32 Perhaps this was an extreme view, but those who claimed the laws were fundamentally the same also overstated their case. Thomas Craig concluded that, to bring the laws into harmony, it would be necessary either to go back to Norman law, or the jus Feudale; or, if common ground could not be found there, to the Civil Law, which, because it had so much natural equity (naturalis aequitas), shone forth among all peoples and was everywhere a common law (ius commune).33 This was not a view likely to appeal to English lawyers. A successful union of Scotland and England did come. But before that achievement, one had already been imposed in the 1650s by the armies of Oliver Cromwell. This led to an attempted major reconstruction of Scottish legal institutions combined with an aspiration to abolish Scots law, a stated ambition that was not realised.34 But one can suspect, as indeed is argued in part of the sixth chapter included here, that the experience of the disruption of the Cromwellian period that made the Scottish political classes determined to ensure that, when Union with England did come in 1707, Scots law and its institutions were to be protected. Thus, while ius publicum could be altered by Westminster and made the same throughout the United Kingdom, ius privatum – the laws concerning “private Right” – could only be revised when it was for the “evident utility of the Subjects within Scotland”. As I have shown elsewhere, this reflected both the Scottish Commissioners’ knowledge of Roman legal texts, and the necessary requirement of preservation of existing legal rights.35 The Scottish political classes were not revolutionaries. They were not setting out to be potentially expropriated by 31 J Robertson, “Empire and Union: Two Concepts of the Early Modern European Political Order”, in J Robertson (ed), A Union for Empire: Political Thought and the British Union of 1707 (1995) 3 (henceforth Robertson, Union for Empire). 32 Found quoted in B P Levack, “The proposed union of English law and Scots law in the seventeenth century” (1975) 20 Juridical Review 97 at 99. 33 T Craig, De unione regnorum Britanniae tractatus, ed by C S Terry (1909) 89 at 328. See further, B P Levack, “Law, Sovereignty and the Union”, in R Mason (ed), Scots and Britons: Scottish Political Thought and the Union of 1603 (1994) 213. 34 Cairns, “Historical Introduction” (n 3) at 101–105. For a recent study of aspects of the sources of the law in this period, see A Wilson, “Practicks in Scotland’s Interregnum” (2012) Juridical Review 319. 35 J W Cairns, “The origins of the Edinburgh Law School: the Union of 1707 and the Regius Chair” (2007) 11 EdinLR 300 (henceforth Cairns, “Origins of the Edinburgh Law School”) at 315–316. For an excellent recent discussion of the Union provisions, see J D Ford, “The legal provisions in the Acts of Union” (2007) 66 CLJ 66.

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an alteration of the Scots private law that protected their estates and indeed determined their rights, such as those to hold courts and to vote. Of course, the Union with England took place against a complex background of debate over unions, monarchies, confederations, and Empires that, until very recently, Scottish historiography has tended to ignore. A set of pioneering essays on Union and Empire edited by John Robertson pointed in a new direction that subsequent scholars have had to follow;36 some excellent works on the Union have resulted.37 It must always be recalled that multiple monarchies and composite and conglomerate states with diverse, overlapping and distinct jurisdictions, and different laws and legal systems, were common in the European monarchies and republics of the ancien régime.38 Unified political structures and unified national laws were to be the products of the Napoleonic era. Thus, both the Stuart multiple monarchy and the new Kingdom of Great Britain conformed to contemporary European patterns in both their political structures and varied legal systems. The English monarchy had extended English common law to Wales and Ireland; but the strength of the Scottish legal system and the specific political circumstances of the Union meant that substituting English for Scots law north of the border was simply impossible. The fifth chapter of this collection further explores the broader significance of the Union for Scots law, showing how the preservation of the existing law provided by the Union did not stifle the dynamism of Scots law, nor prevent its being open to outside influences, even from English law. Whereas once the law had been seen as ius proprium in opposition to the ius commune, now it was largely viewed within a structure of ius naturale and ius gentium. The education and culture of Scots lawyers supported such an understanding. The sixth chapter attempts to outline some of the changes in the legal system wrought by the Union. It shows that, prior to 1707, the Scots Parliament had been very active as a legislature, introducing many and significant reforms into Scots law. After the Union, this energetic legislative 36 J Robertson, “Preface”, in Robertson (ed), Union for Empire (n 31) xiii. 37 C A Whatley with D J Patrick, The Scots and The Union (2006); A I Macinnes, Union and Empire: The Making of the United Kingdom in 1707 (2007); C Jackson, “Conceptions of Nationhood in the Anglo-Scottish Union Debates of 1707”, in S J Brown and C A Whatley (eds), Union of 1707: New Dimensions (2008) 61. The tercentenary of the Union, unlike the anniversary of the Union of the Crowns, produced some excellent research. 38 H G Koeningsberger, “Composite states, representative institutions and the American Revolution” (1989) 62 Historical Research 135; J H Elliott, “A Europe of composite monarchies” (1992) 137 Past and Present 48.

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reforming activity fell away. Indeed, Westminster kept out of Scottish affairs as much as possible, legislating on Scottish affairs, other than revenue, only in response to Scottish lobbying or political crises, such as the Jacobite Rebellions. Chapter 6 locates these developments against the intellectual history of Scots law, paying particular attention to the now rather obscure figure of Sir Francis Grant of Cullen.39 What is important about Cullen is the way he reveals the typical mentalities of elite and thoughtful Scots lawyers of the period. He illustrates how, in seventeenth-century Scotland, as elsewhere in Europe, there had already been to some extent a re-orientation of the law, as the Roman or Civil Law and the municipal law blended in practice, so that the ius commune and the ius proprium were together creating something akin to what German scholars call the usus modernus pandectarum. Of course, this was founded on the earlier legal culture and traditions of the country. The era saw the production of institutional works of law; and in this Scotland again conformed to a general European pattern.40 The most significant of these types of works in Scotland was that produced by James Dalrymple, Viscount Stair, first printed in 1681, with a second edition of 1693, now readily available in a modern edition, based on the second, of 1981.41 Stair’s work had been circulating in manuscript, sometimes described as his Practicks, since the early 1660s, probably having first been drafted around 1659–1660.42 Adelyn Wilson’s careful study of the development of the text demonstrates Stair’s reliance on a limited number of sources to write his work, blending the Civil and the municipal laws, and adding in

39 On Grant, see C Jackson, “Revolution Principles, Ius Naturae, and Ius Gentium in EarlyEnlightenment Scotland: The Contribution of Sir Francis Grant, Lord Cullen (c 1660–1726)”, in T J Hochstrasser and P Schröder (eds), Early Modern Natural Law Theories: Context and Strategies in the Early Enlightenment (2003) 107. 40 K Luig, “The institutes of national law in the seventeenth and eighteenth centuries” (1972) 17 Juridical Review 73; J W Cairns, “Institutional writings in Scotland reconsidered” (1983) 4 JLH 76 (repr in A Kiralfy and H L MacQueen (eds), New Perspectives in Scottish Legal History (1984) 76) (henceforth Cairns, “Institutional writings in Scotland reconsidered”). 41 J Dalrymple, Viscount Stair, Institutions of the Law of Scotland: Deduced from its Originals, and Collated with the Civil, Canon and Feudal Laws, and with the Customs of Neighbouring Nations, ed D M Walker (1981). Various internet resources now make the first, second and subsequent editions all readily accessible. 42 See Ford, Law and Opinion (n 17) at 59–63; A L M Wilson “Sources and Method of the Institutions of the Law of Scotland by Sir James Dalrymple, 1st Viscount Stair, With Specific Reference to the Law of Obligations”, unpublished PhD thesis, University of Edinburgh, 2011, available at http://hdl.handle.net/1842/6205, last accessed 23 July 2013 (henceforth Wilson, “Sources and Method”).

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more citations of Roman law in his final version.43 But Stair’s originality and brilliance made him remarkable among Scots lawyers of the period. Indeed, as is explored in chapter 6 here, and in greater detail in the seventh chapter, Stair was unusual in the seventeenth century in the authority he gave to custom as a source of law within a general intellectual context of ius naturae and ius gentium. Into the eighteenth century Scots continued to understand their “municipal law” against the backdrop of the universal common law. The first Professor of Scots Law in the University of Edinburgh, regularly referred to himself – or was referred to – as Professor of Municipal Law or Professor iuris municipalis, to distinguish himself from the Professor of Civil Law, the ius civile. The terminology is significant.44 It draws a distinction with the ius civile or ius commune as a universal law. Further, municipal law could readily be understood to include local custom, as in Robert Burnet’s preface to the printed edition of Craig’s Jus feudale;45 in Scotland, however, it was often specifically identified with statutes or legislation. This was because, as argued in chapters 6 and 7, there was a general preference among the lawyers for reliance for authority on the writers of the learned law over the custom developed by courts. But the use of the term “municipal law” emphasises its local applicability in contrast to the Civil Law. In the later seventeenth century and the first half of the eighteenth, Scottish legal thinking came to be dominated by theories of natural law. Such traditions partly looked back to the writings of Thomas Craig; but his views on natural law also became understood through lenses provided by modern secular natural law, associated with the work of Hugo Grotius. The first chair in Law founded in Scotland in the modern period was that in Edinburgh devoted to Public Law and the Law of Nature and Nations;46 through much of the eighteenth century, the task of the professors was understood to be to teach using Grotius’s De iure belli ac pacis or a compend of the original.47 43 Wilson, “Sources and Method” (n 42) 253–265. 44 See, e.g., A Bayne, Notes for the Use of the Students of the Municipal Law (1731); Edinburgh Evening Courant, 26 October 1730, advertisement for his edition of G Mackenzie, Institutions of the Law of Scotland (1730), and Caledonian Mercury, 4 October 1725, advertisement for his class; both describe him as “J.M.P.”, i.e. “Juris Municipalis Professor”. 45 T Craig, Jus feudale, tribus libris comprehensum: quibus non solum consuetudines feudales, et praediorum jura, quae in Scotia, Anglia, et plerisque Galliae locis obtinent, continentur; sed universum jus Scoticum, et omnes fere materiae juris clare et dilucide exponuntur, et ad fontes feudalis et Civilis singula reducuntur, James Baillie (ed), 3rd edn (1732) x (jus nostrum municipale). 46 Cairns, “Origins of the Edinburgh Law School” (n 35) at 321–326. 47 J W Cairns, “The First Edinburgh Chair in Law: Grotius and the Scottish Enlightenment”, in R van den Bergh (ed), Ex iusta causa traditum: Essays in Honour of Eric H Pool (2005) 32.

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In the course of the century, however, some Scottish thinkers developed approaches that differed from traditional natural-law theorising. Thus, moral philosophers developed theories of judgement based on ideas of a moral sense or of moral sentiments; other scholars focused on conjectural history and theories of development linked to “stages” of society – hunting and fishing; pastoral; agricultural; commercial. Some scholars used this as a base to develop a science of legislation, linking reform to the specific needs of society.48 But, as argued in Chapter 7, this did not lead Scots to favour codification; rather they saw law as best developed through the operation of the courts. Indeed, some Scots lawyers became fearful of the potential implications of English codification proposals. Crucial in the modernisation of Scots law in the later seventeenth century was the developing intellectual engagement of Scots with Dutch Humanist culture, a tendency reinforced by William and Mary’s accession to the thrones of Scotland and England.49 In many ways, Scots scholars in all disciplines operated within the Dutch intellectual world during this era.50 The importance of this link with the northern Low Countries for Scots lawyers is demonstrated by the very high proportion of members of the Faculty of Advocates in the period from 1690 to 1730 who studied law in one (or more) of the universities of the Dutch Republic. There they typically took classes in natural law and Roman law, as well as often studying French and acquiring elegant accomplishments, while also following different intellectual and other interests.51 The life of the classicist, lawyer and elegant scholar Alexander Cunningham exemplifies the strong pull of the Dutch Republic’s scholarly world for learned Scots.52 The second section is thus devoted to the “Significance of Dutch Humanism”. 48 See, e.g., K Haakonssen, The Science of a Legislator: The Natural Jurisprudence of David Hume and Adam Smith (1981); J W Cairns, “Legal Theory”, in A Broadie (ed), The Cambridge Companion to the Scottish Enlightenment (2003) 222. 49 See, e.g., E Mijers and D Onnenkirk (eds), Redefining William III: The Impact of the KingStadholder in International Context (2007). During the troubled Restoration period, many Scots spent time in the Northern Netherlands: see G Gardner, The Scottish Exile Community in the Netherlands, 1660–1690 (2004). 50 See E Mijers, “News From the Republick of Letters”: Scottish Students, Charles Mackie and the United Provinces, 1650–1750 (2012) (henceforth Mijers, “News From the Republick of Letters”. 51 K van Strien and M Ahsmann, “Scottish law students in Leiden at the end of the seventeenth century. The correspondence of John Clerk, 1694–1697” (1992) 19 Lias 271 at 290–298 and 300–302. See also K van Strien and M Ahsmann, “Scottish law students in Leiden at the end of the seventeenth century. The correspondence of John Clerk, 1694–1697” (1993) 20 Lias 1 (henceforth van Strien and Ahsmann, “Scottish law students in Leiden”). 52 J W Cairns, “Alexander Cunningham’s proposed edition of the Digest: an episode in the history of the Dutch Elegant School of Roman Law” (2001) 69 Tijdschrift voor Rechtsgeschiedenis 81

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The impact of this milieu on the development of medical education in Edinburgh is well known.53 Chapter 8 provides an overview of the influence of Scots’ experience of Dutch legal education on the development of legal education in the Scottish universities, elaborating its impact on methods of teaching, curricula, and choice of textbooks. The influence of the approach of the Dutch law professors may also be traced in the work of early private teachers of law before the foundation of the university chairs.54 Legal education was not narrowly conceived. From the beginning, the Dutch Humanist approach was influential. Studies of Civil Law in particular – the core university discipline – were thought to require related studies of the ancient world, its politics and culture. The ninth chapter explores a small but vitally important aspect of this. Charles Mackie, an influential man at the centre of a network of correspondents, was appointed Professor of Universal History in 1719.55 The chapter not only shows that his class on universal history was based on that of Pieter Burman, which he had attended in Leiden, but also that he had Burman’s Antiquitatum Romanarum brevis descriptio reprinted in Edinburgh for the use of his class on Roman antiquities – a class partly aimed at law students.56 In turn, Burman was to produce an edition of the works of the great Scottish Humanist, George Buchanan.57 The experience of one Scottish student in the Netherlands is considered in the tenth chapter. There has only been one other such study of significance. Kees van Strien and Margreet Ahsmann examined Sir John Clerk of Penicuik’s time in the Netherlands in the 1690s, when Scottish attendance was at its height.58 Chapter 10, however, investigates the education of Sir David Dalrymple fifty years later, as the period of Scots study of law in the Netherlands was basically coming to an end. But it shows both the continuity in what was valued, including the wider experience of life that study abroad provided for such future leaders of the Scottish Bar and Bench. The focus on Hailes also allows us to see the continuing and later influence of education in the Netherlands on a minor figure of the era of the Scottish Enlightenment.

53 54 55 56 57 58

(Part I) and 307 (Part II). See also J W Cairns, “Alexander Cunningham, book dealer: scholarship, patronage, and politics” (2010) 5 Journal of the Edinburgh Bibliographical Society 11. See, e.g., Mijers, “News From the Republick of Letters” (n 50) at 85–89; H Dingwall, Physicians, Surgeons and Apothecaries: Medical Practice in Seventeenth-Century Edinburgh (1995) 229–235. J W Cairns, “John Spotswood, Professor of Law: A Preliminary Sketch”, in W M Gordon (ed), Miscellany III, Stair Society vol 39 (1992) 131. Mijers, “News From the Republick of Letters” (n 50) at 143–144. See also ibid at 159–163. G Buchanan, Opera omnia, cum indicibus rerum memorabilium, et praefatione Petri Burmanni (1725). Van Strien and Ahsmann, “Scottish law students in Leiden” (n 51).

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The group of men practising law who gathered around the College of Justice eventually coalesced as the Faculty of Advocates, though there were other groups of practitioners who acted as agents and the like.59 The most important recent work in the field has been by John Finlay, notably his outstanding social study of the College of Justice in the long eighteenth century.60 But there have been some other significant studies, such as Marina Franchtti’s of Jacobitism in the Faculty.61 Jasmin Hepburn has also produced a valuable examination of the work undertaken by a Writer to the Signet for his clients.62 The chapters in the third section of this volume explore aspects of the development of the Faculty, particularly as they relate to education in the Civil Law. Chapter 11, the first of the third section, “Development of the Legal Profession”, is an early and first exploration of the changing admission requirements of the Faculty of Advocates, arguing that developments in the seventeenth century reflected a Humanist legal culture, and expressed social and intellectual values and aspirations, rather than being focused on testing skills and knowledge needed for practice. It proceeds to demonstrate that changes in admission requirements, through the eighteenth century, resulted from the growth of a new Enlightenment culture, while also reflecting a new understanding of the role of an advocate. I would not now accept all the details of the argument in this chapter, but it is still the foundation of research that has provided a more nuanced understanding.63 The twelfth chapter develops aspects of the eleventh. It contains a detailed study of actual admissions and of modes of admission as an advocate, almost from the foundation of the College of Justice to the Regency era, focusing on development of a set of examinations in Civil (Roman) Law that came to replicate the exercises for examination in a university for the degree of Doctor of Laws. It was the focus on these examinations for admission that reinforced and perhaps even accelerated the tendency of Scots to acquire abroad the 59 J Finlay, “The lower branch of the legal profession in Early Modern Scotland” (2007) 11 EdinLR 31. See also the important Introduction to J Finlay, Admission Register of Notaries Public in Scotland, 1700–1799 (2012) vol i, 1–25. 60 J Finlay, The Community of the College of Justice: Edinburgh and the Court of Session 1687– 1808 (2012). 61 M Franchitti, “The Faculty of Advocates, 1700–1715. Was it Jacobite?”, unpublished LLM dissertation, University of Edinburgh, 2009. 62 J K R Hepburn, “A Lawyer and his Clients: David Erskine and the Stirlings of Keir”, unpublished LLM dissertation, University of Edinburgh, 2011. 63 For example, I would now understand Legal Humanism slightly differently, and would recognise a much greater practical utility in Civil Law in the later seventeenth and early eighteenth centuries.

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necessary knowledge and skills in Civil Law that they needed to pass their “trials”. The symbolism of the trials reinforced the status of the advocates as learned gentlemen and linked their profession with that of advocates in other countries. The thirteenth chapter explores how the use of the Civil Law to assert and maintain social status was challenged by the admission of two men towards the end of the eighteenth century. This confronted a civic Humanist concern, expressed through the use of languages of virtue and corruption, which provided a particular problem, given the Faculty’s tendency to identify itself with the Roman jurists. But it also hints at the movement towards a more modern idea of an advocate as following a profession. Recent work by John Finlay develops some related points.64 J G A Pocock pointed out the significance of French Humanism in the identification of “feudalism” as an historical category, and the role of Craig in spreading these views in England as well as Scotland.65 Indeed, in this respect one can readily trace the influence of Craig on English authors.66 The final section of the volume examines related and interlinked aspects of Craig, feudalism, Blackstone, English law and institutional writing. The particular importance of the discussions of feudalism and the ancient constitution in the works of William Blackstone has long been recognised.67 The fourteenth chapter traces the origin of Craig’s view of a feu, locating it clearly within Continental, specifically French, literature. In recent years, scholarship on English legal history has tended to pay much more attention to the relationships between English common law, the ius commune and early modern Civilian systems.68 Chapter 15 argues that an important way of understanding Blackstone’s Commentaries is as an institutional work.69 Such an approach has proved fruitful, and has been applied by other scholars to similar writings

64 J Finlay, “Corruption, Regionalism and Legal Practice in Eighteenth-Century Scotland” (2012) 86 Transactions of the Dumfries and Galloway Natural History and Antiquarian Society 143; J Finlay, “Ethics, etiquette and the Early Modern Scots advocate” (2006) Juridical Review 147. 65 Pocock, The Ancient Constitution and the Feudal Law (n 20) at 70–90. 66 See, e.g., Cairns and McLeod, “The English discovery of feudalism” (n 18). 67 See, e.g., Pocock, The Ancient Constitution and the Feudal Law (n 20). For my own consideration of this, see J W Cairns, “Blackstone, the ancient constitution and the feudal law” (1985) 28 Historical Journal 711. 68 See, e.g., R H Helmholz, The Ius Commune in England: Four Studies (2001); R H Helmholz, The History of the Canon Law and Ecclesiastical Jurisdiction, 597–1649, The Oxford History of the Laws of England vol i (2003). 69 See also A Watson, “Justinian’s Institutes and Some English Counterparts”, in P G Stein and A D E Lewis (eds), Studies in Justinian’s Institutes in Memory of J A C Thomas (1983) 181.

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in the Common-Law tradition, while also founding a critical literature.70 The comparative approach to Blackstone in a European context also leads, in Chapter 16, to an assessment of the teaching of English law in the eighteenth century in the universities, including that of Glasgow, assessing the novelty of those who departed from an institutional structure.71 Issues of classification, taxonomy and teaching intermingled through the century in England as in Scotland and Continental Europe. The next chapter, 17, shows the importance of comparative study in legal history. In 1977, the late Sir Otto Kahn-Freund had argued that Blackstone’s Commentaries gave an outdated account of master and servant because he followed in a particular tradition in English law, which led him to deal with the topic as part of the law of persons, rather than of contract. Sir Otto was a noted comparative lawyer, and he drew a contrast with the account of this topic in Pothier. In fact, the comparison was inappropriate; comparison with other institutional writers from France and Scotland shows that their accounts were comparable to those of Blackstone – they all included an account of master and servants in their book on persons. In Scotland, some “institutional writings” have been looked upon as having special authority as an expression of law;72 indeed a number of legal systems likewise give particular weight to certain older writers.73 Chapter 18 accordingly reflects on some technical issues raised by Early Modern books, and their potentially “moving” texts within editions, as well as the significance of the development of texts through editions, as they are altered and often acquire a changing apparatus of notes. A developed, edited text may come to be rather different from that originally composed by the author. The final edition of John Erskine’s Principles of the Law of Scotland that was 70 A Watson, “The structure of Blackstone’s Commentaries” (1988) Yale LJ 97; J H Langbein, “Chancellor Kent and the history of legal literature”, (1993) 93 Columbia LR 547 at 586, 590 and passim; R B Robinson, “The Two Institutes of Thomas Wood” (1991) 35 AmJLegHist 432 at 453–457; H J Berman and C J Reid, “The transformation of English legal science from Hale to Blackstone” (1996) 45 Emory LJ 437 at 493 n 109. (Reid and Berman note my mention of Johnson’s discussion of the term “institutist”, but complain I draw no conclusions from it. I thought the conclusions to be drawn from my quoting of Dr Johnson were so obvious as not to need further stating; but, in any case, I had already discussed the matter fully in Cairns, “Institutional writings in Scotland reconsidered” (n 40) at 79–80); S Sheppard, “Casebooks, commentaries and curmudgeons: an introductory history of law in the lecture hall” (1997) 82 Iowa LR 547 at 563–564 (n 65). 71 This looks forward to a major part of the second volume of these Selected Essays, that on Enlightenment, Legal Education, and Critique. 72 Cairns, “Institutional writings in Scotland reconsidered” (n 40) at 98–104. 73 F duBois, “Introduction: History, System and Sources”, in C G van der Merwe and J E du Plessis (eds), Introduction to the Law of South Africa (2004) 1 at 47–48.

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printed in 1911 bears a very different appearance from the simple teaching text that is the first edition of 1754. The volume thus investigates the development of Scots law and the Scottish legal system from a transitional phase at the beginning of the Early Modern period through to the start of the Modern era in the nineteenth century, in particular exploring the significance of the Civil Law, and its importance in legal education. But other aspects are not neglected. Indeed, the importance of a comparative approach is emphasised. While there has sometimes been a strange tendency to view Scottish legal history as no more than a history of influences from elsewhere, it is now impossible to pretend that any legal system developed on its own. The recognition of the need to be sceptical about traditional national histories is clear.74 The second volume of essays builds on the background found in the first to examine in detail the impact of the Enlightenment on Scots law and the Scottish legal system. The chapters there show how an Enlightened critique developed of and through legal education, leading to reform, which in turn affected the substantive law.

74 J W Cairns, “National, transnational and European legal histories: problems and paradigms. A Scottish perspective” (2012) 5 Clio@Themis: revue électronique d’histoire du droit, available at http://www.cliothemis.com/IMG/pdf/TP_Cairns.pdf, last accessed 24 July 2013.

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1 From Claves Curiae to Senators of the College of Justice: Changing Rituals and Symbols in Scottish Courts* A. INTRODUCTION The early history of Scots law is insufficiently documented to allow much insight into the use of symbols and rituals in practice. There are hints as to what there may have been. For example, keepers of relics were involved in particular procedures in pursuit of stolen goods. From this we can infer that certain ritual or symbolic practices were likely.1 As over much of Europe, the rituals surrounding the ordeal and the judicial duel were practised, until the Church ceased co-operation with the former, the latter lasting in some circumstances until quite late in the Middle Ages.2 Although there is a lack of evidence directing attention to symbolic communication before actual courts in Scotland, it is possible to consider

* The author is grateful for the comments of Dr Paul du Plessis and Professor H L MacQueen on an earlier draft. He is delighted to acknowledge the permission of the Keeper of the Records of Scotland to cite and, in some instances, quote from unpublished material in his care in the National Archives of Scotland (henceforth NAS). 1 See W D H Sellar, “Celtic law and Scots law: survival and integration” (1989) 29 Scottish Studies (henceforth Sellar, “Celtic law and Scots law”) 1 at 8. 2 See R Bartlett, Trial by Fire and Water: The Medieval Judicial Ordeal (1986) 46–49, 119–120, 130; W D H Sellar, “Courtesy, Battle and the Brieve of Right, 1368 – A Story Continued”, in W D H Sellar (ed), Miscellany II, Stair Society vol 35 (1984) 1 at 1–12; H L MacQueen, Common Law and Feudal Society in Medieval Scotland (1993) (henceforth MacQueen, Common Law and Feudal Society) 197–199. In the only known account of a purported trial by ordeal in Scotland, there is a miracle, through the intercession of a saint, that benefits a guilty man: R Bartlett (ed), The Miracles of Saint Æbbe of Coldingham and Saint Margaret of Scotland (2003) xlix, 118–119.

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how the very constitution of a court in the Middle Ages was in itself a symbolic communication, instructing those who attended or observed not only in the law and its procedures, but also in its values. This chapter will accordingly discuss aspects of the ceremonies involved in constituting a court in Scotland in the Middle Ages, focusing on a sixteenth-century description of what were called the claves curiae, the “keys of the court”, necessary for its proper constitution. Analysis of this will then be followed by that of a later description of a ceremony of admission as a lawyer, a ceremony rich in ritual and symbolism. This description permits appreciation of the significant change in Scottish legal culture: a change that created a court dealing in the learned law of the ius commune, in the proceedings of which much was reduced to writing, deliberations were secret, and legal professionals were much more clearly in charge.

B. FENCING THE COURT (1) “The Maner to hauld courtis” In the reign of Mary Queen of Scots, a clerk recorded for his future use “The Maner to hauld courtis”: Thare suld be assemblit and gaderit togidder all the tennentis frehalderis & utheris duelling within the regalitie barony or burcht Than the Lord schiref barrown bailzie of burcht or thair deputtis sall sit doun in Jugment takand with thame thair clerk seriand and dempstar quhilkis ar the principall memberis of court without quhome na court may be lauchfullie fensit and ony ane of thame be absent Than sall the clerk inroll the court in his buik in this maner sayand The court of etc. haldin in the tolbuith or at the mercat crose of etc The etc. day of etc. the zeir of god etc Be AB Lord or baillie of etc. or thair deputtis The court affirmit swittis callit The assyise sworne and admittit Than quhen the clerk hes Inrollit the court in maner foirsaid The seriand sall stand up with his wand in his hand And fense the court First call the Fre tennentis be the names of the landis and than say I defend and forbid in our souerane Lord and ladeis name And in name and behalf of AB Lord barroun or bailzie off etc. and his deputtis heir present that na man trubill this court nor tak speiche upon hand to speik ane for ane uther without leif askit and gewin under the panes of law The dampster sayand and that I gif for dome etc. Than sall the seriand call agane all the tennentis frehalderis & utheris Anis twyse thryse sayand compeir and enter as ze that aucht swyte and presence in this court as the heid court For the landis of etc Anis twyise thryse. Than sall the clerk wryte in his buik all thame that compeiris nocht absentis and samony as enteris nocht befoir the arysing of the court the dempstar sall

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gif  dome one thame sayand ABCD [this] court schawis for law And I gif for dome that ze and ilkane of zow ar in ane unlaw and amersiament of court sic as ze aucht to tyne upoun law for zour absens fra this court As the heid court as ze that aucht suit and presens to the samin for zour Landis of etc And that I gif for dome etc.3

There are other, comparable descriptions of how a court should be held.4

(2) The claves curiae If this particular account was recorded in the 1560s, much that was involved here was very ancient indeed. The “serjeant” might sound as if he were an officer of Norman origin, but in fact, although there is an obvious link and influence from the English “serjeant of the peace”, he is also linked to another royal official, the “major” or “mair”, with his wand as his badge of office, who may have had Celtic origins. Mairs and serjeants normally held office heritably in return for land.5 The dempster is another ancient officer. In the account above, he appears as one who pronounces the “dooms” of the court; in historical origin he had been the judge of the Celtic courts of Scotland, the breítheamh or brieve, in Latin iudex, who was progressively transformed into the ìudicator or, in Scots, dempster, who often held land in return for exercising this office.6 Dempsters and serjeants were two of the crucial and traditional “keys of the court”, claves curiae, along with the clerk.7 The suitors were also necessary.8 Who were the suitors would vary from court to court – the style above refers to freeholders owing suit and presence; typically in a sheriff 3 Found quoted in W C Dickinson (ed), The Sheriff Court Book of Fife, 1515–1522, Scottish History Society, Third Series, vol xii (1928) (henceforth Dickinson, Sheriff Court Book of Fife) at 406–407. 4 See, e.g., J Skene, “The Forme and Maner of the Baron Court”, in J Skene, Regiam Majestatem. The Auld Lawes and Constitutions of Scotland (1609; repr 1774) 189–190. 5 See W C Dickinson, “The Toschederach” (1941) 53 Juridical Review (OS) 85 at 92–99; Dickinson, Sheriff Court Book of Fife (n 3) lxii–lxvi. 6 Dickinson, Sheriff Court Book of Fife (n 3) lxvi–lxix; G W S Barrow, The Kingdom of the Scots: Government, Church and Society from the Eleventh to the Fourteenth Century, 2nd edn (2003) 57–67; Sellar, “Celtic Law and Scots Law” (n 1) at 3. 7 See, e.g., J Skene, De Verborum Significatione. The Exposition of the Termes and Dificill Wordes Conteined in the Foure Buikes of Regiam Majestatem, and Uthers, in the Acts of Parliament, Infeftments; And used in the Practique of this Realme; With Diverse Rules and Common Places, or Principalles of the Lawes (1681) 35 (sv “curia”), reprinted (with independent pagination) in R Bell, Dictionary of the Law of Scotland, 3rd edn, 2 vols (1826) vol ii; P G B McNeill (ed), The Practicks of Sir James Balfour of Pittendreich, 2 vols, Stair Society vols 21–22 (1962) (henceforth McNeill, Balfour’s Practicks) vol i, 273. 8 McNeill, Balfour’s Practicks (n 7) vol i, 273.

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court they were those who were freeholders of the Crown, in a baron or regality court those who held of the baron or lord of regality, in a burgh court the burgesses.9 They had the duty to attend the court and decide matters coming before it – an issue to which we shall return. There is evidence to suggest that the suitors stood outside the court until summoned according to the roll of those owing suit or suit and presence.10

(3) Fencing: defining the space The above quotation also reveals that one of the traditional prerequisites in constituting a court in Scotland in the Middle Ages and beyond was that it be “fenced”, one aspect of which was the calling of the suits, as well  as the formal declaration of the peace of the court in the name both of the monarch and of the individual or office-bearer whose court it was. This solemn act was usually indicated in the record by the Latin phrase “curia affirmata” or “curia firmata” or “curia confirmata” or by some variation of the “court fensit” in Scots. The procedure is recorded routinely for the courts of the justiciar, chamberlain, sheriff, baron, burgh, Four Burghs, regality, dean of guild, macers, and Parliament. Indeed, for as long as any of these courts lasted, fencing continued until it became an empty ceremony and fell into disuse or was abolished: the last courts to be fenced were, in the twentieth century, those of the Sheriff of Lanark at Glasgow and of the proceedings following the election of the Town Council of Edinburgh.11 In these it has now also long been given up. The ancient ceremony of fencing at one time defined the physical space of the peace of the court. Thus, in 1380, when the court of Alexander Stewart, Lord of Badenoch, was fenced “apud stantes lapides de Ester Kyngucy in Badenach” and the Bishop of Moray appeared to protest against the holding of the court, he did so “stans extra curiam”.12 Fencing designated a space where the King’s “girth” or special peace existed.13 While the term “girth” 9 See P J Hamilton-Grierson, “The suitors of the sheriff court” (1917) 14 Scottish Historical Review 1; P J Hamilton-Grierson (ed), Habbakuk Bisset’s Rolment of Courtis, 3 vols, Scottish Text Society, Second Series, vols 10, 13, 18 (1920–1926) vol 3, 44–53; I D Willock, The Origins and Development of the Jury in Scotland, Stair Society vol 23 (1966) 52–54, 75–76, 84, 88–90. 10 Dickinson, Sheriff Court Book of Fife (n 3) lxxxv. 11 P J Hamilton-Grierson, “Fencing the court” (1924) 21 Scottish Historical Review 54 (henceforth Hamilton Grierson, “Fencing”) at 54–55. 12 Dickinson, Sheriff Court Book of Fife (n 3) 309. 13 F Pollock and F W Maitland, The History of English Law before the Time of Edward I, 2nd edn, 2 vols (1986) vol ii, 463–464, on the “grith” [sic] of the king.

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is not found used in Scots law in this specific context, it was employed in Scotland to describe a sanctuary, in the sense of a defined space where an individual could seek safety until he had compromised with his opponents or agreed to trial by the king’s justiciar. It could also be used to describe a period of immunity, such as the “Yule girth”. As a sanctuary wider than the normal sanctuary of a church, a girth required a royal grant and was demarcated physically by a series of four crosses.14 We can thus understand the ceremony of fencing as creating a defined space under the special protection of the king, with particular penalties for breach of such special peace.15 In this connection it is particularly important to note that Scottish courts had once commonly met out of doors. Thus, for example, “The Maner to hauld courtis” refers to courts held at what is usually referred to in Scots as the mercat cross: that is, the cross at the market place of a burgh. As well as this reference to the privileges of the burgesses, records show courts being convened in places such as “on the muir of Pitcorthie” (marked by prominent standing stones) or at the “Standing Stanys de le Rathe de Kyngucy”, the Standing Stones of Rane, “super montem S. Thome martyris”, or the “hund hill” of Langforgund, or the Skait of Crieff.16 In this context, defining the specific area of the royal peace of the court by a ceremony of fencing had a practical value. Most of the sources that mention fencing the court in Scotland date, however, from the period when towns had started to erect tollbooths: that is, special buildings, initially as places to collect tolls and customs (in Latin tollonea), but later also as places to hold the head courts of the burgh and other assemblies of the burgesses (in Latin pretoria).The oldest reference to the use of a tolbooth as a place to hold a court comes from Berwick in

14 H L MacQueen, “Grith: Society and the Law of Sanctuary in Scotland”, in J W Cairns and O  F  Robinson (eds), Critical Studies in Ancient Law, Comparative Law and Legal History (2001) 333 at 334–343. 15 See, e.g., Acts of the Parliaments of Scotland, ed T Thomson and C Innes, 12 vols (1814–1875) (henceforth APS), vol i, 320 (c 14); M Bateson (ed), “The Scottish King’s Household and Other Fragments from a Fourteenth Century Manuscript in the Library of Corpus Christi College, Cambridge”, in Miscellany of the Scottish History Society, Scottish History Society 44, vol 2 (1904) 3 at 10–16, 33–34, 39–40; A Harding, “The medieval brieves of protection and the development of the common law” (1966) 11 Juridical Review (NS) 115 (henceforth Harding, “Medieval brieves of protection”). 16 Examples taken from Hamilton-Grierson, “Fencing” (n 11) at 58, n 10; G W S Barrow, “Popular Courts”, in G W S Barrow, Scotland and its Neighbours in the Middle Ages (1992) 145 at 226 (reprinted from G W S Barrow, “Popular courts” (1981) 25 Scottish Studies 1, and (1983) 27 Scottish Studies 67).

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the twelfth century, but such are commonly mentioned for significant royal burghs from the fourteenth century onwards.17 Courts other than those of burghs were commonly held in such tolbooths. Thus, the Sheriff Court of Fife met in the tolbooth (pretorium) of Cupar.18 Regality and barony courts commonly met in the tolbooth of the main burgh of the barony.19 Courts, however, were still far from being necessarily associated with a specific room or building. In the 1540s, it was stated of the bailies of Dunbar that “quhair ever the Bailies holdis the Court, that is ther Towbuth”.20 The Regality Court of Spynie met in the Chapter House of Elgin Cathedral, where presumably the main consistorial court of the diocese also met.21 The Regality Court of Musselburgh and Dunfermline was once fenced in the Tolbooth of Edinburgh, although, since this was outwith the boundaries of the regality, the permission of the Lords of Council and Session was required.22 In theory, the Court of the Admiral should have been fenced within the sea-flood; in practice it was fenced in the tolbooths of burghs on the sea coast, and the High Court of Admiralty was normally fenced either in Leith or the Tolbooth of Edinburgh.23 This meant, however, that, by the sixteenth century, fencing had become a ritual reduced to the utterance of words proclaiming the peace of the court.

(4) Fencing: the role of the suitors As noted, calling of the suits was an aspect of fencing. As well as those suitors who had a specific role, such as the serjeant or dempster, the presence of the suitors more generally was absolutely necessary to the functioning of the court. Their duty was originally to decide the matters that came before the

17 See Royal Commission on the Ancient and Historic Monuments of Scotland (ed), Tolbooths and Town-Houses: Civic Architecture in Scotland to 1833 (1996) (henceforth Royal Commission, Tolbooths) 1–2. 18 See, e.g., Dickinson, Sheriff Court Book of Fife (n 3) 1, 56. 19 Court Book of the Regality of Broughton and the Burgh of Canongate, 1569–1573 (1937) 1; D Hunter (ed), The Court Book of the Barony and Regality of Falkirk and Callendar, 1638– 1656, Stair Society vol 38 (1999), vol i, 1. 20 Royal Commission, Tolbooths (n 17) 1. 21 “Extracts from the Register of the Regality Court of Spynie, MDXC∏–MDCI”, in J Stuart (ed), Miscellany of the Spalding Club, Spalding Club vol 6 (1842) vol ii, 119. 22 M B Wasser and L A Yeoman (eds), “The Trial of Geillis Johnstone for Witchcraft 1614”, in Miscellany XIII, Scottish History Society, Fifth Series, vol 14 (2004) 83 at 107. 23 See T C Wade (ed), Acta Curiae Admirallatus Scotiae, 6th Sept 1557–11th March 1561/62, Stair Society vol 2 (1937) xxi.

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court.24 It became common, however, for an inquest, assize or jury to be specially chosen from the suitors to give a verdict. The decision or doom was, nonetheless, still one of the whole court;25 and as late as 1556 the burgesses of Aberdeen, as suitors to the burgh court, were asked their opinion individually on a difficult point “be the ordour of the suit rol”.26 This said, by this period many suitors preferred paying a fine to the burden of attendance.27 It was under this system of courts that the law of feudal Scotland of the later Middle Ages was developed. Note that fencing was carried out in the name of the monarch, as well as of the individual presiding in the court. The courts were exercising a delegated royal authority. Moreover, it is evident that the Scottish kings were always willing to interfere between a lord and his tenants.28 The system of royal brieves, which litigants could purchase from his writing chapel, by which the king gave directions to those presiding in court to investigate, do right and so on, created a common law through these courts.29 This said, the crucial role of the suitors indicates that the courts also represented to some extent the community over which the court exercised jurisdiction under the king’s peace and protection. What we see are courts that applied what the suitors considered to be the common understanding of the law, relying on their own experience and knowledge. We need not suppose that this resulted in rough and ready or unsophisticated justice, or denial of rights. It is evident that, although such courts in essence did not require the presence of a legal profession, they were capable of dealing with relatively sophisticated systems of pleading and procedure following on a royal brieve.30 Yet, the ceremony of fencing and the calling of the suits imparted a message of justice being rooted in the values of a community. The symbolic meaning of the ritual need not reflect a political reality. Most Scots lived on a barony or in a regality and their court was that of their lord. Even if it was the suitors who constituted the court, with the lord or his bailie only presiding, it is easy to suspect that individuals unpopular with the local community or their lord would get rather hard justice: neighbours 24 Dickinson, Sheriff Court Book of Fife (n 3) lxxii–lxxxvi. 25 See, e.g., ibid, lxxxviii. 26 W C Dickinson (ed), Early Records of the Burgh of Aberdeen, 1317, 1398–1407, Scottish History Society, Third Series, vol 49 (1957) cxvii, n 4. 27 Dickinson, Sheriff Court Book of Fife (n 3) lxxxii–lxxxiii. 28 MacQueen, Common Law and Feudal Society (n 2) 33–73. 29 Ibid 105–135; Harding, “Medieval brieves of protection” (n 15). 30 H L MacQueen, “Pleadable brieves, pleading and the development of Scots law” (1986) 4 Law and History Review 403.

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did not always become good friends. By the 1560s, most sheriffs held office heritably, which, in a society given to feuding, had a significant impact on the local dispensing of justice. There is no reason to suppose that justice dispensed by the community was always fair and impartial; indeed, there is considerable evidence to suggest the contrary.31

C. IUS COMMUNE, ADVOCATES, AND SENATORS (1) Alexander Seton: admission as “ane lawer” In continuing the history of his family (that of Seton) originally written by Sir Richard Maitland, Alexander, Viscount Kingston (c 1621–1691), gave the following paragraph concerning Alexander Seton (1556–1622): [H]e made his publick lesson of the law before King James the Sixth, the senators of the colledge of justice, and advocats present in the chapell royall of Holyroodhouse, in his lawer gown, and foure nooked cape, as lawers use to pass their tryalls in the universities abroad, to the great applause of the king and all present. After which, he was received by the colledge of justice as ane lawer [. . .].32

It would be interesting to know more about this rather puzzling occasion, the description of which was presumably based on family tradition. The date of 1577 has been suggested for it.33 This cannot be correct: probably born in 1556, Alexander Seton in 1577 was still abroad as a student.34 Granted the Priory of Pluscarden in 1565, he was sent to study in 31 See the remarks in J W Cairns, “Historical Introduction”, in K G C Reid and R Zimmermann (eds), A History of Private Law in Scotland: Volume 1: Introduction and Property (2000) 14 (henceforth Cairns, “Historical Introduction”) at 59–61. 32 R Maitland, The History of the House of Seytoun to the Year MDLIX . . . with the Continuation, by Alexander Viscount Kingston to MDCLXXXV∏, Maitland Club vol 1 (1829) 63–64 (henceforth Maitland, House of Seytoun). See also G Brunton and D Haig, An Historical Account of the Senators of the College of Justice from its Institution in MDXXX∏ (1836) (henceforth Brunton and Haig, Historical Account) 198–199, and R K Hannay, The College of Justice: Essays on the Institution and Development of the Court of Session (1933), reprinted in H L MacQueen (ed), The College of Justice: Essays by R K Hannay, Stair Society, Supplementary Series 1 (1990) 142–143 (henceforth Hannay, College of Justice). 33 See G Seton, A History of the Family of Seton during Eight Centuries, 2 vols (1896) (henceforth Seton, Family of Seton) vol ii, 635, followed by F J Grant (ed), The Faculty of Advocates in Scotland, 1532–1943, with Genealogical Notes, Scottish Record Society vol 145 (1944) (henceforth Grant, Faculty of Advocates) 189. 34 See M Lee, “King James’s Popish Chancellor”, in M Lee, The “Inevitable” Union and Other

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Rome, first at the German College, run by the Jesuits, which he entered on 17  June 1571, leaving it on 16 September of that year to enter the Roman College, from  which he departed on 4 December 1578.35 He allegedly distinguished himself there  in humanist learning.36 Leaving Italy, he is reported as having studied law in France, though there is no evidence as yet of where, and it can have been for no more than two years, as he was back in Scotland to have the grant of the Priory of Pluscarden to James Douglas reduced by the Lords of Session on 3 July 1581.37 Thus, if this ceremony took  place  at  all,  it  was probably between  Seton’s return in late 1580 or early 1581 and late 1583, when he accompanied his father on an embassy to France.38 The text has been understood as demonstrating that the College of Justice, through this process, admitted Seton as an advocate.39 While this may be questioned in a technical sense, since there is no record in the Books of Sederunt of his formal admission to plead before the College, it is perhaps unimportant. The history of the advocates is obscure at this period, but they seem to have had little corporate organisation. At this era, understandings of what it was to be “ane lawer” were far from possessing the clear, defined bureaucratic understanding they acquired later. This said, Kingston’s account certainly reflects elements of what we know happened when an advocate was admitted in Scotland at this period.40

35

36 37

38

39 40

Essays on Early Modern Scotland (2003) 145 (henceforth Lee, “King James’s Popish Chancellor”) at 145 for his date of birth. M Livingstone et al (eds), Registrum Secreti Sigilli Regum Scotorum, 8 vols (1908–1982) (henceforth Livingstone et al, Registrum), vol v, part 1, 664–665 (no 2315); M Dilworth, “Scottish students at the Collegium Germanicum” (1968) 19 Innes Review 15–22 (henceforth Dilworth, “Scottish students”) at 20–21. Maitland, House of Seytoun (n 32) 63. Ibid; Seton, Family of Seton (n 33) vol ii, 635. Seton had been deprived of Pluscarden in his absence and it had been granted to Douglas, illegitimate son of the Regent, the Earl of Morton: J M Thomson et al (eds), Registrum Magni Sigilli Regum Scottorum: The Register of the Great Seal of Scotland, 8 vols (1882–1914) vol iv, 717 (no 2640). The pendulum of politics had now swung again, with the fall of Morton. Dilworth, “Scottish students” (n 35) at 21, correctly points out that he cannot have spent several years in France; it is, however, plausible for him to have spent two: 1579 and 1580. He was certainly absent from Scotland in June 1579 when his father and three brothers signed a bond to keep the peace – had he been present he would have had to do so too: J H Burton et al (eds), Register of the Privy Council of Scotland, First Series, 14 vols (1877–1898) vol iii, 182 (12 June 1579). See Livingstone et al, Registrum (n 35) vol 8, 256 (no 1567); G Seton, Memoir of Alexander Seton, Earl of Dunfermline, President of the Court of Session, and Chancellor of Scotland (1882) (henceforth Seton, Memoir of Alexander Seton) 21. See Grant, Faculty of Advocates (n 33) 189. See J W Cairns, “Advocates’ hats, Roman law and admission to the Scots Bar, 1580–1812” (1999) 20, 2 JLH 24 (henceforth Cairns, “Advocates’ hats”) at 34–38.

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As a ceremony of admission as an advocate it was, however, untypical. Advocates were not normally admitted to plead before the College through a ceremony at the royal palace before the king. But Alexander Seton himself was untypical as “ane lawer”. A nobleman, a younger son of George, fifth Lord Seton, he was destined to have a glittering career in royal service as councillor, judge and Lord Chancellor, ending as Earl of Dunfermline.41 The ceremony reflected his status. The very terminology of the quotation from Kingston reveals that we are in a somewhat different legal world from that of “The Maner to hauld courtis”: a legal world where the differing symbolism and ritual reflected different concerns and values.

(2) The Lords of Council, fenced courts, and sessions The College of Justice with its Senators was in origin a new central civil court that had developed out of the king’s Council. Parliament had been the only central court in the original system of courts mentioned above, with both a jurisdiction to hear certain pleas, and also to deal with “falsed dooms” from lower courts; and it developed special committees to deal with both.42 It exercised such jurisdiction by virtue of its traditional role as the forum within which the king and his Council dealt with the complaints and grievances of his subjects. The Council on its own could deal with grievances, but, unlike Parliament, it was not a fenced court with a dempster.43 Through the fifteenth century, however, litigants had made determined attempts to bring their causes before the king either in his Council or in his Parliament.44 Reactions to these attempts to expand this jurisdiction alternated between either reasserting that the king’s subjects should take such litigation before their “ordinary” judges or embracing these attempts and providing various institutions to cope.45 Thus in 1425, Parliament urged that litigants should take their complaints to be “execut and determyt be the Jugis and officiaris of the courtis to quham thai pertene of law”, that is to say, by the “Justice chawmerlane 41 See Lee, “King James’s Popish Chancellor” (n 34); Seton, Memoir of Alexander Seton (n 38). 42 P J Hamilton-Grierson, “The Judicial Committees of the Scottish Parliament, 1369–1370 to 1544” (1925) 22 Scottish Historical Review 1–13. 43 A A M Duncan, “The Central Courts before 1532”, in G C H Paton (ed), An Introduction to Scottish Legal History, Stair Society vol 20 (1958) 321 at 322–329. 44 See the discussion in Cairns, “Historical Introduction” (n 31) at 57–64. 45 Ibid.

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shereffis bailyies of burrowis baronis or spirituale Jugis”. These judges and those of regalities were exhorted to do “full law and Justice” to all, rich and poor, without fear or favour. The statute thus exhorted litigants to sue before the judges of the traditional fenced courts (except where it was appropriate to pursue before an ecclesiastical judge).46 The next year, in contrast, Parliament established what became known as “Sessions” to deal with the judicial business that would normally have been dealt with by the king’s Council.47 Through the 1490s, however, the Council essentially accepted an increased jurisdiction with a role as a central civil court. Moreover, it became a regular practice to reinforce the Council with men especially skilled in law, and, by 1513, a core of eight ecclesiastics and nine laymen carried out the judicial work of the Council as Lords of Session. Among the ecclesiastics was a small but important number of academically trained lawyers.48

(3) The foundation of the College of Justice The growth of the Session into a central civil court was inhibited by the problems of the minority of James V. In the later 1520s, however, earlier trends were resumed, and the Lords of Council even assumed a jurisdiction to deal with issues of fee and heritage that they had earlier rejected.49 It was probably Gavin Dunbar, Archbishop of Glasgow, Chancellor of Scotland from 1528, and utriusque iuris doctor of Angers, who formulated a plan to endow the Session from the revenues of the Scottish Church.50 This was achieved by securing a Papal Bull in 1531, which, narrating that King James wished to establish a College to administer civil justice, half the members of which were to be churchmen, ordained that the Scottish prelates should contribute 10,000 ducats annually towards its support.51 In 1532, an Act of Parliament, narrating the intention to create a College 46 47 48 49

APS (n 15) vol ii, 8 (c 24) (1425). Ibid, vol ii, 11 (c 19) (1426). Cairns, “Historical Introduction” (n 31) at 58–59, 63. See A M Godfrey, “The assumption of jurisdiction: Parliament, the King’s Council and the College of Justice in sixteenth-century Scotland” (2001) 22, 3 JLH 21. 50 See J W Cairns, “Revisiting the Foundation of the College of Justice”, in H L MacQueen (ed), Miscellany V, Stair Society vol 52 (2006) 27 (henceforth Cairns, “Revisiting”). 51 The Acts of Sederunt of the Lords of Council and Session, From the Institution of the College of Justice, In May 1532, to January 1553 (1811) (henceforth Acts of Sederunt) 85–87; see the discussion in Cairns, “Revisiting” (n 50).

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of Justice of fourteen men and a President, appointed individuals to these offices to provide justice with the authority that the Lords of Session previously had.52 In 1535, a further Papal Bull confirmed and erected the College of Justice, noting its earlier parliamentary institution and the appointment of the President and fourteen Councillors of the College of Justice, and appointed conservators of the College and its privileges. It described the College as including, as well as the President and Senators (a term used in the bull), the advocates, clerks, notaries and officials admitted by the President and Councillors.53 Subsequent to this, a provincial council of the Scottish Church dealt with the financing of the College.54 In 1541, Parliament ratified the foundation of the College, with its President and Senators, a statute necessary in part because of the king’s recent revocation of alienation of property made when he was under age.55

(4) The College of Justice and the ius commune Thus, in contrast to the apparent position with the first quotation describing the necessary ceremony of fencing for the validity of a court, the second quotation describes a ceremony that alludes to a central court that has  developed out of the previously exceptional jurisdiction of the king’s Council. It was a court described and understood using terminology prevalent in the ius commune. For example, the first reporter of the decisions of the Grand Conseil de Malines described a “Senate” as a “College of many judges founded by a supreme prince or a republic having that authority, to decide all causes, civil as well as criminal, on behalf of the supreme magistrate”.56 This means that the reference to Senators of the College of Justice in the description of the ceremony involving Alexander Seton is a reference to a different type of legal world, one in which justice is centralised, more intimately linked to a royal bureaucracy, and which, by its terminology, alludes to the world of the academic legal learning of the ius commune. And indeed, this perception is reinforced by the fact that the College had

52 53 54 55 56

APS (n 15) vol ii, 335–336 (c 2) (1532). See Acts of Sederunt (n 51) 87–91 (bull) and 91–104 (process on bull). Hannay, College of Justice (n 32) 71–72. APS (n 15) vol ii, 371 (c 10) (1541). P van Christynen, Practicarum Quaestionum Rerumque in Supremis Belgarum Curiis Actarum et Observatarum Decisiones, 6 vols (1626–1633) vol i, 1 (Dec 1).

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its own stylus curiae based on Romano-Canonical procedure.57 In fact, the Lords of the Council had been using Romano-Canonical procedure before the foundation of the College of Justice.58 That the President and half the Senators had to be ecclesiastics reinforced this trend. The first President of the College of Justice was Alexander Mylne, a canon lawyer, who had been the Bishop’s Official of Dunkeld, who owned a library of Civil and Canon Law books.59 Of the other ecclesiastics first appointed to the new  court, two had also served as officials: Henry White, Rector of Fynevin, as Official of Dunblane, and Robert Reid, Abbot of Kinloss, as Official of Moray.60 This trend continued in subsequent appointments. Thus, Arthur  Boece, who  had  originally been named as a member of the  College in the Act of  1532, but had not taken up his office, finally became a Senator in 1535. He had served as a Commissary of Aberdeen and also as Canonist  in the University of Aberdeen.61 John Sinclair, Licentiate in Civil and Canon Laws, had also been Canonist in Aberdeen, while John Weddell, Licentiate in utroque iure, and Adam Crichton had both served as Official of Lothian.62 John Gledstanes, Licentiate in both the laws, was

57 See, e.g., Cairns, “Historical Introduction” (n 31) at 62–64, 71–73; G Dolezalek, “The Court of Session as a Ius Commune Court – Witnessed by ‘Sinclair’s Practicks’, 1540–1549”, in H  L  MacQueen (ed), Miscellany IV, Stair Society vol 49 (2002) 51, J Finlay, Men of Law in Pre-Reformation Scotland (2000) 87–122; A M Godfrey, “Civil Procedure, Delay and the Court of Session in Sixteenth Century Scotland”, in C H van Rhee (ed), The Law’s Delay. Essays on Undue Delay in Civil Litigation (2004) 107 at 112–114. 58 See J J Robertson, “The Canon Law Vehicle of Civilian Influence with Particular Reference to Scotland”, in D L Carey Miller and R Zimmermann (eds), The Civilian Tradition and Scots Law: Aberdeen Quincentenary Essays (Schriften zur Europäischen Rechts- und Verfassungsgeschichte 20) (1997) 117 at 118–125; J W Cairns, “Ius Civile in Scotland, ca 1600” (2000) 2 Roman Law Tradition 136 at 141–147. 59 D E R Watt and A L Murray (eds), Fasti Ecclesiae Scoticanae Medii Aevi Ad Annum 1638, Scottish Record Society, NS vol 25 (2003) (henceforth Watt and Murray, Fasti) 163. On his library, see J Durkan and A Ross, Early Scottish Libraries (1961) 132–133 (henceforth Durkan and Ross, Libraries); J Durkan and J Russell, “Additions to J Durkan and A Ross, Early Scottish Libraries, at the National Library of Scotland” (1982) 11 The Bibliotheck 29 at 35; Lyon & Turnbull (eds), Printed Books, Manuscripts, Maps and Atlases, Tuesday 1st February 2005 (2005) 79 (no 276). 60 Watt and Murray, Fasti (n 59) 121 at 319. On Reid’s library, see Durkan and Ross, Libraries (n 59) 44–47. On Reid and legal education, see J Kirk, “Clement Little’s Edinburgh”, in J R Guild and A Law (eds), Edinburgh University Library, 1580–1980: A Collection of Historical Essays (1982) 1 at 7–11. 61 Watt and Murray, Fasti (n 59) 33; L J Macfarlane, William Elphinstone and the Kingdom of Scotland, 1431–1514: The Struggle for Order (1995) 321. 62 A L Murray, “Sinclair’s Practicks”, in A Harding (ed), Law-Making and Law-Makers in British History: Papers Presented to the Edinburgh Legal History Conference, 1977, Royal Historical Society, Studies in History, vol 22 (1980) 90 at 94; on Weddell and Crichton, see S Ollivant, The Court of the Official in Pre-Reformation Scotland, Stair Society vol 34 (1982) 173–174.

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appointed Civilist in St Mary’s College in St Andrews in 1539, and a Senator in 1542.63

(5) Gown, cap, and lesson The description of the ceremony reinforces the perception of reference to the academic world of the utrumque ius. Seton not only wears a lawyer’s gown, but also a four-cornered cap of the type that lawyers wear to pass their “tryalls” – that is, examinations – at the universities abroad. The Papal Bull of 1535 had described the College as also consisting of the advocates admitted by the Senators. Under the authority granted in 1532, the Lords had issued a series of regulations for the court, one of which concerned the admission of “advocatis and procuratouris”, who had to be “of best name, knawledge and experience”.64 Not much is known of how this was handled initially, nor of how the qualifications of “knawledge and experience” were interpreted; but, by the date of Seton’s public lesson in Holyroodhouse, there were two tracks by which individuals could be admitted as advocates. The first was by long experience of “practick”, generally as servitor to an advocate; the second was by making a claim to academic training in law.65 Between 1575 and 1608, a period when there are good statistics, no less than two-thirds of those admitted based their claim primarily on the possession of an academic education in law, and where a university was specified, it was generally French.66 From 1580, those who petitioned for admission on academic grounds claim to have given proof of their learning by reading a public lesson. The first who did so was John Arthur, who, after teaching philosophy in the University of St Andrews, had studied law for seven years in Toulouse and Poitiers in France; he also claimed to have passed two years in the study of the “practick”.67 Towards the end of 1580, John and David McGill, who 63 See M H B Sanderson, Cardinal of Scotland: David Beaton c 1494–1546 (2001) 122; R K Hannay (ed), Acts of the Lords of Council in Public Affairs, 1501–1554 (1932) (henceforth Hannay, Acts) 558; see P G B McNeill, “Senators of the College of Justice: 1532–69” (1978) 23 Juridical Review (NS) 209 (henceforth McNeill, “Senators”) at 214. 64 Hannay, Acts (n 63) 377 (27 May 1532). 65 Hannay, College of Justice (n 32) 139–140. 66 Ibid, 145–147. 67 NAS, Books of Sederunt, CS.1/3/1, fol 114v–115r (8 March 1579/80). On Arthur, see J W Cairns, “Academic feud, bloodfeud, and William Welwood: legal education in St Andrews, 1560–1611: Part I” (1998) 2 EdinLR 158 (henceforth Cairns, “Academic feud”) at 170–171; J W Cairns, “The law, the advocates and the universities in late sixteenth-century Scotland” (1994) 73 Scottish  Historical Review 171 (henceforth Cairns, “The law, the advocates and the universities”) at 183–184.

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had studied law in France, the latter at Bourges, petitioning for admission, described themselves as having given “specimen doctrine”.68 Next month, Alexander King presented a petition for admission as advocate, in which he claimed that, after studies in St Andrews, he had studied law for four years and had been an expectant advocate for two or three years. He had also demonstrated his ability “be publict teitching in the tolboith as is accustommat be lauaris befoir thair admissioun in the said office”.69 If the giving of a public lesson or “specimen doctrine” by those academically qualified is only recorded from 1580, King’s petition suggests either that it was already an established practice, or that it reflected practice elsewhere. It is worth noting Parliament’s ratification in November 1579 of the Visitation of the University of St Andrews, which had recommended that the Professor of Law there should give four lessons weekly: [T]o which lessonis in the law sall be ordinar auditors all the aduocattis and scribis in the consistorie, and sic vthers as ar desirous to proceid in the facultie of the law, and that nane be admittit befoir the Lordis or vther iuges to ordiner procuratioun, Except they sall gif first specimen doctrine in the vniuersitie of Sanctandrois, and report a testimoniall of the said vniuersitie witnessing thair qualificatioun, and how far the haue proceidit in the studie of the law; and thairwithe all affirming that they diligentlie keipit the lessonis salang as they remaint in the vniuersitie.70

In January 1580, the King and Privy Council had issued instructions to put these recommendations into effect.71 The current law professor at St Andrews, William Skene, was a licentiate in both the laws, probably of Bourges, and certainly taught, though his teaching may have been somewhat elementary.72 Despite the aims of Parliament and the Privy Council, however, there is no evidence that intending lawyers in fact gave such “specimen doctrine” in the University of St Andrews. It nonetheless is very likely that 68 NAS, Books of Sederunt, CS.1/3/1, fol 137r (25 December 1580). David McGill, already a Bachelor in Civil Law, obtained his licentiate in civil law in 1579 in Bourges. The diploma for his licentiate, signed by Jacques Cujas, survives: NAS, Stair Muniments, GD 135/2717. See M-C Tucker, Maîtres et étudiants écossais à la Faculté de Droit de l’Université de Bourges (1480–1703) (2001) (henceforth Tucker, Maîtres et étudiants écossais) 229–230, 261–262. 69 NAS, Books of Sederunt, CS.1/3/1, fo 139 (24 January 1580/81). 70 Evidence, Oral and Documentary, Taken and Received by the Commissioners Appointed by His Majesty George IV, July 23rd 1826; and Re-Appointed by His Majesty William IV, October 12th 1830; for Visiting the Universities of Scotland, University of St Andrews, Parliamentary Papers XXXVII, vol iii (1837) 184–185. 71 Ibid, 189–191. 72 Cairns, “The law, the advocates and the universities” (n 67) at 178–183; Cairns, “Academic feud” (n 67) at 168–170.

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the start in 1580 of recording the giving of a public lesson before admission reflected this royal and parliamentary initiative. Moreover, the evidence shows that this lesson was generally on the ius civile.73

(6) College of Justice and colleges of doctors The ceremony whereby Alexander Seton was purportedly “received by the colledge of justice as ane lawer [. . .]” may have had some unusual aspects;74 but it evidently reflected the actual admissions of advocates to practise before the Senators of the College of Session, in which they gave a lesson on Roman law, presumably in Latin, before the Lords in the Tolbooth of Edinburgh, where the court usually sat. The period when he would have given the lesson – between early 1581 and late 1583 – was the period when this practice had, perhaps recently, come into use. If his legal studies conformed to those of most contemporary Scots students in France, should he indeed have studied law there, he will have followed the curriculum for the licentiate in laws, whether or not he actually took the degree, studying  both  the Roman and Canon Laws.75 Together with his studies in Rome, this adequately prepared him to give such a lesson. Seton’s public lesson also allows us to understand that the admission ceremony  was  designed to be similar to the acquisition of a university degree in law: his wearing of what was probably a doctoral cap indicates this in particular. That the ceremony for admission as an advocate before the College of Justice derived from the examination for a doctorate raises questions as to the extent to which the members of the College of Justice considered themselves in some respects to be analogous to the colleges of Doctors of Civil and Canon Law found in some Italian towns and universities.76 Here too it is important to note that, at the University of St Andrews, while the Faculty of Canon 73 Cairns, “Advocates’ hats” (n 40) at 36–38. 74 Maitland, House of Seytoun (n 32) 63–64. 75 Hannay, College of Justice (n 32) 145–147; J Durkan, “The French Connection in the Sixteenth and Early Seventeenth Centuries”, in T C Smout (ed), Scotland and Europe, 1200–1850 (1986) 19 at 25–27. 76 See P Weimar, Zur Renaissance der Rechtswissenschaft im Mittelalter, Bibliotheca Eruditorum vol 8 (1997) 325–329 (= P Weimar, “Zur Doktorwürde der Bologneser Legisten” in C Bergfeld (ed), Aspekte europäischer Rechtsgeschichte. Festgabe für Helmut Coing zum 70 Geburtstag, Ius Commune Sonderhefte vol xvii (1982) 421 at 439–443; A García y García, “The Faculties of Law”, in H de Ridder-Symoens (ed), A History of the University in Europe, vol i: Universities in the Middle Ages (1992) 388 at 399–400; Hannay, College of Justice (n 32) 49–50; P G Stein, “The College of Judges of Pavia” (1952) 64 Juridical Review (OS) 204.

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Law examined candidates for degrees in Canon Law, it was the “doctors of the honourable College of Civil Law in the city of St Andrews” who did so for those in Civil Law.77 It is suggestive that, in the 1550s, Mary of Guise established Royal Lectureships in Edinburgh, one of which was held by the distinguished Humanist, Edward Henryson. A Doctor of Laws, Henryson had taught at Bourges and was employed to teach Greek and the utrumque ius. Advocatus pauperum in the College of Justice in 1558, he became an Extraordinary Lord of Session in the College in 1566. He had already enjoyed the patronage of two Senators who were noted Canon lawyers: Robert Reid and Henry Sinclair.78 It is possible to see how a College of Justice with wider aims and claims could have developed. While intriguing, all of this should probably not be pushed too far, and nothing directly comparable to one of the Italian Colleges resulted, and the Reformation put paid to the Royal Lectureships.79

D. CONCLUSION The description of “The Maner to hauld courtis” dates from the time when the College of Justice had already been created. The style of court it described was, however, in the process of being superseded. In 1540, in a series of statutes reforming court procedure, one Act instructed all sheriffs and other temporal judges to follow the procedure of the College of Justice in all personal actions.80 While older procedures lasted for some types of process, in future most civil matters were not decided by the suitors of the court – even if the suits in theory still continued to be called in some courts – and sheriffs and bailies started to take on the role of judges. Proofs reliant on the suitors’ and juries’ understanding of litigants’ reputation and wager of law by compurgation had already declined or vanished,

77 G Donaldson and C Macrae (eds), St Andrews Formulare, 1514–1546, 2 vols, Stair Society vols 7 and 9 (1944) vol ii, 309–311 (nos 524–525). 78 J Durkan, “The royal lectureships under Mary of Lorraine” (1983) 62 Scottish Historical Review 73–78 (henceforth Durkan, “Royal lectureships”) at 74–75; Tucker, Maîtres et étudiants écossais (n 68) 220–221, 277–278, 337–340; J Durkan, “Henry Scrimgeour, Renaissance bookman” (1978) 5 Edinburgh Bibliographical Society Transactions 1 at 2–4; Watt and Murray, Fasti (n 59) 319; McNeill, “Senators” (n 63) at 213; Brunton and Haig, Historical Account (n 32) 132–133. 79 Durkan, “Royal lectureships” (n 78). 80 APS (n 15) vol ii, 358 (c 7) (1540).

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as the learning of the utrumque ius with the rational system of proofs of the ius commune had started to penetrate Scots procedures long before 1532, much less 1540. Nonetheless, the changes towards the new system outside the College of Justice took some time to work through. In the 1520s, some courts still had juries that were self-informing and which called on witnesses to appear before them in a process outwith the full court.81 After 1540, however, the role of juries or inquests in civil matters became limited to certain classical brieves. Legal process was marked in all courts by increasing reliance on professionals. The College of Justice, dominated by its academically trained senators and advocates, reinforced and stimulated this trend. The contrast between the ritual of fencing with its underpinning idea of the keys of the court, and that of admission as an advocate or lawyer with a public display of learning in the ius commune dressed as a Doctor of the Laws, marks the change that had taken place in Scots law and legal practice over the course of the sixteenth century. While once justice was dispensed by the suitors of the court as members of a local community, now it became a matter for trained professionals with an academic education in the utrumque ius. The Lords of Council, transformed into the Senators of the College of Justice, became the normal jurisdiction for civil litigation of any consequence. The new rituals were the rituals of the universities and law faculties, asserting the status and learning of the College and its members. The ritual of admission also emphasised the significance of impartial central justice over the justice dispensed by courts in the localities associated with great lords and magnates: no doubt, that was one of the great strengths of the College of Justice, though not itself without faults. This indicates the extent to which the creation of a central court was an aspect of the formation of Scotland as a more centralised sovereign state in the later sixteenth century. Seton may not have practised as an advocate, but he was a successful and talented royal judge and servant. His admission and career demonstrate the manner in which university-trained administrators with bureaucratic skills were becoming central to government.82 This tendency was accelerated by James VI’s departure from Scotland in 1603, as Scotland 81 W C Dickinson (ed), The Court Book of the Barony of Carnwath, 1523–1542, Scottish History Society, Third Series, vol 29 (1937) 104–105. 82 For an exploration of transformations in Scottish government in this period, see J Goodare, The Government of Scotland, 1560–1625 (2004); J Goodare, State and Society in Early Modern Scotland (1999).

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could no longer be governed through a monarch’s direct links with and personal knowledge of the nobility based in the localities. Great nobles were becoming courtiers; minor nobles, such as Seton and many others, were becoming lawyers and bureaucrats in royal service.83

83 The Scottish nobility have recently been the object of a general study of this period: K M Brown, Noble Society in Scotland: Wealth, Family and Culture, From Reformation to Revolution (2000).

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2 English Looters and Scottish Lawyers: The Ius Commune and the College of Justice A. INTRODUCTION On 10 April 1544, Henry VIII of England issued the following instructions for an attack on Scotland: [P]ut all to fyre and swoord, burne Edinborough towne, so rased and defaced when ye have sacked and gotten what ye can of it, as there may remayn forever a perpetuel memory of the vengeaunce of God lightened upon [them?] for their faulsehode and disloyailtye. Do what ye can out of hande, and without long tarrying, to beate down and over throwe the castle, sack Holyrod house, and as many townes and villaiges about Edinborourgh as ye may conveniently, sack Lythe and burne and subverte it and all the rest, putting man, woman, and childe to fyre and swoorde, without exception where any resistence shal be made agaynst you [. . .].1

The background to this fierce order was the Scots Parliament’s recent repudiation of the Treaties of Greenwich, under which the infant Mary, Queen of Scots, had been to marry Henry’s son, Edward. The complex politics need not detain us.2 In May 1544, the Earl of Hertford accordingly led a great sea- and land-borne attack on Edinburgh. This event was part of a sequence of English aggression to become known as the “Rough Wooing”, whereby Henry hoped to force the marriage and gain control of the Scottish Queen.3 Hertford’s army captured and sacked Holyrood Abbey and Palace, Canongate, and large parts of Edinburgh.4

1 J Bain (ed), The Hamilton Papers (1890–1892) vol ii, 326 (no 207). 2 G Donaldson, Scotland: James V–James VII (1965) (henceforth Donaldson, Scotland) 63–74. 3 Donaldson, Scotland (n 2) 69–72; M Merryman, The Rough Wooings: Mary Queen of Scots, 1542–1551 (2000) 137–163, 232–264. 4 M Lynch, Edinburgh and the Reformation (1981) 26, 68–69; E P Dennison, Holyrood and Canongate: A Thousand Years of History (2005) 56–58.

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The most famous item of loot taken by the English in 1544 was the fine eagle lectern that George Crichton, Bishop of Dunkeld, had presented to Holyrood Abbey. This was stolen by Sir Richard Lee of Sopwell and given by him to St Stephen’s Parish Church in St Albans.5 Another English knight in Hertford’s army, Sir William Norris (c 1501–1568), from Speke in Merseyside, also took home some booty.6 This included (or consisted of) fifteen printed volumes in large folio. Fourteen of these contained works on law and remained at Speke Hall, a spectacular half-timbered manor house, until, at some time and by some route unknown, they came into the ownership of W Henry Brown, a Liverpool solicitor and book collector. In 1825 they were purchased from his estate for the Library of the Athenaeum Club in Liverpool. The fifteenth volume was a Bible. Though also looted by Norris, it had become separated from the others. In 1853 the Marquess of Salisbury gifted it to the Liverpool Athenaeum,7 where all these huge volumes remained until they were recently purchased by the National Library of Scotland.8 Especially when considered with some other material, these fifteen volumes throw light on the history of Scottish legal practice, and the role within it of the learned laws. They further confirm the extent to which Senators of the College of Justice and other lawyers in Scotland had come to rely upon the texts of the ius commune in dispensing justice. This makes a preliminary discussion of them particularly important, given our honorand’s publication of a practical guide to the sources of the ius commune.9

5 See National Museum of Scotland, Angels, Nobles and Unicorns: Art and Patronage in Medieval Scotland. A Handbook Published in Conjunction with an Exhibition Held at the National Museum of Scotland, August 12–September 26, 1982 (1982) 115–116; W Galloway, “Notice of an Ancient Scottish Lectern of Brass, Now in the Parish Church of St Stephen’s, St Albans, Hertfordshire”, (1878–1879) 13 Proceedings of the Society of Antiquaries of Scotland 287. 6 A Davidson, “Norris, Sir William (1501–68), of Speke, Lancs”, in S T Bindoff (ed), The House of Commons, 1509–1558 (1982) vol iii, 20–21. 7 See E G Duff, “Some early Scottish book-bindings and collectors” (1907) 4 Scottish Historical Review 430 (henceforth Duff, “Book-bindings”) at 432–433, 434–435. 8 See “Acquisition: Cambuskenneth Books Return”, Discover NLS (Winter 2008) 14; “Important Books Return to Edinburgh”, Edinburgh Legal History Blog, 7 January 2009, available at http:// www.elhblog.law.ed.ac.uk/2009/01/07/important-books-return-to-edinburgh, last accessed at 23 February 2015. The books had earlier been deposited in the National Library of Scotland for examination, before being returned to Liverpool. 9 E J H Schrage and J H Dondorp, Utrumque Ius. Eine Einführung in das Studium der Quellen des mittelalterlichen gelehrten Rechts [Schriften zur Europäischen Rechts- und Verfassungsgeschichte 8] (1992). It had earlier been published in Dutch. See also J H Dondorp and E J H Schrage, “The Sources of Medieval Learned Law”, in J W Cairns and P J du Plessis (eds), The Creation of the Ius Commune: From Casus to Regula, Edinburgh Studies in Law vol 7 (2010) 7.

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B. THE BOOKS The volumes looted by the Merseyside knight may be briefly listed: Bible. Paris: R Stephanus, 1532 Corpus iuris civilis. Infortiatum. Lyons: J Siber, 1500 Corpus iuris civilis. Codex. Paris: U Gering and B Rembolt, 1505 Bartolus de Saxoferrato. Super prima [–secunda] parte Digesti veteris. Venice: B de Tortis, 4 Nov 1499 [–29 Jan 1499/1500]. 2 vols in 1 Bartolus de Saxoferrato. Super prima [–secunda] parte Infortiati. Venice: B de Tortis, 18 Dec 1499 [–11 Mar 1500]. 2 vols in 1 Bartolus de Saxoferrato. Super prima [–secunda] parte Digesti novi. Lyons: J Siber, c 1493/4. 2 vols in 1 Bartolus de Saxoferrato. Super prima [–secunda] parte Codicis. Venice: B de Tortis, 9 Aug 1499 [–14 Feb 1499/1500]. 2 vols in 1 Gratian. Decretum. Lyons: F Fradin, 1533 Gregory IX. Decretales. Lyons: H De Porta, 1535 Liber sextus decretalium. Lyons: F Fradin, 1535 Nicolaus de Tudeschis [Panormitanus], Lectura super V libris Decretalium. Lyons: N de Benedictis, 1500–1501. 8 vols in 4 Felinus Maria Sandeus. Commentaria in secundum librum Decretalium. Lyons: J Sachon, 1506?

There is much that could be said about these volumes and the printers;10 but let it suffice to note here that, with the addition of the Bible, this is a part collection of the main source texts of the ius commune, along with some prominent commentaries on them. C. PROVENANCE OF THE VOLUMES All the volumes on law, other than the Infortiatum and Codex, contain very similar versions of an inscription by Norris recording his looting of them from Edinburgh in 1544: Memorandum yt Edyn Borow was wone ye uiiith daye off maye in anno xxxui H  uiiii et anno domini [– ] mº ccccº xliiiº and yt yis boke called Bartolus super prima codicis was gottyn and brought a waye by me Will’m Norres of ye Speike kt from Edynborro ye xith daye off maye in anno [– ?xxu] supradict’ and nou ye boke off me fouresaide sir Will’m gevne and by me left to remayne at Speike for anayreloume in wyttenes yeroff wrewityn yis wt my none hond and subscribed my name. Per me Will’m Norres mylitis.11

10 The National Library shelfmarks will be Cambusk 1–Cambusk 15. 11 Transcription taken from Scottish Libraries, ed J Higgitt with an introductory essay by J Durkan [Corpus of British Medieval Library Catalogues vol 12] (2006) 99 (henceforth Higgitt, Scottish Libraries). Duff, “Book-bindings” (n 7) at 432 quotes the inscription in the volume of Decretals:

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As is evident, this was written in one of the volumes of Bartolus, and Norris’ inscriptions typically identify the individual law books in this way. Further, in all of them the year of the sack of Edinburgh is wrongly given, though the regnal year is correct. This is probably because Norris (who died in 1568) wrote these inscriptions some years after the event.12 There is no reason to believe the Infortiatum and the Codex were not looted at the same time by Norris. They may have borne equivalent inscriptions, perhaps lost with their initial leaves in repair and rebinding in the early nineteenth century. The Bible of 1532 has Norris’ name several times on the title page as well as that of his son Edward. The two volumes (in one) of Bartolus on the Codex, printed at Venice, 1499–1500, contain the following inscription: “Liber magr. Patricij Paniter Secretarij Oratorie”; the third volume (as bound) of Panormitanus on the Decretals also has (on fol 1r): “Liber magistri patricii paniter secretarii Regii oratoris Lepedissimi”, while the second part of this volume has (on fols 28v–29r): “Liber patricii pantr primarii Jacobi Quarti Scotorum regis Secretarii”. These ex libris inscriptions clearly identify Patrick Panter (c 1470–1519) as owner of these volumes, and likely owner of the complete set of Panormitanus on the Decretals and of the volumes of Bartolus (at least those printed at Venice). The curious description of Panter as lepidissimus (most charming) does suggest that the inscriptions were not written by him. As the inscriptions indicate, Panter (alternatively Painter or Paniter) was Secretary to James IV (from 1505), and high in royal favour. Son of a burgess of Montrose, he was educated in Paris and Leuven. He served as tutor to two of James’ illegitimate sons. He retained the Secretaryship until 1514. Though holding ecclesiastical livings, including from 1513 the abbacy of Cambuskenneth, Panter never took Holy Orders (he received seven Papal dispensations from doing so) and had a career as a royal administrator and councillor.13 “Md yt Edynborow was wone ye viiith daye off maye in año xxxvj. H. viii. et año dñi Mºccccoxliijº and yt yis Boke de decretales maximi was gotty[n] and brougth awaye from Edynborro forsaide by me Will[ia]m Norres of ye speike knygth ye xj daye of maye in año sup’dict & now is ye Boke of me ye fouresaid sir Will[ia]m geve and left by me for a nayreloume to remayne at speike in wittenes of ye same I have wrety[n] ye same wt my none honde & subsc’bed my name, p me Will[ia]m Norres milit.” 12 R Donaldson, “The Cambuskenneth books: the Norris of Speke collection” (1988) 15 The Bibliotheck 3 (henceforth Donaldson, “Cambuskenneth books”) at 6. 13 J A Gould, “Panter, Patrick (c 1470–1519), Ecclesiastic and Administrator”, in H C G Matthew and B Harrison (eds), Oxford Dictionary of National Biography (2004) (henceforth Oxford Dictionary), available at http://www.oxforddnb.com/view/article/21234, last accessed at 23 February 2015.

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As well as the law books looted by Norris, he had owned a copy of the Digestum vetus, printed Paris, 1518.14 The Bible of 1532 has covers stamped in gold indicating that in 1533 it was owned by Alexander Mylne (c 1470–1548), Abbot of Cambuskenneth, Vice-chancellor of Scotland. Mylne had succeeded Panter in the abbacy. Educated at the University of St Andrews, Mylne had held a variety of offices in the Church, before being appointed Official of Dunkeld in 1513 and gaining papal provision to Cambuskenneth in 1519. Like Panter, he was a royal councillor and administrator. He also regularly attended Parliament, serving as a Lord of the Articles from 1532 to 1542. In 1532, Mylne was appointed first President of the College of Justice, though he had already acted on the judicial Sessions of the Council.15 Others of Mylne’s books have survived.16 In 2005, at the auction in Edinburgh of the important collection of R Maxtone Graham, a copy of the Infortiatum, published Lyons 1514 by L Martin, was offered for sale.17 This has an ex libris inscription for Mylne: “Liber Alexandri myln Canonicj et Officialis Dounkelden[sis] Anno 1516”. It is now in the Advocates Library, Edinburgh.18 D. LOCATION IN EDINBURGH The volumes in the Norris of Speke collection were once thought to have been looted from Holyrood Palace in 1513. Both the dating of some of the volumes and the fact that the English army did not cross the border after the Scottish defeat at Flodden make this impossible.19 The suggestion that these books have come from the Royal Library in Edinburgh has, however,

14 J Durkan and A Ross, Early Scottish Libraries (1961) [expanded version of “Early Scottish libraries” (1958) 9 Innes Review] (henceforth Durkan and Ross, Libraries) 135. (At ibid 134 they ascribe ownership to Panter, as well as of the Panormitanus, of only Bartolus on the Codex; but the fact that the Venice-published volumes are an obvious set suggests all belonged to Panter.) 15 J A Gould, “Mylne, Alexander (c 1470–1548), Abbot of Cambuskenneth and Historian”, in Oxford Dictionary (n 13). See also J MacQueen, “Alexander Myln, Bishop George Brown, and the Chapter of Dunkeld”, in J Kirk (ed), Humanism and Reform: The Church in Europe, England, and Scotland, 1400–1643. Essays in Honour of James K Cameron (1991) 349. 16 Durkan and Ross, Libraries (n 14) 132–133; J Durkan and J Russell, “Additions to J Durkan and A Ross, Early Scottish Libraries, in the National Library of Scotland” (1982) 11 The Bibliothek 29 at 35; Boniface VIII, Sexti libri materia cum capitulorum numero (1503): “Liber alexandri myln canonici dounkeldensis”. Mylne gifted this volume to Cambuskenneth in 1519. 17 Lyon & Turnbull, Printed Books, Manuscripts, Maps and Atlases: Tuesday 1st February 2005, 33 Broughton Place Edinburgh (2005) 79. 18 Shelfmark: A.79.1. 19 Donaldson, “Cambuskenneth books” (n 12) at 4–5.

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proved very seductive. Thus, because the books once belonged to prominent holders of royal offices, the late John Durkan stated he was “inclined to think the books came from the old royal library and were under the care of the almoner”.20 John Higgitt accordingly discusses them in his account of the Royal Libraries at Edinburgh Castle and Holyroodhouse. He describes Durkan as “plausibly” inferring that “some of these books originated in the royal library and were in the keeping of Alexander Mylne in the town house of the Abbey of Cambuskenneth in Edinburgh when they were seized”.21 He adds: The royal provenance receives some slight corroboration from the garbled tradition, first recorded in the 18th cent., that carved wainscotting at Speke Hall had been brought from the Scottish king’s library, along with many books, by Sir William Norris following the battle of Flodden in 1513. W.R. Whatton demonstrated that the wainscotting, which dates from around the end of the 16th century, could not have been taken back from Scotland following Flodden, although he was unaware of the survival of some at least of the books.22

This family legend provides no real evidence of any association with the Royal Library; again, it is wishful thinking. Moreover, Durkan did not suggest the volumes were in the town house of the Abbot of Cambuskenneth when looted by Norris. An association with Cambuskenneth Abbey is, however, what seems most obvious about these volumes.23 The Bible is identified as owned by Mylne as Abbot of Cambuskenneth; and probably three volumes (at least) of Bartolus and the four of Panormitanus belonged to the former Abbot, Panter. This means that half at least of Norris’ loot is connected with the Abbey. If the books all came from an individual collection, as seems likely, then it is plausible to suppose that the other seven also originated in the Abbey’s library. E. THE BOOKS AND THE COLLEGE OF JUSTICE Should the above be correct, it is then necessary to consider why the volumes were in Edinburgh to be looted by Norris, rather than in the library at Cambuskenneth. Robert Donaldson has plausibly suggested that these

20 21 22 23

J Durkan, introductory essay in Higgitt, Scottish Libraries (n 11) LXV–LXXVI at LXXVI. Higgitt, Scottish Libraries (n 11) 98–100. Ibid 100. Donaldson, “Cambuskenneth books” (n 12) at 6.

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volumes were kept in the town house of the Abbey on the Lawnmarket in Edinburgh for convenience in business.24 Not mentioned by Donaldson in connection with these volumes, however, is the important role of Mylne as first President of the College of Justice – an office he still held when Hertford’s army sacked and looted Edinburgh. The foundation of the College, though it was a culmination of a trend as well as a new beginning, emphasised an aspiration that justice should be administered by men learned in both the laws.25 This hints at the context in which the Norris of Speke books were used in Scotland. The College of Justice was developed out of the jurisdiction exercised by the King’s Council,26 which had adopted a version of Romano-Canonical procedure.27 Though the acta of the Lords do not make this explicit, it is obvious from the record.28 Procedure before the Lords of Council in fact closely resembled that found in the Scottish ecclesiastical courts.29 Indeed, Jim Robertson has recognised that the interlocutors of the Lords of Council in civil causes resemble those of the Roman Rota.30 Reliance on the sources of Romano-Canonical procedure in practice before the Lords does occasionally become explicit, as when, in 1498, a submission to arbitration by the Lords referred to a style in Durandus’ Speculum Judiciale.31 A similar usage is found in 1501, when an “Agreement in the best form” was described as in forma Speculatoris.32 Two years later, in litigation between the Earl of Buchan and King James IV over the barony of King Edward, the 24 Ibid. 25 See J W Cairns, “Revisiting the Foundation of the College of Justice”, in H L MacQueen (ed), Miscellany V, Stair Society vol 52 (2006) 27 at 32–33, 37. 26 See now, above all, the important study of A M Godfrey, Civil Justice in Renaissance Scotland: The Origins of a Central Court (2009) 40–160. 27 Ibid 161–206. 28 W M Gordon, “The Acts of the Lords of Council in the Late Fifteenth and Early Sixteenth Centuries: Records and Reports”, in C Stebbings (ed), Law Reporting in England (1995) 55 (henceforth Gordon, “Acts”) at 59. 29 S Ollivant, The Court of the Official in Pre-Reformation Scotland, Stair Society vol 34 (1982) (henceforth Ollivant, Court of the Official) 95–118, 130–133. 30 J J Robertson, “The Development of the Law”, in J Brown [now Wormald] (ed), Scottish Society in the Fifteenth Century (1977) 136 at 151–152; J J Robertson, “The Canon Law Vehicle of Civilian Influence with Particular Reference to Scotland”, in D L Carey Miller and R Zimmermann (eds), The Civilian Tradition and Scots Law: Aberdeen Quincentenary Essays (1997) 117 at 118–120. 31 G Neilson and H M Paton (eds), Acts of the Lords of Council in Civil Causes 1496–1501 (1918) (henceforth Neilson and Paton, Acts) 281–282, discussed in Gordon, “Acts” (n 28) at 59, n 15. 32 A B Calderwood (ed), Acts of the Lords of Council. Vol Ill: 1501–1503 (1993) (henceforth Calderwood, Acts) 22. For further use of Durandus, see T Thompson (ed), Acta Dominorum Auditorum: Acts of the Lords Auditors of Causes and Complaints (1839) (henceforth Thompson, Acts) 144, 176, 193.

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earl’s forespeaker, George Stirling, opposing the king’s attempt to reduce the earl’s infeftment, proponed various dilatory exceptions and produced a written pleading in Latin (described as “certane lawis” – what would later in Scotland be called a written information) arguing that the king’s rights had prescribed, relying on the work of the Canonists Johannes Petrus de Ferrariis, and Johannes Andreae, and Panormitanus as well as on texts of the Liber Extra (the Decretals of Gregory IX) and Justinian’s Code.33 This is very similar material (in part identical) to that in the Norris of Speke books. Application of principles of the ius commune can also sometimes be discerned in these formal records. In 1479, the Lords Auditors ad causas in Parliament rejected the Civilian exceptio non numeratae pecuniae, as proof showed payment had been made.34 The “certane lawis” (noted above) produced by the Earl of Buchan’s forespeaker involved substantive argument based on Canon Law and Justinian’s Codex.35 The survival of such a document is accidental, as it did not generally form part of the formal record; but it is a fair assumption that in legal argument such a range of citations was normal. In Cowper v Meldrum (1498) the Lords of Council decided an issue over anchorage below and above the flood mark, probably basing their ruling on Roman law.36 The Roman law principle that mandatum morte solvitur was utilised in 1532.37 In 1540, an action for the return of an instrument of sasine was described as an actio depositi. Liability was debated according to the standards set by Roman law, with the depositee arguing that he could only be liable for dolus or culpa lata.38 The first source we have that gives clear and consistent evidence of the legal sources considered by the College of Justice is Sinclair’s Practicks.39 33 Calderwood, Acts (n 32) 310. He cited Johannes Petrus de Ferrariis, Practica libellorum papiensis; Panormitanus and Johannes Andreae on relevant texts of the Decretals as well as some of those texts themselves (X 2.26.4, 5, 6, 8, 9 and 14) and C 7.39.3 and 4. For a fuller discussion, see J W Cairns, “Ius Civile in Scotland, ca 1600”, in E Metzger (ed), Law for All Times: Essays in Memory of David Daube, Roman Legal Tradition vol ii (2004) 136 at 142–143. 34 Thompson, Acts (n 32) 77. 35 Calderwood, Acts (n 32) 310. 36 Neilson and Paton, Acts (n 31) 245, discussed in Gordon, “Acts”) (n 28) at 62. 37 I H Shearer (ed), Selected Cases from Acta Dominorum Concilii et Sessionis from 27 May 1532, the Inception of the Court, to 5 July 1533, Stair Society vol 14 (1951) 165–168 (no 112). See also J Finlay, “Foreign Litigants before the College of Justice in the Sixteenth Century”, in H L MacQueen (ed), Miscellany IV, Stair Society vol 49 (2002) (henceforth Miscellany IV) 37 at 41; D 17.1.26pr. 38 Balfour v Pitcairn, in P G B McNeill (ed), The Practicks of Sir James Balfour of Pittendreich, Stair Society vols 21 and 22 (1962–1963) vol i, 198; J Finlay, Men of Law in Pre-Reformation Scotland, Scottish Historical Review Monograph 9 (2000) 112 (henceforth Finlay, Men of Law). 39 On the idea of “practicks”, see H Mckechnie, “Practicks, 1469–1700”, in H Mckechnie (ed), An Introductory Survey of The Sources and Literature of Scots Law, Stair Society vol 1 (1936)

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This is a report, almost in parts a journal, of the business before the Session kept by John Sinclair (c 1510–1566), a Senator and later briefly President of the College. A graduate in Civil and Canon Law, Sinclair was the Professor of Canon Law in the University of Aberdeen (an office he retained for a while after appointment as a Senator in 1540). From 1561 he was absent in France, until he returned in 1565, when he resumed sitting in the Court.40 The Practicks cover 1541 to 1549 – the period when Norris looted the Cambuskenneth books.41 There is not the opportunity here to discuss Sinclair’s Practicks in any detail; but a few remarks are required. Sinclair rarely cites Scottish statutes, so that Scots law appears as a largely customary system, cited as “custom”, “practick”, or “municipal law”, and contrasted with the written law or common law in the sense of the ius commune.42 Examination of the Practicks suggests very strongly that for Sinclair the ius commune was to be applied, except when there was precedent, clear custom or statute to the contrary. Sinclair cites or quotes Gratian’s Decretum three times; the Decretals of Gregory IX over sixty times; the Liber Sextus fourteen times and the Clementinae once. The Digest is cited eighty-nine times, the Codex sixty-two times and the Institutes eight times. As well as the glosses of these texts, Sinclair cites in the region of thirty authors, including works on procedure and collectors of cases as well as commentaries on the texts. Of the Civilians, Bartolus is overwhelmingly the most commonly cited, well over twenty times. The nearest to him in frequency are Jason de Mayno and Alexander Tartagnus, who each have less than a quarter of the references or quotations. Of the Canonists, Panormitanus is the most frequently cited, approaching forty times for his commentaries on the Decretals of Gregory IX, the Liber Extra. The closest to this among the Canonists is Felinus Sandeus, used six times.43

40

41

42 43

(henceforth Mckechnie, Sources and Literature) at 25–41; J D Ford, Law and Opinion in Scotland during the Seventeenth Century (2007) 85–86. A L Murray, “Sinclair’s Practicks”, in A Harding (ed), Law Making and Law Makers in British History (1980) 90 at 92–95 (henceforth Murray, “Sinclair’s Practicks”); D B Smith, “The Dean of Restalrig’s book” (1994) 39 JLSS 409–410; G Dolezalek, “The Court of Session as a Ius Commune Court – Witnessed by ‘Sinclair’s Practicks’, 1540–1549”, in Miscellany IV (n 37) 51 (henceforth Dolezalek, “Court of Session”) at 56–59. The most important MS is Laing MS III-388a in Edinburgh University Library. Dr Murray is working on an edition based on this: see Murray, “Sinclair’s Practicks” (n 40) at 91–92. Professor Dolezalek, who has researched aspects of the sources used, has conveniently posted the text at http://www.uni-Leipzig.de/~jurarom/scotland/dat/sinclair.htm, last accessed at 23 February 2015. J W Cairns, “Historical Introduction”, in K G C Reid and R Zimmermann (eds), A History of Private Law in Scotland: Volume 1: Introduction and Property (2000) 14 at 72–73. I am relying here on my own count as well as on Dolezalek, “Court of Session” (n 40) at 72–74.

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Examination of Sinclair’s Practicks thus suggests that Norris looted the sources and works most used in the College of Justice. Panormitanus on the Decretals in particular was a commentary favoured for procedural problems; Bartolus was the most favoured Civilian. This does provide support – if slight – for the suggestion that Norris took books Mylne had in Edinburgh and was using as President of the College of Justice. Even should this not be the case, it is still significant that these books were those commonly in use in contemporary litigation. Study of other libraries confirms this. William Elphinstone (1431–1514) had been educated at Glasgow, before studying Canon Law in Paris and Civil Law in Orleans. He was Official of Glasgow (1471) and then Lothian (1478). He served on the Royal Council, and was appointed Bishop of Aberdeen in 1483.44 He had a complete set of Panormitanus on the Decretals, most volumes manuscript, one a printed incunable, in his library of Canon and Civil Law. Annotations to these suggest he had studied these works as a Canonist and had used them in his duties as Official of Glasgow and later of Lothian. (In contrast, he appears to have made little use of his copies of Dominicus de San Geminiano on the Liber Sextus and Johannes de Imola on the Clementinae.)45 But it is likely that Elphinstone also found his copies of Panormitanus very useful in his work as Auditor of Causes and Lord of Council.46 David Whitelaw of Cauldside in 1557 owned an extensive library of law books that included Panormitanus, Bartolus, and Felinus Sandeus. Quite a number of his volumes, including copies of Bartolus, Baldus, Jason de Mayno, Durandus, and Panormitanus were in the hands of Thomas McCalzeane, a well-known and busy advocate before the College, later a Senator. John Spens, another busy lawyer, former Official and Commissary, Advocate for the Queen, and also later a Senator, had borrowed Whitelaw’s copies of Cinus on the Codex, Bartholomaeus de Saliceto, Paulus de Castro, Felinus Sandeus, and Johannes de Bellamera. Whitelaw’s copy of the works of the Canonist Heraclius, known as Cardinalis, was on loan to the Official of St Andrews in Lothian (James Balfour, alumnus of Wittenberg, again later a Senator), while his copies of the Decretals and of Johannes de Imola on 44 L Macfarlane, William Elphinstone and the Kingdom of Scotland, 1431–1514: The Struggle for Order (1995) (henceforth Macfarlane, Elphinstone). 45 L Macfarlane, “William Elphinstone’s library” (1958) 37 Aberdeen University Review 253 at 254–267; L Macfarlane, “William Elphinstone Library Revisited”, in A A MacDonald, M Lynch and I B Cowan (eds), The Renaissance in Scotland: Studies in Literature, Religion, History and Culture Offered to John Durkan (1994) 66 at 69, 72–81. 46 Macfarlane, Elphinstone (n 44) 86–122; W E Levie, “Bishop Elphinstone and the law” (1936) 48 Juridical Review 107.

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the second to fifth books of them were in the possession of Mr Archibald Douglas.47 Whitelaw’s collection indicates what was thought useful in Scottish practice: since Spens and McCalzeane were successful advocates with significant practices before the College, it is fair to assume their interest in Whitelaw’s books was practical.48 Spens himself also owned a copy of the Sext and the Clementinae.49 One final example may be given of the type of library lawyers practising in Edinburgh owned. John Stevenson (Steinston) had been Precentor of Glasgow and Provost of Biggar before appointment as a Senator of the College of Justice in 1549.50 Among other works, he owned: Paulus de Castro, Concilia, Venice 1493; Panormitanus, Practica aurea, Lyons 1518; Gianantonio di Sangiorgio, Lectura super causis decretorum, Lyons 1519; Johannes Oldendorp, Practica actionum forensium absolutissima, Cologne 1540; and Digestum vetus, Lyons 1542.51 F. CONCLUSION It is likely that we have to be thankful to Norris for looting these volumes, as otherwise they might not have survived as a collection, or perhaps even as individual items; and it is as a collection, probably associated with Cambuskenneth Abbey, that they provide us with particular insight into Scottish legal practice in the 1540s. Furthermore, in themselves, Norris’ stolen volumes deserve further study. Thus, that of Bartolus on the Digestum novum has manuscript annotations relating to obligations. The first volume of Panormitanus’ Lectura has marginal annotations on the title de adulteriis and also in its second part on the rubric de transactionibus. (These are in a different hand from those in the Bartolus.) The third volume also has annotations in its first (fols 71v–74r; 122v) and second parts (fols 2r–3), including on the decretal Super specula (fols 209v–211v) by which Honorius III had 47 W Angus (ed), Protocol Book of Mr Gilbert Grote, 1552–1573, Scottish Record Society vol 43 (1914) 20–21 (no 107); W Angus, “Notarial Protocol Books, 1469–1700”, in Mckechnie, Sources and Literature (n 39) 289 at 299–300; P G B McNeill, “Senators of the College of Justice” (1978) 23 Juridical Review (NS) 209 (henceforth, McNeill, “Senators”); D E R Watt and A L Murray (eds), Fasti Ecclesiae Scoticanae Medii Aevi ad Annum 1638, Scottish Record Society NS vol 25 (2003) (henceforth Watt and Murray, Fasti) 420, 423, 425. 48 On McCalzeane’s and Spens’ practices, see J Finlay, “Advocates unlimited: the numerus clausus and the College of Justice in Scotland” (2009) 82 Historical Research 206; Finlay, Men of Law (n 38) 40, 43, 55, 180. 49 Durkan and Ross, Libraries (n 14) 144. 50 McNeill, “Senators” (n 47) at 212; Watt and Murray, Fasti (n 47) 207, 445. 51 Durkan and Ross, Libraries (n 14) 145–146.

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forbidden the clergy to study Civil Law. This is quite interesting given that special Papal permission had twice been granted to clerics to study Civil Law in Scotland, the second as recently as 1501.52 There are also annotations on the copy of Gratian’s Decretum. The history of the volumes makes it likely that these annotations have a Scottish origin, as they do not seem to have been used in England: comparison with other known books of Mylne would be valuable. Likewise, in further study of these volumes, it would also be important to consider Panter’s copy of the Digestum vetus. It has an ex libris inscription very similar to those in the Norris volumes, but which also notes his son’s ownership.53 Finally, it may be again stressed that Norris seems to have looted part of what was a working Scottish law library, perhaps even that of the very President of the College of Justice. The nature of the collection underlines the extent to which Scottish legal practice was based on the ius commune and the way in which the Scottish legal profession practising before the College had developed out of that of Canon lawyer. Indeed, procurators and judges moved easily between the College of Justice and Court of the Official of Lothian.54 They shared a large proportion of their personnel. Scots secular law had adopted Romano-Canonical procedure and much of the learning of the utrumque ius. In a way similar to much of northern Europe, Scotland was receiving the learned laws in practice.

52 A I Dunlop and I B Cowan (eds), Calendar of Scottish Supplications to Rome 1428–1432, Scottish History Society, 4th Series, vol 7 (1970) 210–211; Fasti Aberdonenses: Selections from the Records of the University and King’s College of Aberdeen, Spalding Club vol 26 (1854) 36–39 (nos 20–21); Macfarlane, Elphinstone (n 44) 321. See J A Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (2008), 231–234. 53 Durkan and Ross, Libraries (n 14) 135: “Liber patricii paintar secretarii regis primarii oratoris lepidissimi post eum dauidis paintor”. 54 See Ollivant, Court of the Official (n 29) 129–138.

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3 Ius Civile in Scotland, c 1600 In 1922, J D Mackie and W C Dickinson published in the Scottish Historical Review an important document “unearthed from among the treasures of the British Museum”.1 The soil in which it had lain concealed was that of the famous Cottonian manuscripts. The particular manuscript was entitled Relation of the Manner of Judicatores of Scotland.2 The editors provided a short introduction in which they were mainly concerned with dating the text and speculating on its authorship through an analysis of the contents; while there was some contradictory evidence, they concluded, somewhat cautiously, that there was no reason why the “document should not be dated soon after the Union of 1603”.3 This seems convincing. They also speculated – quite plausibly – that “it was one of the very documents which formed the basis of negotiations between the commissioners appointed by England and Scotland”4 to fulfil James VI’s dream of a union – including a union of the laws – of his kingdoms.5 The nature of the text – evidently drafted by a Scottish lawyer to inform an English lawyer about the institutions of the Scottish legal system and their procedures – supports this, although one could well imagine other reasons for its composition. Mackie and Dickinson suggested two possible authors: Thomas Hamilton, Earl of Melrose, and Sir John Skene, both of whom were Scottish commissioners for Union; one might also add the possibility of Thomas Craig of Riccarton, another Scottish commissioner, although this is unlikely. The two scholars also suggested that the memorandum was probably intended for the English Lord Chancellor, Thomas Ellesmere, largely because at one spot the intended recipient was apostrophised directly as “your Lordship”.6 This fascinating document has attracted little attention from legal historians, although mentioned in Goodare’s recent study, State and Society

1 J D Mackie and W C Dickinson, “Relation of the Manner of Judicatores of Scotland” (1922) 19 Scottish Historical Review 254 (henceforth Mackie and Dickinson, “Judicatores”). 2 Ibid at 262–272. 3 Ibid at 261. 4 Ibid at 262. 5 Ibid at 261–262. 6 Ibid at 254, 255–256, 262, 269.

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in Early Modern Scotland.7 It does, however, provide a starting point for this discussion. Whoever drafted the Relation was indeed very knowledgeable about the working of the Scottish courts. For example, the brief discussion of the College of Justice rather nicely supplements the account of procedure before the Court of Session found in Sir John Skene’s Ane Short Forme of Proces, which is rather technical, by focusing on the way matters were practically managed, such as the layout of the Court of Session, how Outer House business relates to that of the Inner House, and so on.8 As well as dealing with procedure and structures, the author of the Relation discussed, with tantalising brevity, the sources of Scots law. He told the English lawyer: “There is noe common lawe in Scotland, but the Judge eyther proceedeth accordinge to warrant of the municypall lawe, which is the statutes of Parliament, and that faylinge they have recourse to the ymperiall civill lawe.” He then added:9 Albeyt there be many conclusions as verie Axioms never contraverted uppon, as particulerly in matters of discent and succession of Landes and such other thinges, whereuppon the Judges doe proceede havinge noe particuler warrant for the same but in all former ages havinge bene acknowledged as infallible and allowed customes and consuetudes.

Remembering the intended reader of this document, it is obvious that the author’s use of the term “common lawe” was geared to the understanding of an English lawyer; this was a reference to the concept of the “common law” as understood by Coke and Ellesmere. The author was therefore asserting that, in Scotland, in contrast to England, there was no law existing from time immemorial evidenced by authoritative statements in the reports of the courts. Reflecting a strong, continuing theme in Scots law, clearly exemplified in the writings of Sir George Mackenzie towards the end of the century, the Relation stated that the most important source of Scots law was the legislation of Parliament, specifically described as the “municipal 7 J Goodare, State and Society in Early Modern Scotland (1999) 34. See also J W Cairns, “Historical Introduction”, in K G C Reid and R Zimmermann (eds), A History of Private Law in Scotland: Volume 1: Introduction and Property (2000) 14 (henceforth Reid and Zimmermann, History of Private Law) at 99. The reference here is slight; I hope to develop the discussion more in J W Cairns, A History of Scots Law (2004) (forthcoming) (henceforth Cairns, History of Scots Law) ch III. 8 J Skene, Ane Short Forme of Proces, Presentlie used and Observed Before the Lords of Counsell and Session, in J Skene, Regiam Majestatem (1774; 2nd edn based on that of 1609). Further on the physical organisation of the Court at this period, see now: H L MacQueen, “Two Visitors in the Session, 1629 and 1636”, in H L MacQueen (ed), Miscellany IV, Stair Society vol 49 (2002) (henceforth MacQueen, Miscellany IV) 155. 9 Mackie and Dickinson, “Judicatores” (n 1) at 268.

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law”.10 This view was common. George Buchanan, for example, emphasised that the only truly Scottish law, that is, municipal law, was the written law, the Acts of Parliament.11 Further, in the absence of statutes, according to the Relation, recourse was had to imperial Civil Law. Ancient custom was, of course, given a role; it would indeed have been difficult in any other way to explain the origins of the Scottish practice in descent and landholding. There are, however, some interesting lacunae in this listing of the sources of Scots law. The first worthy of note is the absence of any specific mention of Regiam Majestatem, which features in other, roughly contemporary, equivalent accounts.12 This absence might reflect contemporary questioning of its authority as a source and might even provide some pointers to the authorship of the document.13 It is always possible that Regiam and the “auld lawes” were intended to be encompassed in the general expression “statutes of Parliament”, or perhaps, alternatively, by the words “infallible and allowed customes and consuetudes”. Supporting the latter possibility, one may note that such customs were described as governing “matters of discent and succession of Landes”. This was not too implausible a description of the matter in Regiam still of current value around 1600. One may also note

10 G Mackenzie, Observations on the Acts of Parliament, Made by King James the First, King James the Second, King James the Third, King James the Fourth, King James the Fifth, Queen Mary, King James the Sixth, King Charles the First, King Charles the Second. Wherein 1. It is Observ’d, if they be in Desuetude, Abrogated, Limited, or Enlarged. 2. The Decisions relating to these Acts are mention’d. 3. Some new Doubts not yet decided, are hinted at. 4. Parallel Citations from the Civil, Canon, Feudal and Municipal Laws, and the Laws of other Nations, are adduc’d for clearing these Statutes (1686), sig A4r. 11 See A H Williamson, Scottish National Consciousness in the Age of James VI: The Apocalypse, the Union and the Shaping of Scotland’s Public Culture (1979) 184. See also D M Abbott, “George Buchanan, the Court of Session and the Law”, in MacQueen, Miscellany IV (n 8) at nn 139, 140: “[I]n Scotland . . . there are almost no laws except Acts of Parliament.” Further on Buchanan and statutes, see J W Cairns, T D Fergus and H L MacQueen, “Legal Humanism and the History of Scots Law: John Skene and Thomas Craig”, in J MacQueen (ed), Humanism in Renaissance Scotland (1990) 48 (henceforth Cairns, Fergus and MacQueen, “Legal Humanism”) at 61–62. 12 See, e.g., E G Cody (ed), The Historie of Scotland Wrytten First in Latin by the Most Reverend and Worthy Jhone Leslie Bishop of Rosse and Translated in Scottish by Father James Dalrymple Religious in the Scottis Cloister of Regensburg, the Yeare of God, 1596, Scottish Text Society, old series, 4 (1888–1895) (henceforth Cody, Leslie) vol i, 119–120; [C Lowther], W Douglas (ed), Our Journall into Scotland Anno Domini 1629, 5th of November From Lowther (1894) (henceforth Douglas, Journall into Scotland) 31. 13 See H L MacQueen, “Glanvill Resarcinate: Sir John Skene and Regiam Majestatem”, in A A MacDonald, M Lynch and I B Cowan (eds), The Renaissance in Scotland: Studies in Literature, Religion, History and Culture Offered to John Durkan (1994) (henceforth MacDonald, Lynch and Cowan, Renaissance) 385. The absence of a mention of Regiam suggests to me that it is unlikely that Sir John Skene was the author of the Relation.

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that Spottiswoode’s Practicks (of around 1625–1637) directly cited Regiam only five times, each time concerning land or succession; two of those references occur in quotations from the Jus feudale of Thomas Craig and are not for current propositions of law.14 In comparison, the same author, for example, cited Jean Papon’s Recueil d’arrests notables des cours souverains de la France no less than twenty times on a wide range of topics.15 By 1600, Regiam clearly had an understandably restricted utility as a direct source of current law. The second interesting omission is that of any mention of or reference to the significance of the Canon Law in Scotland. It is with this that this article will be primarily concerned. Of course, such an omission was not unprecedented. In the 1570s, John Leslie, Bishop of Ross, Senator of the College of Justice, gave an account of Scots law in his Historie of Scotland. Leslie had studied law in Poitiers, Toulouse and Paris, before becoming Canonist in the University of Aberdeen and then Official of that diocese.16 Leslie wrote that Scots municipal law was partly in Latin and partly in the Scots language. The law book written in Latin was Regiam Majestatem, while, for Leslie, the rest of the books of the laws consisted of the Acts of the Parliaments (written in Scots). He added:17 Albeit heir sulde be vnderstandet, that this far to the lawis of the Realme we ar astricted, gif ony cummirsum or trubilsum cause fal out, as oft chances, quhilke can nocht be agriet be our cuntrey lawis, incontinent quhateuir is thocht necessar to pacifie this controuersie, is citet out of the Romane lawis.

14 J Spottiswoode (ed), Practicks of the Laws of Scotland, Observed and Collected by Sir Robert Spotiswoode of Pentland, President of the College of Justice, and Secretary of State to K. Charles the I. As Also, Abstracts Taken out of the Ancient Records of This Kingdom, whereby is declared the manner of Administring Justice in Civil Causes, before the College of Justice was Erected. And Propositions and Questions in Law Made by the same Author. With Memoirs of his Life and Trial For an alleg’d Crime of High Treason against the States: In the Pretended Parliament at St. Andrews, in December 1645, and January 1646 (1706) (henceforth Spottiswoode, Practicks) 27 (twice) (bastards not lawful heirs), 143 (heir and heirships), 216 (morgagium) and 305 (reversion). The last two are embodied in quotations from T Craig, Jus feudale (1655) 172, or Jus feudale, 3rd edn, ed J Baillie (1732) II.vi.27 and 26. All subsequent references to Craig will be to the 3rd edition. 15 Spottiswoode, Practicks (n 14) 5, 13, 14 (four times), 76, 78, 79, 95 (twice), 120, 126, 157, 185, 216 (twice), 225, 227, 349. 16 See G Brunton and D Haig, Historical Account of the Senators of the College of Justice, from its Institution in MDXXXII (1832) (henceforth Brunton and Haig, Historical Account) 116–119. 17 Cody, Leslie (n 12) vol i, 119–120. See also Douglas, Journall into Scotland (n 12) 31: “Most of their law is Acts of Parliament and Regiam majestatem, and their judgments given in court which we call reports, only they corroborate their cause with civil arguments and reasons.”

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This statement is comparable to that in the Relation, although it should be noted that Leslie here made no mention of ancient customs and the decisions of the courts. One ought not to conclude too easily, however, that, perhaps due to the Reformation of religion in Scotland, Canon Law had simply been rejected. For example, Leslie, as Bishop of Ross, remained true to the Roman Catholic faith and died abroad in Brussels. Furthermore, one can note that, writing around 1600, Thomas Craig still echoed Baldus’ 200-year-old view, when he stated that, where there was a conflict between the Canon Law and the Civil Law, the former was to be preferred, especially in those areas under the jurisdiction of the Commissary courts. This was so, even though Scotland had “shaken off the papal yoke”.18 The rest of this article will be devoted to considering and exploring the possible significance of the omission of the mention of Canon Law in the document and the importance of this for our understanding of Scottish legal history. The issue is fundamental for the modern historian of Scots law. It raises crucial questions about the appropriate framework within which we ought to understand the history of Scots law and also about the nature of Scots law. Our current state of knowledge of Scottish legal history leaves much uncertain; much may always remain so. Any interpretative framework will be inevitably provisional. Yet, by focusing on this point we can see how appropriate competing frameworks may be. In a volume honouring the memory of David Daube, the master of my master, to tease out the insights that may be gained from investigation of this issue seems especially fitting, even if, at first sight, only small differences in perhaps obscure texts seem at stake. Daube, however, always emphasised the importance of very close attention to texts.19 His work has shown that it is often from investigation of such small points that greater understanding develops. I hope that this is so here, even if the conclusions reached will be relatively tentative.

18 Craig, Jus feudale (n 14) I.iii.24; I.viii.17. See Baldi Ubaldi . . . in Institutiones, Digestum vetus/infortiatum/novum, XII libros Codicis . . . commentaria (1576) vol iii, part 1, fo 20vb, here found quoted and translated in J Witte, “Canon Law in Lutheran Germany: A Surprising Case of Legal Transplantation”, in M Hoeflich (ed), Lex et Romanitas: Essays for Alan Watson (2000) 181 (henceforth Witte, “Canon Law”) at 193: “Where the civil law is contrary to the canon [law], the canons ought to be preserved and not the civil law.” 19 Consider, e.g., D Daube, Forms of Roman Legislation (1956).

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A. CANON LAW BEFORE THE COURT OF SESSION As a central court, the Court of Session developed out of the King’s Council, which, by the late fifteenth century, was regularly hearing an increasing range of essentially civil cases, although initially declining to hear matters of fee and heritage.20 With a significant number of Canon lawyers dealing with the legal business before the Council, it is no surprise that the Court adopted a version of Romano-Canonical procedure.21 It is accordingly plausible that well-known commentaries on that procedure were consulted and cited for litigation before the Session. For example, a submission to arbitration by the Lords of Council in 1498 referred to a style in Durandus’ Speculum Judiciale.22 Indeed, it is even likely that citation of such Canonists was common, as the libraries collected by those active in the legal system at this time would suggest.23 Unfortunately, the way in which the formal record of the Court was kept was such that clear indications of citation of Canonist works are infrequent. Proceedings before the Lords of Council were in essence oral; it is evident, however, that the practice early developed of the production to the Lords of written exceptions and pleadings. The nature of the record of the proceedings of the Court means that it is rare for such written pleadings to have survived; but it is clear that they became relatively common in the 20 A M Godfrey, “Jurisdiction over Rights in Land in Later Medieval Scotland” (2000) Juridical Review 243; A M Godfrey, “Jurisdiction in Heritage and the Foundation of the College of Justice in 1532”, in H L MacQueen, Miscellany IV (n 8) 9. On the general development of the Session in this period, see Cairns, “Historical Introduction” (n 7) at 57–64. 21 Cairns, “Historical Introduction” (n 7) at 62–64. Robertson has pointed out that the interlocutors of the Lords resemble those of the Roman Rota: J J Robertson, “The Development of the Law”, in J Brown (ed), Scottish Society in the Fifteenth Century (1977) 136 at 151–152; J J Robertson, “The Canon Law Vehicle of Civilian Influence with Particular Reference to Scotland”, in D Carey Miller and R Zimmermann (eds), The Civilian Tradition and Scots Law: Aberdeen Quincentenary Essays (1997) 117 at 118–120. 22 G Neilson and H Paton (eds), Acta Dominorum Concilii. Acts of the Lords of Council in Civil Causes, vol II, AD 1496–1501. With some Acta Auditorum et Dominorum Concilii AD 1469–1483 (1918) 281–282. See W M Gordon, “The Acts of the Scottish Lords of Council in the Late Fifteenth and Early Sixteenth Centuries: Records and Reports”, in C Stebbings (ed), Law Reporting in England (1995) 55 at 59 n 15. 23 L J Macfarlane, “William Elphinstone’s Library” (1958) 37 Aberdeen University Review 253 (henceforth Macfarlane, “Elphinstone’s Library”); L J Macfarlane, “William Elphinstone’s Library Revisited”, in MacDonald, Lynch, and Cowan, Renaissance (n 13) 66 (henceforth Macfarlane, “Elphinstone’s Library Revisited”). For another example, see the library of Patrick Paniter, Royal Secretary, 1505–1519: J Durkan and A Ross, Early Scottish Libraries (1961) (henceforth Durkan and Ross, Early Scottish Libraries) 134–135; E G Duff, “Some Early Scottish Book-bindings and Collectors” (1907) 4 Scottish Historical Review 430 at 432–433. Other individuals can be traced through Durkan and Ross, Early Scottish Libraries.

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sixteenth century and it is fair to suppose that this was how tricky legal and procedural arguments were commonly developed.24 The survival of such a written document from 1503 provides good evidence of the nature of reference to the sources and literature of the Canon Law before the Lords of Council prior to the erection of the College of Justice. This written pleading (described as “certane lawis”)25 was produced before the Lords of Council by the forespeaker for Alexander, Earl of Buchan. The king had claimed the Barony of King Edward as successor to John Stewart, Earl of Buchan, and had raised a summons of error against the finding of an inquest that had retoured Alexander, Earl of Buchan, as heir to the barony. The earl sought reduction of the summons on the ground that he had been retoured heir, had been given sasine, and had paid the blenchferme reddendo to the sheriff and officers of the sheriffdom.26 The written pleading first argued that the earl’s father, James, had had possession, time out of mind, with a title and bona fides. However, continuous possession for forty years with title and good faith sufficed against the princeps, the Church and the civitas. The foundation of this argument was Panormitanus (Nicholas de Tudeschis) on the Decretals and Johannes de Ferrariis’ well-known work, Practica libellorum papiensis, which was concerned with the practice of libels before the Papal Curia. The two Canonists were concerned in the passages cited with the elaboration and discussion of the well-known rules, clarified by Pope Alexander III, regarding the forty-year period necessary to acquire a prescriptive right against the Church, and the good-faith requirement, the latter rule also made clear in the Liber Extra.27 The second argument was that the king’s claim was as successor to Earl John, who was a private individual, by which it followed that the period of prescription against the king should be the same as that against a private person. This was shown by the laws cited by Panormitanus in a passage in his commentary on the title on prescription in the Liber Extra, where he stated that in these circumstances the Pope’s rights were those of a private person, and was also stated in another canon in that title and noted by Johannes Andreae, another prominent Canonist.28 A period of thirty years with continuous possession was sufficient to prescribe ownership of property, as was demonstrated by two leges of Justinian’s Code

24 25 26 27 28

See the discussion in Cairns, History of Scots Law (n 7) ch III. A B Calderwood (ed), Acts of the Lords of Council. Vol III: 1501–1503 (1993) 310. Ibid 309. Ibid 310; X 2.26.4 and 5. The passages from the Liber Extra were X 2.26.14 and X 2.26.4.

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and a number of canons in the title on prescription in the Liber Extra.29 The thrust of the argument on behalf of the earl was thus that the king should be compared to the Pope and that the Canon Law’s rules on prescription, supported by those of the Civil Law, were applicable. This practice of citation of Canonist authors continued after the reformation of the Lords of Council into the College of Justice in 1532. Sinclair’s Practicks demonstrates this beyond doubt.30 This vitally important source is a collection of decisions of the Lords during the 1540s made by John Sinclair and allows us an insight into the actual working of the College of Justice. Sinclair had studied Canon Law in Paris, was a licentiate in Civil and Canon Law, and from 1537 until 1542 held the office of Canonist at the University of Aberdeen. He was appointed to the Session in 1540; lacking sympathy with the Reformers, he was absent from 1561 in Paris, where he now gained a doctorate in Civil and Canon Law. In 1565 he returned to Scotland, resuming his place on the Bench, soon being appointed President of the College of Justice. He died in 1566.31 Sinclair’s Practicks shows that one of the most important works on procedure then used in Scotland was Panormitanus’ commentaries on the Decretals. A few examples will suffice here. Panormitanus is found cited on the faith of instruments, on exceptions against witnesses, on whether an exception should be put to proof or not, on the authenticity of documents, on whether someone who promises sub fide sua has sworn an oath or not, on the impugning of public documents, on defects in documents. One could go on.32 29 C.7.39.3 and 4; X 2.26.4, 8, 6 and 9. 30 The best text of Sinclair’s Practicks is Edinburgh University Library, MS La.III.338a. This manuscript also contains an anonymous contemporary collection of practicks. Dr A Murray is preparing the text for definitive publication. Professor G Dolezalek has worked on the identification of the ius commune references: see www.uni-leipzig.de/~jurarom/scotland/dat/ sinclair.htm, last accessed at 23 February 2015. Dr Murray has divided the text into different numbered headings and divisions, which will be used here to cite it, such as No 2 or Nos 3 and 4 and so on. He numbered Sinclair’s Practicks from 1 to 509, and the anonymous collection from 510 to 596. Citations here will be to the above text put on the web by Professor Dolezalek, although Professor Dolezalek has inserted the entries from the anonymous collection into their correct position in Sinclair’s Practicks to show the historical practice of the court. In the few references below to cases from the anonymous collection, I have not generally bothered to differentiate them from Sinclair’s Practicks. The reader should remember that any entry numbered above 509 is from the anonymous collection rather than Sinclair. 31 On Sinclair, see A L Murray, “Sinclair’s Practicks”, in A Harding (ed), Law-Making and LawMakers in British History (1980) 90 at 94–95; D B Smith, “The Dean of Restalrig’s book” (1994) 39 JLSS 409; G Dolezalek, “The Court of Session as a Ius Commune Court – Witnessed by ‘Sinclair’s Practicks’” (henceforth Dolezalek, “Court of Session”), in MacQueen, Miscellany IV (n 8) 51 at 56–59, Brunton and Haig, Historical Account (n 16) 63–64. 32 Sinclair’s Practicks (n 30) Nos 1, 3, 214, 254, 258, 288.

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Other Canonists were similarly cited on such issues; for example, the less wellknown writer Felinus Sandaeus evidently was also fairly regularly consulted.33 As in 1503, Johannes de Ferrariis’ work was still evidently found a useful authority on how libelled summonses should be framed, being cited in a case of spuilzie for the drafting of libels in such cases (in forma libelli in causa possessionis), while being relied on by the Lords in the reduction of an instrument of resignation of land, when one of the witnesses to the deed rejected its validity.34 Likewise, the Decisiones Rotae Romanae Novae of Guilielmus Horborch were cited on spuilzie (several times), on when a defender founding his exceptions on writs had to produce them, and on when a pursuer had to produce writs on which he was founding.35 Of course, legists such as Bartolus, Baldus, Jason de Mayno, Paulus de Castro, Alexander Tartagnus, Zasius, and others are also found cited, and there are numerous references to the Digest and Code, as well as to the Decretals;36 yet, the overwhelming significance of Panormitanus on the Liber Extra, especially its second book, is evident on the most casual consultation of Sinclair’s Practicks. Judged by citations, Bartolus was the only author who approached the significance of Panormitanus.37 It is worth noting that Bishop Elphinstone of Aberdeen owned Panormitanus’ commentaries on the Decretals, in a set made up of manuscript and printed editions. Possession of these works may have had importance for his work as a Canonist and Official; but they undoubtedly would have assisted him as a Lord Auditor and Lord of Council.38 Examination of Sinclair’s Practicks demonstrates the all-prevailing significance of the ius commune in Scottish legal practice in this era. There can be no doubt that, in the 1540s, Scottish sources of law, such as statutes, customs and Regiam Majestatem, were regarded as ius proprium in opposition to the ius commune. From this source we see Scots law as a largely unwritten customary system, cited imprecisely as “practick” or “custom”, in contrast to ius, a term that nearly always refers to the ius commune, unless qualified in some way to indicate that Scots law is meant. Thus, “practica 33 Ibid Nos 174, 258, 261, 428, 578. (The last (dated 1542) is from the anonymous contemporary collection of practicks.) 34 Ibid Nos 574, 578, 581. (These 1542 reports are, of course, from the anonymous contemporary collection of practicks.) 35 Ibid Nos 95, 106, 158, 388, 389–391. 36 See, e.g., ibid Nos 76, 214, 215, 224, 230, 238, 254, 261, 319, 415, 470, 471. 37 Panormitanus is mentioned at least thirty times; Bartolus around twenty-five times; Baldus and Paulus de Castro around five times each; Jason de Mayno over ten times. See also Dolezalek, “Court of Session” (n 31) at 73–74. 38 See Macfarlane, “Elphinstone’s Library” (n 23) at 256–257; Macfarlane, “Elphinstone’s Library Revisited” (n 23) at 79–80.

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Scotie” is contrasted with “jus scriptum”, and rules can be described as originating “de practica et municipali jure Scotie non scripto et consuetudinario”.39 The attitude revealed by the Practicks is important. It shows us the Lords preferring a disposition of the common law (in the sense of ius commune) to an alleged “consuetude of this realme” demonstrated by an earlier decision, because “thai culd nocht understand the consuetude allegit in the contrair to be trew in the selff, nor yit thair wes ony sic practik or consuetude”.40 A litigant argued explicitly in a case concerning restitution on the ground of minority that “because the municipal law of the kingdom of Scotland did not decide this issue, so the Civil Law must be followed . . . since a casus omissus remains at the disposition of the ius commune”.41 I have discussed this elsewhere; I do not propose to go into it further here.42 All that I wish to stress is that the Canon Law was central to the ius commune in Scotland and hence central to legal practice before the Lords of Council and the Session in the first half of the 16th century.43 It is evident, to give one example, that the Scottish delict of spuilzie, the most commonly litigated wrong in this period, was developed and interpreted by relying on the texts of the Decretals on the Canon Law actio spolii with their commentators, such as Panormitanus.44 I also suspect that the development

39 Sinclair’s Practicks (n 30) No 503. 40 Ibid Nos 284–285. 41 Ibid No 444: “quod ius municipale regni Scotie hunc passum non determinabat, ideo sequenda esse iura civilia . . . quia casus omissus remanet in dispositione iuris communis.” I am here following Murray (n 31) at 101–102, though I have varied his translation. 42 See Cairns, “Historical Introduction” (n 7) at 71–74; Cairns, History of Scots Law (n 7) ch III; J W Cairns, “Ius Commune; Ius Proprium: Legal Practice in Sixteenth-Century Scotland”, unpublished paper, Colloquium on the Civil Law Tradition, University of London, 22 June 2001 (revised version given as a seminar paper, Faculty of Law, University of Stockholm, 29 November 2002) (henceforth Cairns, Ius Commune; Ius Proprium). 43 In this Scotland was rather like Germany: see, e.g., J Q Whitman, The Legacy of Roman Law in the German Romantic Era (1990) 9–10; Dolezalek, “Court of Session” (n 31) at 52–53. Further on the not unproblematic concept of ius commune, see K Pennington, “Learned Law, droit savant, gelehrtes Recht: The Tyranny of a Concept” (1994) 20 Syracuse J Int’l L & Com 205. 44 See Cairns, Ius Commune; Ius Proprium (n 42); further on spuilzie, see A Harding, “Rights, Wrongs and Remedies in Late Medieval English and Scots Law”, in MacQueen, Miscellany IV (n 8) 1 at 5–8. It is worth noting that in the “Annotatio” to Statuta Roberti Tertii, cap 15, which concerns spuilzie, in Regiam Majestatem Scotiae, Veteres leges et constitutiones, ex archivis publicis, et antiquis libris manuscriptis collectae, recognitae, et notis Juris Civilis, Canonici, Nortmannici auctoritate confirmatis, illustratae, opera et studio Joannis Skenaei, Regiae Maiestati a Conciliis et Archivis Publicis. Annotantur in margine, concordantiae Juris Divini, Legum Angliae, et iuris novissimi Scotiae quod Acta Parliamenti, vulgo vocant. Catalogum eorum quae in his libris continetur vicessima pagina, indicat. Cum duplici indice, altero Rerum, altero verborum locupletissimo (1609) (henceforth Skene, Regiam Majestatem) fol 60v (second sequence of foliation), Skene refers to and cites the Canon Law.

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of much of the Scots law on probative writs has been – at the least – strongly influenced by the practice of the Canonists. Practical requirements for training in Canon Law as well as academic tradition thus lay behind the establishment of a royal lectureship “in the lawis” (that is, both the Canon and Civil Laws) by Mary of Lorraine in the 1550s and Bishop Reid’s bequest to found a school “for the teching of the civile and canon lawis” in Edinburgh. As both a Senator and then President of the College of Justice, Reid was well placed to recognise the needs of the developing legal profession.45 B. THE IUS COMMUNE AND PRACTICE BEFORE THE COURT OF SESSION In 1596, the Lords of Session issued an Act of Sederunt to regulate the practice of parties and their advocates soliciting the Lords outside the Court to “inform” them of their arguments on the case.46 The attempt to “inform” the judges is not to be taken as evidence of corruption; rather, it reflects the procedure that had developed by this date before the Court of Session, whereby matters initially coming before its Outer House before a single Lord (sitting as the Lord Ordinary) in cases of difficulty could be reported to the whole Lords sitting in the Inner House for decision. When the Lord Ordinary sitting in the Outer House reported a matter to the Inner House for decision, the parties were understandably anxious to inform the Lords of their views on the law. This was because the Lord Ordinary reported the cause between eight and nine in the morning before clients and their lawyers were present. That is, lawyers were not allowed to argue the issue before the Inner House; nor were they or their clients allowed to be present. The judges in the Inner House would then discuss the matter among themselves and then vote; all such advisings were still in private. The Ordinary would then report the decision in the Outer House.47 After emphasising that parties and their agents should not solicit the Lords outside the Court because the report from the Outer House was sufficient information, and providing the penalty of suspension for any advocate who did so and other penalties for the litigants, the Act provided, “for better 45 J Durkan, “The Royal Lectureships under Mary of Lorraine” (1983) 62 Scottish Historical Review 73; J Kirk, “Clement Little’s Edinburgh”, in J R Guild and A Law (eds), Edinburgh University Library, 1580–1980: A Collection of Historical Essays (1982) 2 at 7–12. 46 The Acts of Sederunt of the Lords of Council and Session, From the 15th of January 1553, to the 11th of July, 1790 (1790) 26–27 (13 July 1596). 47 See, e.g., Mackie and Dickinson, “Judicatores” (n 1) at 267–268.

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satisfactioun of the pairteis quhais actionis being weichtie or intricate”, that each Lord should appoint a time when he or a particular servant would receive “the informatioun of the causis in wreitt”. In return, the Lords promised that they would “try quhat is prescryveit or decidet thairanent, als weill be the common law as be the municipall law or practick of this realme”.48 I have already pointed out that it was quite common for the Lords to receive written argument or to require that parties reduce their answers, replies, duplies and so on to written form, as a case progressed from the libelled summons, through the proponing of dilatory and peremptory exceptions, towards litiscontestatio. In these circumstances, the extension of written argument to such informations was in line with general practice before the Session. Indeed, in 1626, “Directions . . . for ordering of the Session” instructed: “That all Causes of importance and difficulty be pleaded by Writ, and Subscribed by the Partie’s Advocat”.49 Written informations were the obvious way to deal with this problem of inconvenient solicitation of the Lords. What is important is that the Lords in this Act of Sederunt stated that they would assess the arguments in the written information by the “common law” as well as by “the muncipall law or practick of this realme”. It is probable that “municipall law” is to be understood here as referring to the Scottish statutes, and “practick” as referring to Scottish custom and the practice of the court. The term “common law” must thus have been a reference to the ius commune, the Canon Law and the Civil Law as constituting a universally applicable system throughout Christendom. The Scots judges were still willing to draw on this common law, the utrumque ius, to help resolve difficulties in Scottish litigation, whether or not there was, in any sense, a lacuna in the law. Yet, we must note that the Relation of the Manner of Judicatores of Scotland did not refer to the ius commune, but only to “the ymperiall civill lawe”. Why was this? One strong possibility is that the author was concerned to avoid any confusion with the term “common law”, as understood by his English reader. That in Scotland reference was made to the Civil Law was well understood by many contemporary English lawyers. In fact, one of the major English grounds for objections to a union of the laws with Scotland 48 Acts of Sederunt (n 46) 26–27 (13 July 1596). While “common law” can be used in a variety of senses, it is clear that here it is used in contrast to ius proprium. 49 Spottiswoode, Practicks (n 14) 368. The “Directions” also call for the enforcement of the Act of Sederunt of 1596: ibid. The further elaboration of the development of written pleadings is outside the scope of this paper, but it may be noted that by 1677 it could be stated that such “written informations are become ordinary”: Acts of Sederunt (n 46) 135 (6 November 1677).

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was that Scots law was a form of Civil Law.50 Just to refer to Civil Law would have sufficed in this short explanation of the Scottish courts and their operation. Moreover, reference to reliance on Canon Law could even have raised further alarms for English lawyers. Another possibility, the one that I wish to explore further here, is that what was said in the Relation reflected how Scottish practice had developed since the 1540s. That is, the Canon Law component of the ius commune either had become less significant in legal practice, or the nature of its use had changed. In either case, this might even affect how we should understand the Act of Sederunt of 1596. In the current state of knowledge of the Court records and collections of practicks, it is difficult to address the question of whether or not there had been a move away from reliance on Canon Law or, perhaps rather, on Canonist authors, in practice before the Session. Also, the nature of the formal records of the Session has meant that information about the sources relied on in legal argument has not survived in a systematic form. An entirely satisfactory answer to the question posed cannot be given. There are, however, two resources that can be drawn on to consider the problem. The first is Thomas Craig’s Jus feudale, written about 1600.51 Craig had been educated at St Andrews and then in France, certainly at Paris, but perhaps also elsewhere, before pursuing a successful career as an advocate.52 Craig’s work might seem limited in scope, but it was in fact wider in its interests than its title would initially suggest. Moreover, as the first to give a systematic account of Scots law, Craig was forced to address many issues about the sources of the law used in practice, making Jus feudale, in that respect, a particularly valuable work for this study.53 The second resource is the Practicks of the Law of Scotland, collected by Sir Robert Spottiswoode 50 See B P Levack, The Formation of the British State: England, Scotland, and the Union, 1603–1707 (1987) (henceforth Levack, Formation of the British State) 88–91. 51 On the date, see J W Cairns, “The Breve Testatum and Craig’s Jus Feudale” (1988) 56 Tijdschrift voor Rechtsgeschiedenis 311 at 317 and n 36 (1988). 52 See ibid; D B Smith, “Sir Thomas Craig, Feudalist” (1915) 12 Scottish Historical Review 271 (of fundamental importance); G Law, “Cragii Jus feudale” (1898) 10 Juridical Review 177; D Irving, Lives of Scotish Writers (1839) vol i, 147; P F Tytler, An Account of the Life and Writings of Sir Thomas Craig of Riccarton: Including Biographical Sketches of the Most Eminent Legal Characters, Since the Institution of the Court of Session by James V. Till the Period of the Union of the Crowns (1823). Please note that the common attribution of a knighthood to Craig is quite mistaken and that the family background given by Fraser Tytler is inaccurate, on which see the forthcoming entry on Craig in the New Dictionary of National Biography. 53 J W Cairns, “The Civil Law Tradition in Scottish Legal Thought”, in D Carey Miller and R Zimmermann (eds), The Civilian Tradition and Scots Law: Aberdeen Quincentenary Essays (1997) 191 at 200–203.

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of Newabbey from the 1620s to the 1640s.54 According to his grandson, Spottiswoode was educated in Glasgow and Oxford, before pursuing legal study in Continental Europe, apparently primarily in France, although he also travelled widely. He was initially appointed an Extraordinary Lord of Session, then an ordinary Lord, and finally President of the Session.55 The Practicks is an important source of information about the sources relied on in legal practice in the first half of the seventeenth century. While these two authors allow us to explore the issue satisfactorily, I shall also make some remarks on the work of Sir John Skene, Craig’s contemporary. A note of caution should be inserted here. We should not expect to find a complete rejection of Canon Law and literature; citation of it is to be found up until the beginning of the nineteenth century, especially in consistorial issues. Indeed, at the very period when the Relation was written, of those advocates (two-thirds) admitted because of their university training in law, most probably held degrees in both Civil and Canon Law.56 The practising Bar thus continued to be familiar with the sources and literature of the Canon Law. What we are looking for is something more nuanced, perhaps a reduction in the frequency of references to Canon Law, with a generally lesser reliance on it and its commentators in litigation outside the consistorial field. C. CRAIG’S SOURCES AND HIS CONCEPT OF IUS COMMUNE The first aspect of Craig’s Jus feudale that we should examine is the sources on which he relied. The most obvious development from the range of citations found in Sinclair’s Practicks is the frequent reference to Humanist authors.57 In particular, François Hotman was the most cited Humanist author, with twenty-five references; but other noted Humanists cited, with between one  and fourteen references, were Andrea Alciato, Ulrich 54 On them, see, e.g., H Mckechnie, “Practicks, 1469–1700”, in An Introductory Survey of the Sources and Literature of Scots Law, Stair Society vol 1 (1936) 25 (henceforth Mckechnie, “Practicks”) at 28. 55 Spottiswoode, Practicks (n 14) iii–iv. Study in France is very likely, though Spottiswoode is not mentioned in J Durkan, “The French Connection in the Sixteenth and Early Seventeenth Centuries”, in T C Smout (ed), Scotland and Europe 1200–1850 (1986) 19; cf J Foster, Alumni Oxonienses . . . 1500–1714 (1892) vol iv, 1400; Brunton and Haig, Historical Account (n 16) 266–269. 56 R K Hannay, The College of Justice: Essays on the Institution and Development of the College of Justice (1933) 145–147. This statistic refers to those admitted between 1575 and 1608. 57 On Craig as Humanist, see Cairns, Fergus and MacQueen, “Legal Humanism” (n 11) at 56–66; J G A Pocock, The Ancient Constitution and the Common Law, 2nd edn (1987) 79–90.

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Zasius, Guillaume Budé and Jacques Cujas.58 As well as such Humanist authors, however, Craig also cited some authors of the older ius commune; Bartolus and Baldus, for example, were each cited as often as Hotman.59 Craig nonetheless distinguished between the older interpreters, culminating in Decio, the teacher of Alciato, and the new interpreters, such as Cujas.60 Moreover, of the later medieval Civilians, it was only Bartolus and Baldus whom he prominently and regularly cited. For example, Paulus de Castro was cited only once.61 There was thus not the width of citation of such older authors that is found in Sinclair’s Practicks. In itself, of course, the number of citations means little, as such references could be taken at second hand or they could be routine; but even the most cursory reading of Craig’s treatise indicates that what was exercising influence on him were the writings of those whom he classed as the novi interpretes or recentiores. Thus, he was involved in a significant debate with Cujas and was influenced by, above all, Hotman.62 This said, he did engage to a significant extent with Bartolus and Baldus.63 Of course, at one level, this means simply that Craig was writing sixty years after Sinclair and drew on the new Humanist literature. Moreover, what should be noted is that these authors were primarily Civilians. If we turn to Canonists, we may note that Craig cited Sinclair’s favorite, Panormitanus, only once (along with Hostiensis, who was cited three times), on legitimation, in a discussion of succession to feus.64 Craig also cited Pierre Rebuffi, commonly described as a Canonist, four times;65 the references, however, were not to Rebuffi’s works on Canon Law. There was an isolated reference to Durandus.66 In general, however, one can say that Craig had not openly drawn on writers on Canon Law. If, given the nature of Jus feudale, the paucity of references to Canonists may to some extent be expected, it is worth pointing out that Craig nonetheless 58 See, e.g., Craig, Jus Feudale (n 14) I.xvi.l; II.iii.5; I.xvi.43; I.v.2; and I.xvi.38. 59 Cited twenty-three and twenty-five times respectively, by my count. For random examples, see Craig, Jus feudale (n 14) I.ix.9; III.v.15. 60 See Cairns, Fergus and MacQueen, “Legal Humanism” (n 11) at 58. See also Craig, Jus feudale (n 14) I.ix.4. The context is a discussion of the etymology of “feu” but it clearly can be extended more generally. 61 Craig, Jus feudale (n 14) III.v.15. 62 See ibid at I.ix.10. See generally J W Cairns, “Craig, Cujas, and the Definition of Feudum: Is a Feu a Usufruct?”, in P Birks (ed), New Perspectives in the Roman Law of Property: Essays for Barry Nicholas (1989) 75. 63 In making these calculations, I have ignored mentions of the authors in Craig’s general history of the study of Roman law from Irnerius onwards. 64 Craig, Jus feudale (n 14) II.xviii.7. 65 Ibid I.ix.5; I.x.ll, 18, 22. 66 Ibid III.iv.13.

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had several discussions of and allusions to Canon Law and did cite its sources, though relatively infrequently. To examine these references is informative. The third title of the first book is De Juris Canonici Origine, Progressu, & quis apud nos ejus usus. There are to be found comments such as that, while the decisions of the Roman Rota had no greater authority than those of the Parlement of Paris or that of Toulouse, the stature of the judges made those decisions have particularly great weight if not the force of canons.67 Elsewhere, there were quite regular references to Canon Law. Most of these, however, related to the particular sphere of the Catholic Church and its courts or to the Scottish ecclesiastical courts. A few examples will suffice. There was a discussion of the effect of a grant of a feu by the Pope to an excommunicated person.68 The title Quae res in feudum dari possint took as its point of departure the divisions of property found in Justinian’s Institutes, so that there was a discussion of res sacrae and res religiosae that inevitably touched on ecclesiastical issues, the feuing of Church lands, and, notably, teinds.69 Occasional comparative remarks were made, such as that “in the Canon Law, which is close to ours, this is the position” or that “bad Latin does not vitiate a princely rescript according to the Canon Law, nor does it [vitiate] charters among us”.70 There were other scattered remarks on Canon Law. Some examples follow. Craig noted the rule of Canon Law on oaths and usurious agreements.71 He recalled a debate among Canonists on whether resignations of benefices required a public instrument.72 At one point he commented that three witnesses were required in certain circumstances by the ius Civile, but two by the ius Canonicum.73 In the title De his quae impediunt Successionem, bastardy was discussed and there was considerable general reference to Canon Law, including the specific citation of Panormitanus and Hostiensis already noted.74 In discussing the expiry of the time limit to exercise a ius protimeseos, he noted that what it was to be absent without fraud or blame on public business could be found in the Canon Law.75 He commented elsewhere that a Scottish practice was “secundum juris Canonici

67 68 69 70 71 72 73 74 75

Ibid I.iii.14. Ibid I.xiv.9. Ibid I.xv.7–9. Ibid II.ii.31; II.iv.23. For a similar example, see ibid I.viii.14. Ibid II.vi. 28. For other standard rules of Canon Law, see ibid III.vii.5 and 18. Ibid II.vii.8. Ibid II.vii.20. Ibid II.xviii. Ibid III.iv.13.

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regulas”.76 In general, a reading of Craig thus suggests that Canon Law now had little continuing impact on the development of Scots law, in comparison with the era of Sinclair, although Craig was well aware of its importance. To find an explanation of this changed attitude to Canon Law, we need to explore Craig’s approach to the idea of a ius commune. In fact, we shall see that Craig had developed an approach to the ius commune notably different from that found in Sinclair’s Practicks; this helps explain his attitude to Canon Law, an attitude that is not solely to be attributed to the content and scope of his work. We can approach this issue by examining his discussion of the hierarchy of sources of law and their links with his ideas of sovereignty. Craig pointed out in his title Quando jus Feudale in Scotiam pervenerit,  & quo jure hodie Scoti utuntur that the Scots and English laws on feus had much in common, adding, however, that one should not thereby draw the conclusion that the Scots had once been subject to the English. This was because of the difference between ius and leges. The Scots might use the same ius as the English, but they did not use the same leges. Leges were made by magistrates without a superior and bound those subject to them; ius originated in nature.77 Legislation was thus authoritative because enacted by a sovereign power; ius derived its authority from nature. It is not surprising to note that Craig’s political thinking was influenced by that of Jean Bodin, whom he cited several times, and whose influence can be traced beyond such references.78 In his discussions of the difference between ius and leges and his linking of the latter to sovereignty, Craig had commented: “Thus, jus Naturale, jus Gentium, thus jus Commune is said to be that which is common to almost all peoples, as if a certain innate reason of equity ruling in the souls of men.”79 He accordingly set out a hierarchy of law, stating that there were three types of ius: ius Naturale; ius Gentium; and ius Civile.80 The first was the good and the just (bonum et aequum) derived from the reason and equity of ius inborn in us; against this ius, neither statutes of the kingdom, nor prescription of the longest time, nor custom had any argumentative force.81 The ius Gentium was what was observed after the natural inborn reason and understanding of equity and good. What all nations observed ought to 76 77 78 79 80 81

Ibid III.vi.19. Ibid I.viii.4. Ibid I.i.8; I.ii.13; I.iii.6; I.vii.3; I.xii.6; II.ii.2; II.xiii.38. Ibid I.viii.4. Ibid I.viii.6. Ibid I.viii.7.

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have force with us, notwithstanding the ius Civile or Municipale. He noted that all nominate and innominate contracts originated in the ius Gentium. In dealing with foreigners this ius Gentium ought to be followed, he said, despite any specific statute of the kingdom; it likewise had force among citizens, unless there was a special lex or statute contrary to it.82 The third type of ius was the ius proprium or Civile of each people. Thus, “after the jus Naturale and that which today is common to almost all nations, in order to resolve controversies and any difficulty, the first recourse ought to be to our jus scriptum, should there be any”.83 Our ius scriptum was the statutes and constitutions that had been enacted by the Three Estates of the kingdom with the consent of the Prince: “this was the jus proprium of the kingdom.”84 On the basis of this analysis, Craig then stated that, when a problem appeared, the ius scriptum, the ius proprium of the kingdom, had to be investigated, although it was important to recognise that its applicability could have been affected by the doctrine of desuetude. Other than such statutes, there was no certain and fixed ius scriptum in Scotland, as the statutes of the Privy Council did not have the force of lex; Craig’s view was the same regarding enactments of conventions of Estates.85 After dismissing the books of Regiam Majestatem, Craig reiterated that our only ius proprium scriptum was the legislation of Parliament. Thus, if any controversy arose, it was necessary to see first what was in the Acts of Parliament, and the decision ought to be made according to them “as if according to the jus proprium of the kingdom”.86 Lacking such ius proprium, attention was then paid to the custom of uninterrupted res iudicata, called “practick”. Among all peoples, he wrote, custom was given the name of law and law was said to be constituted by custom. Therefore the second locus for resolving causes was by custom. But this, no matter how ancient, could never be followed if against ius proprium scriptum. Whenever custom was stated to prevail against written law, this, said Craig, was to be understood as referring to the Roman leges. Custom sometimes interpreted a law, but did not overthrow it.87 If ius proprium and custom failed, then there should be arguments 82 83 84 85 86

Ibid I.viii.8. Ibid I.viii.8. Ibid I.viii.9. Ibid I.viii.9 and 10. Ibid I.viii.11–12. On Craig’s view of Regiam, see Cairns, Fergus and MacQueen, “Legal Humanism” (n 11) at 63–64. 87 Craig, Jus feudale (n 14) I.viii.13–14. Craig is using “locus” here in a technical sense derived from the study of rhetoric, namely as a “sedes argumentorum”. See, e.g., I Maclean, Interpretation and Meaning in the Renaissance: The Case of Law (1992) 78–82.

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by analogy, as the same reasoning should be applied if it led to the same utility; nor should what neighbouring nations did be neglected in similar circumstances (so long as they used the same ius) and we should turn to their customs, if we lacked ius proprium and custom.88 If, however, a novus casus arose that was covered neither by ius scriptum nor by custom, nor by other resources already noted, and a solution was found in the ius Feudale, it should be preferred both to the ius Pontificium and to the ius Civile. This reflected Craig’s argument that the ultimate historical origin of Scots law was in the ius Feudale, so that it was appropriate to go back to the original source.89 Finally, Craig wrote:90 If neither from the acts of parliament, nor from judicial custom, nor the jus Feudale, can it be resolved what ought to be done in some new question that has occurred, then recourse must be made to the jus Civile . . . And in our court, if anything hard, if anything troublesome comes up, the solution of it is to be sought from the jus Civile: if, however, in anything there have been innovations through the jus Pontificium or Canonicum (and some scholars have collected together all things in which the jus Civile and the jus Canonicum disagree), in such matters the jus Pontificium is to be preferred by us, particularly where it concerns the administration of the Church, or scandal (as Canonists say), where there is danger to the soul.

This echoes the remark Craig made earlier in his work, where he had also stated that, in areas of conflict between the Civil Law and the Canon Law, the latter was to be preferred. In this earlier reference, he expanded and explained his comment, stating that, always subject to the requirements of sound religion, and granting that we had thrown off the Pontifical yoke, we followed the ius Pontificium concerning the administration of the Church as regards those who have the care of souls, benefices, ecclesiastical cases, patronage, testaments, the contracting or dissolution of marriage, and legitimacy, making appropriate allowance for changed circumstances. These matters were referred to the ecclesiastical judge, the Commissary, who had inherited the jurisdiction of the old ecclesiastic courts, most notably those of the Bishop’s Officials.91 Craig thus does not appear exactly to envisage in Scotland the role of Canon Law found in the older ius commune, as found in Sinclair’s Practicks. While he did consider that where Canon Law and Civil Law conflicted the former was generally preferred, he did qualify the use of Canon Law as being 88 89 90 91

Craig, Jus feudale (n 14) I.viii.15. Ibid I.viii.16. Ibid I.viii.17. Ibid I.iii.24.

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largely confined to the jurisdiction that succeeded the old ecclesiastical courts. Indeed, as shown above, this was indeed the context of many of Craig’s own references to Canon Law. His claim that it was preferred generally to Civil Law when there was a conflict was most probably alluding to matters such as the likelihood that aspects of the strict Roman rules on contracts may not have been followed. For Craig, as for the author of the Relation, Scottish ius proprium was the statutes – the municipal law, as the anonymous author put it. A casus omissus was referred to the ius Civile. The decisions of the courts did have a role as representing custom. It is easy to see why this was so for Craig. As noted, he related the authority of law to sovereignty. As the law of the Papacy, Canon Law had no authority. Indeed, the Pope was probably the Anti-Christ in Craig’s view.92 As law, Canon Law had problems of legitimacy, except so far as it was accepted in practice. It was, however, easy to justify the use of Roman law. Craig argued that in Scotland “we are bound by Roman laws only so far as they are congruent with the laws of nature and right reason”. He added:93 Yet surely there is no broader seedbed of natural equity, no more fertile field of articulated reasoning and arguments from those principles of nature than the books of the Roman jurists; from which ought to be drawn, as if from the very fountain, what is equitable and what inequitable by nature and what most agrees and what disagrees with right reason.

Roman law for Craig was thus valid as a subsidiary law representing the ius Naturale. This raises two interesting points. First, the ius Naturale, according to Craig, had a higher authority than the ius proprium and neither a statute, nor long prescription, nor custom should have greater argumentative force than it. Secondly, for Craig, Scotland’s ius proprium was the legislation of Parliament. He stressed, however, that there was very little written law in Scotland;94 Scotland’s ius proprium was very restricted indeed, and hence the scope for the ius Civile was large. Craig thus wrote:95 We accordingly follow the decisions or rules of the Civil law chiefly in the administration of moveable property, granted that each nation will have employed its own particular forms of process. And we use our own forms of actions which are not entirely different from the Civil law; we state, however, that the Civil law must entirely be followed, in pacts, transactions, restitution, decisions or (as we now say) arbitrations, servitudes, contracts both bonae fidei and stricti iuris as well as nominate and innominate, evictions, pledges, tutory, legacies, actions, 92 93 94 95

Ibid I.iii.23. Ibid I.ii.14. Ibid. Ibid.

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exceptions, obligations, and finally in the punishing of wrongs: and to say truly, this Civil law so permeates all our law suits and about all business that scarcely no issue or no type of case arises in which its authority and particular practice is not plainly obvious: whenever anything difficult arises in court or law suits, the solution of it is sought thence.

Of course, this was not the Roman law of Justinian; it was that developed by the ius commune, even influenced by Canonist principles of equity and good faith, and in some instances “abrogated” by doctrines taken from the Canon Law. Its authority was as natural law. One may finally note that, when Craig used the term ius commune, he did not use it in quite the sense understood by Sinclair. For Craig, the great natural equity of the ius Civile shone forth among so many peoples that it was deservedly called the ius commune.96 Craig identified the ius commune with the ius Gentium, and the ius Civile, because of its natural equity and representation of ius Naturale, had such widespread use that it truly constituted the ius commune. Craig’s ius commune was no longer that based on the almost unexamined authority of the utrumque ius; rather, it was founded on the ius Gentium and ius Naturale. So far as the Civil Law embodied this, and only so far, it could be regarded as ius commune binding on all nations. D. IUS COMMUNE AFTER CRAIG Craig’s new understanding of the concept of ius commune was a development of profound importance, marking a significant change from the epoch of Sinclair. He had in fact propounded a view of ius commune potentially highly subversive of the traditional role of the utrumque ius in Scotland. Of course, older modes of thinking remained embedded in his work: witness his repetition (twice) of the traditional view that when there was a conflict between the Civil and the Canon Law the view of the latter was preferred.97 Baldus, for example, had written the same.98 It is difficult to see why this should be so if Civil Law was authoritative only as natural equity. This perhaps explains why to this view he added the rider that this preference for the Canon Law was “particularly where it concerns the administration of the church” and where the Commissary had jurisdiction.99 96 T Craig, De unione regnorum Britanniae Tractatus, Scottish History Society, First Series, vol 60 (1909) 90 at 328. 97 Craig, Jus feudale (n 14) I.iii.24; I.viii.17. 98 Baldus (n 18) vol iii, part 1, fol 20vb. 99 Craig, Jus feudale (n 14) I.iii.24; I.viii.17.

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It is impossible in our current state of knowledge to know to what extent Craig’s contemporaries shared this vision. For example, it is evident that Sir John Skene saw Scots law as related to the more universal systems of Civil and Canon Law. Skene had been educated in law at Wittenberg under the Humanist Matthäus Wesenbeck.100 The Annotationes to his Latin edition of Regiam Majestatem drew extensively on the learning of the utrumque ius. These notes varied between the comparative, the etymological and the historical. Skene saw the Canon Law (along with the Civil, the Norman, and the English) as helping to confirm readings in Regiam; he also claimed to point out where individual leges were derived from or agreed with the Civil, Canon or Norman Laws.101 A similar approach is found in his work De verborum significatione.102 Skene cited a broad range of sources in many ways comparable to those cited by Craig: one can thus note many Humanists. How exactly Skene understood the relationship between Scots law and the more universal systems of law is not yet entirely clear; but it seems unlikely that he had radical views on the ius commune comparable to those of Craig. Nonetheless, he undoubtedly favoured the Civil Law over the Canon in citations of the utrumque ius (in his notes to Regiam, the most cited author is Bartolus) and his pattern of citations in this respect is very similar to that of Craig. It seems likely that Skene’s view of the relationship between Scots law and the ius commune (however understood), if not that of Craig, was also not that of Sinclair. Spottiswoode’s Practicks allows us to explore the point more thoroughly by examining the law in practice and how it was understood in a way that Skene’s works do not permit. The collection is not directly comparable with that of Sinclair, as it is not a type of “journal” of the court, although there is extensive discussion of some cases. Rather, it contains an account, organised alphabetically, of various areas of law, in some of which there is a strong focus on the practice of the court. Some of the cases discussed were drawn from Spottiswoode’s own experience; others have been taken from different collections and works. Hector Mckechnie, in his somewhat unsatisfactory terminology, accordingly classified the volume as one of “digest” rather than

100 Cairns, Fergus and MacQueen, “Legal Humanism” (n 11) at 52. 101 Skene, Regiam Majestatem (n 44) address to the reader. 102 J Skene, De verborum significatione. The Exposition of the Termes and Dificill Wordes Conteined in the Four Buikes of Regiam Majestatem, and Uthers, in the Acts of Parliament, Infeftments; and used in Practique of this Realme; with Diverse Rules and Common Places, or Principalles of the Lawes (1681; repr 1826).

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“decision practicks”.103 The editor, Spottiswoode’s grandson, described it as “a Collection of Materials for a Pandect of the Scots law”.104 Whether or not Spottiswoode intended to compose a “pandect”, presumably meaning a work somewhat of the nature of Stair’s later Institutions of the Law of Scotland (1681), this does indeed give more of a sense of what the work is like than the classification “digest practicks”. The contents of each title often resemble the type of collection one might associate with a lawyer’s commonplace-book, with a whole array of different material in either Scots or Latin – quotations, accounts of cases, references to statutes and to the Civil Law – gathered together with little in the way of discernible structure or order. One could easily imagine it was a collection made with a view to a further purpose. Turning to the materials collected by Spottiswoode, as well as court decisions, the most important materials on Scots law for him were Craig’s Jus feudale and Balfour’s Practicks, both of which were extensively quoted.105 Neither of these was yet printed at the time Spottiswoode collected his materials together. The work also contains, often long, apparent quotations in Latin, not all of which have been traced to an author, supposing they were not Spottiswoode’s own composition (as seems unlikely). There are many of these on a whole variety of topics and they usually embody Civil Law. Further research may trace a source for some of them at least. The citations, even when they are second hand, reveal the type of material used by and familiar to those in practice, and on which the members of the Court of Session will have relied to construct their decisions and understanding of Scots law. Further, there are sometimes, in Spottiswoode’s discussion of a case, whether based on his own experience on the Bench or drawn from another source, indications of the reasons in law for the decision. In all of this it is important to compare the range and nature of Spottiswoode’s citations of sources of the ius commune with those noted in Sinclair’s Practicks. The first point to make is that there would appear to have been only two direct citations of the texts of Canon Law; in contrast, direct citations of the texts of Roman law were quite common, though, of course, tending to cluster in certain titles. The first citation of Canon Law was in Spottiswoode’s title on “Contracts and Obligations”, where the examples he gave of individuals “forbidden by law to Contract” were “Monks and Friars”. His authority for 103 Mckechnie, “Practicks” (n 54) 28. 104 Spottiswoode, Practicks (n 14), sig b. 105 P G McNeill (ed), The Practicks of Sir James Balfour of Pittendreich, Stair Society vols 21–22 (1962–1963).

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this was the Liber Sextus, the terms of the relevant provisions of which he paraphrased in Latin.106 He also then wrote that it was “said in the Canon Law, Monachus habens aliquid de proprio sepeliri debet in sterquilinio”.107 This, of course, cannot be an account of law as practised in Scotland, since there were no longer monks or friars. In the title on “Kirk Men and Kirk Patrimony”, he discussed the case of Erskine v Pitcairn (1566); in his report of that case, there was a reference to Canon Law, again to the Liber Sextus.108 That these two were the only direct citations of the Corpus iuris canonici in the whole work indicates the slight role that Spottiswoode was willing to attribute to it.109 Moreover, one related to a matter that could not be the law in Scotland any longer; both concerned issues directly connected to the Canon Law proper. Turning to authors, we can note that no citations of any major Canonist authors of the classical period of Canon Law are to be found, and this despite titles on topics such as bastardy, marriage and tiends. Thus, Panormitanus, so important for Sinclair, was nowhere cited.110 In the title “Kirk Men and Kirk-Patrimony”, Hostiensis was mentioned in a lengthy Latin passage (a quotation?); but this was not a citation of the works of the Canonist.111 In fact, like Craig, Spottiswoode had a knowledge of Canon Law (as his French education would lead one to expect) and he made a number of general allusions and references to it similar to those found in the earlier author. Thus, ius Pontificium was referred to in his title De praescriptione & usucapione;112 similarly he stated that there “are likeways Canon-Law Actions as Spuilzie of Teinds, wrongous intromissions there-with, for payment of Teind-Duties, Testaments and Executries”.113 In his title “Criminal matters” he reported that under Civil Law a wife was not admitted in accusing her husband of adultery, but “jus Canonicum id permittit”.114 Further, it is obvious in

106 VI 3.11.2; VI 3.12.2. 107 Spottiswoode, Practicks (n 14) 71–72: “A monk holding on to something of his own ought to be buried in a dung pit.” 108 Ibid 187–188; VI 3.8. The case is reported (from Spottiswoode) as Erskine v Pitcairn (1566) M 7962; it is also discussed in Craig, Jus feudale (n 14) I.xiii.16. 109 I am fairly confident that these are the only direct citations of Canon Law texts; I should point out, however, that it is not always easy either to identify citations or to identify their nature. 110 In the following, I have counted references. While I have I have tried to ensure accuracy, by their very nature there will be some mistakes. These are unlikely to alter the balance of comparative citations, which is more important than total figures. 111 Spottiswoode, Practicks (n 14) 186–187. 112 Ibid 234. 113 Ibid 5. 114 Ibid 78.

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reading parts of the Practicks that doctrines of Canon Law underpinned the thinking they contain. Nonetheless it is the virtual lack of any citations of that law and its commentators that is most obvious. It is easy to pick an example to demonstrate this further. Examination of Sinclair’s Practicks shows particularly extensive use of Canon Law and its commentators in interpreting and developing the Scottish action of spuilzie. It is thus particularly notable that, in Spottiswoode’s title “Ejection and Spoliation”, there was no direct citation of Canon Law sources or authors.115 This is particularly telling, given that much of the doctrine there discussed, such as “oportet spoliatum semel restitui, antequam spoliator possit rem spoliatam ulla ratione acquirere”116 (which embodies a standard brocard of the ius commune), undoubtedly originated in the Canon Law, as the slightest examination of the relevant sections of the Decretum Gratiani, Liber Extra or Liber Sextus reveals.117 In discussing cases on spuilzie and ejection, Spottiswoode certainly referred to Civil Law and made some general references to the “doctores”, which might well be taken as including Canonists; he also included a lengthy (unattributed) Latin passage on violentia, which stated that “[i]n jure Civili et Canonico habentur quinque species violentiarum”.118 This account of spuilzie is in dramatic contrast to the treatment of this possessory action in the 1540s, as demonstrated by Sinclair’s Practicks, which largely relied on the texts of the Decretals and the commentaries on them. Examination and analysis of the actual citations made by Spottiswoode is potentially helpful in trying to determine whether or not he used more modern Canonist authors. This said, to divide authors into Canonists and Civilists can be rather difficult, especially by this period. One can note, however, that the arguably Canonist treatises Spottiswoode cited on specific points of law included those of two English “Civilians”. Thus, he twice cited Henry Swinburne’s Treatise of Testaments and Last Wills in his title on “Testaments” and three times William Fulbeck’s Parallel, or Conference of the Civil Law, Canon Law, and the Common law of England, once each on husband and wife, master and servant, and minor and pupil.119 One can also

115 Ibid 87–95. 116 “The thing taken ought to be restored at once, before the taker is able to acquire ownership of it on some other ground.” 117 Ibid 92; see C.3 q. 3 c.1–2; X 2.13; VI 2.5. 118 Spottiswoode, Practicks (n 14), 89, 91, 94–95: “The Civil and Canon law recognize five kinds of violence.” 119 Ibid 159, 205, 213, 337, 339.

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note a single citation on a point of law of J B Nicolai, Regularum juris tarn civili quam pontificii in the title on the Act of Sederunt of 1612 on possession of Kirklands.120 What one finds then is remarkably little mention of more modern Canonists. The two English writers were roughly contemporary with Spottiswoode and his references to them probably were a reflection of his period at Oxford, just as were those to, for example, Coke’s Institute and to Bracton.121 In contrast, reliance on works that can easily be described as on Civil Law, as well as citation of the Corpus iuris civilis, was much more frequent. There was a quotation from the Commentaria iuris civilis of Franciscus Connanus in the title on servitudes.122 Antoine le Conte was cited, judging by context probably from his work on the libri feudorum.123 Franciscus Duarenus was quoted or cited three times in the title de judiciis et judicibus, both his commentary on the Corpus iuris civilis and his Disputationum anniversarium libri duo.124 The two well-known works of the English Civilian, John Cowell, Interepreter: Or Booke containing the Meaning of Words, and Institutiones juris Anglicani, ad methodem et seriem institutionum imperialium compositae et digestae, were each cited or quoted once, on criminal matters and servitudes respectively.125 François Hotman was cited once. Spottiswoode either cited or quoted from Jacques Cujas twelve times in quite varied areas of the law; among these, references to Cujas’ Paratitla in quinquaginta digestorum seu pandectarum and his Observationum et emendationum libri XXVIII can be recognised.126 The work of the German professor and judge of the Reichskammergericht, Joachim Mynsinger von Frundeck, Apotelesma sive corpus perfectum scholiorum ad quattuor libros institutionum iuris civilis was referred to or quoted from no less than eleven times in quite a number of different titles of the Practicks.127 The Consilia of Ioannes Petrus Surdus were relied on three times.128 It is obvious that, for preference, Spottiswoode cited relatively contemporary, indeed modern, Civilian works on substantive law and that, among 120 121 122 123 124 125 126

Ibid 194. Ibid 7. Ibid 308. Ibid 131. Ibid 181. Ibid 78, 309. Ibid 131 (feus), 132 (fiscus), 183 (jurisdictio)‚ 184 (jurisdictio), 225 (de pactis) (four times), 229 (de pignoribus) (twice), 237 (de praescriptione et usucapione), 346 (tutors and curators). 127 Ibid 81 (dolus and fraus), 82 (actio Pauliana) (three times), 109 (exceptions), 241 (probation) (twice), 275 (rei vindicatio), 310 (servitudes), 318 (summons and libel) (twice). 128 Ibid 29, 185, 251.

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the authors he preferred, Humanists tended to predominate.129 One can trace citations of older authors: Baldus was cited five times and Jason de Mayno once.130 All of these citations occurred, however, in quotations, all but one clearly from Craig’s Jus feudale. There is no reason to believe that Spottiswoode had directly consulted them in compiling the relevant titles of his Practicks. Actual use appears to have been made of Bartolus. He was once noted as having been followed by the Court of Session in 1583 in a decision on arbitration and he seems once to have been directly quoted.131 He was likewise cited, along with texts of Roman law, in a discussion of a case the Court decided in 1632, in accordance with Roman law, on how long a rental should last; the Court so decided to make a clear precedent for itself for the future.132 On the other hand, two mentions of him came in quotations from Craig and another was made in what also seems to be a lengthy (unattributed) quotation.133 Thus, in contrast to Sinclair’s Practicks, Spottiswoode’s work largely ignored the older authors as well as the Canon Law. While at one level, preference for modern literature is, of course, to be expected, it is Spottiswoode’s focus on Humanists that is interesting. As with Craig, it suggests a different attitude to the sources of the ius commune. Spottiswoode’s Practicks, however, resemble those of Sinclair in two ways: first, in the citation of decisions of other jurisdictions of continental Europe of  the ius commune;134 and secondly, in the copious citation of works on Romano-Canonical procedure. Taking these in turn, we can note Spottiswoode’s quotation from or citation of: Matthaeus de Afflictis, Decisiones Neapolitanae (once);135 Nicolas Boerius, Decisiones Burdegalenses (once);136 Guido Papa, Decisiones Parlamenti Dalphinalis Gratianopolis (five times);137 Jean Papon, Recueil d’arrests notables des cours souverains de la France (twenty times).138 The obvious contrast to Sinclair, however, was in the absence of citation of decisions of the Rota Romana. Spottiswoode’s 129 He mentioned Craig’s favourite Humanist, Hotman, only once, however, and that occurred in a lengthy quotation from Craig: ibid 131 (on feus) quoting Craig, Jus feudale (n 14) I.ix.27. 130 Spottiswoode, Practicks (n 14) 127, 207, 252, 256, 353. 131 Ibid 14, 182. 132 Ibid 354. 133 Ibid 69, 132, 292. 134 Like Sinclair, he cited Consuetudines Ducatus Burgundiae fereque totius Galliae, Barthomomaei a Chassanaeo commentariis illustratae: Spottiswoode, Practicks (n 14) 78; Sinclair’s Practicks (n 30) No 39. 135 Spottiswoode, Practicks (n 14) 251. 136 Ibid 237. 137 Ibid 7, 13 (twice), 237 (twice). 138 Ibid 5, 13, 14 (four times), 76, 78, 79, 95 (twice), 120, 126, 157, 185, 216 (twice), 225, 227, 349.

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citations to the decisions of other jurisdictions had a more secular cast. The works on procedure, however, did include those relating primarily to ecclesiastic courts and here there was a strong correspondence with the citations recorded by Sinclair: Johannes de Ferrariis, Practica libellorum papiensis (six times);139 Petrus Jacobi, Practica aurea libelli (eleven times);140 Ludovicus Gomez, Commentarii in iudiciales regulas cancellarius (twice);141 and Joseph Mascardus, Conclusionum omnium probationum quae in utroque foro quotidie versantur (once).142 The last two works were much more modern than the first two. Spottiswoode, in contrast to Sinclair, had a much richer body of Scottish material available for use: Craig, Balfour, Skene’s edition of the statutes, Skene’s edition of Regiam and the “auld lawes”, Skene’s De verborum, and collections of cases, and he made use of all of these.143 Further, given that Spottiswoode drew on his experience as a judge in compiling the Practicks, discussion of decisions necessarily loomed very large in his account of the law. The overall picture of Scottish law and legal practice in the first half of the seventeenth century to be drawn from Spottiswoode’s Practicks is thus of a legal system where the substantive municipal law was seen as found in statutes, decisions and authoritative legal writings. The works of the ius commune did not have quite the same overwhelming dominance in Spottiswoode’s Practicks as in the collection of Sinclair, except in the area of procedure and practice; this said, in many areas of law, there was significant reliance on Roman legal sources, which were extensively cited, and modern authors, including Humanists, on the Roman law. Moreover, where works were cited on substantive issues, they were usually works of Roman law. In this sense, in Spottiswoode’s approach to the ius commune, Canon Law had been overwhelmed by Civil Law. Further, one gains the impression that the types of literature of the ius commune that most interested Spottiswoode were collections of court decisions and studies of court practice, such as the contemporary work of Antoine Favre, Codex Fabrianus definitionum forensium, et rerum in sacro Sabaudiae Senatus tractatarum, ad ordinem titulorum Codicis Justinianei, quantum fieri potuit, ad usum forensem accommodatus et in novem libros distributus (cited

139 140 141 142 143

Ibid 6 (twice), 7, 83, 246, 303. Ibid 7, 39 (3 times), 236, 241, 245, 310 (four times). Ibid 187, 231. Ibid 240. See Cairns, “Historical Introduction” (n 7) at 95–98.

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once)144 and the Rerum judicatarum, libri IIII of Annaeus Robertus (cited eleven times).145 Even here, one can note that, in the extensive reliance on decisions of other jurisdictions in the Practicks, Spottiswoode favoured secular over ecclesiastic court reports. It was only in the works used in procedure, on how to draw libels and on the progress of actions through the courts, that Spottiswoode made much use of works that pay much attention to the Canon Law. In all, however, what evidently interested Spottiswoode most as a judge and writer of Practicks were the works of practici in the ius commune and the commentators on Roman law. Substantive material on the Canon Law held little demonstrable interest for him, though he obviously had some knowledge of it and its literature. While Spottiswoode had much more Scottish material available to him than Sinclair, there nonetheless were areas of law where, under his headings, Roman law or Civilian authors or case reports from outside Scotland were used exclusively, with no mention of Scottish material whatsoever. An example would be the title on negotiorum gestio.146 There are also some titles, such as those on actions, dolus and fraus, pacts, and summons and libel, where Civilian or ius commune material predominates or is a very major portion of the material collected.147 There are clearly areas where Scots law was starting to develop on the basis of the Civilian material, while Civilian material was nearly universally used to interpret Scots law directly or by analogy. For example, Spottiswoode reports the pleading in an action of removing, in which the pursuer’s triply, based on C 4.65.25, was accepted by the Lords.148 Another fine example of reliance on Civilian thinking came in Sharp v Sharp (1631), where the pursuers sought reduction of an entail. By a bond, two sons had obliged themselves to entail their land on each other failing heirs male of their bodies. The daughters of one son sought reduction of the entail on the ground it was the product of a “nudum pactum, neque traditione, neque ulla alia re vestitutum” or a “contractus innominatus”. The case caused the court considerable difficulty and the judges considered the “Process which was given in by Answers and Replys, & c in writ” for four days, before deciding that the “Bond was not nudum pactum, but a perfect stipulation between the two parties, whereof none of them could repent

144 145 146 147 148

Spottiswoode, Practicks (n 14) 231. Ibid 156, 212, 228 (three times), 249, 295 (twice), 312, 337. Ibid 224–225. Ibid 1–7, 81–83, 225, 316–322. Cunningham v Cook (1583); Spottiswoode, Practicks (n 14) 277.

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themselves thereafter without the others [sic] consent”.149 In this context it is perhaps worth pointing out that Spottiswoode’s quotations from Cujas on pacts show an approach that was quite at variance from Canon Law and, indeed, later Scots law. Sharp v Sharp has come to be seen as significant in Scots law’s move towards the Canon Law’s position.150 For Spottiswoode, as for Craig, the “common law” was coming to appear as the ius civile rather than as the utrumque ius. Thus, in his title Dominium. De acquirendo, et amittendo rerum dominio, he reported a case (the parties were unnamed) in which a pursuer was trying to get a woman to remove under a tack. She claimed a heritable right. The pursuer argued in his triply “by the common Law”, citing C 4.65.25, which stated that if anyone had received land or something else under a lease, the property had to be restored before they could litigate over ownership. Accordingly, the “Lords decerned her to flit and remove, without prejudice to her heritable Right in judicio petitorio”.151 He noted that Ballenden v Mackmath (1628), a case on restitutio in integrum, “was judg’d conform to the common Law”. For this he cited D 4.4.19.152 In the case of Birkhead v Nairn in the title De Satisdando, Spottiswoode noted that the defender (unsuccessfully) asked the Court to require the pursuer to give caution, “to answer him for what he had to lay to his Charge conform to the common Law”. For this C 2.57.1 was cited.153 E. CONCLUSION The Relation of the Manner of Judicatures of Scotland was written at a crucial time in the history of Scots law, when James VI had inherited the throne of England and had proposed various projects of unification, including that of the laws.154 Commissions to consider a union of the laws were appointed by both Parliaments, with the Scots Commissioners instructed to protect “the fundamentall lawes, Ancient privilegeis, offices

149 Spottiswoode, Practicks (n 14) 331–332. The case is reported (rather more fully) in (1631) M 4299. 150 Spottiswoode, Practicks (n 14) 225. On the development of the Scots law, see W D H Sellar, “Promise”, in Reid and Zimmermann History of Private Law (n 7) vol ii, 252 at 262–266. Sellar’s discussion of Sharp is at 257, 260, 265. It is also discussed by G Lubbe in “Formation of Contract”, ibid vol ii, 1, 10 and 13. 151 Spottiswoode, Practicks (n 14) 84. 152 Ibid 300. 153 Ibid 306. 154 See, e.g., Levack, Formation of the British State (n 50); B Galloway, The Union of England and Scotland, 1603–1608 (1986).

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and liberteis of this kingdome”.155 There was a considerable pamphlet debate in which a variety of different views were urged.156 Some thought that union would be easily achieved as the laws were fundamentally similar; others were much more sceptical, including those English lawyers who feared Scots law as Civil Law, and hence a threat to the English Common Law.157 The passage on the sources of Scots law in the Relation was hardly one calculated to assuage English fears about the foundation of Scots law in “imperial” Civil Law.158 Indeed, from 1600, the standard view in Scotland appears to have been that, in a hierarchy of authority, Scots statutes and custom came first and second, to be followed by Civil Law in a subsidiary role. As noted, the hierarchy is less simple than it initially appears, since Craig placed Scots law itself in the framework of the law of nature and nations; this meant that natural law and, to some extent, the law of nations, had a higher authority than the ius proprium. In so far as the Civil Law represented natural law and the law of nations, there was a wide scope for drawing arguments from it in court and in writing treatises. In sum, given the concision and purpose of the Relation, its author provided his readers with a reasonably accurate impression of practice in Scotland. The evidence explored above tends to suggest that a marked shift had started from the older view of the relationship between ius commune and ius proprium found in Sinclair’s Practicks; a significant aspect of this shift was the demotion of the part played by Canon Law. The work of Spottiswoode marks this clearly; in his Practicks, Canonists were generally only valued for their discussions of Romano-Canonical procedure. This tends to support an understanding of what was happening in this period as a rejection of Canon Law as a strong part of the ius commune, and the development of the idea of the ius commune as being overwhelmingly the Roman law. One can confirm this by pointing to the Major Practicks of Sir Thomas Hope, a contemporary of Spottiswoode. There Hope wrote that there was an Act of Sederunt of 1592, “beiring that the conventions of parties should be fulfilled albeit not

155 Record Commission, Acts of the Parliaments of Scotland (1814–1875) vol iv, 263–264, c 1 (1604). 156 See B R Galloway and B P Levack (eds), The Jacobean Union: Six Tracts of 1604, Scottish History Society, Fourth Series (1985) vol 21. See also A Wijffels, “A British ius commune? A Debate on the Union of the Laws of Scotland and England during the First Years of James VI/I’s English Reign” (2002) 6 EdinLR 315. 157 See, e.g., Cairns, “Historical Introduction” (n 7) at 78. 158 This may make it unlikely that Craig was the author.

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agreeable to the comone law”.159 The term “comone law” must here refer to the Civil Law alone, as the Canon Law accepted the doctrine of pacta sunt servanda.160 Just as it may well be Protestant beliefs that encouraged reliance on the works of the English civilians, one can speculate that the Reformation and the rejection of the authority of the Pope played a large part in this development. Humanistic theories of sovereignty, such as those of Craig, made Canon Law difficult to accept as a source. Here one can note that, in the 1560s, William Skene, in St Mary’s College in St Andrews, thought it important to move from being Canonista to Civilista.161 Around 1600, Skene’s attitude to the Canon Law can perhaps be traced in the marginal notes to his Latin edition of Regiam. There he provided a concordance to English law, the new Scottish Acts, and the ius divinum (in other words the Bible). A preference for the ius divinum over the ius Pontificium had marked many of the Lutheran reformers associated with Skene’s alma mater at Wittenberg. Thus, although Skene’s declared teacher had in fact held a chair in Canon Law, he himself may have seen Canon Law as a dangerous overlay to the pure doctrine of the Bible.162 In the seventeenth century, the Professor of Canon Law in Aberdeen had problems with the General Assembly, who were suspicious of his classes, until he explained the strictly limited scope of what he taught.163 It is also important to note Craig’s move towards a strong linkage between state sovereignty and law that led to a need to validate the use of Roman law in Scottish courts by the argument that it was used in so far as it embodied natural law. In the long run, this would lead to questioning the value of it as a source of arguments. A more critical attitude to Roman law was developing in which one may speculate legal Humanism may have played a part, given how popular Humanist authors were in Scotland. Of course, the Humanist approach to Roman law was complex and Spottiswoode continued to consider Roman law as of primary authority over many fields of law; but 159 J A Clyde (ed), Hope’s Major Practicks, 1608–1633, Stair Society vols 3 and 4 (1937–1938) (henceforth Clyde, Hope’s Major Practicks) vol i, 98. The Act of Sederunt cannot be traced. 160 See, generally, R H Helmholz, “Contracts and the Canon Law”, in J Barton (ed), Towards a General Law of Contract (1990) 49. Hope seems generally, however, to have preferred the view of the Civil law: see Clyde, Hope’s Major Practicks (n 159) vol i, 93, 99. 161 J W Cairns, “Academic feud, bloodfeud and William Welwood: legal education in St Andrews, 1560–1611” (1998) 2 EdinLR 158 at 168–170. 162 Witte, “Canon Law” (n 18) at 197–204, 222; G Strauss, Law, Resistance, and the State: The Opposition to Roman Law in Reformation Germany (1986) 217–223. 163 J Spalding, Memorialls of the Trubles in Scotland and in England, 1624–1648, Spalding Club vols 21 and 23 (1850–1851) vol i, 166.

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Craig’s natural-law approach undoubtedly pointed the way forward. This has the consequence that we should understand the fifty years or so around 1600 as marking an important shift in Scots law. The sphere of Canonist sources was now strictly limited, a limitation reinforced by the Reformation of religion. Scottish sources – primary and secondary – were developing in significance, scope and number. Natural law was starting to move towards the dominance it had achieved in Scottish legal thinking by 1700. Indeed, as a Scottish legal literature started to develop in the seventeenth century, it was to take Craig’s hierarchy of sources as its starting point. This all suggests that it may be fruitful to draw on the idea of the usus modernus Pandectarum (as christened by Samuel Stryk somewhat later) to provide an interpretative framework for understanding the developments in Scots law through the seventeenth century.164 The era of the Roman–Scots law was on its way. It was this fertile creation of a specifically Scottish usus modernus, in which natural law played an important role, that allowed Lord Stair to write his Institutions of the Law of Scotland, first printed in 1681. This pictured Scots law as a coherent, logical and organised whole, integrated as a hierarchical series of norms, justified and made obligatory by a higher authority. The basic source material of the municipal law consisted of the statutes and decisions of the courts; the traditional Scottish reliance on the ius Civile was justified by the authority of natural law and its equitable principles were being progressively incorporated into the national law. Stair’s work is indeed compatible in this respect with other institutional works of the era of the usus modernus Pandectarum, marking the formation of national laws in Europe.165 Thus, for Scotland, the move away from the medieval ius commune towards the usus modernus Pandectarum started in the later sixteenth century under the impact of Humanism and the Reformation, and is clearly identifiable and symbolised in Craig’s great Humanist work and confirmed by Spottiswoode’s Practicks.

164 F Wieacker, A History of Private Law in Europe, trans T Weir (1995) 159–195; K Luig, “Usus modernus”, in A Erler and E Kaufmann (eds), Handwörterbuch zur deutschen Rechtsgeschichte (1971–1998) vol v, cols 628–636. 165 K Luig, “The Institutes of National Law in the seventeenth and eighteenth centuries” (1972) Juridical Review 193.

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4 The Law, the Advocates, and the Universities in Late Sixteenth-Century Scotland* Some seventy years ago, W C Dickinson drew attention in this journal to a document in what is now the British Library (MS Additional 33531, folios 207–208) that, he argued, explained the failure of the project initiated on 16  January 1589 by the Lords of Council and Session to found a chair in Law in the University of Edinburgh.1 This unsuccessful attempt had been noticed in the standard histories of the university, but no satisfactory explanation of the failure had been offered.2 Dickinson argued convincingly that the document showed the project failed because of the opposition of the Advocates, on whom the Lords of Session had relied (along with the Writers to the Signet) for help with the necessary endowment. This the Advocates had refused to provide. They eventually contributed a share of the finance in 1597, but then the endowment was converted to fund the chair of Humanity and some bursaries. This recognised that the first two professors, though advocates, had actually taught only humanity.3 Dickinson therefore glossed the contentions sustaining the Advocates’ opposition as follows: The arguments set forth in the “Protest” need no comment. The attitude of the Advocates towards a possible increase in their numbers when already there is “als mekle law in Edinburgh as thar is silluer to pay for it”; their fear that those who

* John W Cairns is a Lecturer in the Department of Private Law at the University of Edinburgh. He is grateful to his colleagues and friends Margreet Ahsmann, Hector MacQueen, Douglas Osler and David Sellar for their comments on and criticisms of this article, and to Robert N Smart, Keeper of the Muniments in the University of St Andrews, for his invaluable advice and assistance. 1 W C Dickinson, “The Advocates’ Protest against the Institution of a Chair of Law in the University of Edinburgh” Scottish Historical Review, vol 23 (1925) 205 (henceforth Dickinson, “Advocates’ Protest”) at 205; see also R K Hannay, The College of Justice: Essays on the Institution and Development of the Court of Session (1933) (henceforth Hannay, College of Justice) 85–86. 2 See A Grant, The Story of the University of Edinburgh During its first Three Hundred Years (1884) vol i, 184–189. 3 Dickinson, “Advocates’ Protest” (n 1) at 206–207, 211–212.

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have attended two or three lectures “for the fassioun” will then set themselves up as compeers even to Bartolus and Jason; and their shrewd thrust that within a short space the Chair may cease to exist “And than peraduenture sum courteour gett our siluer to spend”, are all expressed in terms so neat and trenchant as alone to justify the publication of this delightful piece of special pleading.4

R K Hannay supplemented Dickinson’s view with the surmise that “the opposition to a ‘doctor of the laws’ in the Town’s College, and the ultimate modification of the plan in 1597, whereby a ‘regent of humanity’ was substituted, had something to do with teaching interests established by the advocates and the probationary expectants”. He pointed to the statement in a petition for admission as an advocate in which the applicant claimed that he had shown his ability “be public teitching in the tolboith as is accustomat be lauaris befoir thair admissioun”, and argued: the express reference . . . to “public teitching” seems to imply a definite purpose of instruction. Though there is no clear evidence regarding the extent and character of the educational work, there can be little doubt that the men with academic attainments found some outlet for their activity among those who had enjoyed no similar advantages, and had no other opportunity for theoretical training.5

It is not the purpose of this article to argue that there was no special pleading in the Advocates’ opposition to the creation of this chair. There evidently was. But it is suggested that there was more substance to the Advocates’ arguments against the proposal than Dickinson and Hannay admitted. Examination of the evidence shows that the Advocates had good reason for their views, and also throws valuable light both on the development of education in law in the Scottish universities and on the early educational aspirations for advocates. One argument put forward by the Advocates, on which Dickinson and Hannay omitted to comment, is the following: As to the new erectioun It appeiris that nathir the place nor the forme is conuenient. To wit that in the toune of Edinburgh quharin his ma[jes]ties cheiff residence is with court and sessioun and continowall handling of great effairis thar salbe ony sic professioun namelie thair being sindrie professoris of the lawis erectit of auld in the principal universities of sanctandrois and abirdene and suffecient stependis appoyntit to that effect quhilkis places ar far mair convenient for all sort of guid lettres quhilk sould be maist cheiflie respectit To the preiudice of the quhilkis universiteis and thair privilagis The saidis aduocattis being supposis of auld ar sworne to do na hurt And yit quhat frute hes fallowit of ony of thay erectionis It is weill knawin and the lyke or far less to be hoipit of that quhilk is presentlie in hand.6 4 Ibid at 212. 5 Hannay, College of Justice (n 1) 142–143. 6 Quoted in Dickinson, “Advocates’ Protest” (n 1) at 209.

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The Advocates were making three linked points: first, there already were established chairs in Law in the Universities of Aberdeen (by which King’s College alone was meant, since the document antedated the foundation of Marischal College and University) and St Andrews, and those universities provided a better setting for education; secondly, the Advocates were pledged to support those universities, being alumni or former “supposi[ti]s” (that is, members of the universities), and the proposal would hurt them;7 and thirdly, little benefit had come from the chairs in those two universities, and the same – or less – could be expected from the proposed chair in Edinburgh. The present article discusses these claims, and argues that they are convincing. That the Advocates put them at the head of their reasons for opposing the creation of the chair is suggestive, to say the least. It is also important to note that the Advocates seem to have been reasonably well informed about what was happening in the Scottish universities, since they did not mention the University of Glasgow, where the Nova Erectio of 1577 had made no provision for the teaching of law.8 To understand the Advocates’ position, it is necessary to examine the state of legal education in St Andrews and Aberdeen in the 1570s. It should be pointed out at the outset that the available evidence may appear slight. No conclusions, however, should be drawn from the paucity of the source material, which is not untypical, since, in general, only the formal records of the Scottish universities (and, indeed, of others elsewhere) tend to survive for such an early period. The papal Bull founding the University of St Andrews had provided for faculties of Canon Law and Civil Law, and four Canonists were among the original teaching staff.9 It is difficult to assess the history of the Faculty of Canon Law in St Andrews, other than to say that it definitely came into

7 I have taken “supposes” as being a form of “supposit” or “suppost”, one of the meanings of which was a member of a university; it is especially recorded for members of St Andrews or Glasgow Universities. The origin is the Latin “suppositus”, an “adherent”. The Advocates were using it in this technical sense, so that “supposis of auld” means former members or long-time members. This makes sense of their claim to be sworn not to hurt the universities; thus, as alumni, they were pledged to support the Universities of Aberdeen and St Andrews. See Concise Scots Dictionary, ed M Robinson (1985) sv “suppost”; Dickinson, “Advocates’ Protest” (n 1) at 209 n 4, suggested “supporters”. This is a possible meaning, but ignores the context and the Advocates’ claim to be sworn not to hurt the universities. 8 J Durkan and J Kirk, The University of Glasgow, 1451–1577 (1977) (henceforth Durkan and Kirk, University of Glasgow) 330–331, 430–448. 9 Acta Facultatis Artium Universitatis Sanctiandree, 1413–1588, ed A I Dunlop, 2 vols (1964) (henceforth St Andrews Univ Acta) vol i, cxlix.

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being and was active, as the St Andrews Acta reveal.10 Furthermore, the colleges also provided instruction in Canon Law. In 1500 St Salvator’s College established a chaplaincy to be held by a Bachelor of Canon Law who was to lecture three times a week, while in 1518 two of the leading theologians in St Leonard’s College were described as professors of Canon Law.11 The history of the teaching of Civil Law is less easy to trace. In 1432 Pope Eugenius was informed that in the University of St Andrews “few, if any, betake themselves to the study of Civil Law, on account of which there are found few experts in civil law by whom justice can be duly administered in civil business”. The Pope accordingly granted dispensation to ecclesiastics to study and acquire degrees “in laws” (that is, both Canon and Civil Law), so that the kingdom might “abound in legal experts by whom justice would be ministered and the state be well ruled”.12 What effect this may have had is unknown. The Bull of Pope Paul III erecting St Mary’s College in February 1538 did provide for the teaching of “Jura tam Canonica quam Civilia”,13 although its Nova Fundatio et Erectio of 1553 only made provision for a Canonist who was to lecture on Canon Law five days a week.14 The St Andrews Formulare, however, contains styles for the award of degrees in Civil Law and Canon Law.15 But it is notable that one style mentions study “in facultate decretorum” for a degree in Canon Law, while another mentions that the graduand in Civil Law “should submit himself to arduous, rigorous and private examination by all the doctors of the venerable college of Civil Law in the city of St Andrews”16 – from which it is tempting to conclude, as Dunlop hinted, that a Faculty of Civil Law never became properly established in the university, although the discipline was certainly taught and examined.17 The founder of the University of Aberdeen, Bishop William Elphinstone, was a noted lawyer trained in Canon and Civil Law, who had considerable 10 Ibid vol i, 3; and see the discussion by Dunlop in ibid vol i, cxlix–clv. See also R G Cant, The University of St Andrews: A Short History, 3rd edn (1992) 13–14. 11 St Andrews Univ Acta (n 9) vol i, cliv. 12 Quoted in ibid vol i, cliii. Ecclesiastics were generally forbidden to study Civil Law: W Ullmann, “Honorius III and the prohibition of legal studies” (1948) 60 Juridical Review 177. 13 Parliamentary Papers, XXXVII: Evidence, Oral and Documentary, taken and received by the Commissioners appointed by His Majesty George IV, July 23d 1826; and re–appointed by His Majesty William IV, October 12th, 1830; for visiting the Universities of Scotland, vol. III: University of St Andrews 1837 (henceforth Evidence to the Commissioners: University of St Andrews, 1837) 357. 14 Ibid 363. 15 St Andrews Formulare, 1514–1546: Volume 2, ed G Donaldson (1944) nos 308–315, 523–526. 16 “se subjecit arduo et rigoroso ac privato examini omnium doctorum venerandi collegii juris civilis civitatis S[anctiandree]”: ibid nos 524, 525. 17 St Andrews Univ Acta (n 9) vol i, cliv.

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practical experience of both ecclesiastical and royal courts.18 This experience undoubtedly influenced him in seeking strong faculties of Civil Law and Canon Law in his new university.19 The earliest teachers in the university included a Canon lawyer and a Civil lawyer.20 No doubt the Education Act of 1496 promoted hopes of the success of such developments.21 Certainly, teaching of these disciplines was taking place before the foundation of King’s College in 1505.22 The foundation charter of 1505 gave to King’s College a Canonist and a Civilist as endowed members. Its second charter of 1514 (not confirmed until 1529) added one MA student reading Canon Law and two MA students reading Civil Law. If the evidence of legal education in Aberdeen is not plentiful, it certainly demonstrates that there was both teaching and granting of degrees in law.23 The Reformation inevitably had a disruptive effect on the universities, which were essentially ecclesiastical corporations. There has been no general investigation of the history of this for Scotland, although there are good specific discussions of the developments in Glasgow and in King’s College, Aberdeen.24 Canon Law had been the main focus of legal study in Scotland, but it was very much implicated with the unreformed Church. The reformers, accordingly, did not ignore legal education in their consideration of the universities. The First Book of Discipline of 1561 proposed instruction in Civil Law and Municipal Law in its recommendations for university reform.25 With regard to St Andrews, this meant that in the “second colledge” there were to be “two readers in the Municipall and Roman lawes, who shall compleat his course in 4 yeares, after which time being by examination found sufficient, they shall be graduate in the laws”.26 The University of Aberdeen, like that of Glasgow, was simply to have a class “of the Municipal and Roman laws”.27 Though not acted upon, these proposals were influential; but the Canonist in St Mary’s College,

18 See L Macfarlane, William Elphinstone and the Kingdom of Scotland, 1431–1514: The Struggle for Order (1985) (henceforth Macfarlane, Elphinstone) 16–122. 19 Ibid 299, 301–304. 20 Ibid 319. 21 Acts of the Parliaments of Scotland, ed T Thomson and C Innes, 12 vols (1814–1875) (henceforth APS), ii, 238, c 3. 22 Macfarlane, Elphinstone (n 18) 320–322. 23 Ibid 347, 377–382. 24 See Durkan and Kirk, University of Glasgow (n 8) 225–392; D Stevenson, King’s College, Aberdeen, 1560–1641: From Protestant Reformation to Covenanting Revolution (1990) (henceforth Stevenson, King’s College) 7–60. 25 J K Cameron (ed), The First Book of Discipline (1972) 140, 143–144. 26 Ibid 140–141. 27 Ibid 143–144.

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St Andrews, survived the Reformation, as did the Canonist and Civilist in King’s College, Aberdeen. But before  we consider this further, it is important to examine some crucial visitations of the University of St Andrews. A petition was presented to the queen and the Lords of the Articles in 1563 “in name of all that within this Realme ar desyrous that leirning and letters floreis”, warning of the “waisting of the patrimonie of sum of the fundatiounis maid in the Collegeis of the Citie of Sanctandros”. This resulted in an Act of 1563 which authorised a visitation of the university, with a view to regulating its finances and reforming its curriculum. It was specially noted in the Act that the “toungis and humanitie” were not adequately taught. This concern may have reflected the interests of the great Humanist, George Buchanan, who was on the proposed commission, along with luminaries such as Henry Sinclair, President of the Session, the Earl of Moray, Secretary Lethington, John Bellenden of Auchnoule the Justice Clerk, James MacGill, Clerk Register and a noted advocate, John Erskine of Dun, John Winram, and the Lord Advocate, John Spens of Condie.28 This commission of visitation seems not to have acted on its authority, but a plan of education survives, which has been attributed to Buchanan as the fruit of his appointment. The scheme proposed three colleges in the university, one of which, that of “Diuinite”, was to have a lawyer, who was to “reid dayly ane hore in law, except on the Thursday”.29 It is perhaps worth noticing here that on 29 December 1563 the General Assembly appointed a committee to revise the First Book of Discipline, which also included Buchanan, the Secretary, the Clerk Register, and the Justice Clerk.30 This petition of 1563 was probably the “artikle of the leirnit men of this Realme, desyring letteris to flurries” that was recommended in 1567 to certain Lords of the Estates to consider and report on to the next Parliament.31 During the regency of the Earl of Morton, however, this parliamentary commission provided the legal foundation for a visitation by the Regent on 16 April 1574, “accumpanyt with certaine of the speciall personis nominat in the said Act of Parliament, now remaining on lyff, with sum otheris of like 28 APS vol ii, 544, c 26. 29 See “The Opinion of George Buchanan Concerning the Reformation of the University of St Andrews”, in W Scott and D Laing (eds), The Bannantyne Miscellany, (1827–1836) vol ii, 97; for a brief modern discussion, see I D McFarlane, Buchanan (1981) 218–222. 30 T Thomson (ed), Acts and Proceedings of the General Assemblies of the Kirk of Scotland from the Year MDLX Collected from the Most Authentic Manuscripts (1839–1845) (henceforth Acts and Proceedings of the General Assemblies) vol i, 41. 31 APS vol iii, 30, c 25. This provision was repeated in 1581: ibid iii, 214, c 9, which suggests that the visitations of 1574 and 1579 did not take care of all concerns.

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qualitie in place of thame that ar departit this lyff”.32 We need not go into all the details of this visitation’s report, but it is important to note the following recommendation: That the Lawier of the New [i.e. St Mary’s] College sall reid, within the same, four lessounis of the Law ouklie, viz. on Monunday, Tysday, Wednisday, and Friday, quhais lessoun, with the prayers, sall bayth be endit in the space of ane hour fra vij to viij; to quhilkis lessonis in the law salbe ordinar auditouris all the advocattis and scribis in the consistorie, and sic utheris as ar desirous to proceid in the Faculty of the Law; and that nane be admittit befoir the lordis, or utheris jugeis, to ordinar procuratioun, except yai sall first give specimen doctrine in the Universitie of Sanct Androis, and report a testimoniall fra the said Lawier, witnessing yair qualificatioun, and how far yai have proceidit in the study of the law, and yairwithall affirming, yat yai diligentlie keipit the lessounis, sa lang as thay remanyt in the Universitie . . .33

The visitation also recommended that “thair be exercises in the Lawes, Mathematick, and Rhetorik, alsweill as in Logik and Theologie, and dayes, tymes, and places appointit yairunto, upoun the quhilk the Rectour sall report the aduise of the Universitie to my Lord Regentis Grace, betwix and the first day of October nixtocum”.34 As it is unclear what effect, if any, was given to the report of the visitation under Morton, discussion of these recommendations will be postponed to later. Two years after Morton’s visitation, the General Assembly appointed commissioners to visit and investigate the state of St Andrews University.35 This produced no result, and in 1578 Parliament appointed the Archbishops of St Andrews and Glasgow, the Bishop of Aberdeen, the Earls of Lennox and Buchan, Andrew Melville, and Peter Young to visit the university.36 The naming of this commission again resulted in no immediate action, and so the General Assembly of July 1579 petitioned the King and Council, urging the necessity of reform of the University of St Andrews.37 Accordingly, on 8 August, the Council appointed commissioners to whom it gave wide powers to reform the curriculum, finances and organisation of both the University of St Andrews and its colleges.38 A far-ranging reform was instituted. We should note the following provision: 32 33 34 35 36 37 38

Evidence to the Commissioners: University of St Andrews, 1837 (n 13) 187. Ibid 188. The paragraph continues “incaisse yai” and then breaks off. Ibid 189. Acts and Proceedings of the General Assemblies (n 30) vol i, 360. APS vol iii, 98, c 5. Acts and Proceedings of the General Assemblies (n 30) vol ii, 434–435, 437. Register of the Privy Council, First Series, ed J Hill Burton (1877–1898) (henceforth RPC) vol iii, 199–200.

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That the Lawer and Mathematiciane of befoir in the new College, sall now be in Sanctsaluators College, and haue thair stipendis and buirdis vpon the fruictis thairof, and be electit and admittit as the maisteris of the Collegis: That the Lawer now appointit to remaine and be in Sanctsaluators College, sall reid withine the same foure lessonis of the law ouklie, viz. on Monunday, Tuysday, Wednisday, and Fryday; to which lessonis in the law sall be ordinar auditors all the aduocattis and scribis in the consistorie, and sic vthers as ar desirous to proceid in the facultie of the law, and that nane be admittit befoir the Lordis or vther iuges to ordiner procuratioun, Except they sall gif first specimen doctrine in the vniuersitie of Sanctandrois, and report a testimoniall of the said vniuersitie witnessing thair qualificatioun, and howfar they haue proceidit in the studie of the law; and thairwitheall affirming that they diligentlie keipit the lessonis salang as they remaint in the vniuersitie.39

This evidently draws in part on the Morton proposal. The recommendations of the commissioners were ratified by Act of Parliament in November 1579,40 and two months later, in January 1580, the king and his Privy Council issued instructions for putting the recommendations into effect.41 The “Lordis” referred to can only be the Lords of Council and Session. The obvious and necessary meaning is that, to be admitted as an advocate before the Session, it was prerequisite to have demonstrated capacity by giving an example of “specimen doctrine” (a traditional academic exercise to demonstrate capacity for graduation and hence for teaching) in the University of St Andrews, and to produce some kind of certificate of the university testifying to the level of legal knowledge attained and affirming regular attendance at the classes in law. In the context of the 1570s, that was a reasonable provision. To appreciate this it is necessary to examine the state of legal education in the Universities of St Andrews and Aberdeen at that time. In the later sixteenth century, such instruction as had been offered by the Canonist and Civilist provided by the foundation of King’s College, Aberdeen disappeared. When the Canonist at King’s, Alexander Cheyne, died in 1587 he was not replaced. He had only conformed to Protestantism in 1573, when he was granted a chaplaincy to support him “to discharge his office of teaching of the laws”. Whether he subsequently taught is unknown. There is no evidence that the Civilist, Nicholas Hay, who was to live on into the 1590s, had taught for a long time.42 David Stevenson has pointed out that the university was moving towards the reduced personnel provided in the “new foundation” first proposed in the 39 40 41 42

Evidence to the Commissioners: University of St Andrews, 1837 (n 13) 184–185. APS vol iii, 178–182, c 62. Evidence to the Commissioners: University of St Andrews, 1837 (n 13) 189–191. Stevenson, King’s College (n 24) 28, 49.

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1570s and eventually ratified by Parliament in 1597.43 This was based on the Melvillian Nova Erectio for Glasgow, and made no provision for legal education.44 The position in the University of St Andrews was quite different. At the Reformation the office of Professor of Law there was held by William Skene. He was the second son of James Skene in Bandodle by his wife Janet Lumsden. James Skene was the son of Alexander Skene of Skene and Agnes Forbes, the daughter of Lord Forbes. William Skene was thus well connected socially and politically. He was one of ten brothers, among whom were several lawyers (whether as advocates, writers or notaries), the most famous being Sir John Skene of Curriehill.45 William Skene married Margaret Martin, who was the widow of William Arthur of Cairnis (a small estate just outside St Andrews).46 William Skene’s date of birth is uncertain, as are aspects of his education. Described as magister, he was admitted as a notary by the Bishop of Aberdeen in 1540 (according to W F Skene), and in 1549 he entered King’s College, Aberdeen, to study theology with the aim of taking Holy Orders and eventually joining the priesthood.47 While we have no definite knowledge of where Skene gained his law degree, Dr Durkan strongly and plausibly suggests, on the basis of Skene’s possession of Oratiuncula in schola Biturgium and manuscript notes of Hugues Doneau, that it was at the University of Bourges in France.48 In this respect it may be worth pointing out that Skene also owned a work of Jean Coras, Doneau’s own teacher at Toulouse.49 In support of the argument for his study abroad, most probably in France, we may note that, of his younger brothers, there is certainly evidence to suggest that Alexander, who became an advocate, may have spent some time studying in Paris,50 while John definitely studied in

43 APS vol iv, 153; see Stevenson, King’s College (n 24) 20–40. 44 Stevenson, King’s College (n 24) 35–36, 149–165. 45 W F Skene, Memorials of the Family of Skene of Skene (1887) (henceforth Skene, Family of Skene) 90–101. 46 Ibid 93; further on Margaret Martin, see RPC (n 38) vol iii, 545; iv, 365. 47 Skene, Family of Skene (n 45) 93. 48 J Durkan, “The French Connection in the Sixteenth and Early Seventeenth Centuries”, in T  C Smout (ed), Scotland and Europe 1200–1850 (1986) 19 (henceforth Durkan, “French Connection”) at 25–26. These works are listed in the inventory of books appended to the general inventory of his goods in St Andrews University Archives [St AUA], Papers of St Salvator’s College, SS110AP2. 49 Ibid: it is unidentified and simply listed as “Joannes Corasius”. 50 Skene, Family of Skene (n 45) 93.

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Wittenberg.51 Bourges was the leading Humanist law school in this era, and in the early 1550s, when Skene may have been there, Doneau and François Le Douaren were its most noted teachers before the arrival of the even more famous Jacques Cujas.52 That Skene should have studied under such an important Humanist jurist as Doneau, who is noted for his systematic approach to Roman law, is instructive and suggestive. It means that he had gained the most modern type of scholarly education in law.53 In 1556 William Skene, described as licentiate in both the laws, was incorporated into St Mary’s College in the University of St Andrews.54 In 1558, again described in the university records as juris licenciatus, Skene was also designated as canonista of St Mary’s College.55 He quickly adhered to the Protestant faith, and in 1559 was listed as a member of the Protestant congregation of the town.56 In 1560 the General Assembly of the Kirk named him as one of the men in St Andrews “maist qualified for the ministring of the word of God and sacraments”.57 He was appointed commissary of St Andrews in 1564,58 and in 1565, described as holding that judicial office, he was elected Dean of the Faculty of Arts of the university.59 He was elected to the latter office again in 1578, 1579, 1580 and 1581.60 He also served a number of times as assessor and auditor.61 His colleagues in the university must have trusted his judgement and recognised his abilities, as in 1576 he acted before the General Assembly on behalf of Robert Hamilton, whom the Assembly was 51 J W Cairns, T D Fergus and H L MacQueen, “Legal Humanism and the History of Scots Law: John Skene and Thomas Craig”, in J MacQueen (ed), Humanism in Renaissance Scotland (1990) (henceforth Cairns, Fergus and MacQueen, “Legal Humanism”) 48 at 52. 52 See R Stintzing, Geschichte der deutschen Rechtswissenschaft (1880–1884) vol i, 368–373, 377–381. On Doneau’s later career, see M Ahsmann, Collegia en Colleges: Juridisch onderwijs aan de leidse Universiteit 1575–1630 in het bijzonder het disputeren (1990) 49–72. 53 For a useful brief account of the scholarly and practical significance of legal humanism, see G C J J van den Bergh, The Life and Work of Gerard Noodt (1647–1725): Dutch Legal Scholarship between Humanism and Enlightenment (1988) 108–124. 54 Early Records of the University of St Andrews: The Graduation Roll, 1413–1579, and the Matriculation Roll, 1473–1579, ed J M Anderson (henceforth St Andrews University Records) 264. 55 Evidence to the Commissioners: University of St Andrews, 1837 (n 13) 366. 56 D Hay Fleming (ed), Register of the Minister Elders and Deacons of the Christian Congregation of St Andrews Comprising the Proceedings of the Kirk Session and of the Court of the Superintendent of Fife Fothrik and Strathearn: 1559–1600 (1889–1890) (henceforth St Andrews Register) vol i, 8. 57 Acts and Proceedings of the General Assemblies (n 30) vol i, 4. The St Andrews list is specifically headed: “In St Androes for ministreing and teaching”. 58 Skene, Family of Skene (n 45) 93. 59 St Andrews Univ Acta (n 9) vol ii, 424. 60 Ibid vol ii, 450, 452, 453. 61 Ibid vol ii, 434, 437, 439–441, 443, 445, 447, 449, 451.

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trying to prevent from being both a minister and provost of St Mary’s College. In the name of the college Skene dissented from the Assembly’s decree that Hamilton should resign from the provostship.62 In the same year he appeared before the Privy Council with Hamilton to argue the college’s case against the admission of William Welwood, who had been appointed to a vacant post by the Crown.63 Skene was evidently a reliable and competent man and lawyer. Thus, as a man “of cuning in sindry sciences”, he was consulted by a court of the minister and elders of St Andrews in March 1560 on the question of a divorce.64 Later the parties to this dispute named him as one of their “amicable compositouris”.65 Skene also acted before the same court in 1563 as procurator for John Forbes of Rires in his defence of the action for adherence brought against him by his wife.66 Skene’s training in Canon Law would have suited him admirably for such business. His election as Dean in 1581 is his last appearance in the Acta, and he died on 2 September 1582.67 One of Skene’s students, James Melville, gave us a glimpse of his teaching in the 1570s: In the thrid and fourt yeirs of my course, at the direction of my father, I hard the Commissar, Mr Wilyeam Skein teatche Cicero de Legibus, and divers partes of the Institutiones of Justinian. I was burdet in the hous of a man of law, a very guid honest man, Andro Greine be nam. . . . This lawier took me to the Consistorie with him, whar the Comissar wald take pleasour to schaw us the practise, in judgment, of that quhilk he teatched in the scholles. He was a man of skill and guid conscience in his calling, lernit and diligent in his profession, and tuk delyt in na thing mair nor to repeat ower and ower again to anie schollar that wald ask him the thingis he haid bein teatching. Lykwayes my ost, Andro, acquentit me with the formes of summonds and lybelling, of contracts, obligatiounes, actes, & c.68

That Skene taught “divers partes of the Institutiones” does not suggest teaching of great sophistication. Two related, somewhat tentative, conclusions are 62 Acts and Proceedings of the General Assemblies (n 30) vol i, 375. 63 RPC vol ii, 561–567. For detailed discussion of Welwood’s admission, see J W Cairns, “Academic Feud, Bloodfeud, and William Welwood: The End of Roman Law in the University of St Andrews 1560–1611” (1998) 2 Edinburgh Law Review 158 (Part I), 255 (Part II) (henceforth Cairns, “Academic Feud, Bloodfeud and William Welwood”). 64 St Andrews Register (n 56) vol i, 26. 65 Ibid vol i, 38. 66 Ibid vol i, 158. He was also a witness before the Kirk Session in 1571: ibid vol i, 353. 67 Scottish Record Office [SRO], Commissariot of Edinburgh, Register of Testaments, CC8/8/17, fos 45v–47r. His testament dative and inventory were confirmed by his wife as his executrix before the commissaries of Edinburgh on 23 February 1587. For his inventory, including the list of his books, see St AUA, SS110AP2. 68 R Pitcairn (ed), The Autobiography and Diary of Mr James Melvill, Minister of Kilrenny, in Fife, and Professor of Theology in the University of St Andrews (1842) (henceforth Pitcairn, Autobiography of Mr James Melvill) 28–29.

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prompted by Skene’s teaching Cicero’s De legibus to his law students. First, expounding this work of Cicero indicates a Humanist desire to link the study of law with that of letters – scarcely surprising in a man who owned such a seminal text as Valla’s Elegantiae.69 Second, given the nature of the treatise De legibus, this practice shows a concern with issues of legal theory and the scope of laws, and even with the proper foundations of political authority – matters not without interest to a pupil of Doneau. Overall, Melville’s evidence suggests that Skene aimed to introduce his students to the basic elements of law, which he derived from the Institutes of Justinian, linked to an account of their theoretical foundation. This said, it is also evident from Melville’s account of his teacher that Skene had practical aims in his instruction. Thus, in the commissary court, which sat in the chapel of St Salvator’s, he willingly showed the students the practice of the theory he taught in his classroom.70 Skene’s teaching may have been elementary, but he had a relatively extensive and sophisticated library which contained, in addition to various copies of the texts of the Civil and Canon Laws (it is not possible to identify the editions) and obvious commentaries by Baldus, Bartolus, Jason and Panormitanus, such a crucial Humanist text as Budé’s Annotationes ad pandectas, an unidentified work of the great Humanist Andrea Alciato, a work of another noted Humanist, François Baudouin (possibly his In libros Institutionum commentarii of 1548), the notes of Doneau’s lectures and the book of Coras already referred to, and a number of works by the important contemporary jurist Hotman. He also owned what appears to have been a copy of the Greek paraphrase of the Institutes by Theophilus. This collection, if not untypical for a good sixteenth-century law library, indicates both his modern scholarly and professional concerns and his humanistic bias.71 In this connection, it is useful to note that by 1565 he owned the outstandingly important Bute Manuscript containing significant versions of such texts as Regiam Majestatem, Quoniam Attachiamenta, the Leges Burgorum and a 69 St AUA, SS110AP2. 70 I am indebted to Mr R N Smart for the information that Skene used the chapel of St Salvator’s for his court: a practice which continued until the jurisdiction was merged with that of the sheriff court in the nineteenth century. 71 St AUA, SS110AP2. The entry for Alciato in the inventory is simply “Alciatus”; for Baudouin the entry is “Balduini Com[m]entarii”. It is not possible to be certain which of Hotman’s works Skene possessed, as the entries in the inventory are too unspecific. On the significance of Budé, see D J Osler, “Budaeus and Roman law”, (1985) 13 Ius Commune 195; on Alciato, D J Osler, “Graecum Legitur: a Star is Born” (1983) 2 Rechtshistorisches Journal 194; on Baudouin, Stintzing, Geschichte der deutschen Rechtswissenschaft (n 52) vol i, 293, 382–383; on Hotman, D R Kelley, François Hotman: A Revolutionary’s Ordeal (1973).

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major collection of royal styles and writs.72 Skene’s younger brother Sir John made extensive use of this manuscript of his brother’s in preparing his printed edition of Regiam and the “auld laws”,73 and also cited it in his treatise De verborum significatione.74 William Skene’s ownership of the Bute Manuscript may testify to his Humanist scholarly and antiquarian interests as much as to his concern with the contemporary utility of these texts in Scots law.75 He obviously had some ability or ambition as a scholar, as the inventory of his books also refers to “Certane vreittis wpon the lawis vreitten and penit be the Commissar”.76 Whatever may have been Skene’s scholarly interests and abilities, Melville’s account of his instruction demonstrates that he was a talented and concerned teacher. Skene had received as good an academic education in law as was available. It may therefore be no coincidence that he was the Professor of Law when Morton’s visitation proposed that all lawyers should attend his classes, demonstrate formally their ability in front of him, and obtain testimonials to that effect before admission as procurators by the Lords and other judges. He still held the post in 1579 when the Act of Parliament provided likewise. The royal instruction of 14 January 1580 to those charged with implementing the reforms from the visitation of 1579 ordered them to “See . . . the Lawier and Mathematician to teiche ther lessonis as they ar appointit, and suld proceed”.77 This testifies to nothing so much as a determination to ensure that the new scheme for legal education should succeed. In this it evinces confidence in Skene’s ability. Skene was succeeded as Professor of Law by his stepson John Arthur, a son of Margaret Martin by her first husband, William Arthur of Cairnis. Arthur was a St Andrews graduate, gaining the degree of master in 1568, and he had already served as a master in St Mary’s College between 1569 and 72 The Bute MS is now National Library of Scotland [NLS], MS 21246. At fo 17 it reads: “Liber M. Gulielmi Skeyne juris licenciati ac commissarii Sancti Andree, 1565.” See APS, i, 182. 73 APS, i, 181–183. Sir John Skene annotated the Manuscript extensively, even recording that he started work on it in 1575. On Skene’s work, see Cairns, Fergus and MacQueen, “Legal Humanism” (n 51) at 52–56, and H L MacQueen, “Glanvill Resarcinate: Sir John Skene and Regiam Majestatem”‚ in A A MacDonald, M Lynch and I B Cowan (eds), The Renaissance in Scotland: Studies in Literature, Religion, History and Culture offered to John Durkan (1994) 385. 74 Sir John Skene, De verborum signifìcatione, sv “Canum”: “in libro M. Willielmi Skene commissarii Sanctandree fratris mei germani”. Presumably with a view to copying for publication, the younger brother also wrote on the MS at the start of the Leges Burgorum: “Ex antiquo codice in pergameno scripto, fratris mei M. Wilhelmi Skene, commissarii Sancti Andree” (APS, i, 183). 75 On legal humanism in Scotland, see Cairns, Fergus, and MacQueen, “Legal Humanism” (n 51). 76 St AUA, SS110AP2. 77 Evidence to the Commissioners: University of St Andrews, 1837 (n 13) 191.

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1570.78 Thereafter he had travelled to France to study law in the Universities of Toulouse and Poitiers for seven years, before returning to Scotland to be admitted as an advocate on 8 March 1580.79 He described himself in 1587 as a “Licenciat in ye Lawes”.80 After admission as an advocate, Arthur entered into the service of the Archbishop of St Andrews, Patrick Adamson, who was his brother-in-law,81 and he and his brother James, in witnessing one of Adamson’s charters in 1582, were designed as the archbishop’s “servitouris”.82 Arthur was elected to the office of Professor of Law in 1582, presumably almost immediately after Skene died.83 Not only was he Skene’s stepson and Archbishop Adamson’s brother-in-law, he was also the cousin of the Provost of St Salvator’s, James Martine.84 His appointment to the chair is presumably largely, if not entirely, explained by these family connections. At this time Adamson was engaged with Andrew Melville in a struggle for authority in the university, and he was to use the eclipse and then exile in 1583–1584 of the latter, who had been the dominant figure in the university for some years, to re-assert his position as chancellor, succeeding in imposing new statutes on the university in 1584.85 We should probably see Arthur’s appointment as Professor of Law soon after Skene’s death within the context of this resurgence of archiepiscopal authority. The manner in which Arthur gained the chair should not be taken to count against his ability, as, like his stepfather, he had had an excellent academic education in law, and was, at least in this respect, amply qualified for the post. He held the office for four years, in the course of which, on 26 January 1585, he was appointed a commissary of Edinburgh.86 There is no evidence that Arthur ever taught, and he was accused, probably justly, of being a sinecurist. He did not resign as Professor of Law until 1587, however, drawing the stipend up to the end of 1586.87 78 St Andrews Univ Acta vol ii, 426, 428, 429, 432, and St Andrews University Records 160, 162, 271. 79 Durkan, “French Connection” (n 48) at 27, quoting SRO, Books of Sederunt, CS1/3/1, fo 115. 80 St AUA, SS200/2. 81 T McCrie, The Life of Andrew Melville (1899) (henceforth McCrie, Life of Melville) 206 n 2. 82 Registrum honoris de Morton: A Series of Ancient charters of the Earldom of Morton with Other Original Papers in Two Volumes ed C Innes (1853) vol i, 141–142. 83 St AUA, SS200/2 (discharge for his salary from 1582 to 1586 inclusive). 84 NLS, Balcarres Papers, Adv MS 29.2.7, fo 135r. Martine also tried to intrude John Arthur’s brother, Magnus, into a mastership in the college on 19 November 1579 (RPC, iii, 243– 244). This action was vehemently opposed by the rest of the masters, and the Privy Council prevented its success. For Margaret Martin’s children, see RPC, iv, 365. 85 St Andrews Univ Acta (n 9) vol i, lxxi–lxxii; vol ii, 455–456. 86 F J Grant (ed), The Faculty of Advocates in Scotland, 1532–1943 (1944) 7. 87 St AUA, SS200/1‚ SS200/2; NLS, Adv MS 29.2.7, fo 139r.

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The history of the chair in Law in St Andrews after the Reformation suggests that there was at least a possibility for developing in the university a successful law school where all procurators could reasonably be expected to study law. Skene and Arthur were well qualified academically, and, if the latter was a sinecurist, the former is vouched for as an excellent teacher who possessed a good professional and scholarly library. Skene could probably also boast of having been a pupil of one of the leading legal scholars in contemporary Europe. That there was only one professor was not necessarily a problem in sustaining a law school, so long as he had ability and energy. It is worth remembering in this context that until the nineteenth century a major law school might have only two or three professors. One professor could easily maintain, at the very least, an elementary level of instruction. Furthermore, St Andrews was already a university popular with many men who became advocates in the second half of the sixteenth century. Famous examples of St Andrews alumni among the Advocates include Thomas Craig, John Sharp, John Skene and Clement Little.88 It is also easy to point to any number of less well-known men who studied there. The Advocates’ protest of 1590, for example, was signed by John Russell, David McGill, Oliver Colt, James Wardlaw, John McGill, Alexander King and Thomas Gray;89 of these, all except Wardlaw had studied in St Andrews.90 There is no way of knowing who may have studied with Skene or Arthur, but it seems fair to suppose that at least some of those St Andrews students who later became advocates before the Session or qualified as procurators in other courts had done so. James Melville evidently attended Skene’s classes on the instructions of his father, who had hoped for a legal career for his son, before it became clear that James’s “hart was nocht sett that way”.91 For those who intended to pursue legal study abroad, such classes could have given a useful foundation on which to build. University legal education would even have been open to those with little financial resources; men such as Shairp, who was to become wealthy and powerful, had been classed in the records of St Andrews as

88 St Andrews University Records (n 54) 153, 258 (Craig); 250 (Little); 264 (Skene); 258, and St Andrews Univ Acta (n 9) vol ii, 406, 408 (Sharp). See M H B Sanderson, Mary Stewart’s People: Life in Mary Stewart’s Scotland (1987) (henceforth Sanderson, Mary Stewart’s People) 22; and C P Finlayson, Clement Litill and his Library: The Origins of Edinburgh University Library (1980) 2–3. 89 Dickinson, “Advocates’ Protest” (n 1) at 211. 90 St Andrews Univ Acta (n 9) vol ii, 426, 428 (Russell); 440, 442, note (D McGill); 425, 427 (Colt); 440, 442, note (J McGill); 438, 441 (King); 442, 444 (Gray). 91 Pitcairn, Autobiography of Mr James Melvill (n 68) 28–29.

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“pauper” rather than as “potens”.92 If neither St Andrews nor any other Scottish university could ever hope at this time to become a great law school on the model of those found in continental Europe, because of the lack of adequate resources and a sufficiently large student base, nonetheless it does seem fair to assume that, in the right circumstances, St Andrews could have continued to offer some level, if only elementary, of academic training in law. Yet the Advocates were evidently sceptical about the “frute [that] hes fallowit” from the chair. Here, again, we need to look at the contemporary situation in the University of St Andrews. First, there must have been some uncertainty over the chair, given that Arthur held it as a sinecure even before his appointment as a commissary in Edinburgh. Secondly, Arthur had been succeeded by William Welwood in 1587. Welwood is by far and away the best known of the three law professors here discussed, largely because of his printed works.93 A visitation of the university in 1588 had shown, however, that there were problems in the provision of instruction in law, and there was disagreement about the effectiveness of the teaching.94 Welwood is discussed at length elsewhere; here, it is sufficient to point out that, although there is no doubt that he was actually teaching in 1588–1589, he was engaged in a serious feud, involving individuals in the university and the burgh, which significantly hampered his effectiveness as a professor. This feud involved a complex mix of politics, both local and national, and rivalry between different factions within the Kirk. It resulted in various attempts to unseat Welwood, one of which was to be successful in 1597, although he was later briefly restored.95 These problems must surely have coloured the Advocates’ current perception of the success, actual and potential, of the chair in St Andrews. Thirdly, the Advocates made the following very fair point about the Lords of Session’s proposal for Edinburgh: The erectioun of ane man onlie in quhatsoeuir sort or professioun can Import na commoditie mekill less in the professioun of the law/the studie quharof is sa great and infinite that without plouralieter of techeris emulacioun als weill of professouris as auditouris contenuall disputacionis and utheris scolastik exerceissis na fruit can fallow.96

92 93 94 95

St Andrews Univ Acta (n 9) vol ii, 406; see Sanderson, Mary Stewart’s People (n 88) 23–27. McCrie, Life of Melville (n 81) 206, 391–392; D M Walker, The Scottish Jurists (1985) 84–86. Evidence to the Commissioners: University of St Andrews, 1837 (n 13) 194–196. Briefly noted by Dunlop, in St Andrews Univ Acta (n 9) vol i, clvi n 3. For a detailed account, see Cairns, “Academic Feud, Bloodfeud, and William Welwood” (n 63). 96 Dickinson, “Advocates’ Protest” (n 1) at 209.

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This criticism was evidently as applicable to the position of the Professor of Law in St Andrews. The Advocates rightly commented: Thair is na man of Jugement that wil belief that his bairnis or freindis will attein to thair perfectioun in the lawis be the hering of ane popular lessoun of ane soliter man without ony farder Bot wilbe compellit to prosequeitt his studies quhar the commoditie thairof may be best fund in the maist fauoris and leirnit audittouris with professouris quhais lyfe and zeiris ar haillilie consumit in that professioun and thairfoir to mak erectioun of that quhilk will nocht do the erand quhairfoir it wes erected It seamis ane labour without all profeitt . . . .97

Even a successful chair in St Andrews was not likely to stop men going abroad to study law, as the teaching of a single professor of law could not hope to provide the type of experience Skene gained from his studies in Bourges, or Arthur from his seven years in Toulouse and Poitiers. This perhaps is the context within which we must understand Thomas Craig’s otherwise puzzling remark, written about 1600, that so far as he knew there had hitherto been no public professors of Civil Law in Scotland.98 Although some aspects of this comment remain obscure, if Craig simply meant there was no learned tradition on the continental model of exposition of the Civil Law in Scotland, he was obviously correct. In this respect it may be worth noting that, by the time Craig wrote, Welwood had been deprived of the chair as “the Professioun of the Lawes is na wayes necessar at this tyme in this Universitie”.99 The proposals of the visitation under Morton and of the Act of 1579 have often been noted,100 but their implications have been generally ignored by historians of the legal profession and legal education in Scotland. Hannay, however, did refer to the Act of 1579 in his study of the College of Justice, in a somewhat unclear passage: The act of 1579 for the reformation of the university of St Andrews contained the well-meaning but futile provision that a St Andrews man might not procure before them [scil the Lords of Session] till he had given “specimen doctrine” and

97 Ibid at 210. 98 T Craig, Jus feudale (1655), 11: “apud nos scriptarum legum maxima inopia, & naturaliter in plerisque negotiis jus Civile sequimur, Non quidem edocti, & in eo instituti, quod nulli adhuc quod sciam apud nos juris fuerant [1732: fuerint] professores, qui jus publice docerent (quod sane dolendum est) sed prope Nolentes, cum proprio jure scripto destituamur, sola naturae benignitate aut ipsius juris dignitate inducti”. 99 Evidence to the Commissioners: University of St Andrews, 1837 (n 13) 198. 100 See St Andrews Univ Acta (n 9) vol i, clv; R G Cant, The New Foundation of 1579 in Historical Perspective St John’s House Papers no 2 (1979); R G Cant, “Origins of the Enlightenment in Scotland: the Universities”, in R H Campbell and A S Skinner (eds), The Origins and Nature of the Scottish Enlightenment (1982) 42 at 49; McCrie, Life of Melville (n 81) 206.

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obtained the academic certificate. It was difficult, however, after the institution and development of the commissary courts, to maintain restrictions which were in place before the Reformation. The commissary judges of Edinburgh, apart from business reserved to them in the first instance, formed an appellate court, and their decisions might in turn be brought for reduction before the lords of Session. They had the power to admit and deprive the counsel appearing before them; and it was natural that young pleaders, obtaining access to the burgh, sheriff, admiralty, and commissariot courts, should desire recognition as advocates, not only with a view to practice before the Session, but also in the hope of promotion to the commissary bench on a presentation by the senators.101

At first sight Hannay seems to have been alluding to the regular practice of intending advocates demonstrating their learning by giving a lesson in the Tolbooth. But since he cited the Act of 1579, this, of course, cannot be so. He also considerably muddied the waters by linking the issue of the 1579 Act with that of admission of lawyers to plead before the commissaries. Presumably this had been suggested to Hannay by a process of association, since the Act indeed seems to require such procurators and writers (those “in the consistorie”) also to have studied in St Andrews and perhaps also to have given their “specimen doctrine” – although Hannay’s passage does not reveal this. Hannay also did not notice that the Act is probably not restricted only to procurators who have studied at St Andrews: it seems to be drawn in terms of all men to be admitted as procurators before the Lords and other judges. If Hannay did not recognise the full significance of the 1579 Act, and concealed its implications in an obscure paragraph, he was nonetheless perfectly correct to see the provision as futile. There is no indication of any attempt to enforce it; indeed, it may have been unenforceable. This said, the provision does have considerable importance, and there is much to learn from it. First, there was more substance to the Advocates’ argument that it was necessary to preserve the privileges of the professors of law in the Universities of St Andrews and Aberdeen than has hitherto been noticed. If the teaching of law in Aberdeen had become a dead letter by 1589, it had not in St Andrews, and there was a statutory recognition of the importance of the university as a centre of legal education. The university had offered under Skene an elementary education in Civil Law, and presumably Welwood’s classes were of the same type. It was, however, no doubt possible for either of these two professors to have carried out the examination required under the Act, and thus take part in ensuring adequate Civilian learning among the 101 Hannay, College of Justice (n 1) 141–142.

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Advocates. And if the Act of 1579 was more honoured in the breach than in the observance, to have created an alternative focus of legal education would not have been likely to help. Moreover, advocates were admitted at the rate of two or three a year;102 this seems unlikely to have been enough to sustain two law schools in Scotland. It therefore appears that the first and third points made in the Advocates’ opposition to the proposal by the Lords of Session to endow a chair in Law in Edinburgh were well founded. There already was an endowed chair which had a statutory recognition and privilege; it already appeared to be struggling to maintain itself; and it only offered elementary education in Civil Law, when what was actually desirable for advocates was the sophisticated teaching available in continental Europe, where major universities might have two or even three professors of law, and where it was possible to extend the experience of one’s education by going on a peregrinatio academica from one university to another. Also, to create a second chair in a different university would be certain to render both quite ineffective, especially since it would probably only have given elementary instruction comparable to that already available in St Andrews. The Advocates’ second point, that as alumni of St Andrews and Aberdeen they were pledged to support these universities, follows naturally from this. Furthermore, contrary to Hannay’s claim, the Advocates’ objection cannot have been based on a desire to preserve their own monopoly of law teaching in Edinburgh. The Advocates, whatever their other motives may have been, were endorsing legal study in the universities, and their opposition to the Lords’ proposal was aimed at making it viable. Moreover, there is really no evidence that the Tolbooth was in any way operating as an educational institution in the fashion of an English Inn of Court, as Hannay seems to suggest. The “public teitching” mentioned in a single petition for admission was the offering of “specimen doctrine”, rather than some kind of exercise in organised instruction. It is worth noting in this connection that we find no objection by the Advocates to the proposal in 1619 to found a chair in Law.103 By that time all teaching of law in St Andrews had ceased.104 A third conclusion to be drawn from the 1579 Act relates to the aspirations of the Advocates and others to achieve a Bar with an academic training in the 102 Ibid 145–146 points out that sixty persons were admitted as advocates between 1575 and 1608. 103 W Fraser, Memorials of the Earls of Haddington (1889) vol i, 76. 104 It was only at the very end of 1619 that the visitation of the King’s College and University of Aberdeen under Bishop Forbes resulted in the revival of the offices of Civilist and Canonist: Stevenson, King’s College (n 24) 67.

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learned laws. Hannay argued that it was possible to identify a trend towards the emergence of two routes to admission as an advocate in the second half of the sixteenth century. The first was by claiming learning in Civil and Canon Law acquired by long study abroad combined with knowledge of the practice of the courts; the second was by claiming many years’ experience as a clerk or servant to an experienced advocate.105 The Act reveals a considerable general preference for advocates with an academic training. This is supported by Hannay’s observation that, of the sixty or so men admitted between 1575 and 1608, two-thirds based their petition on their academic qualifications.106 Indeed, the Scots’ experience of legal studies in France and the Low Countries at this time would have taught them that the norm was ever-increasingly for advocates to be admitted to plead before courts on the basis of possession of a university degree of either doctor or licentiate in the laws, for the attainment of such a degree proved that the advocate had acquired the necessary Iuris scientia, as the late sixteenth-century Frisian jurist Jacob Bourits put it in his influential work on the office of the advocate.107 This can only have reinforced the trend towards an academic training that the 1579 Act exemplifies. Moreover, by requiring the giving of “specimen doctrine”, the Act demonstrates approval for showing fitness to practise as an advocate through academic exercise. We are forcibly reminded of the admission as an advocate of Alexander Seton in 1577: He made his publick lesson of the law before King James the 6th, the Senators of the College of Justice, and Advocates present in the chapel Royall of Holyroodhouse, in his lawer goun and foure nooked cape, (as lawers use to pass their tryalls in the universities abroad), to the great applause of the king and all present, after which he was receaved by the Colledge of Justice as ane lawer.108

105 Hannay, College of Justice (n 1) 140. 106 Ibid 145. 107 J Bourits, Advocatus (1650) 4–5. This work was first published in 1606. Bourits (1541–1622), as well as being an advocate in Leeuwarden, had been admitted before the famous Grote Raad in Mechelen. On the history of this development in the Low Countries through the sixteenth century, see J Nauwelaers, Histoire des avocats au Souverain Conseíl de Brabant (1947) vol i, 73–76; B H D Hermesdorf, Licht en Schaduw in de Advocatuur der Lage Landen: Historische Studie (1951) 43–56; W T M Frijhoff, La Société néerlandaise et ses gradués, 1575–1814 (1981) 246–264; and M Ahsmann, “Teaching the Ius Hodiernum: Legal Education of Advocates in the Northern Netherlands (1575–1800)” (1997) 65 Tijdschrift voor Rechtsgeschiedenis 423 at 428. For some useful remarks on the position in France, see M P Fitzsimmons, The Parisian Order of Barristers and the French Revolution (1987) 4–6. 108 G Brunton and D Haig, An Historical Account of the Senators of the College of Justice from its Institution in MDXXXII (1832) 198–199 note; also quoted in Hannay, College of Justice (n 1) 142–143.

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This was evidently the giving of “specimen doctrine” in the traditional academic style. Morton’s visitation had also endorsed the regular holding of “exercises in the Lawes”: presumably the traditional type of disputatio exercitii gratia was what was intended.109 Thus the Act of 1579, by endorsing academic study of law and academic exercises in preference to knowledge acquired through attending the courts, looks forward to developments in the late seventeenth and early eighteenth centuries, when the Advocates eventually succeeded in requiring all entrants to have a good academic knowledge of Civil Law, and adopted a system of examination for admission based on that of universities for award of degrees in law.110 In the circumstances of late sixteenth-century Scotland, however, that preference inevitably encouraged the study of law abroad.

109 See P Nève, “Disputations of Scots Students Attending Universities in the Northern Netherlands”, in W M Gordon and T D Fergus (eds), Legal History in the Making: Proceedings of the Ninth British Legal History Conference, Glasgow, 1989 (1991) 95. 110 J W Cairns, “The Formation of the Scottish Legal Mind in the Eighteenth Century: Themes of Humanism and Enlightenment in the Admission of Advocates”, in N MacCormick and P Birks (eds), The Legal Mind: Essays for Tony Honoré (1986) 253 at 255–261.

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5 Scottish Law, Scottish Lawyers, and the Status of the Union William Forbes, advocate, presented to the Faculty of Advocates in 1708 a proposal that he would “write a complete body of the law of Scotland, containing the harmony thereof with, and differences from the civil and feudal laws; and shewing how far the Scots and English law do agree and differ; with incident comparative views of the modern constitutiones of other nations in Europe”. He was very concerned with English law and the effects of the Union on Scots law after 1707. Forbes explained: Since the happy union of the two Kingdoms into one Monarchy, such a complete body of the law of Scotland, as is proposed, may now be justly reckoned among the Desiderata, or things that are wanting, towards settling and maintaining a fair understanding and correspondence betwixt the judicatures in north and south Britain, and for facilitating the dispatch of justice; In which Judges and persons of all ranks will find their account.1

Forbes obtained the Faculty’s approval, and wrote his Great Body, but it was never published. In fact, the work was not the sustained comparative treatise that the proposal might have led one to expect; Forbes did, however, give a brief account of the relevant English law after his discussion of each subject area of the Scots.2 His work is nonetheless indicative of a new level of Scottish interest in English law after 1707. In 1714 Forbes was elected the first Professor of Civil Law in the University of Glasgow, and he advertised in the Scots Courant of 8/10 September 1714 that his lectures would be on Civil and Scots law, undertaking “to explain in his Colleges the Harmony, Analogy, and Differences betwixt the Roman Law, and the Law of Scotland; and also how far either of these Laws do agree

1 J M Pinkerton (ed), The Minute Book of the Faculty of Advocates, Volume 1, 1661–1712, Stair Society vol 29 (1976) (henceforth Advocates’ Minute Book Volume I) 277. 2 Glasgow University Library, MSS Gen 1246–1252.

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with, and differ from the Law of England”.3 Forbes’s first publication, after his theses for admission as an advocate, had been a work on bills of exchange in 1703;4 the second edition of 1718 added in references to English Acts of Parliament, and now promised “incident and comparative Views of the Laws and Customs of England, and other Countries”. It now also promised on its title page that “For the Benefit of the English, our Law Terms are explain’d by these equippolent in their Law”.5 Scottish interest in English law was scarcely novel. Thomas Craig demonstrated in Jus feudale, written between 1600 and 1608, and De unione regnorum Britanniae tractatus of 1605 that he had some acquaintance with English law,6 and James Dalrymple, Viscount Stair’s Institutions of the Law of Scotland (1681) contained a number of remarks comparing English law and procedure with those of Scotland.7 Yet, from 1707 onwards, Scots lawyers’ interest in English law seems to have intensified as Forbes’ interest suggests. The Copyright Act of 1709 (c 21) made access to English law easy for Scots advocates, as their Library became entitled to demand copies of English legal works. Before this Act, the Library had had very few English law books (only four in 1683),8 and the printed Catalogue of 1692 shows  them positioned awkwardly and occasionally among a wealth of Civilian and Canonist learning.9 In 1712, the Faculty of Advocates noted 3 See generally J W Cairns, “The Origins of the Glasgow Law School: the Professors of Civil Law, 1714–61”, in P Birks (ed), The Life of the Law: Proceedings of the Tenth British Legal History Conference, Oxford, 1991 (1993) 151. 4 W Forbes, A Methodical Treatise, Concerning Bills of Exchange . . . according to the analogy of the Scots Law (1703). 5 W Forbes, A Methodical Treatise Concerning Bills of Exchange . . . according to the Analogy of the Law of Scotland: With incident comparative Views of the Laws and Customs of England, and other Countries (1718). 6 T Craig, Jus feudale, tribus libris comprehensum: quibus non solum consuetudines feudales, & praediorum jura, quae in Scotia, Anglia, & plerisque Galliae locis obtinent, continentur; sed universum jus Scoticum, & omnes fere materiae juris clare & dilucide exponuntur, & ad fontes juris feudalis & civilis singula reducuntur, 3rd edn, ed J Baillie (1732) (henceforth Craig, Jus feudale); and in C Sanford Terry (ed), De unione regnorum Britanniae tractatus, Scottish History Society vol lx (1909) (henceforth Craig, De unione). 7 James, Viscount Stair, The Institutions of the Law of Scotland Deduced from its Originals, and Collated with the Civil, Canon and Feudal Laws, and with the Customs of Neighbouring Nations in IV Books, 2nd edn (1693), ed D M Walker (henceforth Stair, Inst) (1981); see W D H Sellar, “English Law as a Source [of Stair’s Institutions]”, in D M Walker (ed), Stair Tercentenary Studies, Stair Society vol 33 (1981) 140. 8 M Townley, The Best and Fynest Lawers and Other Raire Bookes: A Facsimile of the Earliest List of Books in the Advocates’ Library, Edinburgh with an Introduction and Modern Catalogue (1990) (henceforth Townley, Best and Fynest Lawers) 25–27, 72 (nos 15, 16, 23 and 236). 9 Catalogus librorum bibliothecae juris utriusque, tam civilis quam canonici, publici quam privati, feudalis quam municipalis variorum regnorum, cum historicis Graecis & Latinis, literatis &

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that Forbes had “brought the first volumn of his body of the laws of Great Britain nigh to a period”, but that he needed a number of English treatises and case reports  to complete it.10 The works that Forbes required were standard English legal texts and reports published in the previous century; through the eighteenth century, the Library’s collection of English law grew significantly because of the Copyright Act, and no advocate would have had to make such a request in 1812. The labours of two Scots working in London provide hints of possible English interest in Scots law after 1707. It is unclear, however, to what extent their productions responded to an English demand or reflected their authors’ Scottish concerns. Thus, James Innes published in 1733 in London Idea juris Scotici, supposedly at the request of a young man trained in English law who wished to know something about Scots law.11 Similarly, the Edinburgh Evening Courant of 23 April 1745 carried an advertisement proposing the publication of Analogia legum, or, A View of the Laws of England and Scotland, set against one another by Patrick Turnbull of the Middle Temple. This work, however, never progressed beyond an introduction produced for purposes of advertising.12 Turnbull had been admitted as an advocate in 1702, and had decided to pursue a career at the English Bar, being admitted to the Middle Temple in 1721 and called in 1725.13 What Turnbull proposed was described in the title of his work as “To shew wherein those Two Laws agree and differ: designed For the Ease and better Accommodation of the Subjects of both Parts of the United Kingdom of Great Britain, in their mutual Dealings and Concerns with one another”. He explained: No Doubt, but few Obstructions in the Course of the Circulation of Justice amongst the People, is a Thing the most to be wished for; but I humbly conceive, that the Danger does not so much arise from the Differences of Laws in a State, as from these Differences not being known and understood as is plainly to be seen in the Laws and Customs of Kent and other Places; which, though

10 11 12

13

philosophis plerisque celebrioribus; a Facultate Advocatorum in Supremo Senatu Judicum in Scotia, in usum cupidae legume juventutis, constructae (1692). I counted thirty-four English law books in the category of libri juridici; not all of these were on English common law as such. Advocates’ Minute Book Volume 1 (n 1) 298–299. J Innes, Idea juris Scotici: Or, A Summary View of the Laws of Scotland (1733). P Turnbull, Analogia Legum: Or, A View of The Institutes of the Laws of England and Scotland, Set One against the Other; To shew wherein those Two Laws agree and differ: Designed For the Ease and better Accommodation of the Subjects of both Parts of the United Kingdom of Great Britain, in their mutual Dealings and Concerns with one another (1745) (henceforth Turnbull, Analogia Legum). Advocates’ Minute Book Volume I (n 1) 240–241; C E A Bedwell, “Scottish Middle Templars 1604–1869” (1920) 17 Scottish Historical Review 100 (henceforth Bedwell, “Scottish Middle Templars”) at 104.

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different from the Laws of the rest of the Kingdom of England; yet when these Differences are understood, they give no Trouble at all, either to the Courts or the Suitors. To obtain the like easy Course with respect to the different Laws in England and Scotland, is the Whole of the Plot of the ensuing Treatise: In order to which I have endeavoured to set them in such a Light and Nearness to one another, that either by Concord or Discord, they may serve to illustrate one another.14

Events probably overtook Turnbull’s proposal, and all he ever produced was a pamphlet on the controversy over the abolition of heritable jurisdictions.15 It is probably fair to say that English lawyers did not develop any strong interest in or concern about Scots law after the Union, though one can discover occasional allusions to it in their published works. In contrast, English law took on a great importance for Scots lawyers, and one can trace advocates such as Alexander Bayne, William Grant of Prestongrange, or Hugh Dalrymple spending time at an English Inn of Court, and occasionally being called to the English Bar.16 And it is worth noting that of the elite group of thirty-six advocates who were MPs between 1715 and 1754 no less than six had been members of an Inn of Court.17 There were a number of reasons for this curiosity about English law. First, English law and procedures came into use in certain areas, either by the Union itself or by subsequent statutes. Secondly, the court with ultimate jurisdiction over Scottish law suits was now the House of Lords; though it might contain sixteen representative Scots peers, there was no reason to believe they would have a predominant voice in decisions, and one of the objects of works comparing Scots law with English law and of explanations of Scottish legal terms in English terminology was obviously to expound Scots law in a way that made it intelligible to the English. Lord Bankton thus commented that “since the union of the two kingdoms, there is such intercourse between the subjects of South and North Britain, that it must be of great moment, that the laws of both be generally understood”. This was especially so for Scotland:

14 Turnbull, Analogia Legum (n 12) xxiii. 15 P Turnbull, A Cursory View, of the Ancient and Present State of the Fieffs, or Tenures, In both Parts of the United Kingdom of Great-Britain (1747). 16 The Records of the Honourable Society of Lincoln’s Inn. Vol. i. Admissions from A.D. 1420 to A.D. 1799 (1896) 367 (Bayne); Bedwell, “Scottish Middle Templars” (n 13) at 104 (Grant and Dalrymple). 17 R Sedgwick, The House of Commons 1715–1754, 2 vols (1970) vol i, 145. They were Archibald Grant, Andrew Mitchell, Alexander Hume Campbell, James Oswald, John Rutherford, and William Grant.

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[T]he last resort for deciding on our property is now in the house of Lords, where hitherto no provision is made for having any Scots judges on the wool-packs, to inform the house, upon occasion, concerning the laws of this country; and we cannot be sure of having always (as at present we have) some noble lords sitting there, who are learned in the laws of Scotland. . .

It was no doubt to promote this understanding that Bankton stressed that he had “endeavoured to render the stile agreeable to readers accustomed to the purity of the English language”.18 This recognition of the need to understand the laws of each country led in 1710 and 1715 to fruitless proposals to establish commissions to explain the laws of each country to the other.19 Thirdly, the law of England, with its vaunted claims to historic age and uniqueness, had an obvious intellectual fascination for the lawyers of North Britain, as the law of the wealthy, populous and commercial country to the south where power now was based: was English law a cause of English liberty and prosperity? English lawyers, on the other hand, had none of these reasons for curiosity about Scots law. The Scots lawyers’ interest in English law generally reflects the fact that South Britain was culturally and politically dominant. The comparisons of Scots with English law, seeking out similarities and dissimilarities, that were made by Forbes and Bankton were in some respects reminiscent of the earlier Jacobean discussions of the possibility of assimilation of the laws of the two countries in which the fundamental similarity of Scots and English law was stressed. Craig’s comment that “at the present day there are no nations whose laws and institutions more closely correspond than England and Scotland . . . [and] that there is not that diversity between the two systems of law as is popularly supposed to exist” is later closely echoed by Turnbull’s that “[a]s to the Parts constituent of the Bodies of the two Laws of England and Scotland, the Differences are not many nor very great; only the Scotch Law admits of more from the Corpus Juris Civilis, Corpus Juris Canonicum, the Jus Feudale, & c. than the English will acknowledge”.20 It is likewise significant that Forbes’ treatise would be described in 1712 as on the laws of Great Britain.21 Later in the eighteenth century, Lord Kames was to stress the common historical origins of the English and Scots laws, and to advocate the writing of “[a] regular 18 A MacDouall [Lord Bankton], An Institute of the Laws of Scotland in Civil Rights: with Observations upon the Agreement or Diversity between them and the Laws of England, 3 vols (1751–1753) vol i, ix, vi, xi. 19 Turnbull, Analogia Legum (n 12) xxii–xxiii. This topic could bear further research. 20 Craig, De unione (n 6) 304; Turnbull, Analogia Legum (n 12) xxi. 21 Advocates’ Minute Book Volume I (n 1) 298.

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institute of the common law of this island, deducing historically the changes which that law hath undergone in the two nations”. This was a project that he considered “must touch every Briton who wishes a compleat union”, but especially Scots whose property was subject in the last resort to judges “who have little inclination, because they have scarce any means to acquire knowledge in our law”.22 The carefully drafted provisions of the Treaty of Union ensured that Scots law and Scottish legal institutions by and large survived. Special provisions protecting Scottish courts and Scottish private law indicate, however, that the Union was seen as a possible threat. The survey by Professor Levack of projects for unification of the laws of Scotland and England between 1603 and 1707 tends to lead to the conclusion, however, that unification was not practicably possible.23 However much the differences between the two laws may have been minimised, the early modern state lacked the resources and political will to produce a unified law abstracted from elements of both. The superficially more practical solution of imposing English law on Scotland was politically impossible, at least in matters of private law: to have done so would have destroyed the system of land tenure on which Scottish political society was based. Such an upheaval would have destroyed the rights and privileges of the governing classes. And indeed it is remarkable how few legislative reforms in Scots private law there were in the eighteenth century. The abolition of military tenures and heritable jurisdictions, to take two examples, required the shock of the 1745 Rebellion – and even then the latter reform required payment of compensation and encountered considerable resistance. A prominent theme of Scottish legal historiography none the less has been that the period from 1707 has seen a progressive – and regrettable – “anglicisation” of Scots law. This has been made a historical commonplace by, most recently and notably, Lord Cooper and Professor Sir Thomas Smith. This reading of Scottish legal history has tended to focus on the House of Lords, viewed as an arrogant appeal court unsympathetic to Scots law, and on the status of certain provisions of the Treaty of Union, viewed as fundamental or entrenched, and hence as limiting the legislative competency of the Westminster Parliament. The first of these issues requires further serious exploration, but it is difficult to assert convincingly that the

22 H Home, Lord Kames, Historical Law-Tracts, 4th edn (1792) xii–xiii. 23 B P Levack, The Formation of the British State: England, Scotland, and the Union 1603–1707 (1987) 68–101.

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undoubted considerable influence of English law on Scots law was entirely or even mostly imposed by the House of Lords; the second has given rise to a vigorous debate,24 the development of which from the time of the Union itself would prove a fruitful topic to study, but it is not a debate capable of resolution through historical scholarship, and here it will be gone beyond, or at least bypassed, as irrelevant. Linked with the reading of Scottish legal history associated with Cooper and Smith has been the type of claim concisely expressed by Sheriff Irvine Smith: “It was well for Scotland that she entered the Union of 1707, which laid her open to English legal influence, with a scientific system of law founded on the philosophic principles she gained from Stair.”25 This thesis has never been the subject of serious challenge, but it is not particularly compelling. Stair’s work was undoubtedly brilliant, but it is implausible that his Institutions alone should have preserved Scots law. Instead, his work, placing Scots law in the context of the law of nature and nations, reflected an existing, rather than created a new, Scots law and legal culture. It is therefore important to examine Scottish legal culture before 1707 in order to show how it produced Scots lawyers’ interest in English law and encouraged them to use it to develop their own. It will be argued that this culture emphasised the primacy of natural law over municipal law: natural law constituted a “fundamental” law much more than did any provision in the Treaty or Acts of Union. It was this approach to municipal law that encouraged the strong interest in English law shown by a man such as Forbes. Scots lawyers’ location of their law within the context of natural law and the law of nations in the late seventeenth and early eighteenth centuries was not limited to academic or theoretical treatises; it will be shown that the procedures of the courts required lawyers to place Scots law within this framework and to argue legal issues by referring not only to Scottish sources of law but also to the ius naturale and the ius gentium. Pleadings

24 See, e.g., D J Edwards, “The Treaty of Union: more hints of constitutionalism” (1992) 12 Legal Studies 34; M Upton, “Marriage vows of the elephant: the constitution of 1707” (1989) 105 Law Quarterly Review 79; C R Munro, Studies in Constitutional Law (1987) 61–78; N MacCormick, “Does the United Kingdom have a constitution? Reflections on MacCormick v. Lord Advocate” (1978) 29 Northern Ireland Legal Quarterly 1; T B Smith, “The Union of 1707 as fundamental law”, in Studies Critical and Comparative (1962) 1. 25 J I Smith, “The rise of modern Scots law 1660–1707”, in [G C H Paton (ed)], An Introduction to Scottish Legal History, Stair Society vol 20 (1958) 44 (henceforth [Paton (ed)], Introduction) at 45; see also T M [Lord] Cooper, The Scottish Legal Tradition, new edn, ed S C Styles (1991) 69; T B Smith, “Strange gods: the crisis of Scots law as a civilian system”, in Studies Critical and Comparative 72 at 73.

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could thus discuss law using the language of the law of nature and nations.26 Furthermore, as the eighteenth century progressed, in the face of inactivity by Parliament to reform Scots law, lawyers such as Lord Kames (as David Lieberman has argued) favoured modernisation through the courts.27 Pleadings may also be found discussing the law using the languages of civility and modern manners.28 It was the foundation of law in natural law and the law of nations that helped underpin claims – of the type heard from Craig to Turnbull – that Scots law and English law were basically rather alike. Historical discussion by scholars such as Kames could also reinforce this perception of similarity. But it should be recognised that pointing out substantial similarities could as easily be used as an argument for not assimilating as for assimilating the laws of the two countries. Craig himself had argued: The third essential to a permanent union is, that each nation be governed in acordance with its own laws and customs; that no change be made in them, or in the established methods of judicial procedure, without the express sanction and approbation of either kingdom; that legal causes be determined in accordance with ancient practice and without appeal from the courts of one kingdom to those of the other, a procedure intolerable to both and expressly forbidden in all the examples of union which I have mentioned above.29

It was this type of opinion that broadly prevailed in the negotiations for the Union, whose provisions relating to the law and the courts should now be reviewed. A. THE PROVISIONS OF THE UNION The Act of Union provided that the laws regulating trade, customs and excises were to be the same in Scotland as in England.30 The Act also required the establishment in Scotland of a Court of Exchequer “for deciding Questions concerning the Revenues of Customs and Excises . . . having the same power and authority in such cases, as the Court of Exchequer has in 26 J W Cairns, “Hamesucken and the Major Premiss in the Libel, 1672–1700: Criminal Law in the Age of Enlightenment”, in R F Hunter (ed), Justice and Crime: Essays in Honour of the Right Honourable The Lord Emslie (1992) 138 (henceforth Cairns, “Hamesucken and the Major Premiss in the Libel”) at 171–172. 27 D Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (1989) 144–175. 28 Cairns, “Hamesucken and the Major Premiss in the Libel” (n 26) at 166–168. 29 Craig, De unione (n 6) 465. 30 Act of Union 1707 (c 7) art 18, T Thomson and C Innes (eds), Acts of the Parliaments of Scotland, 12 vols (1814–1875) (henceforth APS) vol xi, 406–413.

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England”. The English Court of Exchequer had an extensive jurisdiction at common law; such a jurisdiction was carefully excluded from the proposed new Scottish court, but it was to keep the jurisdiction over the “power of passing Signatures, Gifts Tutories, and in other things” that was possessed by the existing Scottish Court of Exchequer.31 A British Act of 1707 established the new court, and thus introduced into the Scottish legal system a considerable body of English law and procedures. The judges of this new court were the Chief Baron and four Barons: the same complement of judges as in the English Court. Given that the procedure and law applied were English, it is unsurprising that the first Chief Baron and, through the century, always at least one subsequent Baron were English lawyers. The scope of the use of English law, however, was carefully restricted to treasury matters; in the exercise of jurisdiction concerning private right Scots law was to be followed.32 The new court could potentially have been a source of direct influence of English law in Scotland; but its jurisdiction was so carefully restricted, and the volume of its business so low, that it was not. Its existence, however, did require Scots lawyers to have some familiarity with English law and procedure, albeit of a limited type, and could have helped put English legal ideas into greater currency in Scotland. Detailed study of the court is wanting, however, for any certainty to be possible in this.33 Other than the laws of revenue, the Act of Union preserved in force existing Scots laws except in so far as contrary to or inconsistent with the Treaty of Union, but provided that they were alterable by the Parliament of Great Britain: With this difference betwixt the Laws concerning publick Right, Policy, and Civil Government, and those which concern private Right; That the Laws which concern publick Right Policy and Civil Government may be made the same throughout the whole United Kingdom; but that no alteration be made in Laws which concern private Right, except for evident utility of the subjects within Scotland.34

31 Act of Union 1707 (c 7) art 19. On the English Court of Exchequer, see J H Baker, An Introduction to English Legal History, 3rd edn (1990) 56–61. 32 Exchequer Court (Scotland) Act 1707 (c 53). 33 J Clerk and B Scrope, A Historical View of the Forms and Power of the Court of Exchequer in Scotland (1820) remains the fullest account of the court; there is a good discussion in A J MacLean, “The 1707 Union: Scots Law and the House of Lords”, in A Kiralfy and H  L  MacQueen (eds), New Perspectives in Scottish Legal History (1984) 50 (henceforth MacLean, “The 1707 Union”) at 53–57. 34 Act of Union art 18.

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The Court of Session or College of Justice was preserved “in all time coming”, though “subject . . . to such Regulations for the better Administration of Justice as shall be made by the Parliament of Great Britain”. There was a similar provision for the Court of Justiciary. The Admiralty Court and heritable admiralty jurisdictions were also preserved though subject to the Lord High Admiral or Commissioners for Admiralty of Great Britain. The inferior courts were preserved subordinate to the superior courts.35 Heritable jurisdictions and offices and jurisdictions and offices for life were also preserved as rights of property.36 It was provided that “no Causes in Scotland be cognoscible by the Courts of Chancery, Queens-Bench, Common-Pleas, or any other Court in Westminster-hall; and that the said Courts, or any other of the like nature after the Union shall have no power to Cognosce, Review or Alter the Acts or Sentences of the Judicatures within Scotland, or stop the Execution of the same”.37 The one issue that was not mentioned was whether there would be appeals from the Scottish superior courts to the House of Lords of the new Parliament of Great Britain. The work of John MacLean has shown that it was always intended that there should be such appeals, and that the reason for them not being mentioned was not fear of Scottish reaction, but probably fear of raising once more the question of the jurisdiction of the House of Lords over certain English courts.38 Furthermore, for some time the House of Lords entertained jurisdiction over the Court of Justiciary, only later to decline it for reasons of expediency.39 The Union thus carefully preserved Scots law in matters of private right. The first significant change in legal regimes in Scotland came in 1708 when the English law of treason and English criminal procedure for prosecution of treason by commissions of oyer and terminer were introduced.40 The catalyst for this legislation had been the invasion scare of that year and the lack of success of prosecutions of Jacobites in Scotland, but, despite the objection of Scots Members of Parliament, it is understandable that it should have been thought desirable to have one law on treason throughout Great Britain: to impose the English law of treason on Scotland was the obvious way to achieve this, even though it was quite different from the

35 36 37 38 39

Ibid art 19. Ibid art 20. Ibid art 19. MacLean, “The 1707 Union” (n 33). A J MacLean, “The House of Lords and appeals from the High Court of Justiciary, 1707–1887” (1985) Juridical Review 192. 40 Treason Act 1708 (c 21).

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Scots law, and the criminal procedure quite different.41 This was also not a matter of “private right” which could only be changed when for the evident utility of the people of Scotland. B. THE SOURCES OF AUTHORITY IN SCOTS LAW The sixteenth century had seen several attempts to reduce into some type of order and make accessible the variety of material drawn on by Scots lawyers. This necessitated consideration of their authority as sources. Scots lawyers by 1600 had linked law with notions of sovereignty, and had distinguished between formal and historical sources of law. The theory of sovereignty adopted by lawyers made the primary source of Scots municipal law legislation by the king and Estates of Parliament. The next source recognised was custom. Custom raises difficulties as a formal source of law. Lawyers such as Thomas Craig and Sir John Skene resolved these by identifying custom with the practice of the supreme court, the Session. The Session was known to have developed out of the King’s Council, and it may have been this connection with the king’s sovereignty that permitted lawyers to recognise its authority in declaring the law by recognising rights and granting remedies. Craig, writing in 1600–1608, clearly identified the practice of the Session with custom, and, at some level, viewed its decisions as authoritative precedent creating law. And certainly from the early sixteenth century, collections of decisions of the court were made by judges, presumably for subsequent use in determining other cases.42 Both statutes and custom evidenced by the practice of the Session presented problems as sources. In contrast with English statutes, those of Scotland could fall into desuetude if a custom contrary to their provisions had developed: that a statute was not repealed did not mean that it was in force.43 Furthermore, the authority of Regiam majestatem and the “auld laws” as statutes was questionable, and debated among lawyers: some accepting them as statutes, some rejecting them. Since Regiam had for long been treated as a major source, questioning its authority potentially could

41 W Ferguson, Scotland: 1689 to the Present (1968) 57–58; B Lenman, The Jacobite Risings in Britain 1689–1746 (1980) 79–106; P W J Riley, The English Ministers and Scotland, 1707– 1727 (1964) 119–120. 42 J W Cairns, T D Fergus and H L MacQueen, “Legal Humanism and the History of Scots Law: John Skene and Thomas Craig”, in J MacQueen (ed), Humanism in Renaissance Scotland (1990) 48 (henceforth Cairns, Fergus and MacQueen, “Legal Humanism”) at 60–67. 43 Stair, Inst 1.1.16 (87–88).

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threaten much that was viewed as Scots law.44 Collections of decisions of the Session appear to have circulated in manuscript; it was not always easy, however, to determine from them what was the custom of the court, as will be explained below. Nor were the statutes and practice of the courts always sufficient to settle any question. In the absence of law, what was to be done? One solution was to argue from the historical origins of Scots law. Craig, for example, argued that much of Scots law originated in feudal law, and that if a solution to a legal problem were needed, and if feudal law provided that solution, then it should be adopted.45 Craig’s argument on feudal law was not one accepted by other Scots lawyers. But one source of Scots law that he recognised was also favoured by others: the customs and laws of foreign peoples.46 His contemporary Skene also listed this as a source of Scots law.47 Among the laws of foreign peoples, one obvious and attractive source of law was Roman law, and Skene classed it as such. What made Roman law authoritative? Craig explained: In a kingdom such as this, however, we are bound by the laws of the Romans only in so far as they are congruent with the laws of nature and right reason . . . Yet surely there is no greater seedbed of natural equity, no more fertile field of articulated reasoning and arguments from those principles of nature than the books of the Roman jurists; from which ought to be drawn, as if from the very source, what is equitable and what inequitable by nature and what most agrees and disagrees with right reason.48

He further commented: “This natural law is called the good and the just, from the reason or equity of right born in us . . . to such an extent that neither the legislation of a kingdom, nor prescription even of the longest time, nor custom has any force against this law.”49 Craig described the law of nations as “that which ought chiefly to be observed after the reasoning and understanding of the just and the good naturally inborn in us. Whatever all nations observed ought to prevail among us whenever not against civil or municipal law”.50 Craig accordingly put forward the view that failing statute or custom, Scots lawyers should resort to the natural law that even had primacy over municipal law and that could often be identified with Roman 44 Cairns, Fergus and MacQueen, “Legal Humanism” (n 42) at 61–64; Stair, Inst 1.1.16 (88); 3.4.27 (668). The history of the use of Regiam requires further exploration. 45 Craig, Jus feudale (n 6) 52 (I.viii.16). 46 Ibid 52 (I.viii.15). 47 Cairns, Fergus and MacQueen, “Legal Humanism” (n 42) at 60. 48 Craig, Jus feudale (n 6) 14 (I.ii.14). 49 Ibid 50 (I.viii.7). 50 Ibid 50 (I.viii.8).

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law, or the law of nations as evidenced by the laws of other peoples, or to feudal law as the historical source of Scots law (not necessarily authoritatively ranked in this order). The studies of Professor Hannay and Dr Durkan have shown that many Scots advocates in the sixteenth century had trained in Civil and Canon Law in European universities;51 it is therefore hardly surprising that they should have turned to those laws to develop Scots law. Theories of natural law and the law of nations gave authority to the use of Roman law, but stressed that it could only be used when in itself equitable. Craig’s theory of natural law is not fully worked out: for example, he did not deal adequately with the relationship of natural law to municipal law. But the type of arguments Craig presented in Jus feudale showed how Scots law could be developed in the absence of specific statutes or customs. Theories of sovereignty might stress statutes or customs; natural law had primacy over them. C. SCOTTISH LEGAL CULTURE In the Restoration era a vital legal culture arose among the advocates in Edinburgh. One factor in this was the change in the social composition of the Faculty which increasing numbers of men from landed families joined after 1660.52 The late Dr Rae’s recent analysis of the backgrounds of those who became members between 1620 and 1680 has confirmed that “there is a subtle change in the social composition of intrants to the Faculty . . . Men from the upper classes of peers and landed gentry, who are relatively modestly represented at the beginning of the period, become the most significant group after the Restoration”.53 Instead of being a means of achieving landed status, the Bar became a career for those who already had it. This increased the Faculty’s authority and prestige.

51 R K Hannay, The College of Justice: Essays on the Institution and Development of the Court of Session (1933) 145–147; J Durkan, “The French Connection in the Sixteenth and Early Seventeenth Centuries”, in T C Smout (ed), Scotland and Europe 1200–1850 (1986) 19 at 26–27. 52 J S Shaw, The Management of Scottish Society 1707–1764: Power, Nobles, Lawyers, Edinburgh Agents and English Influences (1983) 21–32; N T Phillipson, “Lawyers, landowners, and the civic leadership of post-Union Scotland” (1976) Juridical Review 97; and “The Social Structure of the Faculty of Advocates in Scotland 1661–1840”, in A Harding (ed), LawMaking and Law-Makers in British History (1980) 146. 53 T I Rae, “The Origins of the Advocates’ Library”, in P Cadell and A Matheson (eds), For the Encouragement of Learning: Scotland’s National Library 1619–1989 (1989) 1 (henceforth Rae, “Origins of the Advocates’ Library”) at 4.

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Two linked projects of the Faculty in the Restoration period mark their ascent and their definition of themselves as an independent, learned corporation. The first was the creation of a library that was to grow through the eighteenth century into one of the major European scholarly libraries. The Advocates Library was intended not only to serve the needs of the practising Bar, but also to educate young intrants and advocates generally.54 The second was a concern to improve the education of the Bar. Most advocates were admitted by examination in Civil Law. By 1692, such candidates first underwent private examination viva voce in Latin on Civil Law, and then had to print theses in Latin on a title of Civil Law that were defended publicly in a Latin disputation based on a university disputatio pro gradu. Finally, intrants had to read a Latin lesson before the Lords of Session. All this presupposed the competency in Latin acquired by a university education, and a reasonable, academic knowledge of Civil Law. This form of admission had precedents going back to 1664 and earlier, and it was obviously designed to ensure a scholarly, cultured profession. So important was this education in Civil Law considered to be that those few who were admitted by examination on Scots law had to pay double entry fees, and face the stigma of being admitted in a less “honourable” way.55 Nor was an education in Civil Law narrowly conceived. In one proposal to create a chair in 1695, it was commented that: “The professione of the laws carys necessarly with it all the belles Letres and the knowledge of ancient and modern history.”56 Those advocates who were educated in the Netherlands at this period did not restrict themselves to the study of Civil Law, and they would also often study Roman antiquities, universal history, and natural law; these were considered a necessary aspect of legal education. Depending on individual interest and taste, while in the Netherlands they might also study natural sciences, ecclesiastical history, other foreign languages, and the like.57

54 Ibid at 16–18; J W Cairns, “Sir George Mackenzie, the Faculty of Advocates, and the Advocates’ Library”, in G Mackenzie, Oratio inauguralis in aperienda juisconsultorum bibliotheca, ed J W Cairns and A M Cain (1989) 18 (henceforth Cairns, “Sir George Mackenzie”) at 23–25. 55 J W Cairns, “The Formation of the Scottish Legal Mind in the Eighteenth Century: Themes of Humanism and Enlightenment in the Admission of Advocates”, in N MacCormick and P Birks (eds), The Legal Mind: Essays for Tony Honoré (1986) 253. 56 Advocates’ Minute Book Volume I (n 1) 160. 57 J M Gray (ed), Memoirs of the Life of Sir John Clerk of Penicuik, Baronet, Baron of the Exchequer. Extracted by himself from his own Journals 1676–1755, Scottish History Society vol xiii (1892) 13–18.

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Those admitted to the Bar between the Restoration and the Union were thus a well-educated and cultured group of men, of high social status, often with scholarly and scientific interests, a number of whom are known to have collected relatively large private libraries reflecting these concerns.58 By 1700 they were, as a group, powerful and secure enough to defy the Lords of Session and to have gained control over admission to their ranks.59 It was this context that saw for the first time regular publication of works on Scots law, of which the best known is Stair’s Institutions. But there were others, such as Sir George Mackenzie’s many treatises on law, notably his Laws and Customes of Scotland in Matters Criminal (1678), his short Institutions of the Law of Scotland (1684), and his Observations on the Acts of Parliament (1686),60 Alexander Seton of Pitmedden’s Treatise of Mutilation and Dismemberment and their Punishment (1699),61 and George Dallas’s System of Stiles (1697).62 New editions of the Scottish statutes were published in 1681 and 1682 by Sir Thomas Murray of Glendook,63 while collections of decisions made by individuals started to be published, if in a somewhat haphazard way.64 Furthermore, in 1681 and 1695 proposals were

58 Rae, “Origins of the Advocates’ Library” (n 53) at 13–14. 59 See generally, J W Cairns, “A History of the Faculty of Advocates to 1900”, in The Laws of Scotland: Stair Memorial Encyclopaedia vol 13 (1992) paras 1239–1285 at paras 1247–1259. 60 On Mackenzie’s works, see F S Ferguson, “A Bibliography of the Works of Sir George Mackenzie Lord Advocate Founder of the Advocates’ Library”, Edinburgh Bibliographical Society Transactions vol 1 (1935–1938) 1–60. For a brief discussion, see Cairns, “Sir George Mackenzie” (n 54). 61 This was published in G Mackenzie, The Laws and Customs of Scotland in Matters Criminal. Wherein is to be seen how the Civil Law, and the Laws and Customs of other Nations doth agree with, and supply ours . . . To this Second Edition is now added (by way of Appendix) A Treatise of Mutilation and Demembration and their Punishments, by Sir Alexander Seton of Pitmedden Knight Baronet (1699). 62 G Dallas, System of Stiles, as now practicable within the Kingdom of Scotland (1697). 63 The Laws and Acts of Parliament made by King James the First, Second, Third, Fourth, Fifth, Queen Mary, King James the Sixth, King Charles the First, King Charles the Second Who now presently Reigns, Kings and Queen of Scotland. Collected, and Extracted, from the Publick Records of the said Kingdom, by Sir Thomas Murray of Glendook Knight, and Baronet, Clerk to His Majestie’s Council, Register, and Rols, by his Majestie’s special warrand (1681); The Laws and Acts of Parliament Made by King James the First, and his Royal Successors, Kings  and Queen of Scotland In Two parts . . . Collected, and Extracted, from the Publick Records of the Said Kingdom, by Sir Thomas Murray of Glendook, 2 vols (1682, 1683). 64 The Decisions of the Lords of Council and Session . . . Observed by Sir James Dalrymple of Stair, 2 vols (1683, 1687); The Decisions of the Lords of Council and Session, in most Cases of Importance, Debated, and Brought before Them; From July 1621 to July 1642 . . . Observed by Sir Alexander Gibson of Dury (1690).

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made to reform the statutes,65 while between 1660 and 1700 there was very considerable and important statutory reform of the law.66 In the published works and statutory reforms we can see the same concerns as had exercised Craig: the relationship between the law of nature and nations and the municipal law of Scotland; sovereignty; legislation; and custom. Stair drew on a modified version of Grotius’s theories of natural law to present a synthesis of Scots law and to argue for its obligatory authority. His attitude to the sources was to prefer custom to statutes and to argue that the best law appeared through practice, and it is unsurprising that he primarily founded Scots law on the decisions of the courts, of which he was to publish two volumes in 1683 and 1687, the first decisions printed in Scotland. Stair’s preference for custom seems partly to reflect the emphasis he placed in government on the relationship between king and people.67 Mackenzie’s attitude was quite different: believing in the divine right of kings, he argued that statutes were “the chief Pillars of our Law”, and moreover that statutes were enacted by the king, with the estates only consenting.68 A further reason why Mackenzie favoured statutes was their public nature: any one could read them and know the law, and in his treatise on criminal law he regretted that some crimes were not defined in statutes, as to do so would have favoured the liberty of the subject.69 Mackenzie alluded to natural law and the law of nations in his Institutions, but there was no developed discussion of them as found in Stair. Similarly, in his treatise on criminal law, though he stated that the law of God was the ultimate source of Scots criminal law, there was no sophisticated

65 Commission for revising the Laws, 1681 c 94, Acts of the Parliaments of Scotland vol viii, 356. See also The Decisions of the Lords of Council and Session . . . Collected by the Honourable Sir John Lauder of Fountainhall, 2 vols (1759, 1761) vol i, 155. Act and Commission for Reviseing the Lawes and Practiques of the Kingdom, 1695, c 57, Acts of the Parliaments of Scotland vol ix, 455. 66 Consider, e.g., the Courts Act 1672; Bankruptcy Act 1696; Blank Bonds and Trusts Act 1696; Winter Herding Act 1686; Prescription Acts 1669 and 1695. 67 Stair, Inst (n 7) 1.1.1–23 (73–94). See, e.g., P G Stein, “Stair’s General Concepts: 1. The Theory of Law”, in Stair Tercentenary Studies 181–187; N MacCormick, “The rational discipline of law” (1981) Juridical Review 146. 68 G Mackenzie, Observations on the Acts of Parliament (1686), sig A4r, 6–7, 94, 153; and Institutions of the Law of Scotland, 2nd edn (1688) (henceforth Mackenzie, Institutions) 5; and Observations upon the 18th Act of the 23rd Parliament of King James VI, in The Works of that Eminent and Learned Lawyer, Sir George Mackenzie of Rosehaugh, 2 vols (1716, 1722) (henceforth Mackenzie, Works) vol ii, 5; see Mackenzie, Jus regium (1684) for a general account of his political theory. 69 Mackenzie, Laws and Customes of Scotland in Matters Criminal, in Works (n 68) vol ii, 53 at 60–61.

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discussion of natural law.70 Given his favouring of the divine right of kings, it is unsurprising to note that he tended to found the authority of law in historical validity deriving from the age of the Scottish monarchy. This was why he privileged statutes that were enacted by the king as a source; similarly, for Mackenzie custom as a source derived its authority from the tacit acquiescence of the king and people.71 The political and religious conflicts of the seventeenth century were thus mirrored in disputes among the advocates about the ultimate location of sovereignty, and the need to sort out the sources of Scots law. The turn to natural law to deal with these questions was undoubtedly significant: from this time, Scottish libraries and individuals started to collect the works of Grotius and later Pufendorf, and commentaries upon them. The earliest manuscript catalogue of books in the Advocates Library dates from 1683, and lists Grotius’s treatise De jure belli ac pacis with Gronovius’ notes published in 1680, Heinrich Henniges’ commentary on Grotius published in 1671, and Samuel Rachel’s De jure naturae et gentium dissertationes of 1676.72 By 1692, of works on natural law, the Library included, for example, an edition of 1688 of Pufendorf’s De jure naturae et gentium libri octo and one of 1683 of Richard Cumberland’s De legibus naturae disquisitio philosophica.73 Other libraries followed suit.74 The development of the study of natural law and natural jurisprudence in Scotland is now well known in outline. Carmichael started to teach Pufendorf in Glasgow. The Regius Chair of Public Law and the Law of Nature and Nations was established in Edinburgh in 1707, and some, at least, of the professors taught. Moral philosophy became re-oriented to some extent around natural law.75 Classic texts of natural law can be found not only in lawyers’ libraries but also advertised in newspapers, such as Barbeyrac’s edition of Grotius advertised 70 71 72 73 74

Mackenzie, Institutions (n 68) 1–3; and, Matters Criminal, in Works (n 68) vol ii, 53. Mackenzie, Institutions (n 68) 7 (in the 1st edn he omitted to mention the king). Townley, Best and Fynest Lawers (n 8) 58, 64, 98. Catalogus librorum bibliothecae . . . a Facultate Advocatorum . . . constructae 50, 65. C Shepherd, “The Inter-relationship between the Library and Teaching in the Seventeenth and Eighteenth Centuries”, in J R Guild and A Law, Edinburgh University Library 1580– 1980: A Collection of Historical Essays (1982) 67 at 72–73. The libraries of private individuals also contained many such works by the early eighteenth century. 75 R L Emerson, “Science and Moral Philosophy in the Scottish Enlightenment”, in M A Stewart (ed), Studies in the Philosophy of the Scottish Enlightenment (1990) 11 at 18–20; J Moore and M Silverthorne, “Gershom Carmichael and the Natural Jurisprudence Tradition in Eighteenth-century Scotland”, in I Hont and M Ignatieff (eds), Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment (1983) 73; K Haakonssen, “Natural Law and the Scottish Enlightenment” (1985) 4 Man and Nature: Proceedings of the Canadian Society for Eighteenth-Century Studies 47.

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for sale in the Edinburgh Evening Courant of 4/8 February 1720, and Kennet’s translation of Pufendorf with Barbeyrac’s notes in the Caledonian Mercury on 10 October 1721. Interest in these works was evidently keen. Natural law theory allowed Stair and other Scots lawyers to produce an account of Scots law as a national law that was intellectually coherent and that related it to the laws of God, nature and nations. It had a relevance, however, going beyond the theoretical. It had considerable practical importance for lawyers in Scotland: an importance such that, in the 1760s, the Faculty of Advocates encouraged all intrants to study it and proposed to examine them on it.76 To understand this, it is necessary to discuss Scottish civil and criminal procedure. It was the use made of natural law and the law of nations in legal arguments that promoted the use of English law by Scots lawyers. D. THE PRACTICE OF THE COURTS The two Scottish superior courts by 1707 were the Court of Session and the High Court of Justiciary, founded in 1532 and 1672 respectively. Both were developed from earlier precursors. The Faculty of Advocates had a monopoly of right of audience in both courts.77 The forms of process in both were important and central to Scots law and need to be explained. Procedure before the Court of Session was dramatically different from procedure before the English courts of common law. Nicholas Phillipson has discussed it for the eighteenth century, focusing on how it led to delays in actions;78 here the focus will be on how procedure left the law indeterminate in detail. Since custom, identified with the practice of the courts, was regarded as a formal source of law, this was of considerable importance. The following brief account will be closely derived from Phillipson’s study. As constituted in 1532, the Session consisted of the President and fourteen Senators of the College of Justice or Ordinary Lords of Session. If present, the Lord Chancellor of Scotland would preside. Until 1723, up to

76 J W Cairns, “The Influence of Smith’s Jurisprudence on Legal Education in Scotland”, in P Jones and A S Skinner (eds), Adam Smith Reviewed (1992) 168. 77 College of Justice Act 1532 (c 2), Acts of the Parliaments of Scotland vol ii, 335–336; Courts Act 1672 (c 40), Acts of the Parliament of Scotland vol viii, 80–88; T M [Lord] Cooper, “The Central Courts after 1532”, in [Paton (ed)], Introduction (n 25) 341; W Croft Dickinson, “The High Court of Justiciary”, in [Paton (ed)], Introduction (n 25) 408. 78 N Phillipson, The Scottish Whigs and the Reform of the Court of Session I785–1830, Stair Society vol 37 (1990) 42 (henceforth Phillipson, Reform of the Court of Session).

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four extraordinary Lords of Session could be appointed by the king.79 The effective judges were, however, the President and the fourteen Senators or Ordinary Lords of Session. The Session was divided into an Inner and an Outer House. The President and the fourteen Lords sat in the Inner House, nine forming a quorum, and decisions being by majority vote. The Ordinary Lords sat in turn in the Outer House as Lord Ordinary of the week, Lord Ordinary on Oaths and Witnesses, Lord Ordinary on Bills, or Lord Ordinary on Concluded Causes. Phillipson has pointed out that most cases never went beyond the Outer House. Certain causes had to be heard before the Inner House.80 Actions were commenced by a libel which stated the ground of the action and concluded for a remedy. The libel or summons was served on the defender who had to give in defences. The Lord Ordinary would hear a debate on the libel and defences, and, if the facts were not at issue, pronounce an interlocutor. Parties could be ordered to prepare written memorials on the facts and the law before the judge pronounced the interlocutor. Such interlocutors could be reviewed by the judge on the basis of a written representation by one of the parties. Such a representation would normally call for written answers by the other party. There was no limit on the number of times the Ordinary could be asked to review an interlocutor. Parties could also complain of an interlocutor by reclaiming to the Inner House, which, on the basis of the reclaiming petition and printed answers to it, would confirm or recall the earlier interlocutor. Furthermore, should the Ordinary consider the cause to be one of difficulty, he could take it for advising to the Inner House.81 Should there be disputes over facts where witnesses were involved, the proof was taken by the Lord Ordinary on Oaths and Witnesses, who would himself examine the witnesses or issue a commission for them to be examined elsewhere. When the proof was taken, the evidence, in the form of depositions, went before the Lord Ordinary on Concluded Causes who ranked it before remitting it to the Inner House. Counsel would be heard on the evidence, and the Inner House would decide the issue.82 From 1686, parties and their counsel were entitled to be present at the examination of

79 College of Justice Act 1532 (c 2); Act 10 Geo I c 19 enacted that no more extraordinary Lords be appointed to fill vacancies. 80 Phillipson, Reform of the Court of Session (n 78) 43–44. 81 Ibid 45. 82 Ibid 45–46.

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the witnesses by the judge; and from 1693 causes were advised by the Inner House in open court with the parties and their counsel present.83 One feature of actions was the tremendous scope for interlocutors to be reviewed, and for reclaiming motions (although only two were allowed on each interlocutor). Cases could start to seem interminable. One advocate sarcastically remarked in his pleadings: This Case being so remarkable an Instance of the watchful Care of Providence for an Infant against the Designs of his Grandfather and Uncle, to deprive him of his Birthright, it’s hoped that the Pursuer will be excused from being very prolix in answering upon a single Point of Law now already decided eight several times uniformly in his Favour.84

Furthermore, it was easy to amend pleadings, so that cases could become protean, regularly changing their nature as they progressed (if that is the term) through the court. The process came largely to be written rather than oral, as memorials and condescendences multiplied arguing the law at all stages of the action.85 William Forbes commented in 1714: That they [i.e. the Lords of Session] may have Time to consider weighty Cases maturely, they get them reduced into Writ by the Lawyers: And every Lord hath a Box standing upon a Table in the waiting Room of the Inner-house from Two till Four in the Afternoon, wherein all who have Papers to offer may put them by a Slit in the cover. This, tho’ a mighty Advantage to the Lieges, is of late, since Informations and Bills were allowed to be printed, become an incredible Fatigue to the Lords: Who, after toiling all Day in hearing Causes, are obliged to shut themselves up to peruse and consider a Multiplicity of Papers at Night; and thereby often to want the necessary relaxation due to Nature, which visibly shortens their Days.86

The procedures of the court, though productive of a huge volume of legal reasoning, tended to avoid focusing on specific issues to be authoritatively determined by the court. The Inner House decided causes by voting; judges could vote one way or another for a variety of reasons. Nor did they need to give reasons for deciding to vote one way or another, and when they did, their reasons generally went unrecorded (although they have sometimes been preserved).87 The process thus contained legal argument by counsel, interlocutors and the final decreet, but not necessarily any authoritative 83 Act 1686 c 30, Acts of the Parliaments of Scotland vol viii, 599; Act 1693 (c 42), Acts of the Parliaments of Scotland vol ix, 305. 84 Found quoted in J A Inglis, “Eighteenth-century pleading” (1907–1908) 19 Juridical Review (OS) 42 (henceforth Inglis, “Eighteenth-century pleading”) at 54–55. 85 Phillipson, Reform of the Court of Session (n 78) 50–55. 86 W Forbes, Journal of the Session (1714) x. 87 Phillipson, Reform of the Court of Session (n 78) 53–54.

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judicial pronouncement on the law. David Dalrymple, as counsel in Millar v Robertson in 1712, commented: In Cumulo one of your Lordships is moved by one Reason, and another by another, which Reasons, if they were examined or determined separately, would be repelled by the Plurality, which also is the Case why in most Sovereign Courts, especially in England, the Judges do resolve particular Points, which renders the Reason of the Decision clear, and makes the Precedent of greater Use in other Cases.88

This early, unfavourable comparison with English procedure is particularly telling. Critics directly linked this uncertainty in the law to the practices of the court: The difference of opinion, which could not fail to arise from the different views of the case that suggested themselves to the minds of so many Judges, gave rise often to discussions, the result of which was not always to forward the cause. Few pleas could well be brought before the Court, without plausibility enough to secure the vote of one or more of the Judges. A spirit of litigation was thus kept alive in the breasts of the parties. Among so many discordant decisions, too, the grounds of the judgment could not always be traced; and it was often difficult to decide, what had actually been held to be the law of the case.89

Published reports likewise generally only recounted the facts, pleadings of counsel and the relevant interlocutor or decreet: they were thus of limited value as precedents, and how they were to be understood depended much on the presentation of the case made by the reporter. A similar situation prevailed in cases before the Justiciary Court. From 1672, this Court consisted of the Lord Justice-General, a nobleman who sat only infrequently, the Lord Justice-Clerk, and five Lords Commissioners of Justiciary appointed from the ordinary Lords of Session.90 Actions were initiated by a libel that took the form either of an indictment (when the prosecution was at the instance of the Lord Advocate) or of criminal letters (when initiated by a private individual). The libel was served on the accused who was cited to compear at a diet of the High Court in Edinburgh or at a Circuit Court. The accused also was served with a list of the witnesses against him or her and list of the men from whom the assize would be selected.91 88 Found quoted in Inglis, “Eighteenth-century pleading” (n 84) at 52. 89 [J Ivory], Form of Process before the Court of Session, the New Jury Court, and the Commission of Tiends, 2 vols (1818, 1815) vol i, 17–18. 90 Courts Act 1672 (c 40). 91 Cairns, “Hamesucken and the Major Premiss in the Libel” (n 26) at 142–144; J I Smith, “Criminal Procedure”, in [Paton (ed)], Introduction (n 25) 426.

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The libel was in the form of a syllogism, with a major premiss, a minor premiss, and a conclusion. The major premiss specified the crime, typically by a nomen juris (such as murder) if there were one, stating that the crime was heinous and punishable “by the laws of this and all well governed realms”, though it could also allude to the laws of God, laws of nature and nations, and the common law (in the sense of the Civil and Canon Laws). The minor premiss contained detailed averments which, if proved, amounted to the crime specified in the major premiss. The conclusion called for the appropriate punishment if the crime were proved.92 At the diet to which the panel was cited to compear, the libel was read and he or she asked to plead. On a plea of not guilty, there would normally be a debate on the relevancy of the libel. Before 1695, the panel’s counsel’s objection, the prosecutor’s reply, the defence’s duply, the prosecutor’s triply, the defence’s quadruply, and so on would be dictated to the Justiciary Clerk who would enter them into the record. From that date to 1747, counsel would debate viva voce, and then give in written informations arguing on the relevancy that would also subsequently be debated if new points were contained in them. After 1747, the viva voce debate on the relevancy would simply be followed by the giving in of written informations. The judges (all six, if the trial were in Edinburgh, usually two, but sometimes one, if at a Circuit Court) would then pronounce an interlocutor finding the libel relevant or irrelevant. Such interlocutor could be very simple, but sometimes it could specify questions of fact in detail for the jury to determine. A jury of fifteen would then by selected by the judges from the forty-five assizers summoned. Once the jury was empanelled, the proof followed without a break. The evidence of each witness would be summarised by the judge and dictated to the Clerk, who would enter it in the Court’s Minute Book to be signed by the witness; if he or she could not sign, this would be noted, and the judge would sign. After the proof was concluded, the prosecutor and the counsel for the panel would address the jury, which would then be enclosed with instructions to return a verdict at a specified time. A simple majority sufficed. The jury could return verdicts of guilty, not guilty, or a special verdict. This last meant that the jury found specific facts proven or not proven; should such a verdict be returned, there would be a debate on whether what the jury had found proven amounted to the crime specified. If the jury returned a verdict of not guilty, the panel would be absolved; if

92 Cairns, “Hamesucken and the Major Premiss in the Libel” (n 26) at 143.

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found guilty or the special verdict amounted to guilt, the panel would be sentenced.93 This procedure produced a court record which did not contain authoritative judicial pronouncements on the law. All that was certain was that specific libels had been found relevant or irrelevant. This could also be complicated by the prosecutor’s use of his discretion to restrict the pains of the law to an arbitrary punishment rather than capital punishment; as this was very commonly done, it could be unclear whether or not certain crimes were capital. Statutes and customs, especially as found in the practice of the courts, caused problems as authoritative sources of Scots municipal law: the first because pre-1707 statutes could fall into desuetude, and because, after 1707, the new British Parliament devoted little attention to Scots law; the second, because both the procedures and the form of the record of practice in the Session and the Justiciary Court left it unclear to some extent precisely what that custom was. Moreover, the lack of an adequate system of reporting of decisions made access, especially in civil cases, to custom difficult. Of course, this indeterminacy should not be exaggerated. Over much of the law lawyers evidently agreed on the broad outlines or principles; furthermore, the rights and duties involved in land tenure were clearly understood because they were embodied in writing, and Scotland had a sophisticated system of conveyancing and registration of titles. None the less, problems arose in the detailed working out of the broad outlines. Principles could conflict: the Session had an equitable jurisdiction as well as one at common law. Court procedure left these details unclear. Hugo Arnot commented thus on criminal law: There is no determined system of criminal jurisprudence in Scotland. It is a matter of doubt what is a crime in the eye of her law, and what not, also what is the punishment annexed . . . The Scots statute book is full of unrepealed laws, absurd, tyrannical and oppressive; and . . . it becomes a matter of debate whether they are gone into desuetude. There is no professed treatise on the criminal law of Scotland that either is or ought to be considered as an established authority.94

Study of the Justiciary Records of the eighteenth century tends to confirm Arnot’s view.95 Nor were matters generally better in civil law. The proposals to revise the laws in 1681 and 1695 in this context take on a particular importance. The commissions were not merely intended to deal with statutes; it was also provided in 1681 that the commission should look at 93 Ibid at 143–144. 94 H Arnot, The History of Edinburgh (1779) (henceforth Arnot, History of Edinburgh) 486. 95 Cairns, “Hamesucken and the Major Premiss in the Libel” (n 26).

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“the Customs Consuetuds and Judiciall Practicks either in the Supream or Subalterne Courts whether Civil or Criminal, which are or have been observed as Laws or Rules of Judgement”, and in 1695 the commission was instructed “more especialy to define the pains of all Crimes not already defined by Acts of Parliament” and also: [T]o revise the whole Acts of Sederunt and Decisions and Practiques of the . . . Lords of Session . . . and to take notice and remark what Acts of Sederunt are in use and what Decisions should be held for Practiques to be still adverted to in Judgement, and what not As also in the case of Acts of Sederunt and Decisions or Practiques seemingly contrary to remark and give their opinion which of them shall for hereafter be observed And generally to do all and sundry other things that may best clear ascertain and establish the Practique or course of Decisions to be hereafter observed by the Lords of Session in Judgement . . . .96

The task was so enormous it is scarcely surprising that it was not carried out. Lawyers turned to the law of nature and nations to deal with the situation. In this context, works such as Stair’s Institutions and Mackenzie’s Matters Criminal were bound to take on considerable importance; yet they in themselves could decide nothing, since they were authorities only in so far as their reasoning on points was judged good. What this meant was that there was considerable scope in actions to return to first principles to argue any case in which legal points were at issue. And lawyers did so. The full title of Stair’s work was: The Institutions of the Law of Scotland Deduced from its Originals, and Collated with the Civil, Canon and Feudal Laws, and with the Customs of Neighbouring Nations in IV Books; the full title of Mackenzie’s criminal treatise was: The Laws and Customs of Scotland in Matters Criminal: Wherein is to be seen how the Civil Law, and the Laws and Customs of other Nations do agree with, and supply ours. These works thus placed Scots law in the context of comparative law as well as natural law. The extensive written and printed memorials and condescendences pleading on the law to which civil cases of any significance gave rise reargued the law on the same bases: pleadings would range over natural law, the historical origins of Scots law, Roman law, and the laws of neighbouring nations as demonstrating the law of nations, as well as over relevant statutes and decisions of the Session.97 The same phenomenon is found in informations in criminal cases. So normal was this, that, in a model for an information in a criminal case given as a style, the argument dealt with the basis of the crime in the law of nature and the law of God, and also 96 Acts of the Parliaments of Scotland vol viii, 356; vol ix, 455. 97 The matter requires further research, but see Inglis, “Eighteenth-century pleading” (n 84) at 53.

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discussed “the Laws of other Countries, particularly the Law of England” as well as Scottish authority.98 Scots legal historians should not be inclined to see as merely ornamental the voluminous citation of civilian authorities on Roman law such as Voet, of the Roman texts themselves, and of Grotius. This would be misconceived. The form of process prevented civil litigation from focusing on specific, narrow issues for decision at law; the court records did not contain such decisions on narrow issues valuable as precedents; lawyers thus argued from natural law, the law of nations, the historical origins of Scots law, and the formal sources of Scots law. It is therefore unsurprising that Scots lawyers were interested for practical as well as theoretical reasons in the law of nature and nations. They could not operate Scots law as a system hermetically sealed from other systems of law. They had to locate it within the theories of natural law and the law of nations. Scots lawyers’ willingness to argue from the law of nations would have made them particularly receptive to the idea of using English law in arguments. In criminal law, they may have continued to use Matthaeus’s treatise De criminibus, but they also started to argue from Hale’s Historia placitorum coronae.99 In the early eighteenth century, Scots lawyers considered that civil law required to be accommodated to the genius of the nation; through the course of the eighteenth century, the focus on the need for the law to be accommodated to modern manners intensified, and arguments on what was the law could use the language of civility and manners. This seems to have made Scots lawyers more ready to turn to English law as the law of another jurisdiction with a similar political constitution, but also as the law of a more commercial country.100 To take one example, marine insurance, vital in a trading nation, was developed, as Angelo Forte has shown, by drawing on English law.101 English law provided a huge resource to which lawyers could turn to furnish themselves with arguments to elaborate a particular view of Scots law. One further notable feature of Scottish litigation after 1707 was the popularity of appeals to the House of Lords. There were several reasons for this. For example, entering such an appeal stopped execution of the decreet of the Lords of Session: an unsuccessful litigant thereby gained time, even 98 99 100 101

J Louthian, Form of Process Before the Court of Justiciary in Scotland (1732) 139–184. Cairns, “Hamesucken and the Major Premiss in the Libel” (n 26) at 175–178. Ibid at 174–178. A D M Forte, “Marine insurance and risk distribution in Scotland before 1800” (1987) 5 Law and History Review 393 at 394–398.

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if the House of Lords ultimately did not decide in his or her favour.102 But another reason seems likely to have been the confused and unsatisfactory nature of litigation before the Session that left Scots law indeterminate. Arnot argued that one of the advantages of appeals to the House in criminal cases was that they would help remedy the unsatisfactory and indeterminate state of Scottish criminal law.103 Stair’s Institutions and the other Scottish institutional works of the late seventeenth and eighteenth centuries developed out of and reflected the lively, learned legal culture of Restoration Scotland. They set out Scots law as a national law, but placed it in the context of the law of nature and nations from which they argued it derived its binding authority. Such a setting for Scots law legitimated argument from the law of nature and nations in litigation in order to develop Scots law, especially since Scots law as evidenced by the custom of the Session and of the Justiciary Court tended to be uncertain in details because of the procedures and records of those courts. From 1707 onwards, Scots lawyers turned to English law as a means of developing Scots law, because it was readily accessible, and the law of a neighbouring “well governed realm” (to use the standard formula of the major premiss of a criminal libel). Of course, they continued to draw on more familiar Roman and civilian legal systems; but, as the eighteenth century progressed, English law came more and more to be seen as an ideal system, as the law of a commercial country, as lawyers came to be concerned with improvement in the laws. In the same way, the forms of the English courts were seen by Adam Smith as better than those of the Scots courts in producing certainty and justice in law.104 “Anglicisation” was thus not necessarily imposed as such on Scots law, but to some extent willingly adopted as modernisation. The Union may have preserved Scots law, except when altered “for evident utility of the subjects”, but Scots lawyers’ understanding of Scots law within the framework of the law of nature and nations as expounded by theorists such as Stair, led them to draw on English law to develop Scots law because of the lack of reforming legislation and a court procedure that 102 R S Tompson, “James Greenshields and the House of Lords: a Reappraisal”, in W M Gordon and T D Fergus (eds), Legal History in the Making (1991) 109 at 109–110; A J MacLean, “Historical account of the jurisdiction of the House of Lords in Scotland to 1876”, in The Laws of Scotland: Stair Memorial Encyclopaedia vol vi (1988) 330–351 (paras 801–822) at 345–346 (para 818). 103 Arnot, History of Edinburgh (n 94) 481–486. 104 J W Cairns, “Adam Smith and the Role of the Courts in Securing Justice and Liberty”, in R P Malloy and J Evensky (eds), Adam Smith and the Philosophy of Law and Economics (1994) 31.

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did not produce authoritative and clear precedents. The law of nature and nations could in this way be understood to be much more “fundamental” than any provisions in the Treaty or Acts of Union. Natural law had primacy over theories of sovereignty.

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6 Natural Law, National Laws, Parliaments, and Multiple Monarchies: 1707 and Beyond* Ditlev Tamm has pointed out that the gateway of the town of Rendsburg in Schleswig contained a stone marking the northern limit of the Holy Roman Empire.1 Among the many implications of this, one may be singled out. Whatever may have been the importance or effectiveness of the Empire, the territory beyond the river Eider could not even in theory be subject to the jurisdiction of the Reichskammergericht in Speyer (or later Wezlar) and hence subject, barring local statutes and customs, to the authority of the gemeines Recht applied by that court. South of the Eider, Holstein, however, also under the King of Denmark, was a Duchy of the Empire. This is just one indicator of the potential legal complexity of the territories of the Danish composite monarchy, which included through the eighteenth century, as well as these German territories, Norway, Iceland, Greenland, and some Caribbean islands. Scotland had no need of such a boundary stone to indicate it was not part of the Empire, although in 1469, shortly after James III’s marriage to Princess Margaret of Denmark, Parliament, declaring that the king possessed “ful Jurisdictioune and fre Impire within his Realme”, deprived the work of imperial notaries of any authority in civil cases in Scotland.2 Ten years later, a clergyman was accused before Parliament of “tresonable usurpacioune” for his pretended legitimation of a child “in the name and Autorite of the Emperoure, contrare to our souverain lordis croune and maieste Riale”.3 So even in Scotland the universal claims of the Emperors had an impact. * The author is grateful for comments at the Conference in Copenhagen. He is pleased to acknowledge the permission of the British Library Board and the Trustees of the National Library of Scotland to cite MSS in their care. 1 D Tamm, “The Danes and their Legal Heritage”, in B Dahl, T Melchior and D Tamm (eds),  Danish Law in a European Perspective, 2nd edn (2002) 41–59 (henceforth Tamm, “Danes”) at 41. 2 T Thomson and C Innes (eds), Acts of the Parliaments of Scotland, 12 vols (1814–1875) (henceforth APS) vol ii, 95 (c 6). 3 APS vol ii, 115–116.

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Both Scotland and Denmark have an identity and national consciousness which may be traced to the Middle Ages.4 In both, the law has commonly come to be seen as one of many badges of that national identity. Without endorsing this (essentially nineteenth-century) view, comparison of the circumstances of the two countries brings differences rather than similarities to the front in assessing their laws. Thus, Scots law became a minority system in the British composite state; Danish law, on the other hand, was dominant in the Danish composite state. Despite the explicit rejection of the authority of the Roman Emperor in 1469, by 1700 Scots law had become strongly marked by a reception of the ius commune of Roman and Canon Law. The culture of the elite Scots lawyers based in Edinburgh practising before the Court of Session was cosmopolitan. For nearly two centuries past, they and the judges before whom they pleaded had commonly been educated to a high standard in a continental university in Civil, that is Roman, and often Canon Law.5 It is this “Civilian” aspect of Scots law that has traditionally been used to emphasise its difference from English law. In contrast, as a mark of identity, Danish law emphasised its “Nordic” roots in opposition to the Romanistic gemeines Recht of Germany, to which the Scots law of around 1700 could in fact be much more easily compared.6 As a badge of particular national identity, the cosmopolitan nature of Scots law only worked in opposition to English law. Composite states, conglomerate states, and multiple monarchies were normal in early modern Europe.7 Crucial to any further comparison of the Scottish and Danish positions is an understanding of contrasting systems of government and legislation in the eighteenth century in this context. In the 1660s, Denmark had become an absolute monarchy, the terms of which were embodied in the Royal Law of 1665.8 Symbolic of, and deriving from, 4 D Broun, “The Origin of Scottish Identity”, in C Bjørn, A Grant and K J Stringer (eds), Nations, Nationalism and Patriotism in the European Past (1994) (henceforth Bjørn, Grant and Stringer, Nations) 35–55; A Grant, “Aspects of National Consciousness in Medieval Scotland”, in Bjørn, Grant and Stringer, Nations 68; T Dahlerup, “Danish National Identity, c 700–1700”, in Bjørn, Grant and Stringer, Nations 56. 5 J W Cairns, “From Claves Curiae to Senators of the College of Justice: Changing Rituals and Symbols in Scottish Courts”, in R Schulze (ed), Symbolische Kommunikation vor Gericht in der Frühen Neuzei (2006) (henceforth Schulze, Symbolische Kommunikation) 251 at 261–265; J W Cairns, “Advocates’ hats, Roman law and admission to the Scots Bar, 1580–1812” (1999) 20, 2 Journal of Legal History 24. 6 Tamm, “Danes” (n 1) at 50–51. 7 J H Elliott, “A Europe of composite monarchies” (1992) 137 Past and Present 48. 8 See, e.g., E Ekman, “The Danish Royal Law of 1665” (1957) 29 Journal of Modern History 102. An English-language version was published by Jenkin Philipps as Lex Regia: Or the Royal Law Of Denmark (1731).

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the monarch’s new absolutist powers was Christian V’s promulgation of a new Danish Code, unifying the laws within Denmark, in 1683 (a version for Norway was promulgated in 1687).9 Indeed, this marked an historical development whereby the Danish kings came no longer to be seen as judges, but rather as legislators, in line with absolutist natural-law theory of the type currently being developed by, among others, Samuel von Pufendorf.10 In 1603, James VI of Scotland had inherited the English throne. Despite inconclusive negotiations and discussions of various forms of closer union, the two countries remained united only by the Stuart dynasty. If not in the formal position of subjection to England that was the lot of the kingdom of Ireland, Scotland was no longer generally able to act independently, foreign policy, for example, typically being determined in England. Assessment of the Stuart (and Willemite) multiple monarchy and of the consequent political tensions within the British Isles would be superfluous: suffice it to say that during the seventeenth century both English and Scots in the long run found the regnal union problematic, even disastrous.11 Though a closer Union was far from the necessary result of all this, a mixture of politics and ideology contributed to bringing about a more incorporating union of England and Scotland in 1707; an event about which nothing was inevitable – not even the event itself – and the negotiations serious and difficult.12 The most important and obvious effect of this Union was disappearance of the Scottish Parliament. If in theory the English Parliament was also abolished, in practice for England there was continuity, but with forty-five Scottish members added to the House of Commons and sixteen elected Scottish peers to the House of Lords.13 For Scotland it was different; there was no longer a Scottish Parliament and soon no Privy Council. Nevertheless, Scotland continued in many ways as a polity on its own, with its own rich civic culture and complex structures in which there was considerable participation. It is important to note that the Honours of Scotland, the arched imperial crown, sword of state, and sceptre, which

9 Tamm, “Danes” (n 1) at 48–50. 10 See D Tamm, “Der dänische König als Richter und Gesetzgeber”, in Schulze, Symbolische Kommunikation (n 5) 357. 11 See J Morrill, “The English, the Scots, and the Dilemmas of Union, 1638–1654”, in T C Smout (ed), Anglo-Scottish Relations from 1603 to 1900 (2005) (henceforth Smout, Anglo-Scottish Relations) 57; C A Whatley, “Taking Stock: Scotland at the End of the Seventeenth Century”, in T C Smout (ed), Anglo-Scottish Relations 103. 12 See, e.g., C A Whatley, Bought and Sold for English Gold? Explaining the Union of 1707, 2nd edn (2001). 13 APS, vol xi, 406–414, c 7 at 411–412 (art 22).

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symbolised independence and sovereignty, were to be kept in Scotland along with the parliamentary and other records and warrants, and “so [to] remain in all time coming notwithstanding of the Union”.14 These structures and provisions demonstrate the extent to which the Union was only partly incorporating. A. STRUCTURES OF GOVERNMENT BEFORE THE UNION Before 1707, the main institutions of central government in Scotland were the Parliament and the Privy Council. The former was unicameral, consisting of the monarch, the estates of the realm (the nature of which had varied, though once having classically been the three estates of clergy, nobility and burgesses), and the various officers of state, such as the Chancellor, Secretary, Justice-Clerk, Lord Advocate, and so on. After 1603, the king attended Parliament in person only exceptionally, but he was represented both by his Commissioner and symbolically by the presence of the Honours of Scotland crown, sceptre, and sword of state. Royal assent to Acts was signified by touching them with the sceptre.15 While the royalist lawyer and political and constitutional theorist Sir George Mackenzie (1636–1691) had argued that legislation was the prerogative of the king, the Estates only consenting, by 1707 it was clear that legislation was enacted by both monarch and estates.16 The Privy Council was dominated by the officers of state and guided the administration of the country, developing and implementing royal policy and enforcing the laws.17 14 Ibid at 413 (art 24). On contemporary ideas of sovereignty in Scotland, see C Kidd, “Sovereignty and the Scottish constitution before 1707” (2004) Juridical Review 225; J W Cairns, “Scottish Law, Scottish Lawyers and the Status of the Union”, in J Robertson (ed), A Union for Empire: Political Thought and the British Union of 1707 (1995) (henceforth Robertson, A Union for Empire) 243; J Robertson, “An Elusive Sovereignty: the Course of the Union Debate in Scotland 1698–1707”, in Robertson, A Union for Empire 198. 15 J Goodare, “The Estates in the Scottish Parliament, 1286–1707”, in C Jones (ed), The Scots and Parliament (1996) 11. Other than some now quite outdated works there is rather a dearth of detailed discussion of the institutional history of the Scottish Parliament. It is to be hoped that the third volume of The Scottish Parliament: A Thematic History, ed K M Brown and A R MacDonald (Edinburgh, forthcoming) may remedy this somewhat. Details of the functioning of the Parliament may be gleaned from R S Rait, The Parliaments of Scotland (1924) and C S Terry, The Scottish Parliament: its Constitution and Procedure, 1603–1707 (1905). 16 G Mackenzie, The Institutions of the Law of Scotland, 2nd edn (1688) 5; F Grant, Law, Religion and Education, Considered; In Three Essays: With Respect to the Youth; Who Study Law: As a Principal Profession, or Accessory Accomplishment (1715) (henceforth Grant, Law, Religion and Education), Essay on Law 43. (All subsequent references to this work will be to this individually paginated Essay on Law.) 17 J Goodare, The Government of Scotland, 1560–1625 (2004) 128–148.

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The most important local officer was the sheriff, a royal appointment, dating from the Middle Ages. By 1707 around two-thirds of sheriffs held office heritably, that is by hereditary right as property.18 They were responsible in their sheriffdoms for the execution of royal writs, including those for court summonses, summoning of jurors, elections to Parliament and so on. They presided over assizes that determined the cost of bread. They summoned meetings of the freeholders of the sheriffdom and were returning officers for elections.19 Commissioners of supply had been established in 1667 to enable collection of a land tax known as the cess.20 They progressively acquired responsibility to collect other taxes for other miscellaneous duties, such as ensuring repair of highways and bridges. They were named annually in the Act of Supply from lists of landowners and met frequently as the sheriff had to call them to ensure collection of taxes.21 Justices of the peace had been introduced in 1609, though their role remained that of minor local administration.22 County freeholders, basically feudal superiors who owned land of a certain value, assembled before the sheriff for various head and other courts, where business could be transacted. Such assemblies also gave them the opportunity to act collectively, to petition Parliament or the Crown on matters that concerned them. The justices of the peace and the commissioners of supply were inevitably chosen from the freeholders. It was the freeholders who elected Members to Parliament. By 1707, there was an extensive system of royal burghs and burghs of regality or barony in (mainly) lowland Scotland. All had privileges founded on a charter, but royal burghs in theory had a monopoly on overseas trade, returned Members to Parliament as the estate of burgesses, and were largely self-governing with what were essentially self-electing oligarchic councils. Royal burghs also had a significant institution in the Convention of Royal Burghs, which met regularly and lobbied on their behalf.23 After 1690, the established national Church was Presbyterian. If this – and the doctrine of the “two kingdoms” – meant it was no longer directly represented in Parliament, the Kirk had an influential body in its annual General Assembly, which contained prominent lay members. It could – and 18 A E Whetstone, Scottish County Government in the Eighteenth and Nineteenth Centuries (1981) (henceforth Whetstone, County Government) 3. 19 A Murdoch, “The People Above”: Politics and Administration in Mid-Eighteenth-Century Scotland (1980) (henceforth Murdoch, “People Above”) 22–23. 20 APS, vol vii, 540–547. 21 Murdoch, “People Above” (n 19) 23–25; Whetstone, County Government (n 18) 61–94. 22 APS, vol iv, 434–435, c 14. 23 See, e.g., Murdoch, “People Above” (n 19) 26–27.

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did – lobby politicians, petition Parliament and monarch, and thereby was a body that statesmen could not ignore. The Kirk’s synods, presbyteries and sessions (in the parish) exercised discipline over clergy and laity. In each parish there was a group of heritors, landowners with a duty to maintain the kirk and manse, ensure there was a schoolmaster, and pay the minister his stipend from the teinds of the parish.24 B. THE LEGAL SYSTEM BEFORE THE UNION The most important civil court was the [Court of] Session, a central court developed out of the King’s Council in the fifteenth century and reformed as the College of Justice in 1532.25 With jurisdiction in all matters of civil or private law, it had its own stylus curiae, elaborated on the foundation of Romano-Canonical procedure. It was possible to take a “protestation for remeid of law” from the Session to the Parliament.26 The central criminal court was the Justice or Justiciary Court, which had been reformed in 1671. It could travel on circuit round Scotland, but this remained irregular until after the Union. An accused was tried by jury in a procedure similar to but far from identical with an English trial.27 The sheriff exercised the most significant local jurisdiction.28 Sheriffs generally appointed a legally trained depute to do the work, who might also appoint a local substitute. Sheriffs possessed a wide civil and criminal jurisdiction. Scotland was also covered by a system of Commissary Courts, secular successors to the former ecclesiastical courts, with that of Edinburgh having a supervisory and wider jurisdiction, particularly over divorce and marriage.29 Competing in significance with the sheriff were those landowners who had rights of regality, that is who possessed a jurisdiction almost as great as that of the Crown, though in civil matters subject to the Session’s 24 See, e.g., S J Brown, “Religion in Scotland”, in H T Dickinson (ed), A Companion to  Eighteenth-Century Britain (2002) 260 (henceforth Brown, “Religion in Scotland”) at 261–264. 25 J W Cairns, “Revisiting the Foundation of the College of Justice”, in H L MacQueen (ed), Miscellany V, Stair Society vol 52 (2006) 27. 26 J W Cairns, “Historical Introduction”, in K G C Reid and R Zimmermann (eds), A History of Private Law in Scotland: Volume1: Introduction and Property (2000) 14 (henceforth Cairns, “Historical Introduction”) at 123–124. 27 Ibid at 122–123. 28 See generally S J Davies, “The Courts and the Scottish Legal System 1600–1747: the Case of Stirlingshire”, in V A C Gatrell, B Lenman and G Parker (eds), Crime and the Law: The Social History of Crime in Western Europe since 1500 (1980) 120. 29 Cairns, “Historical Introduction” (n 26) at 83–84, 120.

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powers of adjudication and suspension. Many landowners had lesser, but still important, rights of jurisdiction as barons. It is often suggested that lords of regality and barony were not very active in exercising their jurisdictions around 1700, but where evidence survives this seems often to have been far from the case.30 Remembering that many sheriffs held office heritably, it has been calculated that Scotland probably had over 200 heritable jurisdictions in 1707.31 The importance of the sheriff court and franchise jurisdictions meant that the justices of the peace never developed the vital significance they possessed in England and had been allowed to lapse in 1641. Revived after the Restoration, some justices were active around the time of the Union, though their effectiveness may be questioned.32 Burghs also held courts, only those of Edinburgh excluding the jurisdiction of the sheriff.33 Putting aside consideration of the Gaelic culture of the Highlands, Scotland had long had a unified law. This consisted of the “municipal law”, identified with statutes and customs, and the “common law”, understood as the Roman law received in Europe, along with the feudal, Canon and mercantile laws. Reliance on the Roman law was thought to secure liberty, property, honour and life, by providing certainty and avoiding arbitrariness.34 C. PROVISIONS OF THE UNION The eighteenth article of the Act of Union provided that the same laws on trade, customs and excise as in England would be applied in Scotland, adding that “all other Laws, in use within the Kingdom of Scotland do after the Union, and notwithstanding thereof, remain in the same force as before . . . but alterable by the Parliament of Great Britain”. A distinction was drawn, however, so that laws “concerning publick Right, Policy and Civil Government” could be made the same throughout the United Kingdom, while “no alteration [might] be made in Laws which concern private Right, except for the evident utility of the subjects within Scotland”. The nineteenth article preserved the Court of Session and Court of Justiciary “in all time 30 Ibid at 118–119; Whetstone, County Government (n 18) 2–3. 31 Whetstone, County Government (n 18) 1. 32 C A Malcolm (ed), The Minutes of the Justices of the Peace for Lanarkshire, 1707–1723, Scottish History Society, Third Series, vol 17 (1931) xxi, xxiii–xvi. 33 Murdoch, “People Above” (n 19) 27. 34 See, e.g., Grant, Law, Religion and Education (n 16), Law 2, 8, 10, 37–59. On the background to this view of Scots law, see J W Cairns, “Ius Civile in Scotland, ca 1600”, in E Metzger (ed), Law for All Times: Essays in Memory of David Daube (2004) 136 (henceforth Cairns, “Ius Civile in Scotland”).

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coming within Scotland”, though subject to such “Regulations for the better Administration of Justice” as the Parliament of Great Britain might make. The existing admiralty jurisdiction was preserved, though now under the Lord High Admiral or Commissioners of Admiralty of Great Britain; the Parliament of Great Britain was empowered to alter this court, though an admiralty court was always to be preserved in Scotland to deal with “Maritime Cases, relating to private Rights”. Heritable rights of admiralty were preserved as rights of property to their proprietors. All inferior courts were preserved, though alterable by Parliament, while “no Causes in Scotland [were to] be cognoscible, by the Courts of Chancery, Queens-Bench, Common-Pleas or any other Court in Westminster Hall”; moreover, these courts were not after the Union to have “power to Cognosce, Review, or Alter the Acts, or Sentences of the Judicatures within Scotland, or stop the Execution of the same”. A new Court of Exchequer was to be erected in Scotland, “for deciding Questions concerning the Revenues of Customs and Excises . . . having the same power and authority in such cases, as the Court of Exchequer has in England”. The new court was to continue to exercise the Scottish Exchequer’s traditional jurisdiction, having the “power of passing Signatures, Gifts Tutories, and in other things”, so that it was not to have the type of extensive jurisdiction at common law potentially possessed by the English court. The Privy Council was retained “for preserving of publick Peace and Order” until the Parliament thought fit to alter it (which it did in 1708 by abolishing it, largely due to the machinations of a group of Scottish politicians). The twentieth article preserved the Scottish heritable jurisdictions “as Rights of Property, in the same manner as they are now enjoyed by the Laws of Scotland”. The twenty-first article preserved the privileges of the royal burghs.35 The Commissioners for Union had been forbidden to consider the ecclesiastical polity of both countries, and each country’s legislature passed an Act to secure its own Church. The Scottish Act securing the Church also secured the universities, and required that their professors conform to the tenets of the Kirk.36 These acts were integral to the Union settlement and though not part of the Articles of Union were included in the Acts passed.37

35 APS, vol xi, 406–414, c 7 at 410–111 (arts 18–21). On the abolition of the Privy Council, see 6 Anne, c 40 (1707) with the discussion in P W J Riley, The English Ministers and Scotland (1964) 90–93. 36 APS, vol xi, 402–403, c 6; 6 Anne, c 8. 37 APS, vol xi, 406–414, c 7 at 413–414; 6 Anne, c 11.

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Preservation of the legal system and law entailed upholding the existing structures of jurisdiction that provided local government, which remained distinct and quite different in constitution from that of England. Any other solution for the legal system would have been completely impractical. Legal rights defined property rights; property rights defined political rights. Burghs both royal and of regality and barony had their trading privileges which they could enforce in their courts and in the Court of Session. Many landowners had profitable rights of jurisdiction. To have replaced the substantive law and legal institutions with anything else would have been a task of quite extraordinary difficulty. For example, simply to have introduced English law would have completely reshaped the Scottish polity and expropriated the property rights of the landed classes – and it was after all the landed classes who were agreeing union. To have sorted all of this out to create a more unified state was politically impossible. Vested interests required preservation of the law and legal system. It is very likely, however, that the experience and memory of the enforced Union with the English Commonwealth under Cromwell in the 1650s coloured attitudes to the Union of 1707. The Commonwealth regime attempted to restructure the Scottish legal system. The results were not inspiring. Cromwell removed the Scottish records to London. Not only are national records potent symbols of national identity, this action greatly hampered the operation of the legal system.38 There can be no surprise that the provisions of the Union of 1707 prohibited the removal of the records from Scotland.39 In January 1652, all jurisdictions not deriving authority from the English Parliament were abolished.40 In theory all courts, including sheriff, commissary, baron, regality and burgh courts ceased to operate. Commissioners for the Administration of Justice, of whom four were English and three Scots, were appointed in May 1652, replacing the Session (which had not sat since February 1650) and the Justiciary Court.41 These could deal with both civil and criminal business, though it is clear the regime preferred to use the English judges for criminal work.42 38 D Stevenson, “The English and the Public Records of Scotland, 1650–1660”, in Miscellany I, Stair Society vol 26 (1971) 156. 39 APS, vol xi, 406–414, c 7 at 413 (art 24). 40 F D Dow, Cromwellian Scotland, 1651–60 (1979) (henceforth Dow, Cromwellian Scotland) 36. 41 C H Firth (ed), Scotland and the Commonwealth: Letters and Papers Relating to the Military Government of Scotland, From August 1651 to December 1653, Scottish History Society vol 18 (1895) xvii–xviii. The commissions were temporary, later extended. 42 L M Smith, “Scotland and Cromwell: a Study in Early Modern Government”, unpublished D Phil thesis, University of Oxford (1980) (henceforth Smith, “Scotland and Cromwell”) 72.

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Their commissions required them to administer justice according to “the laws of Scotland, equity and good conscience”.43 Two men were appointed to each shire, one English one Scots, as sheriffs and commissaries. An admiralty court was also created.44 In 1654, an ordinance abolished all heritable jurisdictions, feudal casualties, and military jurisdictions, while another created “Courts Baron” for land considered a “manor”.45 A system of justices of the peace was established in 1655.46 Though no effective steps were taken, the new government clearly also wanted to assimilate Scots law to that of England.47 These reforms have acquired a broadly favourable reputation as popular and successful, promoting speedy and impartial justice.48 This was an assessment developed in the later eighteenth century, largely by accepting the claims of the Cromwellian regime at face value and identifying the reforms as abolishing “feudalism” and “subjection” in a manner comparable to the legislation abolishing heritable jurisdictions and military tenure in 1747.49 There is very little evidence to support it, and much against it. For example, the “feudal” jurisdictions carried on operating through the Commonwealth period, presumably to satisfy local needs. The new Commissioners were found slow and unsatisfactory in dealing with civil business. Like most occupying regimes, the Commonwealth government in Scotland was most concerned with maintaining order.50 In 1670, when Union had been mooted between Scotland and England, the Scots Commissioners had proposed that Scots law should in all time 43 Quoted in A R G MacMillan, “The Judicial System of the Commonwealth in Scotland” (1937) 49 Juridical Review 232 (henceforth MacMillan, “Judicial System of the Commonwealth”) at 241. 44 C Sanford Terry (ed), The Cromwellian Union: Papers Relating to the Negotiations for an Incorporating Union Between England and Scotland, 1651–1652, Scottish History Society vol 40 (1902) 65–68, 86–87, 164; Smith, “Scotland and Cromwell” (n 42) 69. 45 C H Firth and R S Rait (eds), Acts and Ordinances of the Interregnum, 1642–1660, (1911; repr 1982) vol ii, 873–875, 883–884. 46 C H Firth (ed), Scotland and the Protectorate: Letters and Papers Relating to the Military Government of Scotland From January 1654 to June 1659, Scottish History Society vol 31 (1899) 308–316, 403–405; Dow, Cromwellian Scotland (n 40) 145–146, 178–181. 47 Dow, Cromwellian Scotland (n 40) 166. 48 See, e.g., MacMillan, “Judicial System of the Commonwealth” (n 43) passim; A J G Mackay, Memoir of Sir James Dalrymple, First Viscount Stair (1873) 58. 49 D Hume, History of England, new ed, 6 vols (1762) vol vi, 76; J Macpherson, The History of Great Britain, from the Restoration, to the Accession of the House of Hanover, 2 vols (1775), vol i, 21–22; H Arnot, The History of Edinburgh (1779) 136–137. On the context of these assessments, see C Kidd, “Eighteenth-Century Scotland and the Three Unions”, in T C Smout (ed), Anglo-Scottish Relations from 1603 to 1900 (2005) 171 at 183–184. 50 See Cairns, “Historical Introduction” (n 26) at 101–105.

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coming remain as it was before the Union, and that all processes concerning the Scots and their property should be dealt with only in Scotland. There could be no cases heard in England or taken there on appeal. In fact no provision was suggested for how reforms would be made.51 This is explained by Sir George Mackenzie’s reflection that it was unlikely “the proposal of an Union [could] have been less acceptable to the people at any time, than at this, in which the remembrance of their oppres[s]ion from the Usurper was yet fresh with them”.52 This experience will have reinforced the determination of the Scots Commissioners for Union that Scottish court structures and Scots law as far as possible should be preserved. Cromwell had expropriated the property of the Scottish landowners without compensation by abolishing barony and regality courts – and the reform had not even worked. In the 1680s, the Restoration regime had also been seen as attacking heritable jurisdictions, and hence property rights, which led to a specific “Article of Greivance” in the Scottish settlement of 1689.53 When Parliament enacted the Union, it further reinforced the position of Scots law by regulating appointments to the Bench of the Court of Session. Only those who had served in the College of Justice for five years as an advocate or as Principal Clerk of Session or for ten years as a Writer to the Signet were eligible for appointment. Further, a Writer to the Signet could only be admitted as a Senator two years after he had undergone “a private and publick Tryal on the Civil Law before the Faculty of Advocats and be found by them qualified for the said Office”.54 The Court was not to have members who did not have an academic education in law of the type favoured by Scots; the Crown was not going to have the authority to appoint the Common Lawyers of England to the Scottish Bench. The new Court of Exchequer came into existence on 1 May 1708. It consisted of the Lord High Treasurer, the Chief Baron, and four other Barons. In practice it was the Chief Baron and Barons who sat. Advocates of the Scots Bar and barristers or Serjeants of the English Bar of five years’ standing were eligible for appointment. As well as Scots advocates, English 51 Sanford Terry, Cromwellian Union (n 44) 187 at 203. 52 Found quoted in C Jackson, “Restoration to Revolution: 1660–1690”, in G Burgess (ed), The New British History: Founding a Modern State, 1603–1715 (1999) 92 (henceforth Jackson, “Restoration to Revolution”) at 107. 53 APS, vol ix, 45; E W M Balfour-Melville (ed), An Account of the Proceedings of the Estates in Scotland, 1689–1690, 2 vols, Scottish History Society, Third Series, vols 46–47 (1954–1955) vol i, 38. 54 APS, vol xi, 411. See the discussion in Parliament: APS, vol xi, 380–381.

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barristers qualified to appear before the English Exchequer also had rights of audience.55 The new Court essentially followed English law and procedure in Exchequer matters, and in practice, through the eighteenth century, one judge was always an English barrister.56 While this court could have been a medium for infiltrating English law into Scots law, in fact this did not happen, though it did encourage Scots to learn English law.57 That the Scottish political class contained many lawyers would have reinforced the aim of ensuring protection of law, legal system, and property under the Union. It was common for landowners (who did not possess noble titles) to be admitted as advocates before the Court of Session after an education in law at (by this time) typically a Dutch university: sometimes they practised; sometimes they found the training useful in exercising their local rights of heritable jurisdiction.58 Some noblemen also acquired a legal education, though it was not thought proper for a peer to plead as a lawyer.59 Notable in this respect were the third Duke of Argyll and his nephew the Earl of Bute, both educated in law in the Netherlands.60 That Scots appeals after 1707 went to the House of Lords made desirable the presence in the Lords of Scots peers with this type of education.61 D. LEGISLATION AFTER THE UNION In the years before 1707, both before and after 1689, the Scottish Parliament had been very active as a legislature, producing important and lasting reforms in Scots law. These included Acts protecting the liberty of the subject, easing credit by protecting creditors and producing more refined systems of diligence, reforming prescription, protecting minors, making for 55 Exchequer Court (Scotland) Act ss 1–2, 28; 6 Anne, c 53. 56 J Clerk and J Scrope, Historical View of the Forms and Powers of the Court of Exchequer in Scotland (1820) is the only general work on this court. 57 Grant, Law, Religion and Education (n 16), Law 96–100. 58 See J W Cairns, ‘“Importing our Lawyers from Holland’: Netherlands’ Influences on Scots Law and Lawyers in the Eighteenth Century”, in G G Simpson (ed), Scotland and the Low Countries, 1124–1994: Mackie Monograph 3 (1996) 136 at 139. 59 (Scroll)‚ Andrew Fletcher, Lord Milton to James Stuart Mackenzie, April, 1764, National Library of Scotland [NLS], MS 16731, fo 139. 60 Bute can be traced matriculating in Groningen in 1730 and Leiden in 1732: Album studiosorum Academiae Groninganae (1915) col 178; Album studiosorum Academiae Lugduno-Batavae, MDLXXV–MDCCCLXXV (1875) col 940. On Argyll, see, e.g., J W Cairns, “William Crosse, Regius Professor of Civil Law in the University of Glasgow, 1746–1749: A Failure of Enlightened Patronage” (1993) 12 History of Universities 159 at 161. 61 (Scroll), Andrew Fletcher, Lord Milton to James Stuart Mackenzie, April, 1764, NLS, MS 16731, fo 139.

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greater certainty in real rights, and improving registration and the formalities of deeds. Acts also encouraged development of lands through division of commonties and the encouragement of enclosures.62 Union brought all this energetic activity to an end. Joanna Innes has demonstrated just how dramatic was the decline of legislation affecting Scots law, though the rate of legislation increased again after the mid-century.63 Innes’s quantitative and qualitative analysis of actual and failed legislation shows that this was not a simple effect of the Union. In the first years of the Union “English” domestic legislation also declined, though not so dramatically (50% as against 85%). Evidence suggests that Scots in fact followed a policy of keeping matters away from Westminster. She plausibly points out that Scots wanted material benefits from the Union, while the English wanted a secure succession and political stability – not to interfere in Scottish domestic affairs.64 This means that major legislative reforms in the law generally arose either from lobbying and pressure from Scotland or from metropolitan anxiety over security. Bob Harris has shown that Scots in fact were not only adept at lobbying, but also managed to act as a “national interest” at Westminster through the eighteenth century. Much of this activity focused around economic concerns, such as development of the linen trade, or opposition to the malt tax. The Convention of Royal Burghs, heritors and barons of shires, and other groups regularly presented petitions to Parliament. The Convention commonly employed a London agent to look after its interests at Parliament. That Ministers typically allowed patronage over Scottish appointments to be exercised through Scottish grandees, most notably Lord Ilay (later third Duke of Argyll)‚ provided good channels of communication from Scotland to Parliament and the Ministers, whereby Scottish concerns received a hearing. Harris has shown that the achievements were considerable.65

62 Cairns, “Historical Introduction” (n 26), vol i, at 131–132. 63 J Innes, “Legislating for Three Kingdoms: how the Westminster Parliament Legislated for England, Scotland and Ireland, 1707–1830”, in J Hoppit (ed), Parliaments, Nations and Identities in Britain and Ireland, 1660–1850 (2003) 15 (henceforth Innes, “Legislating for Three Kingdoms”) at 20, 21–22. 64 Innes, “Legislating for Three Kingdoms” (n 63) at 22–29. 65 B Harris, “The Scots, the Westminster Parliament, and the British State in the Eighteenth Century”, in J Hoppit (ed), Parliaments, Nations and Identities in Britain and Ireland, 1660–1850, (2003) 124 (henceforth Harris, “The Scots, the Westminster Parliament, and the British state”). B F Jewell, “The Legislation Relating to Scotland After the Forty-Five”,

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On the other hand, the sheer weight of numbers of English members was telling, especially when Jacobitism was seen to threaten the political settlement. Thus, the Jacobite scare of 1708 led to the “Act for Improving the Union between the Two Kingdoms”, which replaced the Scots law on treason with that of England.66 This legislation was bitterly opposed by the Scottish members; but they could not successfully resist it.67 The Rebellion of 1715 led to the Clan Act, which abolished certain personal military services considered “arbitrary and oppressive . . . contrary to the nature of good government, destructive of the liberties of free people, inconsistent with the obedience and allegiance due to his Majesty and government, as well as the greatest obstruction to the improvement of trade, husbandry, and manufactories”.68 The most important statutory reforms of this nature were those enacted, largely on the initiative of Lord Hardwicke, after the 1745 Rebellion. Much of this legislation was not directed at the legal system in any fundamental kind of way, though in itself of tremendous importance, but was of an administrative and regulatory nature, concerned with disarming the Highlanders, forbidding their traditional dress and the like.69 Of greater significance for Scots law was the abolition of ward holding, a military tenure, and heritable jurisdictions. Hardwicke undoubtedly hoped that these reforms were means towards “Anglicisation” of the Scots law and legal system. Jewell’s study of the progress of the legislation shows how party and personality affected the drafting, amendment and progress in Parliament of the statutes.70 Of the two reforms, that of tenures proved the easier to get through Parliament, though the proposals provoked an extensive pamphlet literature. The Tenures Abolition Act converted ward holdings into blench tenure if held of the Crown or feu ferme if held of a subject superior. It also regulated or abolished certain feudal casualties, and tidied up or reformed other aspects or incidents of the feudal tenures.71 The scheme to abolish heritable jurisdictions was much more keenly disputed in Parliament, with considerable resistance in Scotland, because

66 67

68 69 70 71

unpublished PhD thesis, University of North Carolina (1975) (henceforth Jewell, “Legislation Relating to Scotland”) 209–247 demonstrates in detail the process by which influential Scots secured the Annexation Act of 1752. 7 Anne, c 21 (1709). B Lenman, The Jacobite Risings in Britain 1689–1746 (1980) 107–108; W Ferguson, Scotland: 1689 to the Present. The Edinburgh History of Scotland Volume IV (1968) (henceforth Ferguson, Scotland) 57–58. 1 Geo I, c 54 (1715). Jewell, “Legislation Relating to Scotland” (n 65) 113–146. Ibid 147–208. 20 Geo II, c 50 (1746).

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of the proposed abolition of useful local courts and anxieties over whether it breached the Articles of Union. Different individuals and groups fed material into the Bill that emerged, so that, as well as abolishing the heritable jurisdictions, the Act provided a useful overhaul of criminal procedure before the Court of Justiciary. Its main effect was, of course, to abolish all heritable sheriffships, stewartries, baillieries, constabularies and regalities, vesting their jurisdictions in the Session, Justiciary Court, circuits, and sheriff and stewartry courts that would otherwise have possessed them. Barons lost their franchise jurisdiction to try serious crimes, but could deal with their tenants, minor crimes, and civil suits to the value of forty shillings. Considerable compensation was paid, because the private property of individuals – most of whom had been entirely loyal to the House of Hanover – was essentially expropriated by the Act. The long title of the Act described one of its purposes as “rendering the Union of the Two Kingdoms more complete”. This could only be so in the sense that now Scotland, like England, lacked significant heritable jurisdictions. In fact, the Act did nothing to assimilate the Scots and English laws and legal systems, and the basic architecture of the Scottish legal system was preserved. One of the Act’s most obvious effects was greatly to increase Crown patronage over the Scottish legal system.72 It would be wrong to see these reforms as “imposed” on the Scots by an essentially “English” Parliament. Many Scots were in favour of them. Their passage through Westminster gave opportunities for debate, amendment and lobbying.73 Two Acts early in the Union, however, clearly conformed to the model of imposition of legislation on a largely unwilling Scotland. Both concerned the Church. Many members of the Kirk had originally opposed the Union because its incorporating form meant that Anglican bishops in the House of Lords would have authority over the Church of Scotland both in legislation and appeals from the Scottish courts. During the brief period of high Tory administration under Anne, such anxieties about the religious settlement seemed correct. In 1709 the Presbytery and Provost and Magistrates of Edinburgh took action against an Episcopalian minister, James Greenshields, for using the Anglican prayer book and liturgy. It is a reasonable inference that Greenshields was deliberately trying to provoke the Edinburgh Presbytery to move against him, to bring the issue before a sympathetic House of Lords. His defiance of the jurisdiction of the Presbytery led to an 72 20 Geo II, c 43 (1746); see Cairns, “Historical Introduction” (n 26) at 147–149. 73 See Jewell, “Legislation Relating to Scotland” (n 65) 113–208.

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order of the magistrates of Edinburgh requiring him not to conduct services; his subsequent disobedience led to his imprisonment. This order of the magistrates was ultimately reversed by the House of Lords.74 In London, Greenshields associated with the Anglican hierarchy, and lobbied for the Toleration Act of 1712, “to prevent the disturbing those of the Episcopal Communion in . . . Scotland in the Exercise of their Religious Worship and in the Use of the Liturgy of the Church of England”.75 This was an attack on the Kirk as established, reducing the authority of its courts. It made plain the authority of Westminster, with Anglican bishops in the Lords, and Parliament now duly passed the Patronage Act, restoring to lay patrons the right to appoint ministers that had been given to the elders and heritors in 1690.76 These Acts were viewed as attacks on the Union settlement, and were among the grievances that led the Earl of Findlater to move dissolution of the Union in 1713.77 The Patronage Act created many tensions in the Kirk through the century. But such interference with the Kirk, contrary to the spirit of the Union, was never again attempted.78 No doubt the Scottish Episcopalians’ associations with Jacobitism long prevented any further moves in their favour, while the national Church proved staunchly loyal to the House of Hanover.79 With some exceptions, the existing active civic culture and institutions in Scotland allowed Scots largely to control or influence legislation affecting their interests by lobbying and petitioning. Indeed, despite the Union, many new specifically Scottish institutions were created by legislation. These were generally designed to develop Scotland economically along sound mercantilist principles. Fishing, agriculture, the linen industry, and banking were all further promoted this way. Important reforms, such as the Election Act of 1743, the Entail Act of 1770, and the Bankruptcy Act of 1772, were drafted in Scotland by the law officers, approved by the judges, corporations of lawyers, and freeholders, before being sent to Westminster for enactment.80 Thus, as Harris has demonstrated, within the new Kingdom 74 R S Tompson, “James Greenshields and the House of Lords: a Reappraisal”, in W M Gordon and T D Fergus (eds), Legal History in the Making: Proceedings of the Ninth British Legal History Conference, Glasgow 1989 (1991) 109–124. 75 Ibid 118–119; 10 Anne, c 10 (1712). 76 10 Anne, c 21 (1712), repealing the relevant provisions of APS, ix, 196–197, c 53. 77 Ferguson, Scotland (n 67) 61–62. 78 See, e.g., Brown, “Religion in Scotland” (n 24) 265 at 268–269. 79 B Lenman, “The Scottish Episcopal Clergy and the Ideology of Jacobitism”, in E Cruickshanks (ed), Ideology and Conspiracy: Aspects of Jacobitism, 1689–1759 (1982) 36. 80 7 Geo II, c 16; 10 Geo III, c 51; 12 Geo III, c 72; N Phillipson, The Scottish Whigs and the Reform of the Court of Session, 1785–1830, Stair Society vol 37 (1990) 3–4.

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of Great Britain, a Scottish political community remained that saw itself as having distinct national interests, which was able to utilise the system of patronage to achieve its ends and communicate its concerns.81 E. THE NATURE OF SCOTS LAW The dramatic decrease in legislation relating to Scotland after the Union was nonetheless significant. Reforms in the law may be necessary or desirable, but of neither political interest nor direct economic importance. To explore the implications of this, it is necessary to consider further how Scots viewed their law and legal system. Two main strands of thinking can be identified. The first focused very much on Scots law as ius proprium departing from a universal ius commune identified with the received Roman and Canon laws. The second emphasised the place of Scots law as a municipal law validated within a framework of essentially Protestant natural law. The approach of Francis Grant (c 1660–1726) to law exemplifies the first of these. Educated in law in Leiden between 1684 and 1687, and writing just after the Union, he stated that young lawyers in Scotland needed to know “our municipal and common Laws”. “Municipal” law meant what was peculiarly Scottish “in Statutes, Custom, and old Maxims of Justice and Government; different from the Roman Law”. By “common” law was to be understood “the Roman Law: Yet, not simply, as it obtained, precisely, under that Empire; but qualified, as commonly retained or received; after the Dissolution thereof: Whether by Explanation, or Adaptation to the Feudal, Canon, or Mercantile Subjects; which superveen’d”.82 Scots law, the ius proprium, existed only in so far as it was different from the ius commune of Roman law, which was otherwise applicable as a universal law.83 Grant argued that because “Our peculiar Statutes, and consuetudinary Maxims, were very few”, the common law was cultivated and adopted.84 Scots law was a “compound Law”, that is, a kind of Roman–Scots law typical of the

81 Harris, “The Scots, the Westminster Parliament, and the British State” (n 65). 82 Grant, Law, Religion and Education (n 16), Law N 2. For Grant’s study in Leiden, and for a persuasive argument that this treatise was written by Francis Grant, Lord Cullen, see C Jackson, “Revolution Principles, Ius Naturae, and Ius Gentium in Early-Enlightenment Scotland: the Contribution of Sir Francis Grant, Lord Cullen (c 1660–1726)”, in T J Hochstrasser and P Schröder (eds), Early Modern Natural Law Theories: Context and Strategies in the Early Enlightenment (2003) 107 at 128 n 46, 130 n 63. 83 Cairns, “Ius Civile in Scotland” (n 34) at 136–147. 84 Grant, Law, Religion and Education (n 16), Law 45.

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usus modernus Pandectarum.85 This identification of Scots municipal law with statutes, custom and maxims (what others called “practick”) different from Roman law and of “our” common law with Roman law was not only traditional from at least 1500, but also paralleled in many contemporary European legal systems.86 Grant considered Roman law to possess both divine authority and, in many respects, divine origin. He stated that it had been adopted by “the several Soveraigns, with Acquiesence of the People, in Europe” after its rediscovery subsequent to the fall of the Roman Empire. Scotland, “tho’ . . . never intirley subject to the Roman Empire; yet, with other Nations, imbraced their Law”.87 Grant asserted that likewise in Scotland “our Kings and States” had adopted “the common Law in Supplement of our own”. Several pages were devoted to demonstration of this.88 For Grant, it was this use of the adapted Roman law in Scotland that ensured liberty, property, honour and life by providing certainty, because it ensured that decisions were made on the basis of authority, rather than individual judicial reason.89 Along with Scotland’s (and then Great Britain’s) “Gothish” constitution, it prevented the Scots being subjected to the arbitrary will of the magistrate or monarch – “the Governour’s vagrant Reason”.90 This was because, though Grant emphasised the divine origin of Roman law, its excellence as natural law, and its role as a law of nations, he argued that “Civil–common Law” was in force “now, of Necessity, or as binding”. It was not utilised “of meer Discretion, or as a variable Directory to Reason”.91 Sir George Mackenzie, the leading intellectual advocate of the Restoration period, had political views very different from those of Grant.92 But he also argued that it was statute and custom that gave authority to the ius 85 Ibid 11; F Wieacker, A History of Private Law in Europe, with Particular Reference to Germany, trans T Weir (1995) 159–195; K Luig, “Usus modernus”, in A Erler and E Kaufmann (eds), Handwörterbuch zur deutschen Rechtsgeschichte (1971–1998) 5 cols 628–636. The late G C J J van den Bergh in Die holländische elegante Schule: Ein Beitrag zur Geschichte von Humanismus und Rechtswissenschaft in den Niederlanden 1500–1800 (2002) 63 points out that it is often unclear whether the term “usus modernus” is being used as an analytical category or a concrete historical phenomenon. Here I use it as both. 86 See generally M Bellomo, The Common Legal Past of Europe, 1000–1800, 2nd edn, trans L G Cochrane (1995). 87 Grant, Law, Religion and Education (n 16), Law 2–8. 88 Ibid 43–59. 89 Ibid 10, 14–15, 59–60, 63, 121. 90 Ibid 3, 27–30, 60, 76, 146–147. 91 Ibid 45. 92 See generally C Jackson, Restoration Scotland, 1660–1690; Royalist Politics, Religion and Ideas (2003).

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commune in Scotland, and indeed presented a view of Scots law and valid legal argument very similar to that of Grant.93 The second type of approach to Scots law was rooted in the reworking of late scholastic natural law. In Scotland it can initially be linked to the writings of Thomas Craig (1538–1608). Reacting to the development of ideas of sovereignty in the sixteenth century, Craig started from the premise that law could clearly be divided into ius and leges. He stated that the latter were made by magistrates without a superior. Ius, on the other hand, had a broader meaning, originating in nature: “so is called ius naturale, ius Gentium, so ius commune that is common to almost all peoples, as a certain innate equitable reason ruling in the souls of men.”94 Ruling with an imperial crown, the Scots monarchs could issue leges. Craig explained that there were three types of ius: ius naturale, ius gentium and ius civile. The first had two meanings: that which nature had taught to all living creatures, and that which nature had taught to all men, and which was observed by Jews, Turks and even pagans. In this second sense, ius naturale was allotted the first place in judging, acting or contracting. It was considered to be good and just (bonum et aequum)‚ derived from the ratio iuris or equity inborn in humans; against it, neither statutes of the kingdom, nor prescription of the longest time, nor custom had argumentative place. Ius gentium had next position of authority, as what all nations observed ought to prevail, notwithstanding the provisions of the ius civile or municipale. The third type of ius was the ius proprium or civile of each people. So, in Scotland, after the ius naturale and that law which was common to all nations, Craig stated that first recourse should be made to “our written law”, should there be any, to resolve difficulties and serious controversies. Scots written law consisted of the constitutions and statutes enacted by the Three Estates; this was the proper law of the kingdom. Thus, Acts of Parliament had to be investigated first. Craig pointed out that Scots Acts could fall into desuetude.95 After such statutes, judicial custom or

93 This is most clearly set out in his “A Discourse on the 4 First Chapters of the Digest to Shew the Excellence and usefullnesse of the Civill Law”, found in British Library, MS Add 18, 236. See the discussion in J W Cairns, “The Civil Law Tradition in Scottish Legal Thought”, in D L Carey Miller and R Zimmermann (eds), The Civilian Tradition and Scots Law: Aberdeen Quincentenary Essays (1997) 191 (henceforth Cairns, “Civil Law Tradition”) at 207–211. 94 T Craig, Jus feudale, tribus libris comprehensum: quibus non solum consuetudines feudales, et praediorum jura, quae in Scotia, An-glia, et plerisque Galliae locis obtinent, continentur; sed universum jus Scoticum, et omnes fere materiae juris clare et dilucide exponuntur, et ad fontes feudalis et Civilis singula reducuntur, 3rd edn, ed J Baillie (1732) 49 (1.8.4). 95 Ibid 49–50 (1.8.6–9).

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practick was relied on in Scotland to resolve controversies. Failing written law or custom, Craig argued that recourse should be made to ius feudale, which he saw as a universal common law, because it was the historical source of Scots law, and, failing it, to the Civil (Roman) Law, though, if Canon Law had innovated on the Civil, it was to be preferred.96 In many ways Craig’s account of what was to be done in practice in Scotland was perfectly compatible with what Grant stated. The fundamental distinction between them lay in the justification for reliance on the universal “common” law. For Craig, the authority of Roman law did not derive from Scottish statute and custom, but rather from its embodiment of natural law. He stated that in Scotland “we were bound by the laws of the Romans only in so far as they were congruent with the laws of nature and right reason”. But he further commented that there was “surely no broader seedbed of natural equity, no more fertile field of articulated reasoning and arguments from those principles of nature than the books of the Roman jurists”. This meant that “what is equitable and what inequitable by nature and what most agrees and what disagrees with right reason” ought to be drawn from them “as if from the very fountain”. In further contrast to Grant, Craig identified the “common” law or ius commune with the ius gentium and the ius naturale. The Civil Law was ius commune only because it was used by everyone as embodying equity.97 Later in the seventeenth century, James Dalrymple, Viscount Stair (1619–1695), developed this type of thinking in a more coherent fashion in his Institutions of the Law of Scotland, first published in 1681, though written some twenty years earlier. Stair drew heavily on Craig in his account of Roman law and his view of it as embodying equity.98 Stair was also strongly influenced by Grotius’ theory of natural law, which he by no means uncritically followed; in particular, a strict Calvinist, he always viewed reason as subsidiary to the will of God.99 Stair stated that “Where our ancient law, statutes, and our recent customs and practiques are defective, recourse is

96 Ibid 51–53 (1.8.13–17). 97 Ibid 14 (1.2.14), 50 (1.8.9); T Craig, De unione regnorum Britanniae Tractatus, ed and trans C Sanford Terry, Scottish History Society vol 60 (1909) 90, 328. 98 Cairns, “Civil Law Tradition” (n 93) at 204–206. 99 See, e.g., P G Stein, “Legal thought in eighteenth-century Scotland” (1957) 2 Juridical Review (NS) 1 at 3–7 (repr in P Stein, The Character and Influence of the Roman Civil Law: Historical Essays (1988) 361–380); P G Stein, “Stair’s General Concepts. I. The Theory of Law”, in D M Walker (ed), Stair Tercentenary Studies, Stair Society vol 33 (1981) (henceforth Walker, Stair Tercentenary) 181; T Richter, “Did Stair know Pufendorf?” (2003) 7 EdinLR 367; T Richter, “Molina, Grotius, Stair and the Jus Quaesitum Tertio” (2001) Juridical Review 219.

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had to equity, as the first and universal law”.100 He stressed that Roman law, “though . . . not acknowledged as a law binding for its authority”, was nonetheless “followed for its equity”.101 Around the time of the Union the approach of Grant and Mackenzie to the Civil Law was probably much more typical of Scots lawyers than that of Stair. Proponents of either generally stressed that it was the scarcity of native law that led the Scots to rely so much on the Civil Law as a common law of universal validity.102 While both emphasised the links between sovereignty and law, neither required that, for laws to be binding, the sovereign should have specifically enacted them. There were universal common laws that could be applied in Scotland alongside the limited municipal ius proprium. Stair, however, was unique in one respect: the emphasis he placed on “custom” as a source of law, and indeed as the best source of law. In the dedication of his first edition to Charles II, he wrote that “[o]ur law is most part consuetudinary, whereby what is found inconvenient is obliterated and forgot”, so that “[w]e are not involved in the labyrinth of many and large statutes”. The superiority of custom to statute lay in the fact that “it was wrung out from . . . debates upon particular cases, until it come to the consistence of a fixed and known custom”. While he admitted that initially in customary law “the people run some hazard . . . of their judges’ arbitrement”, this was better than the risk of legislation, where the lawgiver had immediately to “balance the conveniences and inconveniences”; in so doing, he could and often did make mistakes, so that there were left “casus incogitati”.103 This was in direct contrast to the more typical opinions of Mackenzie and Grant, who thought that reliance on the writers of the ius commune was superior to reliance on the decisions of judges in resolving problems of interpretation or casus omissi in litigation: indeed, both very strongly distrusted judicial law-making. Grant emphasised that “common” law was relied on “to prevent the Arbitrariness of Judges” and that most nations preferred the “common Opinions, even of Doctors” to judges making law.104 Mackenzie set out an elaborate system for evaluating the decisions of 100 James Dalrymple, Viscount Stair, Institutions of the Law of Scotland: Deduced from its Originals, and Collated with the Civil, Canon and Feudal Laws, and with the Customs of Neighbouring Nations, ed D M Walker (1981) 88 (1.1.16). 101 Stair, Inst 80 (1.1.12). See W M Gordon, “Stair’s Use of Roman Law”, in A Harding (ed), Law Making and Law Makers in British History (1980) 120; W M Gordon, “Roman Law as a Source [of Stair’s Institutions]”‚ in Walker, Stair Tercentenary (n 99) 107. 102 Cairns, “Historical Introduction” (n 26) at 135–139, Cairns, “Civil Law Tradition” (n 93) at 212–217. 103 Stair, Inst 60–61, 84–85 (1.1.15). 104 Grant, Law, Religion and Education, Law (n 16) 121, 137.

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judges, but pointed out that it was necessary to be aware that judges could be corrupt, ignorant or indeed both. He too preferred the abstract opinions of learned lawyers to those of judges.105 F. THE TRIUMPH OF JUDICIAL LAW-MAKING That the Scottish political and legal community was ultimately able to negotiate the less glamorous and dramatic aspects of law reform after the Union was largely due to thinking compatible with Stair’s view of law. If the views of Grant and Mackenzie were more typical in 1707, those of Stair had one great advantage.106 His location of Scots law within a framework provided by the laws of nature and nations, and his emphasis on development of the law by the courts potentially provided an understanding of law that was much more dynamic than the rather more traditional view that answers could be found in the writings of the ius commune and, if there were no law or opinion directly in point, through extension by analogy. Two inter-linked developments by the middle years of the eighteenth century helped unleash the dynamic potential of this thinking. First, Scots lawyers departed from their traditional attitude that Roman law was part of Scots law as a living universal law. Secondly, natural law no longer seemed to provide convincing arguments for a rational, universal and abstract justice (whether or not exemplified by Roman law). For the first decades of the eighteenth century, most Scots lawyers continued to consider the law they practised as involving a necessary blend of the municipal and common laws.107 Thus, when James Baillie produced his authoritative edition of Craig’s Jus feudale in 1732, he found it necessary and appropriate to locate it within the common law by providing an extensive explanatory and interpretative apparatus of citations to the Civil and Canon Laws. Patrick Turnbull, admitted as a Scots advocate and English barrister, wrote in 1745 that “in Scotland, Holland, and [some other polite States]‚ [the Civil Law] is the common Law by Adoption, and of Authority 105 Mackenzie, “Discourse”, in British Library, MS Add 18, 236, fos 57–58r, 60v–61r. See Cairns, “Historical Introduction” (n 26) at 134–137. 106 On the differences between Mackenzie and Stair as to fundamental laws, see C Jackson, “Natural Law and the Construction of Political Sovereignty in Scotland, 1660–1690”, in I Hunter and D Saunders (eds), Natural Law and Civil Sovereignty: Moral Right and State Authority in Early Modern Political Thought (2002) 155. Given that Stair’s political views were much closer to those of Grant than the latter’s were to those of Mackenzie, the link between their views of politics and law can be seen to be very complex and not always self-evident. 107 Cairns, “Civil Law Tradition” (n 93) at 212–217.

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in every Thing where their own Municipal Laws have not made some Alterations”.108 This approach was emphasised in legal argument in court and in university teaching. A work such as the Institute (1751–1753) of Lord Bankton (1685–1760) could only be properly understood within a framework of Civilian learning.109 From around 1750, however, Scots lawyers ended their practice of studying law abroad (almost exclusively in the Netherlands in the previous seventy years or so)‚ and their direct participation in and familiarity with Dutch humanist scholarly and intellectual traditions ceased.110 If this was not a particularly Scottish story, as indeed it was not, it nonetheless had a powerful effect in cutting Scots law loose from other, similar European systems.111 By 1780, it was claimed that the Civil Law was neither much studied nor cited.112 By the end of the eighteenth century, writers and scholars were arguing that the role of Civil Law in Scotland was now much diminished.113 In part this was because certain key Scottish thinkers, notably Lord Kames (1696–1782) and Adam Smith (1723–1790), developed the insight of Charles de Secondat, Baron de Montesquieu (1689–1755) that the laws of a people were linked to its manner of subsistence into a theory that societies potentially went through four stages – hunting and fishing, pastoral, agricultural, and commercial – the different modes of subsistence

108 P Turnbull, Analogia Legum: Or, A View of the Institutes of the Laws of England and Scotland, Set One against the Other; To shew wherein those Two Laws agree and differ (1745) viii. On Turnbull, see Cairns, “Scottish Law, Scottish Lawyers and the Status of the Union” (n 14) at 245–246. 109 Andrew McDouall, Lord Bankton, An Institute of the Laws of Scotland in Civil Rights: With Observations upon the Agreement or Diversity Between them and the Laws of England (1751–1753; repr in Stair Society vols 41–43 (1993–1995)). 110 The statistics are given in R Feenstra, “Scottish–Dutch Legal Relations in the Seventeenth and Eighteenth Centuries”, in R Feenstra, Legal Scholarship and Doctrines of Private Law, 13th–18th Centuries (1996) XVI at 34–36. For assessment of the decline in studying in the Netherlands, see, e.g., J W Cairns “Legal Study in Utrecht in the Late 1740s: the Education of Sir David Dalrymple, Lord Hailes”, in R van den Bergh (ed), Summa Eloquentia: Essays in Honour of Margaret Hewett (2002) [= Fundamina (2002)]) 30 at 38–44, 69–74. On Scots participation in the Dutch intellectual world, see J W Cairns, “Alexander Cunningham’s proposed edition of the Digest: an episode in the history of the Dutch Elegant School of Roman law” (2001) 69 Tijdschrifl voor Rechtsgeschiedenis 81, 307. 111 The subjects of other nations also stopped studying in the Netherlands and elsewhere around 1750: see J Israel, The Dutch Republic: Its Rise, Greatness, and Fall, 1477–1806 (1995) 1049–1051. 112 G Scott and F A Pottle (eds), Private Papers of James Boswell from Malahide Castle, 19 vols (1928–1937) vol xv, 290–291. 113 Cairns, “Historical Introduction” (n 26) at 166–168.

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of which required different institutions and laws.114 This approach inevitably challenged the appropriateness of reliance on the old universal common law in legal argument. In itself, progressive decline of reliance on Civil Law would not necessarily have led to dynamic judicial activism but for the change in Scottish attitudes to the universal natural law that Roman law had hitherto been seen to embody. This was because in eighteenth-century Scotland natural law came to be viewed as a theory of justice, which in turn was seen as “primarily a personal virtue”. Justice was unique as a virtue because it was enforceable through courts and legislation as law.115 Of course, there was considerable variation among Scottish thinkers on the nature of moral judgements and action, in particular whether they concerned the senses or reason. Further, there were disputes as to whether justice was natural or “artificial”.116 The work of Haakonssen above all has made this intellectual history well known and there is no need to rehearse it here.117 Despite differences among thinkers, the general focus on justice as an individual virtue and concern with institutional structures for justice led to certain similar attitudes. In particular, there was a focus on the development of appropriate institutions to inscribe justice into law. For example, Lord Kames argued that courts had what he described as an “equitable” jurisdiction whereby judges developed the law on the basis of justice and utility. They knew when to do so through exercise of their moral sense, which let them appreciate when reform was required.118 Though starting from a different approach to how moral judgement was possible, Adam Smith’s view that rules of justice were developed from the moral sentiments as he understood them also led him in principle to favour transformation of justice into law, not through legislation, but through operation of precedent. This was because direct confrontation of concrete and actual 114 K Haakonssen, The Science of a Legislator: The Natural Jurisprudence of David Hume and Adam Smith (1981) 154–177; D Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (1989) (henceforth Lieberman, Province of Legislation Determined) 144–158. 115 K Haakonssen, “Natural Jurisprudence and the Theory of Justice”, in A Broadie (ed), The Cambridge Companion to the Scottish Enlightenment (2003) 205 (henceforth Broadie, Cambridge Companion) at 205–206. 116 Ibid at 208–209. See also J W Cairns, “Legal Theory”, in Broadie, Cambridge Companion (n 116) 222 at 231–233. 117 K Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (1996). 118 Henry Home, Lord Kames, Principles of Equity (Edinburgh 1760). See Lieberman, Province of Legislation Determined (n 114) 159–175.

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problems allowed judges and jurors, acting as informed impartial spectators, to recognise the requirements of justice and decide accordingly. Practice and experience allowed better adaptation of rules to individual cases than abstract theorisation.119 Such considerations led both Kames and Smith to be concerned with the structure of courts, and how they best could be adapted to further development of the law.120 Smith’s pupil John Millar (1735–1801) was for over forty years, from his Chair of Civil Law in Glasgow, the most influential law teacher in Scotland. He popularised among the legal profession this dynamic view of law, developing a science of legislation based on reform through judicial activity. His classes on jurisprudence in Glasgow were designed to develop understanding of this, and to equip Scots lawyers with the requisite knowledge and analytical tools for the task.121 In Edinburgh, Allan Maconochie (1748–1816), Professor of Public Law and the Law of Nature and Nations from 1779 to 1796, also taught Smithian legislative science, presumably with similar aims.122 Law reform did not always require litigation: enlightened lawyers in an energetic court could develop the law within what turned out to be fairly broad parameters. Reform of the law could be kept within Scotland, and need not trouble an uninterested Parliament that might intervene further in ways the Scottish legal community did not want. In so far as they could, Scots lawyers set out to create a modern commercial law in this way, though recognising that statute was sometimes necessary.123 That Scotland no longer had its own legislature did not matter as much as might have initially been thought, while the existence of a joint legislature with England did not inevitably lead towards swift assimilation to English law, though influence was inevitable and is undeniable.

119 J W Cairns, “Ethics and the science of legislation: legislators, philosophers, and courts in eighteenth-century Scotland” (2000) 8 Jahrbuch für Recht und Ethik 159 at 167–175. 120 J W Cairns, “Adam Smith and the Role of Die Courts in Securing Justice and Liberty”, in R  P  Malloy and J Evensky (eds), Adam Smith and the Philosophy of Law and Economics (1994) 31. 121 J W Cairns, “‘As Famous as a School for Law, as Edinburgh . . . for Medicine’: Legal Education in Glasgow, 1761–1801”, in A Hook and R B Sher (eds), The Glasgow Enlightenment (1995) 133. 122 J W Cairns, “The First Edinburgh Chair in Law: Grotius and the Scottish Enlightenment”, in R van den Bergh (ed), Ex iusta causa traditum: Essays in Honour of Eric H Pool (2005 [= Fundamina (2005)]) 32 at 47–52. 123 Cairns, “Historical Introduction” (n 26) at 159–162.

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G. NATIONAL LAWS WITHIN UNITED STATES The merger of the Scots legislature into that of Great Britain dominated by English members did not have a major immediate impact on Scots law. The Westminster Parliament had no interest in major reforms of Scots law for their own sake. When there were proposals for reform or reform was thought to be needed, Scots proved successful lobbyists, who could often materially affect proposals and initiate other reforms. Of course, in the face of a concerted and determined attempt to impose toleration of Episcopalians or introduce the English laws on treason, little could be done; but lobbying and influence were able to affect the legislation proposed by Hardwicke after the Jacobite rebellion of 1745. Crucial in this was Scotland’s possession of institutions and bodies and the creation of new institutions and bodies that preserved considerable autonomy and self-direction through the eighteenth century. A comparison with Ireland, which retained its own parliament, is instructive. Through the eighteenth century, over half of the Irish Bishoprics were awarded to men from outwith Ireland, as were nearly half the judicial posts between 1702 and 1760. The Irish peerage, revenue service, Church, pensions, and judiciary were all used to provide patronage for Englishmen for English political purposes.124 Robert Clive (1725–1774), for example, with no link with Ireland, was awarded an Irish peerage as Baron Clive of Plassey.125 Scottish patronage was not exploited in a similar systematic way to reward Englishmen. In 1682, Richard Lawrence wrote that Ireland was “governed by English laws, enacted by English Parliaments, administered by English judges, [and] guarded by an English army”.126 The same could have been written in 1750. Only under the Commonwealth had this been true for Scotland. It is worth noting that livings within the established Presbyterian Church in Scotland were simply not open to men who were ordained in the Church of England, and, other than appointment to the new Exchequer Court, which used English procedure, the Scottish Bench was not open to lawyers trained in England. In this sense, the separate Church and legal system did help maintain Scottish national difference. While Scots qualified to take Anglican orders and trained for the English Bar, sometimes 124 S J Connelly, “Ireland, Scotland and Wales in the Hanoverian state”, in A Grant and K J Stringer (eds), Uniting the Kingdom? The Making of British History (1995) 193 at 201. 125 H V Bowen, “Clive, Robert, First Baron Clive of Plassey (1725–1774)”, in H C G Matthew and B Harrison (eds), Oxford Dictionary of National Biography (2004). 126 Found quoted in Jackson, “Restoration to Revolution” (n 52) at 105.

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achieving high office like Lords Mansfield and Loughborough, Englishmen in the eighteenth century generally did not choose to pursue legal or clerical careers north of the border. They were to be found in Scotland in numbers only in the army, which, like the navy, had very quickly become a truly British institution. After 1707, appeals went from the Court of Session to the House of Lords.127 The exact impact of this on Scots law in the eighteenth century is uncertain, other than in individual cases, especially since no reports of Scottish appeals were published until the nineteenth century. Along with the new procedures in Exchequer matters, it encouraged Scots to undertake the “new Terror” of “the Study of the English-Law”, which was now “very requisite to a compleat Lawyer in our united State”.128 Works were proposed and occasionally achieved that promised an account of the relevant English law along with the Scots.129 Again, this does not appear to have had a significant impact on Scots law, although Scots were willing to understand English law as a declaration of ius gentium that could have value in developing Scots law.130 Grant and his contemporaries presented a view of Scots law that did not link it intimately to national identity. They did not view Scots law as particularly unique. The historical development of Scots law involved a cultivation of the municipal law that took into account the experience of Germany, France and Italy, leading to replenishment “with the best of the Gothish and Canon Principles; and thereafter, the Roman-Law Reformation; that obtained there”; also “Intercourse, either in War or Peace” with England led to the adoption of “any Flowers planted by the several Nations who reigned there, that were fit to be transplanted to our Soil”. Grant considered that, though the Scots were originally German, “[a]fterward, the great Bulk of the Nation; not inhabiting the Mountains; both as Country and Language; were Belgick”. Subsequent history, notably the reception of Roman law, meant there could be no surprise that there should be similarity of laws, so that perusal of the works of “the principal more modern practical Writers”  – he singled out Benedikt Carpzov (1595–1666), Johan Brunnemann (1608–1672), Johann Voet (1647–1714), Ulrik Huber (1636–1694), Hugo Grotius (1583–1645), Antonio Pérez (1583–1673), and Georg Adam Struve (1619–1692) – who 127 See A J MacLean, “The 1707 Union: Scots Law and the House of Lords”, in A Kiralfy and H L MacQueen (eds), New Perspectives in Scottish Legal History (1984) 50. 128 Grant, Law, Religion and Education, Law (n 16), 96. 129 See Cairns, “Scottish Law, Scottish Lawyers and the Status of the Union” (n 14) at 243–248. 130 Cairns, “Historical Introduction” (n 26) at 166–168.

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accommodated “the Learning and Experience of all others to the RomanGothick Constitution, as it obtains among themselves” showed that “the Bulk thereof; is the very same with ours”.131 Use of the “common law”, its interpreters, both doctors and courts, made law an international science. Despite the mention of Grotius, the list of authors demonstrates the extent to which Grant still worked very much within the confines of the usus modernus. He might have relied on natural law to give a certain moral content to law, but it was not central to his account. For Stair, law was also an international science, but because of the ius naturale and ius gentium, rather than the “common law” as understood by Grant. The development of thinking on Scots law from the mid-eighteenth century onwards was able to draw on this to move from a universal natural law to a theory of justice emphasising decisions by courts, which were able to draw on a substantive historical natural jurisprudence to develop the law, perhaps even on the basis of English law. In Denmark, the Roman law was never considered the ius commune. In this the Eider proved a greater barrier than the North Sea. Even if Roman law was taught at Copenhagen, it was always considered foreign law by the courts, only of actual value as natural law. The highest judges in the early modern period remained the king and his council; the latter were noblemen, not trained in law, who opposed the introduction of foreign law. In contrast, though Scotland’s highest court may also have developed from the royal council, it was dominated by jurists trained in the utrumque ius of the Roman and Canon laws. The law was thus able to make a greater claim to be an important part of Danish identity, than Scots law could for Scottish identity. No Scot would have made the claim made by Peder Kofod Ancher (1710–1788) in the second half of the eighteenth century that Danish law was “our own, the fruits of the land without any admixture of foreign products”.132 Yet, Scots law was preserved after the Union and in the age of Enlightenment modernised and reformed, without being destroyed. This was not only because of the particular culture of the Scots lawyers, but also because the institutional structure within Scotland could be mobilised to protect or to develop Scots law through activity in the Westminster Parliament. This was important, because while it was relatively common for eighteenth-century states to incorporate different legal systems and laws, this was not to be so 131 Grant, Law, Religion and Education (n 16), Law 42, 105, 108. 132 Tamm, “Danes” (n 1) 46–48, 51.

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in the nineteenth century, when pressures of nationalism and centralisation, and the vogue for codification, tended to produce unified laws and legal systems within states. The British state, however, never achieved that level of assumed, specific national identity. Just as those symbols of ancient Scottish sovereignty, the Honours of Scotland with their imperial crown, remained locked in Edinburgh Castle, so England and Scotland were never completely merged administratively. This meant that Scots law survived without a Parliament within the British conglomerate state, and later could be developed into a badge of national identity.

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7 Attitudes to Codification and the Scottish Science of Legislation, 1600–1830*

A. INTERPRETATIONS OF SCOTS LAW, c 1600 (1) James VI and I and union of the laws On the death of Elizabeth I of England on 24 March 1603, James VI of Scotland inherited the throne of England.1 This was the great triumph of the Stewart dynasty, which had reigned in Scotland since 1371, having inherited the Scottish throne through the marriage of James’s ancestor Walter the Stewart to Marjorie, the daughter of Robert I (Bruce).2 Educated by the brilliant Scottish Humanist, George Buchanan, James was a talented poet in his native Scots; more than this, he was – rare among monarchs – an intellectual who could theorise cogently and interestingly about poetry and, perhaps more significantly here, about politics, kingship and government.3

* This chapter was originally delivered as a paper at a conference on the theme of “Common Law and europäische Rechtsgeschichte” at Schloß Rauischholzhausen, Hesse, 3–6 April 2003. The author is grateful for the comments he received at the conference and to its organisers, Professors Diethelm Klippel and Reiner Schulze. He wishes to thank the British Library Board, the Trustees of the National Library of Scotland, the Keepers of the Advocates Library, and the Librarian of Glasgow University Library for permission to cite from unpublished manuscripts in their care. In quotations from MSS, abbreviations have been silently extended. He has benefited from the comments of Dr P J du Plessis and Professor H L MacQueen. 1 See, e.g., J Wormald, “The Union of 1603”, in R A Mason (ed), Scots and Britons: Scottish Political Thought and the Union of 1603 (1994) (henceforth Scots and Britons) 17. 2 See S Boardman, The Early Stewart Kings: Robert II and Robert III, 1371–1406 (1996) 1–38. 3 See King James VI and I, Political Writings, ed Johann P Sommerville (1994) (henceforth James VI and I, Political Writings); King James VI and I, The Poems of King James VI of Scotland, ed James Craigie, Scottish Text Society (1955–1958). For commentary, see, e.g., G P V Akrigg, “The literary achievement of King James I” (1975) 44 University of Toronto Quarterly 115; R W Bushnell, “George Buchanan, James VI and Neo-Classicism”, in Scots and Britons (n 1) 91.

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James was a man with a broad and, indeed, imperial vision, which was coupled with a political realism acquired during his difficult – and no doubt sometimes terrifying – childhood and adolescence in Scotland.4 This is not to say that he always achieved his aims: by no means. But, much more importantly, he was careful not to overreach himself. He had a streak of pragmatism that his second son, Charles, singularly lacked. One of James’s favoured projects was a union of his two kingdoms of Scotland and England. This was to involve a union of the laws. James’s ambitions were not achieved.5 This topic will not be explored here. But it is useful to start with the debates about a possible union of the laws – not really much wanted by his subjects in either kingdom – because they produced interesting attempts to characterise Scots law in contrast to English law in the late-Renaissance period. A notable feature of these characterisations was that those in favour of a union of the laws tended to argue that, at a fundamental level, the Scots and English laws were similar. The argument was essentially historical. King James himself stated in 1607 in a speech to the English Parliament: All the Lawe of Scotland for Tenures, Wards and Liueries, Seigniories and Lands, are drawen out of the Chauncerie of England, and for matters of equitie and in many things else, differs from you but in certaine termes: James the first, bred here in England, brought the Lawes thither in a written hand.6

Perhaps more troubling for an English audience was the argument of Thomas Craig, one of the Scottish Commissioners for Union, who outlined the historical compatibility of the laws of both countries, concluding that it would be necessary either to go back to Norman law, or the feudal law, to harmonise them; should common ground not thus be reached, it would be possible to unite them relying on the Civil (Roman) Law, which, because of its natural equity (naturalis aequitas), was everywhere a common law (ius commune).7 Given that many English lawyers feared Scots law as Civil Law, Craig’s view cannot have been encouraging. 4 A new study of James is awaited from Jenny Wormald. Meanwhile, see J Wormald, “James VI and I: Two kings or one?” (1983) 68 History 187, and the essays in J Goodare and M Lynch (eds), The Reign of James VI (2000). A Stewart, The Cradle King: A Life of James VI and I (2003) is disappointing. 5 B Galloway, The Union of England and Scotland, 1603–1608 (1986); B P Levack, The Formation of the British State: England, Scotland, and the Union 1603–1707 (1987) (henceforth Levack, Formation of the British State) 68–101; T B Smith, “British justice: A Jacobean phantasma” (1982) SLT (News) 157. 6 James VI and I, Political Writings (n 3) 173. 7 T Craig, De Unione Regnorum Britanniae Tractatus, ed C Sanford Terry, Scottish History Society (1909) 89–90, 328; see further B P Levack, “Law, Sovereignty and the Union”, in Scots and Britons (n 1) 213 (henceforth Levack, “Law, Sovereignty and the Union”),

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(2) The development of Scots law There was indeed a small measure of truth underlying James’s historical view and rather more underlying that of Craig. Unified under the Kings of Scots, Scotland had been a precocious mediaeval kingdom that, on the mainland, by around AD 1,000, had achieved approximately its present extent.8 Despite a background Celtic law, in the twelfth and thirteenth centuries the Kings of Scots had copied feudal tenures and certain institutions of government from Anglo-Norman England, creating a Scottish common law, not dissimilar to that of Angevin England, that started to overlay earlier, more Celtic, institutions.9 It was these developments that James VI had misdated to the reign of James I. The laws of the two countries had diverged thereafter, however. In contrast to England, Scotland developed neither a central civil court (other than for certain purposes the Parliament) nor a secular legal profession. Moreover, in the later Middle Ages, the legal practice of Scottish secular courts came to be influenced by that of the ecclesiastic courts and the Canon law, so that legal concepts and practices of the ius commune were introduced.10 In the fifteenth century, however, a central civil court progressively developed out of the King’s Council, legal practice before which followed Romano-Canonical procedure and in which Canon lawyers tended to deal with much legal business. Out of this was created the Court of Session or College of Justice, formalised in 1532 to consist of a President and fourteen Lords of Session, also known as Senators of the College of Justice. This Court adopted a version of Romano-Canonical procedure and, in its early years, had a bench dominated by Canon lawyers.11 At the same time, a recognisable, secular legal profession developed, both of general men of

8 A Grant, “The Construction of the Early Scottish State”, in J R Maddicott and D M Palliser (eds), The Medieval State: Essays Presented to James Campbell (2000) 47; J W Cairns, “Historical Introduction”, in K G C Reid and R Zimmermann (eds), A History of Private Law in Scotland: Volume 1: Introduction and Property (2000) 14 (henceforth Cairns, “Historical Introduction”) at 15–18. 9 See W D H Sellar, “Celtic law and Scots law: survival and integration” (1989) 29 Scottish Studies 1; Geoffrey Barrow, “The Scottish justiciar in the twelfth and thirteenth centuries” (1971) 16 Juridical Review (n s) 97, reprinted in G Barrow, The Kingdom of the Scots: Government, Church and Society from the Eleventh to the Fourteenth Century, 2nd edn (1973) 83; Cairns, “Historical Introduction” (n 8) at 27–32. 10 Cairns, “Historical Introduction” (n 8) at 45–47. 11 Idem at 57–59, 62–64, 70–71; J W Cairns, “Revisiting the Foundation of the College of Justice”, in H L MacQueen (ed), Miscellany Five, Stair Society vol 27 (2006) 27 (henceforth MacQueen, Miscellany Five).

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law and of pleaders well educated in the ius commune.12 By 1600, two-thirds of the men pleading in front of the Session based their claim for admission before the court on a foreign university education in Civil and Canon law, at this period normally obtained in France.13 Foreign study of law remained normal for most members of the Scottish bar, the Faculty of Advocates, until around 1750, the universities of choice becoming those of the United Provinces in the later seventeenth century.14 From the scattered use of the ius commune found in the later Middle Ages, it now became the normal resource in deciding cases in the 1540s, although the court quickly started to develop its own case-law, usually described as “practick”.15 (3) Ius commune and ius proprium This means that an English commentator’s view, by the time of James’s union proposals, that the laws of the two countries were “toto genere in all things different” had something to recommend it.16 In this respect a char12 See J Finlay, Men of Law in Pre-Reformation Scotland (2000); Cairns, “Historical Introduction” (n 8) at 68–71. 13 R K Hannay, The College of Justice: Essays on the Institution and Development of the Court of Session (1933) 145, reprinted in H L MacQueen (ed), The College of Justice, Essays by R K Hannay, Stair Society (1990). On the problems with law-teaching in contemporary Scottish universities, see J W Cairns, “Academic feud, blood feud, and William Welwood: legal education in St Andrews, 1560–1611” (1988) 2 Edinburgh Law Review 158 (Pt 1) 255 (Pt 2); J W Cairns, “The law, the advocates and the universities in late sixteenth-century Scotland” (1994) 73 Scottish Historical Review 171. 14 R Feenstra, “Scottish–Dutch Legal Relations in the Seventeenth and Eighteenth Centuries”, in Academic Relations between the Low Countries and the British Isles, 1450–1700. Proceedings of the First Conference of Belgian, British and Dutch Historians of Universities held in Ghent, September 30–October 2, 1987 (1987) at 25, 36, reprinted in R Feenstra, Legal Scholarship and Doctrines of Private Law, 13th–18th Centuries (1996) XVI (henceforth Feenstra, Scottish– Dutch Legal Relations). 15 Cairns, “Historical Introduction” (n 8) at 71–74; J W Cairns, “Ius Civile in Scotland, ca 1600” (2004) 2 Roman Legal Tradition 136 (henceforth Cairns, “Ius Civile in Scotland”) at 141–147 [= Ernest Metzger (ed), Law for All Times: Essays in Memory of David Daube (2004) 136 at 141–147. The source from the 1540s is known as Sinclair’s Practicks. I am relying on the preliminary text edited by Dr Athol Murray accessible on the World Wide Web, http:// www.uni-leipzig.de/~jurarom/scotland/dat/sinclair.htm, in the version in which Professor Gero Dolezalek has worked on restoring the references. This is based on Edinburgh University Library MS La.III.338a. Dr Murray has numbered the cases. Hereafter they will be cited as “C” with a number. This MS also contains an anonymous collection, which I shall also cite. Those collected by Sinclair are numbered 1–509; the anonymous collection from 509–596. See A Murray, “Sinclair’s Practicks”, in A Harding (ed) Law-Making and Law-Makers in British History, Royal Historical Society (1980) 90; G Dolezalek, “The Court of Session as a Ius Commune Court – Witnessed by ‘Sinclair’s Practicks,’ 1540–1549”, in H L MacQueen (ed), Miscellany Four, Stair Society (2002) 51 (henceforth MacQueen, Miscellany Four). 16 Quoted in B P Levack, “The proposed union of English law and Scots law in the seventeenth century” (1975) 20 Juridical Review (n s) 97 at 99.

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acterisation of Scots law drawn up in the context of the union project may be quoted: There is noe common lawe in Scotland, but the Judge eyther proceedeth accordinge to warrant of the municypall lawe, which is the statutes of Parliament, and that faylinge they have recourse to the ymperiall civill lawe. Albeyt there be many conclusions as verie Axioms never contraverted uppon, as particulerly in matters of discent and succession of Landes and such other thinges, whereuppon the Judges doe proceede havinge noe particuler warrant for the same but in all former ages havinge bene acknowledged as infallible and allowed customes and consuetudes.17

This came from an account of Scots legal practice produced by a Scots lawyer around 1604 for an English audience, quite possibly for the Lord Chancellor of England, Thomas Ellesmere.18 When the writer used the term “common lawe” he was using it in a way the Englishman would readily understand: there was no common law in Scotland in the sense England had a common law, that is, the common law of Coke that had supposedly existed from time immemorial. What the Scots in fact had were their statutes and their customs as to descent of land. Failing statutes (and presumably customs), the Scots turned to Roman law. It is worth noting that the “municipal law” is identified with the statutes. The practices for succession to land were merely “allowed customes and consuetudes”. Some thirty to forty years earlier, Bishop Leslie, who had served as a judge on the Court of Session, had written that Scots municipal law (the leges municipales) was partly in Latin and partly in the Scots language. The law book written in Latin was Regiam Majestatem; while, for Leslie, the rest of the books of the laws consisted of the acts of the Parliaments (written in Scots). Like the unknown author already quoted, Leslie had identified the municipal law with lex scripta or statutes. He also had added: Albeit heir sulde be vnderstandet, that this far to the lawis of the Realme we ar astricted, gif ony cummirsum or trubilsum cause fal out, as oft chances, quhilke can nocht be agriet be our cuntrey lawis, incontinent quhateuir is thocht necessar to pacifie this controuersie, is citet out of the Romane lawis.19

Another quotation is helpful. This comes from an Act of Sederunt of 1596 by which the Lords of Session tried to regulate the practice of parties and 17 J D Mackie and W C Dickinson, “Relation of the manner of judicatores of Scotland” (1922) 19 Scottish Historical Review 254 at 268. 18 Ibid at 254–262. 19 John Leslie, The Historie of Scotland Wrytten First in Latin by the Most Reverend and Worthy Jhone Leslie Bishop of Rosse and Translated in Scottish by Father James Dalrymple Religious in the Scottis Cloister of Regensburg, the Yeare of God, 1596, ed E G Cody, Scottish Text Society (1888) vol i, 119–120.

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their advocates in soliciting the Lords outside the court to “inform” them of their arguments on the case.20 The attempt to “inform” the judges reflected the procedure before the Court of Session, whereby matters initially coming to its Outer House before a single Lord (sitting as the Lord Ordinary) in cases of difficulty could be reported for decision to the Lords sitting together as a collegiate bench in the Inner House.21 After emphasising that parties and their agents should not solicit the Lords outside the Court because the report from the Outer House was sufficient information, the Act nonetheless provided, “for better satisfactioun of pairteis quhais actionis being weichtie or intricate”, that each Lord should appoint a time when he or a particular servant would receive “the informatioun of the causis in wreitt”. In return, the Lords promised that they would “try quhat is prescryveit or decidet thairanent, als weill be the common law as be the municipall law or practick of this realme”.22 Here again we find “municipall law” contrasted with “practick”. It is probable that the term “municipall law” is to be understood as referring to the statutes of the Scottish parliament. In this quotation, however, the term “common law” is undoubtedly a reference to the Roman or Civil Law, conceived of as a ius commune linked with the Canon Law, as normally understood throughout Europe at this period. Indeed, this was the normal contemporary meaning of the term “common law” in Scotland.23 20 Act of Sederunt, 13 July 1596, in The Acts of Sederunt of the Lords of Council and Session, From the 15th of January 1553, to the 11th of July, 1790 (1790) (henceforth Acts of Sederunt) 26–27. 21 See, e.g., J W Cairns, “‘The Dearest Birthright of the People of England:’ The Civil Jury in Modern Scottish Legal History”, in J W Cairns and G McLeod (eds), “The Dearest Birthright of the People of England:” The Jury in the History of the Common Law (2002) 1 (henceforth Cairns, “The Dearest Birthright of the People of England”) at 4–5. 22 Act of Sederunt, 13 July 1596, in Acts of Sederunt (n 20) 26. While “common law” can be used in a variety of senses, it is clear that here it is used in contrast to ius proprium. 23 See, e.g., R Maitland, Practicks, Glasgow University Library, MS Gen 1333, 1 (15 December 1550) (henceforth Maitland’s Practicks): “aught to be judges eftir the common law and not the practiqs of the realme” (I have relied on the transcription of this MS made by Robert Sutherland and accessible at http://special.lib.gla.ac.uk/teach/scotslaw/practiques.html, which is not the oldest MS of Maitland’s Practicks, but this does not affect the point made here); G Mackenzie, A Discourse on the 4 First Chapters of the Digest to Shew the Excellence and usefullnesse of the Civill Law, British Library, MS Add, 18, 236, fo 16r (henceforth Mackenzie, Discourse): “by the Common Law is meant the Roman or Civill Law in all . . . Nations [other than England]”; F Grant, “Essay on Law”, in F Grant, Law, Religion and Education, Considered; In Three Essays: With Respect to the Youth; Who Study Law: As a Principal Profession, or Accessory Accomplishment (1715) (henceforth Grant, “Essay on Law”) 2: “by the Municipal, is meant, what’s peculiar to us; in Statutes, Customs, and old Maxims of Justice and Government; different from the Roman Law. By the Common, I understand the Roman Law . . .” (each Essay in Grant’s book is separately paginated, as are the preliminary matters: all references here will be to that on law); J Dalrymple, Viscount Stair, The Institutions of the Law of Scotland: Deduced from Its Originals, and Collated with the Civil, Canon and Feudal Laws, and with the Customs of Neighbouring Nations (Li. 11) ed D M Walker, 1981 (1693) (henceforth Stair, Inst) 80: the ius

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Study of practice before the Court of Session supports the conclusions derived from these quotations. It decided litigation on the basis of arguments derived both from the municipal law considered as the ius proprium of Scotland, of which the statutes were the most important part, and from the ius commune. Moreover, as the terms of the Act of Sederunt show, reference to the ius commune was wider than to it as simply supplementary law.24 Thus, when James inherited the English throne, his two British kingdoms had quite different legal systems, even if, at the time, some downplayed the divergences to promote the cause of greater unity.25 Of course, there was a common, essentially European, historical origin to aspects of the two laws, in particular the land laws, but centuries of separate development had introduced major changes.26 It is thus particularly telling that, in 1607, in a speech in favour of union of the kingdoms and the laws, James should tell his English Parliament that, when the Scots talked of their “Fundamentall Lawes”, they did not mean, as the English did, “their Common Law, for they haue none”, but rather their ius regis. He developed this further in a way reminiscent of the earlier quotations: “Scotland hath no Common Law as here, but the law they have is of three sorts.” The first was the feudal land law, already noted, that had supposedly been brought north by James I. The second was the “Statute Lawes, which be their Acts of Parliament”. The third was “the Civil Law” introduced from France by James V with his establishment of the Court of Session. This did not “gouerne absolutely . . . as in France”; rather, the Civil Law in Scotland was “admitted in no other cases, but to supply such cases wherein the Municipall Law is defectiue”.27 James was anxious to explain that there was no common law as fundamental law in Scotland, because the Parliament had instructed the Scottish Commissioners for the Union to protect the “fundamentall lawes, ancient privileges, offices, richtis, digniteis and liberteis of this kingdom”.28 His argument that the ancient customs were the same as those of England, differing only in terminology,

24 25 26

27 28

gentium “is chiefly understood, when the common law is named among us; . . . [a]nd oft-times by the common law, we understand the Roman law, which in some sort is common to many nations”. For a discussion of these themes, especially with a consideration of the interesting late- sixteenth-century Scottish legal moment, see Cairns, “Ius Civile in Scotland” (n 15) at 147–167. See Levack, Formation of the British State (n 5) 76–91. See, e.g., R van Caenegem, The Birth of the English Common Law, 2nd edn (1988) 85–110; J Hudson, The Formation of the English Common Law: Law and Society in England from the Norman Conquest to Magna Carta (1996) 118–156, 220–239. James VI and I, Political Writings (n 3) 172–174. Act 1604, c 1, in Acts of the Parliaments of Scotland, ed T Thomson and C Innes, 12 vols (1814–1875) (henceforth APS) in vol iv, 263–264. On the significance here of the term

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so that Scotland could be considered as having no common law of its own, while the Scottish statutes could be changed by the united parliament to create unity allowed him to deny the significance of this instruction.29 By admitting that the Civil Law was used failing ancient custom or statute, he was, however, conceding far more to the difference of Scots law from English law than perhaps his audience realised. B. MUNICIPAL LAW AND STATUTE LAW, PRIOR TO 1707 (1) Written law and ius commune The descriptions of Scots law around 1600 quoted in Part I strongly identified the municipal law with the statutes of the Parliament: there were customs, but they were considered neither as constituting a “common law” nor as part of the municipal law proper. The municipal law was the statutes of the Parliament. Further, for Scots lawyers, the terms ius proprium, ius municipale, and ius civile were interchangeable (unless the last was referring specifically to the ius civile Romanorum).30 This attitude is supported by examination of Balfour’s Practicks, a collection of material selected from the statutes and court records, written in the 1570s. In traditional fashion, this analysed law into the law of nature, law of God and “law positive”, which was that made by “man allanerlie”.31 The work stated: Gif any questioun sall happin to aryse before any jugeis of this realme, quhilk cannot be decydit, be no cleir writtin law, the decisioun and declaratioun thairof aucht and sould be referrit and continewit unto the nixt parliament, that an law may be cleirlie maid be the Lordis of the said parliament, how the said questioun, and all uther materis siclike, sould be decydit and reulllit in time to cum . . . “fundamental laws”, see C Jackson, Restoration Scotland, 1660–1690: Royalist Politics, Religion and Ideas (2003) (henceforth Jackson, Restoration Scotland) 101–102. 29 James VI and I, Political Writings (n 3) 174. 30 See, e.g., T Craig, Jus feudale, tribus libris comprehensum: quibus non solum consuetudines feudales, et praediorum jura, quae in Scotia, Anglia, et Plerisque Galliae locis obtinent, continentur; sed universum jus Scoticum, et omnes feremateriae juris clare et dilucide exponuntur, et ad fontes juris feudalis et clvilis singula reducuntur 50 (I.viii.8–9) ed James Baillie, 3rd edn (1732) (1st edn, 1655) (henceforth Craig, Jus Feudale). For the date of composition of this work (c 1600), see J W Cairns, “The breve testatum and Craig’s Ius Feudale” (1988) 56 Tijdschrift voor Rechtsgeschiedenis 311 at 317. Further, on the ideas of ius and its different uses, see H Coing, Europäisches Privatrecht (1985–1989) (henceforth Coing, Europäisches Privatrecht) vol i, 85. 31 J Balfour, The Practicks of Sir James Balfour of Pittendreich, ed P G B McNeill, Stair Society vols 21–22 (1962–1963) (henceforth Balfour) vol i, 1.

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because na jugeis within this realme hes powar to mak any lawis or statutis, except the parliament allanerlie.32

Balfour did not even mention custom as a source of Scots law; his focus was entirely on the law-making authority of the king and Three Estates in Parliament, even though he regularly drew his account of some of the principles and details of Scots law from his collection of the decisions of the Session, which he even cited as his authority for this proposition.33 What makes Balfour’s approach particularly interesting is that, when required, the Scots could indeed conceive of the term “municipal law” as encompassing custom or unwritten law. For example, in Sinclair’s Practicks of the 1540s, the compiler once referred to “practica et municipale ius Scotie non scriptum et consuetudinrium” and once to “practica et consuetudo huius regni municipalis”.34 This said, even in Sinclair’s Practicks most of the references to ius municipale are directly or indirectly to the medieval law-book, Regiam Majestatem, considered as a statute.35 This is also the case in Maitland’s Practicks of 1550–1577, as copied by John Orr, where the term municipal law is once used to refer to Regiam Majestatem and once used in a direct contrast to “practiqs”, in the way we have noted in other sources.36 This approach to ius municipale may be confirmed by examination of the  contemporary work by Thomas Craig, known as Jus feudale, written c 1600, the first major analytical work on Scots law. Like the sources discussed  above, Craig considered the jus regni proprium to be the constitutiones and statuta enacted by the Three Estates of the Kingdom with the consent of the king.37 He expressly opposed the ius proprium to the practick of the courts and custom: in deciding cases reference was only to be made to such practick and custom when “we lack true jus proprium”.38 Indeed it was the  very great lack of written law in Scotland, according to Craig, that led to the following of the Roman law.39 In other words, if the ius proprium  consisted of the statutes, and these were few, then the 32 Ibid vol i, 1–2. 33 Ibid vol i, 2; see W M Gordon, “Balfour’s Registrum”, in MacQueen, Miscellany Four (n 15) at 127. 34 Sinclair’s Practicks (n 15) at CC 503, 218. 35 Ibid CC 315, 352, 460, 493. See also ibid CC 444, 445, 485, which allude to lack of ius municipale on the point at issue. 36 Maitland’s Practicks (n 23) 98 (17 June 1568), 111 (29 March 1570/1). 37 Craig, Jus Feudale (n 30) 50 (I.viii.9). 38 Ibid 51 (I.viii.13–14). 39 Ibid 14 (I.ii.14).

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ius commune (a lex scripta) was inevitably attractive and accordingly relied on.40 If Craig argued that the statute law, the true ius proprium of the Scots, was inadequate because there was so little of it, there were other ways, however, in which the statute book was judged to be unsatisfactory. In particular, there was a problem in gaining access to reliable versions of the statutes, very few of which were printed in a readily accessible version. Knowing what was the written law by which to decide litigation was not always easy.41 (2) “Codification” proposals, fifteenth to seventeenth centuries What were perceived to be the difficulties and problems with the Scottish lex scripta are revealed by consideration of various proposals, in the fifteenth and sixteenth centuries, to reduce Scots law to a collected, written form.42 These might loosely be called codification projects, and were perhaps inspired by the “codification” of the customs in France.43 It is sufficient to look at one example. In 1575, a Convention of Estates noted the harm “quhilk this commoun weill sustenis throw want of a perfyte writtin law quhairupoun all iugeis may knaw how to proceid and decerne”, before appointing a commission to “visite the bukis of the law actis of parliament and decisionis befoir the sessioun And draw the forme of the body of our lawis alsweill of that quhilk is alreddy statute as thay thingis that were meit and convenient to be statute”.44 This ambitious project largely failed.45 What is notable is the overwhelming stress on written law and the dissatisfaction with reliance on “practick”. If such ambitions proved impossible to fulfil, a Commission was appointed in 1592 with the rather more limited and realistic aim of gathering the “municipall lawes and actis of parliament”, reflecting on “quhat lawis or actis necessarlie wald be knawin to the subiectis” and causing them to be 40 On Craig’s understanding of the idea of ius commune, see Cairns, “Ius Civile in Scotland” (n 15) at 150–158. 41 Cairns, “Historical Introduction” (n 8) at 95. For a discussion of some of the issues at stake, see the insightful discussion in A H Williamson, Scottish National Consciousness in the Age of James VI: The Apocalypse, the Union and the Shaping of Scotland’s Public Culture (1979) 64–85. 42 See also Levack. “Law, Sovereignty and the Union” (n 7) at 216–219. 43 See Cairns, “Historical Introduction” (n 8) at 66–67, 94–97; R Filhol, “The Codification of Customary Law in France in the Fifteenth and Sixteenth Centuries”, in H J Cohn (ed), Government in Reformation Europe, 1520–1560 (1971) 265; J P Dawson, “The codification of the French Customs” (1940) 38 Michigan Law Review 765. 44 APS (n 28) vol iii, 89. 45 Cairns, “Historical Introduction” (n 8) at 96. It may have led to the production of Balfour (n 31) compiled between 1574 and 1583, drawn from the Acts of Parliament, the decisions of the Session, and the “Auld Lawes”.

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delivered in authenticated copies to the royal printer to be printed.46 Much of this work seems to have been carried out by John Skene, later appointed Clerk Register, whose heroic efforts produced an edition in 1597 of the statutes from the time of James I (1424) and another in 1609 of the medieval law texts, considered to be legislation, notably Regiam Majestatem.47 Grand projects similar to that of 1575 were again mooted in 1633, 1649, 1681, and 1695.48 It is helpful to examine one. In 1681, it was proposed to appoint a commission to examine and assess “the whole Laws Statuts and Acts of Parliament of this his ancient Kingdom as weel printed as not printed, Together with the Customs Consuetuds and Judiciall Practicks either in the Supream or Subalterne Courts whether Civil or Criminal, which are or have been observed as Laws or Rules of Judgement”. The commission was then to collect and digest these, resolving any difficulties or contradictions and omitting all obsolete matter. Finally these collections were to be digested and reduced “into such convenient order As [the commission] shall judge fitt” and, omitting all obsolete or abrogated acts, delivered to be enacted in the form of laws.49 While the ambition of such a project probably again made it impossible to bring to a successful conclusion, the 1680s did see the publication 46 Act 1592, c 45, in APS (n 28) vol iii, 564. This act is another obvious use of the term municipal law to refer exclusively to statutes. 47 The Lawes and Actes of Parliament, Maid Be King Iames the First and his Successors Kings of Scotland: Visied, collected and extracted furth of the Register (1597); with a separate title page was De verborum significatione. The Exposition of the Terme’s and Difficill Wordes, Conteined in the Foure Buikes of Regiam Majestatem, and uthers in the Actes of Parliament, Infeftments, and used in Practique of this Realme, with diverse rules and commoun places, or principalles of the lawes: Collected and expound be M John Skene, Clerke of our Souveraine Lordis Register, Councell and rolles (1597); Regiam Majestatem Scotiae, Veteres leges et constitutiones, ex archivis publicis, et antiquis libris manuscriptis collectae, recognitae, et notis juris civilis, canonici Nortmannici auctoritate confirmatis, illustratae, opera et studio Joannis Skenaei, Regiae Majestati a Conciliis et Archivis Publicis. Annotantur in margine, concordantiae Juris Divini, legum Angliae, et iuris novissimi Scotiae quod acta parliamenti, vulgo vocant. Catalogum eorum quae in his libris continetur vicessima pagina, indicat. Cum duplici indice, altero rerum, altero verborum locupletissimo (1609); Regiam Majestatem. The Auld Lawes and Constitutions of Scotland, Faithfullie collected furth of the register and other auld authentick Bukes, fra the dayes of king malcolme the second, untill the time of king James the first, of gude memorie: and trewlie corrected in sindrie faults and errours, committed be ignorant writers. . . . Be Sir James Skene of Curriehill . . . Quhereunto are adjoined Twa Treatises, The ane, anent the order of proces observed before the lords of Counsell, and Session: the other of Crimes, and Judges in Criminall Causes (1609). See Cairns, “Historical Introduction” (n 8) at 95–97. On Skene, see J W Cairns, T D Fergus and Hector L MacQueen, “Legal Humanism and the History of Scots Law: John Skene and Thomas Craig”, in J MacQueen (ed), Humanism in Renaissance Scotland (1990) 48 (henceforth Cairns et al., “Legal Humanism”) at 52–56. 48 Cairns, “Historical Introduction” (n 8) at 98, 132–133. 49 Act 1681‚ c 94, in APS (n 28) vol viii, 356.

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of two important new editions of the statutes by Sir Thomas Murray of Glendook, one in folio, the other in duodecimo.50 The new collections made by Glendook, if flawed by modern standards, were found satisfactory by contemporaries. The instructions for the various codification projects proposing the ultimate reduction of all customs and court “practicks” to the form of statutes indicate the overwhelming priority and authority given to legislation as constituting the municipal law: indeed, in 1686, Sir George Mackenzie of Rosehaugh (1636–91), Lord Advocate and prolific author, noted that “our Statutes . . . be the chief Pillars of our Law”.51 Part of the problem with the material, however, was that it was difficult to use and understand, while some acts were clearly obsolete and in desuetude. Mackenzie attempted to enhance the utility of the printed collections with his Observations on the statutes, a kind of annotation of them explaining where they were obsolete and interpreting them in the light of the decisions of the court and the learning of the ius commune.52 He also devoted many pages to the making of statutes and their interpretation in his unpublished work on the sources and origins of law.53 (3) Statute, custom, and common law By the time of Mackenzie, however, the idea of “municipal law” had acquired a wider scope in Scotland than that attributed to it around 1600. Mackenzie drew on the analysis of Justinian’s Institutes in his elementary 50 The Laws and Acts of Parliament made by King James the First, Second, Third, Fourth, Fifth, Queen Mary, King James the Sixth, King Charles the First, King Charles the Second Who now presently Reigns, Kings and Queen of Scotland. Collected, and extracted, from the Publick Records of the said Kingdom, by Sir Thomas Murray of Glendook Knight, and Baronet, Clerk to His Majestie’s Council, Register, and Rols, by his Majestie’s special warrand (1681); The Laws and Acts of Parliament Made by King James the First, and his Royal Successors, Kings and Queen of Scotland In Two Parts . . . Collected, and Extracted, from the Publick Records of the said Kingdom, by Sir Thomas Murray of Glendook (1682–1683). 51 George Mackenzie, Observations on the Acts of Parliament, Made by King James the First, King James the Second, King James the Third, King James the Fourth, King James the Fifth, Queen Mary, King James the Sixth, King Charles the First, King Charles the Second. Where in 1. It is Observ’d, if they be in Desuetude, Abrogated, Limited, or Enlarged. 2. The Decisions relating to these Acts are mention’d. 3. Some new Doubts not yet decided, are hinted at. 4. Parallel Citations from the Civil, Canon, Feudal and Municipal Laws, and the Laws of other Nations, are adduc’d, for clearing these Statutes, sig A4r. (1686) 52 Ibid. 53 Mackenzie, Discourse (n 23) fos 18r–46r. A modern biography of Mackenzie is wanting. There is, however, much of value about him in Jackson, Restoration Scotland (n 28) passim, while  A  Lang, Sir George Mackenzie, King’s Advocate, of Rosehaugh: His Life and Times, 1636(?)–1691 (1909) is still useful.

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work, Institutions of the Law of Scotland, first published in 1684, to state that “Our Municipal Law of Scotland, is made up partly of our written, and partly of our unwritten Law”.54 This reflected the increasing influence of Justinian’s Institutes in this period, as disparate materials were progressively synthesised into a more consciously conceived national law.55 For Mackenzie, the written law of Scotland consisted of the acts of Parliament, the acts of sederunt (rulings on procedure and administration of justice made by the Lords of Session), and the books of the Regiam Majestatem with the other “Auld Lawes” as edited by Skene. Unwritten law was “the constant tract, of decisions, past by the Lords of Session, which is considered as Law; the Lords respecting very much their own Decisions” and also “our Ancient customes . . . which have been universally received among us”. Mackenzie also pointed out that “such is the Force of custome, or consuetude, that if a Statute, after long standing has never been in observance or having been, has run in desuetude; Consuetude prevails over the statute”.56 Francis Grant (c 1660–1726) gave a similar account, describing Scots municipal law as “what’s peculiar to us; in Statutes, Custom, and old Maxims of Justice and Government”.57 Despite this more recognised role for custom and court decisions in the municipal law, both Mackenzie and Grant still emphasised the overwhelming authority of Roman Civil Law, and it is necessary to appreciate this to understand the contemporary attitude to statutes and custom. Mackenzie claimed that Roman law “has great influence in Scotland, except where Our own express Laws, or Customes, have receded from it”. Grant stated that young lawyers ought to know “our municipal and common laws”; Scots 54 G Mackenzie, The Institutions of the Law of Scotland, 2nd edn (1688) (henceforth Mackenzie, Institutions) 5; J Inst I.i. There are textual problems with this work, but these do not affect these comments in a significant way: see J W Cairns, “The Moveable Text of Mackenzie: Bibliographical Problems for the Scottish Concept of Institutional Writing”, in J W Cairns and O F Robinson (eds), Critical Studies in Ancient Law, Comparative Law and Legal History: Essays in Honour of Alan Watson (2001) 235 (henceforth Cairns, “The Moveable Text of Mackenzie”). 55 See K Luig, “The institutes of national law in the seventeenth and eighteenth centuries” (1972) 17 Juridical Review 193; J W Cairns, “Institutional writings in Scotland reconsidered” (1983) 4 JLH 76 [= A Kiralfy and H L MacQueen (eds), New Perspectives in Scottish Legal History (1984) (henceforth Kiralfy and MacQueen, New Perspectives in Scottish Legal History) 76]. 56 Mackenzie, Institutions (n 54) at 5–7. 57 Grant, “Essay on Law” (n 23) 2. For a persuasive argument that this treatise was written by Francis Grant, Lord Cullen, see C Jackson, “Revolution Principles, Ius Naturae, and Ius Gentium in Early-Enlightenment Scotland: The Contribution of Sir Francis Grant, Lord Cullen (c 1660–1726)”, in T J Hochstrasser and P Schröder (eds), Early Modern Natural Law Theories: Context and Strategies in the Early Enlightenment (2003) 107 (henceforth Jackson, “Revolution Principles”) at 128 n 46, 130 n 63.

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municipal law was what was “peculiar . . . different from the Roman Law” while, by “the Common”, he understood “the Roman Law”. Mackenzie commented that “by the common Law in our Acts of Parliament is meant the Civil Law of the Romans”.58 This continuing traditional identification of “common law” with the Roman law (understood in a broad sense as the law received and developed in the middle ages) provides the context in which Mackenzie’s comment on the interpretation of statutes should be understood. He stated that they should be so interpreted as to avoid absurdity and “as may best agree with the mind of the Legislator, and Analogie, or general design of the common Law”.59 There can be no doubt but that Mackenzie here meant the ius commune. Indeed, he later pointed out that he followed “Justinians method” so that there might be “as little difference found betwixt the Civil Law and ours, as is possible”.60 Similarly, a generation before Mackenzie, Lord Kerse had interpolated into the Practicks compiled by his father, Sir Thomas Hope, the comment that “Statuts contrare to the commone law ar stricti juris, and aucht not be extended.”61 Mackenzie himself wrote that “Correctory Law[s]” should be “strictly interpreted”, which applied not only to “these Laws which restrict the Statutory Law but even in these which restrict the Common Law”.62 In other words, the common law, ius commune, or Roman law was so central to Scots law, that statutes were to be interpreted strictly if they contradicted it. Roman law was regarded as dominant. This was so, even though for Mackenzie, despite the explicit inclusion of “unwritten law” in the municipal law, statutes, rather than custom, were necessarily the core of the municipal law. He considered that law derived its authority from a superior power: in the case of natural law, this was God; in the case of the municipal law, this was the king, acting with the Three Estates, the legislative power being the “Kings Prerogative”.63 Though Grant emphasised that legislation was by both king and estates, he also stressed the importance of 58 Grant, “Essay on Law” (n 23) 2; Mackenzie, Institutions (n 54) 3–4. Grant, “Essay on Law” (n 23) at 45–58 also emphasises this meaning of common law in Scottish statutes and its statutory authority in Scotland. 59 Mackenzie, Institutions (n 54) 8. 60 Ibid 9. 61 Thomas Hope, Hope’s Major Practicks, 1608–1633, ed J A Clyde, Stair Society (1937–1938), vol i, 2. This is an evident reference to the Commentators’ brocard, statuta stricte sunt interpretanda. See, e.g., F Wieacker, A History of Private Law in Europe, trans Tony Weir (1995) (henceforth Wieacker, History of Private Law) 101–103. 62 Mackenzie, Discourse (n 23) fo 37v; see also ibid fo 41r: “our Law’s [sic] should be strictly interpreted”. This is in reliance on Act 1428, c 11, in APS (n 28) vol ii, 16. 63 Mackenzie, Institutions (n 54) 5; Mackenzie, Discourse (n 23) fos 8r, 18v.

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legislation, arguing, for example, that the common (Roman) law was binding in Scotland because of statutory recognition.64 (4) Decisions and common law Mackenzie recognised the importance of the decisions of the Session, but considered them only practick, not law, as the Lords of Session were not legislators.65 Indeed, he pointed out that the Lords did not need to follow their earlier decisions, but they generally did, so that a “constant tract, of decisions” could be taken as establishing law.66 This said, court decisions were, for Mackenzie, an unsatisfactory source, often reached corruptly or hastily by ignorant judges. Nonetheless, he laid down some conditions for attaching authority to decisions:67 1. 2. 3. 4.

5. 6.

I conceive that Decisions by the Prince though Judgeing himself, and even the Decisions of King and Parliament should not extend beyound Private Cases. A constant Series of Decisions, which the Civill Law calls, res perpetuo judicatae, ought to be in great veneration.68 Where the Lords declare they will decide soe in all tyme comeing great respect ought to be had to them, for then it is to be presumed the Case was fully debated and Considered. Respect is to be had to solemn Decisions in praesentia, and therefore I conceive the Remarker of the Decision should observe whither the Cause was decided upon a Debate in presentia or upon a Report from the Utter House, and in this Case he should name the Reporter, as the French Decisions doe, for there is great difference amongst Reporters both as to Learning and Integrity.69 If the Reasons upon both sides seeme to hang equally in the Scale of Justice, then the Authority even of a single Decision may Cast the Ballance. It must be considered if the Cause was well debated, and the prevailer neither related to great Men, nor Judges, for it is enough that these may

64 65 66 67

Grant, “Essay on Law” (n 23) at 43, 67 Mackenzie, Discourse (n 23) fos 54r, 55r. Mackenzie, Institutions (n 54) 6. Mackenzie, Discourse (n 23) fols 60v–61v. It is easy to recognise the origin of Mackenzie’s views in the writings of the ius commune on the topic. For a useful overview, see G R Dolezalek, “‘Stare Decisis’: Persuasive Force of Precedent and Old Authority (12th–20th Century)”, University of Cape Town Inaugural Lecture 1989, passim; Mackenzie, Institutions (n 54); Coing, Europäisches Privatrecht (n 30) 125–126. 68 He here cites D 1.3.38. 69 Mackenzie is here referring to a Lord of Session sitting as an Ordinary in the Outer House reporting a point of difficulty to the Lords sitting as a collegiate bench in the Inner House. The “Reporter” is the Lord Ordinary.

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sometimes gaine a Cause without debauching our Law to Posterity: . . . 70 And as Christanaeus [sic] observes they are to be only respected when they are pronunced secundum Ius Commune et Analogiam . . . 71

In fact, as the last reference to Paulus Christinaeus suggests, Mackenzie was rather of the opinion that [o]ur Law [should be] directed by the Writings of Learned Lawyers who give their Judgment in abstract Cases wherein none are concerned but their own Souls, Reputation and Posterity, which generally tye men to be Just, and who have great Leisure to meditate upon what they transmit to Posterity as Law.72

In other words, when problems and uncertainty arose, courts should refer to the ius commune and its authors, with the views of whom decisions should always be compatible. Custom was authoritative only insofar as the king and people tacitly consented to it: custom was not created as such by a court decision, but a decision could make a custom known, which could then be sufficiently established if tacitly acquiesced in by the king and people.73 This meant that, for Mackenzie, the role of the Civil Law was evidently very great, especially given the approach to statutes that he advocated. His traditional views on the centrality of statutes to the municipal law of Scotland as ius proprium, also emphasised their inherent superiority to custom and practick. Uncertainty was to be resolved by reference to the Civil Law. This was because “God Almighty did inspire the Romans to digest the principles 70 Mackenzie here cited and quoted Jean de Coras [Corasius], In Primum Pandectarum Librum, ac Secundi Titulum Primum (Digestum Vetus vocant) Commentarii (1584) 300 (on D 1.5.25): “Quo circa nee senatus quidem nostri placita, quae nos aresta dicimus, in aliis causis, & negotiis ullam habent iuris necessitatem, quam inter eos, inter quos decreta sunt: unde iis qui tantopere senatusconsultorum exemplis moventur, illud Ciceronis obiicere soleo, non exempla maiorum quaerenda esse, sed consilium eorum, a quo exempla nata sunt inquirendum”. He commented that most of the lawyers, including Sandaeus and Mornacius, were of the same view, citing Johan van den Sande, Decisiones Frisicae, Sive Rerum Suprema Frisiorum Curia Judicatarum libri Quinque (1680) 61 (II.iii.6), and Antoine Mornac, Observationes in XXIV Priores Libros Pandectarum (1654) 24 (on D. 1.3.38). 71 The reference is to Paul van Christynen, Practicarum Quaestionum Rerumque in supremis Belgarum Curiis Actarum et Observatarum Decisiones (1626–1633), vol i, 1–3 (Decisiones 1 & 2). The quotation, if indeed meant to be taken as such, is not exact, but certainly gives the gist of Christinaeus’ views. 72 Mackenzie, Discourse (n 23) fo 57v. It is worth noting that he did not place as much weight on the Consilia of lawyers, “whereof there are very many”, because of the interest of those who employed them to make them, and the same applied to some extent to the “opinions . . . of Universitys [sic], whereof many are extant, [which] are of great Authority Abroad, but generally they are paid for, which diminishes much their Authority”: idem fos 57v–58r. Grant, “Essay on Law” (n 23) at 139, was of the same view: “what’s delivered in Tractates and Commentaries, preponderates Consultations or Responses, that are more obnoxious to Partiality, and have not at one Time such total Views of Analogy.” 73 Mackenzie, Institutions (n 54) 7; Mackenzie, Discourse (n 23) fo 63v.

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of Reason into a Body of their positive Law, to the End Nations might have common principles wherein they might agree.”74 Grant also saw Roman law as divinely inspired.75 He argued that it was applied in Scotland “not of meer Discretion, or as a variable Directory to Reason”, but rather because “the Civil-common Law obtains, now, of Necessity, or as binding”. The Scots had adopted the “Civil-common Law” because their “peculiar Statutes, and consuetudinary Maxims, were very few”. For Grant, insistence on reliance on Roman law was vital because “some, out of Ignorance, Indolence, Desire, or Desine; when pinch’d in a Case” made “elusory” this rule of reliance on Roman law, “by setting up themselves, in Place of it; for Suprem; that is, pretending their own private Reason; alias, Maggot”.76 In other words, Roman law as common law was authoritative and applicable in Scotland. It might be identifiable with ius gentium and ius naturale, which certainly could be seen as giving it a moral content, but it was binding in itself, and individual reason (which in reality was often reduced to “maggot” or “whim”) could not replace it, by claiming to be superior in its results. (5) Viscount Stair, custom, and natural law A quite different attitude can be identified in the work of Sir James Dalrymple, Viscount Stair (1619–1695) – a contrasting approach that in some ways anticipated and influenced developments in the later eighteenth century. For many years President of the Court of Session, Stair was the slightly older contemporary of Mackenzie and a whole generation in advance of Grant.77 Stair’s major work was his Institutions of the Law of Scotland: Deduced from Its Originals, and Collated with the Civil, Canon and Feudal Laws, and with the Customs of Neighbouring Nations, substantially written by 1662, but first published in 1681, with a second edition in 1693.78 In the dedication to King Charles that prefaced the first

74 75 76 77

Mackenzie, Discourse (n 23) fo 18r. Grant, “Essay on Law” (n 23) at 4–5, 11–12. Idem 45. A modern biography of Stair is wanting: but see A J G Mackay, Memoir of Sir James Dalrymple, First Viscount Stair, President of the Court of Session in Scotland and Author of the “Institutions of the Law of Scotland”: A Study in the History of Scotland and Scotch Law during the Seventeenth Century (1873). G M Hutton, “Stair’s Public Career”, in D M Walker (ed), Stair Tercentenary Studies, Stair Society vol 33 (1981), is unsatisfactory (henceforth Walker, Stair Tercentenary Studies). 78 I shall here use the edition of 1981 (n 23) based on the second of 1693. Little of value has been published on the crucial issue of the development of the text of Stair, Institutions, and the relationship between the two editions and the manuscripts, of which there are two stems

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edition, Stair wrote that “[o]ur law is most part consuetudinary, whereby what is found inconvenient is obliterated and forgot”; moreover, he exulted that “[w]e are not involved in the labyrinth of many and large statutes”.79 In direct contradiction to Mackenzie (and indeed all those who proposed codification of the Scots law), Stair considered custom to be superior to statutory law, because as a law it was “wrung out from . . . debates upon particular cases, until it come to the consistence of a fixed and known custom”. This allowed “the conveniences and inconveniences thereof through a tract of time” to be “experimentally seen”. Thus, what was “found in some cases convenient, if in other cases afterwards . . . found inconvenient” would prove “abortive in the womb of time” before achieving “the maturity of a law”. In statutes, however, the lawgiver had immediately to “balance the conveniences and inconveniences”; in so doing, he could and often did make mistakes, so that there were left “casus incogitati”. He admitted that initially in customary law “the people run some hazard . . . of their judges’ arbitrement”; but, when the law was fully developed, they had the advantage that what had been changed by developing custom was discarded and completely forgotten. On the other hand, “in statutory written law, the vestiges of all the alterations remain” and kept increasing in volume, which meant that the statutes ceased “to be evidences and securities to the people”, but instead became “labyrinths, wherein they are fair to lose their rights, if not themselves”.80 Stair placed Scots law in the context of the ius naturale and the ius gentium. His account of natural law was very strongly influenced by Hugo Grotius, although his views differed from those of the Dutch author.81 For Stair, the basic common principles of natural law were “known to men without reasoning and experience . . . written in the hearts of men”. The fact that these principles were “known to men every where through the world” demonstrated that they constituted natural law. God also gave men reason so that “thence they might by consequence deduce his [i.e., natural] law in more particular

dating from 1662 and 1666 respectively: see A Watson, The Making of the Civil Law (1981) 31. On the textual problems, see Cairns, “The Moveable Text of Mackenzie” (n 54) at 245–247. 79 Stair, Institutions (n 23) 60–61. 80 Ibid 84–85 (1.1.15). 81 The clearest account of Stair’s legal theory is to be found in P G Stein, “The Theory of Law”, in Walker, Stair Tercentenary Studies (n 77) 181. For a comparison of the different approaches of Stair and Mackenzie to natural law and fundamental laws, see C Jackson, “Natural Law and the Construction of Political Sovereignty in Scotland, 1660–1690”, in I Hunter and D Saunders (eds) Natural Law and Civil Sovereignty: Moral Right and State Authority in Early Modern Political Thought (2002) 155.

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cases.”82 Like Grotius, Stair did not think that natural law had simply been willed by God: he perhaps accepted a realist rather than a voluntarist position on natural law, but he gave greater scope for God than the Dutch author, and his approach in this respect, perhaps deliberately, was ambiguous to avoid theological problems.83 Thus, not even God could change natural law, “even though he be accountable to, and controllable by none, and so hath absolute freedom of his choice”; this was because God “doth . . . unchangeably determine himself by his goodness, righteousness, and truth” and could not “deny himself, or act unsuitably to his divine perfections . . . because his goodness, justice and truth are as certain by his free choice, as are his omnipotency and sovereignty”.84 As well as “these dictates of reason (wherein law consists) which are in the understanding”, there was “an inclination in the will to observe and follow those dictates, which is justice”.85 Stair explained that “[t] his law of nature is also called Equity, from that equality it keeps amongst all persons”, while “equity is also taken for the law of rational nature”.86 (6) Human law, custom, and Scots law According to Stair, “[h]uman law” was “that which, for utility’s sake” was “introduced by men . . . either by tacit consent, by consuetude or custom, or by express will or command of those in authority, having the legislative power”.87 According to their origin, laws were classed as written or unwritten. Stair admitted that “law” was sometimes taken in “opposition to custom, as it comprehendeth equity or the natural law, and the edicts and statutes of nations and their law-givers”. Further, he noted that “law” was sometimes “more strictly” understood in the “vulgar distinction of law, statute, and custom” in the sense of “equity or the common law, as the customs and statutes [signify] the peculiar recent laws of several nations”.88 In other words, “law” had a popular meaning of the ius commune, while national or local laws were considered as statutes and custom, the ius proprium. 82 Stair, Inst (n 23) 75 (1.1.3–4). 83 See A H Campbell, The Structure of Stair’s Institutions 26–29, David Murray Lecture (1954) 26–29. Campbell explores the issue of Pufendorf’s influence on Stair; however, the date of composition of the Institutes (the early 1660s, at the latest) negates much of his discussion. The matter of the relationship of Stair to Pufendorf is, however, much more complicated than has been thought, see T Richter, “Did Stair know Pufendorf?” (2003) 7 EdinLR 367. 84 Stair, Inst (n 23) 73–74 (1.1.1). 85 Ibid 74 (1.1.2). 86 Ibid 76 (1.1.6). 87 Ibid 79 (1.1.10). 88 Ibid.

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Human law was divided by Stair into laws common to many nations and laws of one nation. The former, the law of nations, “stands in the customs owned and acknowledged by all, or at least the most civil nations”. These were generally “nothing else but equity and the law of nature and reason”. The “common law of reason” was what was generally understood in Scotland by the term “common law”, in contrast to England where the term applied to “the common current of their civil law, as opposite to statute and their late customs”. This understanding of the term was also occasionally used in Scotland; but “oft-times by the common law, we understand the Roman law, which in some sort is common to many nations”.89 Stair next explained that the “law of each society of people under the same sovereign authority” was called the civil law; though the term “civil law” was now generally appropriated to the civil law of the Romans “as the most excellent”. There was an “affinity” between the law of Scotland and the law of the Romans so that, though it was not recognised in Scotland “as a law binding for its authority”, yet it was “followed for its equity”.90 In this he put forward a view very similar to that expressed earlier by Thomas Craig.91 After explaining the necessity of human law (which derived its authority from natural law, being but the “public sponsions of princes and people” (promises being enforceable under natural law), he turned to Scots law.92 Reflecting his view of the superiority of custom, he explained that Scots “customs, as they have arisen mainly from equity, so they are also from the civil, canon, and feudal laws”, which thus, especially the civil law, were of “great weight” in Scotland, but which were only received “according to their equity and expediency, secundum bonum et æquum”.93 He stated that the historical origin of Scots law (as of all laws) could “at first” have been “no other than æquum et bonum, equity and expediency”. This was because no nation could at its first coming together have enacted laws, nor could it have customs prior to coming together as a nation. Thus, “nations of old submitted to their 89 Ibid 79–80 (1.1.10–11). 90 Ibid 80 (1.1.12). 91 See Cairns, “Ius Civile in Scotland” (n 15) at 150–158; J W Cairns, “The Civil Law Tradition in Scottish Legal Thought”, in D L Carey Miller and R Zimmermann (eds), The Civilian Tradition and Scots Law: Aberdeen Quincentenary Essays (1997) (henceforth Carey Miller and Zimmermann, Civilian Tradition and Scots Law) 191 (henceforth Cairns, “The Civil Law Tradition”) at 204–206. 92 Stair, Inst (n 23) at 82–85 (1.1.15). On Stair and the “social contract”, see N MacCormick, “Law, obligation and consent: reflections on Stair and Locke” (1979) 65 Archiv Für Rechtsund Sozialphilosophie 387. 93 Stair, Inst (n 23) 85 (1.1.16).

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princes, choosing . . . to refer their interests and differences to the determination of their sovereigns”, rather than allow people to exercise self-help. Thus, from the beginning, government required submission to a sovereign. After the constitution of government, nations next came to be “ruled by consuetude”, which declared equity and constituted expediency. Next came positive laws, statutes. This meant that “every nation, under the name of law, understand their ancient and uncontroverted customs time out of mind, as their first fundamental law”. Stair applied this schematic historical analysis to both Rome and England (mentioning that in the latter example, the term “common law” was applied to the “ancient and unquestionable customs”).94 Turning to Scotland, he stated that “we are ruled in the first place by our ancient and immemorial customs, which may be called our common law”.95 What is striking is Stair’s adoption of this English usage (though once known in medieval Scotland as referring to the law common (throughout Scotland).96 It is in contradiction to what he had said earlier about term being normally understood in Scotland in the sense of ius gentium or Roman law.97 Of course, in the first text he did acknowledge that “sometimes” in Scotland the term was used in the English sense, and here he also commented that the term “common law” sometimes meant “equity . . . or the civil Roman law”.98 The form of the verb “may be called” probably should be taken as indicating Stair’s consciousness that this was not the normal understanding of the phrase, used here on analogy with English practice. He next commented that “[i]n the next place are our statutes, or our acts of parliament”. These were inferior to the ancient law in that they were “liable to desuetude, which never encroaches on the other”.99 This led Stair into a discussion of the authority of the Lords of Session to issue 94 Ibid 86–87 (I.i.16). 95 Ibid 87 (I.i.16). 96 On the use of the term “common law” in Scotland in this sense, see W D H Sellar, “The Resilience of the Scottish Common Law”, in Carey Miller and Zimmermann, Civilian Tradition and Scots Law (n 91) 149 (henceforth Sellar, “The Resilience of the Scottish Common Law”). Sellar argues that in this usage Stair is part of a continuous tradition, which might suggest that this understanding of the term “common law” was part of a continuous tradition in Scotland. I would disagree; Stair is, at most, reviving a usage that had become obsolete. See further on Sellar’s views, W D H Sellar, “The Common Law of Scotland and the Common Law of England”, in R R Davies (ed), The British Isles 1100–1500: Comparisons, Contrasts and Connections (1988) 82. John Ford, “The Law of the Sea and the Two Unions”, in T C Smout (ed), Anglo-Scottish Relations from 1603 to 1900 (2005) 127 at 131, makes some perceptive remarks. 97 Stair, Inst (n 23) 80 (1.1.16). 98 Ibid 87 (1.1.l6). 99 Ibid.

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Acts of Sederunt, which Mackenzie considered a part of the written law. Stair considered the power of the Lords of Session and the authority of their decreets, and concluded that “frequent agreeing decisions are more effectual than acts of sederunt . . ., which do easily go into desuetude”. A “custom by frequent decisions” had greater force than “a simple decision”. Stair thus ended up with what appears to be a hierarchy of sources: ancient custom, statutes, and recent customs revealed (created?) by decisions of the courts. Finally, should “our ancient law, statutes, and our recent customes and practiques [be] defective, recourse is had to equity”. This was because it was the “first and universal law”. There was also recourse “to expediency, whereby laws are drawn in consequence ad similes casus”.100 The contrast with Mackenzie, Grant and other Scottish writers, and the aspirations of the Parliament is evident. For Stair ancient custom and modern custom (the practick of the courts) were the main constituents of Scots law, and it was good that this was so. Statutes were inferior to ancient custom in being subject to desuetude; moreover, extensive legislation tended to create confusion in the law. Scotland was accordingly lucky in having very few statutes. Here it is important to look at an insight of David Sellar. He has pointed out that Stair’s examples of ancient custom were all taken from Anglo-Norman law and are all found in Regiam Majestatem.101 This is crucial to his different picture. While Mackenzie and others considered Regiam as a statute, as part of Scotland’s lex scripta, Stair, following the earlier example of Craig, rejected its authority, because of its foundation in the English treatise attributed to Glanvill.102 He therefore had to ascribe to ancient custom the areas of law dealt with in Regiam. Of course, Craig had done so too; but his sixteenth-century focus on the statutes as central to Scots municipal law, with his different understanding of the relationship between the ius proprium and the ius commune, led him to state that because they had so little written law Scots tended to rely much on the lex scripta of the Roman Civil Law. For Stair, rejection of the authority of Regiam resulted in a focus on the ancient customs of Scotland because of his views on the superiority of custom over statute.

100 Ibid 87–88 (1.1.16). 101 Sellar, “The Resilience of the Scottish Common Law” (n 96) at 155. 102 Stair, Inst (n 23) at 88–89 (1.1.16); Craig, Jus Feudale (n 30) 51 (I.viii.11). See generally Cairns et al., “Legal Humanism” (n 47) at 61–64; H L MacQueen, “Glanvill Resarcinate: Sir John Skene and Regiam Majestatem”, in A A MacDonald, M Lynch and I B Cowan (eds), The Renaissance in Scotland: Studies in Literature, Religion, History and Culture Offered to John Durkan (1994) 385.

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(7) Scots law and the usus modernus Pandectarum Despite the power of Stair’s vision of a Scottish customary law advancing through the progressive inscription of equity into law by the Court of Session, there can be little doubt but that Mackenzie still expressed the general and indeed typical view of Scots about the nature of their law and the best mode of law-making. Statutes were the core of the law. Any other view makes nonsense of the proposals to “codify” the law in the 1680s and 1690s. Authors were very cautious about ascribing a direct and clear law-making role to the judges.103 Failing statute or custom, recourse was to be had to the ius commune. It is probably fair to describe Scotland, around 1700, as a country of the usus modernus Pandectarum, in which the work of courts and legal scholars had been progressively blending the Roman law and the municipal law, the ius commune and the ius proprium, into a unique system, which could be understood within a general framework of the ius naturale and ius gentium.104 Despite their crucial intellectual differences, this is the general context within which the work of Stair and Mackenzie must be understood. The primary source of the law was statutes. There were also ancient customs of feudal origin, but the vital source of development, influencing judicial decision-making, was the Roman law and its modern commentators, including the views of foreign courts. It is here important to remember that when Stair saw the courts advancing the law through equity and expediency, he considered that, as equity, the provisions of Roman law were often followed, so that we need not see the result he achieved – if not his reasoning – as necessarily dramatically opposed to that of Mackenzie. Yet the differences between Stair and Grant or Mackenzie were obvious, and were focused not only around differing emphases on the role of the courts and custom, but also on the value put on the ius commune. Given that Grant wrote for law students, it is tempting to see his essay as intended to be an antidote to any exposure to Stair’s views. Notable is his stress on the superiority of reliance on Roman law over reliance on reason, which is a constant theme through his work. He criticised the frustration of “the 103 See, e.g., Sir James Steuart of Goodtrees, Dirleton’s Doubts and Questions in the Law of Scotland, Resolved and Answered (1715) 70. Sir John Nisbet of Dirleton, Some Doubts and Questions, in the Law; Especially of Scotland (1698), was a posthumous publication, Nisbet having died in 1687. 104 Wieacker, History of Private Law (n 61) 159–195; K Luig, “Usus modernus”, in A Erler, E Kaufmann et al. (eds), Handwörterbuch zur deutschen Rechtsgeschichte, 5 vols (1971–1998) vol v, cols 628–636.

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Obligation of the Roman Law . . . under the false Notion of Reason, or material justice” and argued that “Reason . . . is the Eye to see, not the Hand to make, Law”. it was Roman law that provided the certainty to protect liberty, property, honour and life.105 C. THE IMMEDIATE IMPACT OF THE UNION OF 1707 (1) Incorporating union and Scots law James VI’s aspiration for the union of his two British kingdoms was achieved in 1707, under his great granddaughter Queen Anne. His desire for a union of the laws was left unfulfilled, as the factors affecting the move to union were very different from those that had animated him.106 The provisions on which the union was achieved were set out in a number of articles agreed by Commissioners appointed by each Parliament. Most of these concerned fiscal measures, such as free trade, a unified system of weights and measures, and a single coinage.107 The manner of the Parliamentary Union was essentially to incorporate Scotland into existing English structures. This required that provisions be made to protect and clarify the position of the Scottish courts and Scots law; a scheme to achieve this was set out in a number of articles of the Union. The eighteenth article provided for the application in Scotland of the same laws on trade, customs and excise as in England, before stating that “all other Laws in use within the Kingdom of Scotland doe after the Union and notwithstanding thereof remain in the same force as before . . . but alterable, by the Parliament of Great Britain”. The article went on to distinguish between those laws “concerning Publick Right, Pollicy and Civil Government”, which could be made the same throughout the United 105 Grant, “Essay on Law” (n 23) at 3, 9–10, 146. 106 On this huge topic, see, e.g., C A Whatley with D J Patrick, The Scots And The Union (2006); M Fry, The Union: England, Scotland and the Treaty of 1707 (2006); W Ferguson, Scotland’s Relations With England: A Survey to 1707 (1977, repr 1994) 180–277; W Ferguson, Scotland: 1689 to the Present. The Edinburgh History of Scotland Volume IV (1968) 36–69 (henceforth Ferguson, Scotland: 1689 to the Present). On the intellectual background, see, e.g., William Ferguson, “Imperial crowns: a neglected facet of the background to the Treaty of Union of 1707” (1974) 53 Scottish Historical Review 22; J Robertson, “An Elusive Sovereignty: The Course of the Union Debate in Scotland, 1698–1707”, in J Robertson (ed), A Union for Empire: Political Thought and the British Union of 1707 (1995) 198 (henceforth Robertson, Union for Empire); K Bowie, Scottish Public Opinion and the Anglo-Scottish Union, 1699–1707 (2007). 107 See Articles of Union, in Appendix, APS (n 28) vol xi, 201–205. The proceedings of the Commissioners are set out in ibid at 145–200.

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Kingdom, and those that “Concern Privat Right”, to which “no alteration [may] be made . . . except for evident utility of the Subjects within Scotland”.108 The exact effect of this may be disputed, but the intention was clear: Scots private law was not to be changed simply to bring it into line with English law. The position of the Scottish courts was covered in the nineteenth and twentieth articles. The first of these, among other provisions, preserved the Court of Session and Court of Justiciary (the criminal court) “in all time coming within Scotland”, though subject to such “Regulations for the better Administration of Justice” as might be made by the Parliament of Great Britain.109 Though now placed under the authority of the Lord High Admiral or Commissioners of Admiralty of Great Britain, the Admiralty Court was maintained, again alterable by the new Parliament, but an admiralty court was always to be retained to deal with “Maritim Cases, relating to Private Rights”, and heritable rights of admiralty were preserved to their owners as rights of property. All inferior courts were preserved, again alterable by the Parliament. Supporting the assimilation of the laws on trade, customs, and excise to those of England, the article also provided that a new Court of Exchequer was to be erected in Scotland to decide “Questions Concerning the Revenues of Customs and Excises”. This court was to possess “the same Power and Authority in such Cases, as the Court of Exchequer has in England”. It was also to retain the Scottish Exchequer’s jurisdiction over the “power of passing Signatures, Gifts, Tutories, and in other things”; it was not, however, to have the type of extensive jurisdiction possessed by the English Court of Exchequer at common law. The Scottish Privy Council, which possessed an important jurisdiction over public peace and order was also preserved until Parliament thought fit to make changes. The general thrust of these provisions was made clear by the provisions that “no Causes in Scotland be Cognoscable, by the Courts of Chancery, Queens Bench, Common Pleas or any other Court in Westminster Hall” and that these courts were not after the Union to have “Power to Cognosce, Review, or Alter the Acts, or Sentences of the Judicatures within Scotland, or Stop the Execution of the same”. The twentieth article preserved the heritable jurisdictions as rights of property.110 As with the laws, the Scottish courts were 108 Ibid 203. 109 Ibid. 110 Ibid 203–204. The new Court of Exchequer was created by the Exchequer Court (Scotland) Act 1707, 6 Anne, c 53; on it, see A L Murray, “The Post-Union Court of Exchequer”, in MacQueen, Miscellany Five (n 11) at 103; J W Cairns, “Natural Law, National Laws,

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to be preserved and their jurisdictions generally left unchanged; they were to remain as superior courts, not subject to English courts, as if the latter were in some way superior or imperial in authority. The type of supervision that the Court of King’s or Queen’s Bench in Westminster exercised over the Irish courts was not to exist.111 The Scottish and English legal systems thus remained independent, and the Union specifically preserved the Scots law and courts; but the legislature was now the Parliament of Great Britain, situated in Westminster, and inevitably dominated by English politicians and their particular concerns, while, in the new constitutional structures, the House of Lords came in place of the Scottish Parliament in hearing appeals from the superior courts, which had previously been called protestations for remeid of law. These changes did not mean that there was an instant and strong legislative influence of English law on Scots law – far from it. This was because Scotland was essentially allowed to be governed under a patronage system exercised by a succession of often competing Scottish noblemen, who were allowed to conduct and control matters, provided they could produce for the government loyal, elected members in the Houses of Commons and Lords.112

Parliaments and Multiple Monarchies: 1707 and Beyond”, in H Horstbøll and K Haakonssen (eds), Northern Antiquities and National Identities: Perceptions of Denmark and the North in the Eighteenth Century (2007) (henceforth Cairns, “Natural Law, National Laws”). The Scottish Privy Council was abolished (effective in 1708) by 6 Anne, c 40 (1707): see Ferguson, Scotland: 1689 to the Present (n 106) 54–55; P W J Riley, The English Ministers and Scotland (1964) 90–93. 111 On the complex issue of the jurisdiction in error of the English King’s Bench over the Irish King’s Bench and the assertion of direct English (and then British) House of Lords’ jurisdiction over the Irish House of Lords, see F H Newark, “Notes on Irish Legal History”, in F H Newark, Elegantia Juris: Selected Writings, ed F J McIvor (1973) 203 at 215; A Lyall, “The Irish House of Lords as a judicial body, 1783–1800” (1993–1995) 28–30 Irish Jurist (n s) 314 at 327–28. 112 On the patronage system in eighteenth-century Scotland, see J S Shaw, The Political History of Eighteenth-Century Scotland (1999) 38–83; J S Shaw, The Management of Scottish Society, 1707–1764: Power, Nobles, Lawyers, Edinburgh Agents and English Influences (1983) 86–117; J M Simpson, “Who Steered the Gravy Train, 1707–1766?”, in N T Phillipson and R Mitchison (eds), Scotland in the Age of Improvement: Essays in Scottish History in the Eighteenth Century (1970) 47; A Murdoch, “The People Above”: Politics and Administration in Mid-Eighteenth-Century Scotland (1980) 1–27; A Murdoch, “Lord Bute, James Stuart Mackenzie and the Government of Scotland”, in K W Schweizer (ed), Lord Bute: Essays in Re-interpretation (1988) 117; M Fry, The Dundas Despotism (1992). For a general survey, see Cairns, “Historical Introduction” (n 8) at 143–145. Scotland had a relatively large nobility, who were represented in the House of Lords by sixteen elected from their number, while there were forty-five Scottish members in the Commons: see article 22 in Appendix, APS (n 28) vol xi, 204.

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(2) Legislative neglect The consequence, following the Union, was relative legislative neglect of Scots law in the eighteenth century, especially in contrast to the notable era of reform between 1660 and 1707. This is not to say that there was no legislation applicable to Scotland. There was much; but it largely concerned fiscal and revenue issues.113 The political crises of the two Jacobite Rebellions did introduce some reforms: for example, the abolition of military tenures and heritable jurisdictions in 1747.114 Yet the general proposition holds. Such other major reforms that there were – in election law, entail, and bankruptcy – tended to be “Scottish Acts” in that they were drafted by the Scottish law officers and were approved by the judges of the Court of Session, the various societies of lawyers, and the freeholders of the counties.115 Contemporary Scots recognised how few had been the reforms in Scots law introduced by statute after the Union, other than those following the Rebellion of 1745.116 (3) The role of the House of Lords As the final appellate court in civil (but not criminal) matters, the House of Lords was another source of potential English influence.117 Despite, however, its necessary effect in individual cases and the undoubted popularity of appeals, it did not yet have an immediate, major impact on Scottish legal thinking. This was largely because there was no publication of the decisions of the House in Scottish appeals, allowing the Court of Session to ignore the Lords’ 113 J Innes, “Legislating for Three Kingdoms: How the Westminster Parliament Legislated for England, Scotland and Ireland, 1707–1830”, in J Hoppit (ed), Parliaments, Nations and Identities in Britain and Ireland, 1660–1850 (2003) 15 (henceforth Hoppitt, Parliaments, Nations and Identities). 114 Tenures Abolition Act 1746, 20 Geo II, c 50; Heritable Jurisdictions (Scotland) Act 1747, 20 Geo II, c 43. These came as part of a more general programme: see B Lenman, The Jacobite Risings in Britain 1689–1746 (1980) 278–279; Cairns, “Historical Introduction” (n 8) at 147– 148; Cairns, “Natural Law, National Laws” (n 110). B F Jewell, “The Legislation Relating to Scotland After the Forty-Five”, unpublished PhD thesis, North Carolina (1975) 147–208, has a detailed discussion of the development and enactment of this legislation, though the focus is somewhat narrowly on the politics. 115 N Phillipson, The Scottish Whigs and the Reform of the Court of Session 1785–1830, Stair Society vol 37 (1990) (henceforth Phillipson, The Scottish Whigs) 3–4 (the term “Scottish Acts” is Phillipson’s); see B Harris, “The Scots, the Westminster Parliament, and the British State in the Eighteenth Century”, in Hoppitt, Parliaments, Nations and Identities (n 113) 124. 116 G Wallace, System of the Principles of Scots Law (1760) (henceforth Wallace, System) vol i, xix. 117 See A J MacLean, “The 1707 Union: Scots law and the House of Lords” (1983) 4 JLH 50 [= Kiralfy and MacQueen, New Perspectives in Scottish Legal History (n 55) 50]; A J MacLean, “The House of Lords and appeals from the High Court of Justiciary, 1707–1887” (1985) 30 Juridical Review 192.

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decisions as precedents if it so chose. It was to take a century for reports of Scottish appeals to be published, and in the preface to the first set of reports of such decisions, the reporter noted that in “sundry instances . . . where the Judgments of the Court of Session have been reversed in Parliament, the original decisions still remain as precedents . . . in the Collections of decided Cases, in the Dictionary of Decisions, and in the works of Law Writers of authority”.118 This is a matter on which further study is needed; but one can also point out that some at least of the Scottish representative peers took seriously their duties in dealing with Scottish appeals, so that one need not suppose that all Scottish appeals were generally regarded from an English legal perspective. Thus, one case concerning a servitude was referred to the Dukes of Athol and Argyll; the latter wrote to the Lord Justice-Clerk, Charles Areskine, a member of the Court of Session bench, discussing the law and asking for advice.119 Argyll, it should be remembered, had studied law in the Netherlands in the early 1700s, and could be mocked for the extent of his learning in the Roman law;120 he ensured that his nephew, the Earl of Bute, was educated in law in the Netherlands at Groningen and Leiden because he thought this valuable training for any Scottish peer who might serve in the House of Lords, a view that was not unique to him.121 (4) The Faculty of Advocates Also crucial in ensuring continuity after the Union was the education of members of the Faculty of Advocates. From 1707 to around 1750, the majority of those admitted to the Faculty continued to study law in the Netherlands, although now usually (but not invariably) after having first studied it in Scotland.122 Thus, well into the eighteenth century, Scots lawyers 118 D Robertson, Cases on Appeal from Scotland Decided in the House of Peers (1807) xvi–xvii. 119 Duke of Argyll to Charles Areskine, Mar 20 (no year), National Library of Scotland (henceforth NLS), MS 5087, fos 196–197. 120 J W Cairns, “William Crosse, Regius Professor of Civil Law in the University of Glasgow, 1746–1749: a failure of enlightened patronage” (1993) 12 History of Universities 159 at 161. 121 Bute matriculated in Groningen in 1730 and in Leiden in 1732: Album studiosorum Academiae Groninganae (1915) col 178; Album studiosorum Academiae Lugduno-Batavae, MDLXXV– MDCCCLXXV (1875) col 940. See (Scroll), Andrew Fletcher, Lord Milton to James Stuart Mackenzie, Apr 1764, NLS, MS 16731, fo 139, on the possibilities in the Lords for a Scottish peer with a legal training. 122 Feenstra, Scottish–Dutch Legal Relations (n 14) at 36. On the development of the study of law in Scotland, see J W Cairns, “Importing our Lawyers from Holland”: Netherlands’ Influences on Scots Law and Lawyers in the Eighteenth Century”, in G G Simpson (ed), Scotland and the Low Countries, 1124–1994 (1996) 136 (henceforth Cairns, “Importing our Lawyers from Holland”).

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maintained their links with European legal scholarship.123 Further, in practice, advocates, until 1750, were solely admitted by examinations in Latin on Roman law consciously modelled on the examinations for a doctorate in law at a university.124 Such a legal training helped maintain the uniqueness of Scots law within the British context. D. THE ROLE OF THE IUS NATURALE AND THE IUS GENTIUM Thomas Craig had carefully placed Scots law within the context of the ius naturale and the ius gentium.125 Stair in particular had developed that line of analysis of Scots law, and it even influenced the thinking of Mackenzie.126 Around the time of the Union, there was an intense interest in natural law in Scotland; while this was in line with much of Europe, there was a special and urgent Scottish dimension.127 (1) The revolution of 1688–1689 When James VI had identified the fundamental laws of Scotland with the “Ius Regis”, he was referring to the indefeasible rights of succession to the throne.128 Parliament itself in 1681 had stated that to alter the hereditary succession would amount to “the utter Subversion of the Fundamental Laws” of the kingdom.129 Thus, the events of 1688 – the arrival of William and Mary in England and the flight of James VII and II – that led to the offer of the Scottish Crown jointly to William and Mary required some significant justification. The Convention of the Estates that met in Edinburgh 123 On the start to move away from the continental scholarship, see J W Cairns, “Legal Study in Utrecht in the Late 1740s: The Legal Education of Sir David Dalrymple, Lord Hailes”, in R van den Bergh (ed), Summa Eloquentia: Essays in Honour of Margaret Hewett (2002) 30 (henceforth Cairns, “Legal Study in Utrecht”) at 69–74 [= Editio Specialis Fundamina: A Journal of Legal History (2002)]. 124 J W Cairns, “Advocates’ hats, Roman law and admission to the Scots Bar, 1580–1812” 20, 2 JLH 24; J W Cairns, “The Formation of the Scottish Legal Mind in the Eighteenth Century: Themes of Humanism and Enlightenment in the Admission of Advocates”, in N MacCormick and P Birks (eds), The Legal Mind: Essays for Tony Honoré (1986) 253. 125 Cairns, “The Civil Law Tradition” (n 91) at 200–203; Cairns, “Ius Civile in Scotland” (n 15) at 150–158. 126 Stair, Inst (n 23) at 85–89 (1.1.16); Mackenzie, Discourse (n 23) fos 2–10. 127 See generally K Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment (1996) (henceforth Haakonssen, Natural Law and Moral Philosophy) 15–62; Wieacker, History of Private Law (n 61) 222–248. 128 James VI and I, Political Writings (n 3) 172. 129 Quoted in Jackson, Restoration Scotland (n 28) at 49.

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in 1689 resolved that James had “forefaulted” his right to be king;130 it went on in the Claim of Right to assert that James, by his illegal actions, which had subverted the constitution and the Protestant religion, had “forfaulted the right to the Croune” so that “the throne is become vacant”.131 It is difficult to conceive of this as anything other than, at the very least, reflecting some type of contractual view of the relationship of monarchy to subjects.132 Indeed, Stair regretted the Convention’s choice of the radical term “forefaulted”, as it suggested that “the Conventione had a superioritie of jurisdictione”. He would have preferred an approach that stated that because James “had violat his pairt of the mutuall engagments, they wer frie of ther part”.133 Stair’s opinion was a product of his understanding of the contractual nature of the polity derived from his study of modern natural law, in particular of the work of Grotius. He was not alone in justifying the Revolution by reference to the work of the Dutch theorist. Thus, Sir Francis Grant of Cullen justified the “Glorious Revolution” by explicit reference to Grotius’ views on a just war.134 Intellectual responses to the Revolution differed; there can be little doubt, however, that it led to the increased significance of the language of the ius naturale and ius gentium in the discussion of Scottish politics in this period.135 It is thus possible to understand why, in 1699, William Scott, a regent in philosophy in the University of Edinburgh, justified Scottish possession of the colony on Spanish territory at Darien by reference to Grotian natural law.136 If an understanding of political authority in 130 APS (n 28) vol ix, 34. 131 Ibid 39. 132 B P Lenman, “The Poverty of Political Theory in the Scottish Revolution of 1688–1690”, in L G Schwoerer (ed), The Revolution of 1688–1689: Changing Perspectives (1992) 244 at 255, suggests that “forefaulted” should not be regarded as radical as it might seem, since the term originates in feudal law. On the other hand, to most contemporary Scots the term seemed distinctly radical: see T Harris, “The people, the law, and the constitution in Scotland and England: a comparative approach to the Glorious Revolution” (1999) 38 Journal of British Studies 28 (henceforth Harris, “The people, the law”) at 47. 133 Harris, “The people, the law” (n 132) at 47. 134 Jackson, “Revolution Principles” (n 57) at 108–112, 114–115. 135 See Jackson, Restoration Scotland (n 28) at 191–215. The most obvious competing approach was that of the neo-Machiavellian civic tradition associated with Andrew Fletcher of Saltoun. See, e.g., A Fletcher, Political Works, ed J Robertson (1997); J Robertson, “The Scottish Enlightenment at the Limits of the Civic Tradition”, in I Hont and M Ignatieff (eds), Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment (1983) 137 (henceforth Hont and Ignatieff, Wealth and Virtue); J Robertson, The Scottish Enlightenment and the Militia Issue (1985). 136 C P Finlayson, “Edinburgh University and the Darien Scheme” (1955) 34 Scottish Historical Review 97 (henceforth Finlayson, “Edinburgh University and the Darien Scheme”); D

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Scotland could no longer be rooted in the indefeasible hereditary right of the monarch, then natural law and the law of nations offered a way of discussing the various approaches to the location of sovereignty and giving a legitimate foundation to the state. (2) Natural law and education Scots interest in the ius naturale and ius gentium had been developed and sustained in the later seventeenth century by the education of the advocates. It was common for those studying Civil Law in the Netherlands also to take a private class on natural law.137 Further, in the same period, Scottish libraries started to collect the main texts on the secular natural law of the seventeenth century, particularly those of Grotius and Samuel Pufendorf, and the accumulating commentaries on them.138 The second half of the seventeenth century had seen the prevailing Aristotelianism of the natural philosophy curriculum of the Scottish universities, especially those of Edinburgh, St Andrews, and both of Aberdeen, supplemented – eventually to be supplanted – by Newtonian physics; at the same time there was increased emphasis placed on the teaching of mathematics.139 The same rejection of scholastic Aristotelianism led, in the teaching of ethics and moral philosophy, to an interest in the natural law theories of the seventeenth century, as developed by Grotius, Thomas Hobbes, Richard Cumberland, Pufendorf, and John Locke. The emblematic figure here is generally taken to be Gershom Carmichael (1672–1729), Regent at the University of Glasgow, and its first Professor of Moral Philosophy.140

137

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Armitage, “The Scottish Vision of Empire: Intellectual Origins of the Darien Venture”, in Robertson, Union for Empire (n 106) 97. Cairns, “Importing our Lawyers from Holland” (n 122) at 137–139; K van Strien and M Ahsmann, “Scottish law students at Leiden at the end of the seventeenth century: the correspondence of John Clerk, 1694–1697” (1992) 19 Lias: Sources and Documents Relating to the Early Modern History of Ideas 271 at 291–292, 294, 297. See C Shepherd, “The Inter-Relationship between the Library and Teaching in the Seventeenth and Eighteenth Centuries”, in J R Guild and A Law (eds), Edinburgh University Library, 1580–1980: A Collection of Historical Essays (1982) 67 at 72–73; J W Cairns, “Scottish Law, Scottish Lawyers and the Status of the Union”, in Robertson, Union for Empire (n 106) 243 (henceforth, Cairns, “Scottish Law, Scottish Lawyers and the Status of the Union”) at 258. C M Shepherd, “Newtonianism in Scottish Universities in the Seventeenth Century”, in R H Campbell and A Skinner (eds), The Origins and Nature of the Scottish Enlightenment (1982) 65. See J Moore and M Silverthorne, “Gershom Carmichael and the Natural Jurisprudence Tradition in Eighteenth-Century Scotland”, in Hont and Ignatieff, Wealth and Virtue (n 135) 73 (henceforth Moore and Silverthorne, “Gershom Carmichael and the Natural Jurisprudence

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(3) Carmichael, Pufendorf, and Grotius Carmichael adopted Pufendorf’s De Officio Hominis et Civis Juxta Legem Naturalem Libri Duo, first published in 1673, as his textbook for the moral philosophy component of his teaching.141 He went on to publish editions with his own supplements and annotations.142 Pufendorf’s short work offered Carmichael a work on ethics founded in natural law divorced from any Aristotelian or Thomist idea of nature; yet, it also posed problems for the Scottish professor. In particular, Pufendorf made natural law independent of theology and propounded an essentially social and even to some extent historical theory of natural law.143 This was indeed the subject of the famous criticism of Pufendorf by G W Leibniz, who saw the former’s views as  essentially Hobbesian and voluntarist.144 Carmichael’s correction of Pufendorf was to link natural law with natural theology, so that its duties and precepts derived from God, not simply from a limited

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Tradition in Eighteenth-Century Scotland”); J Moore and M Silverthorne, “Natural Sociability and Natural Rights in the Moral Philosophy of Gershom Carmichael”, in Vincent Hope (ed), Philosophers of the Scottish Enlightenment (1984) 1 (henceforth Moore and Silverthorne, “Natural Sociability and Natural Rights in the Moral Philosophy of Gershom Carmichael”); J Moore and M Silverthorne, “Protestant Theologies, Limited Sovereignties: Natural Law and Conditions of Union in the German Empire, The Netherlands and Great Britain”, in Union for Empire (n 106) 171 at 189–197. S Pufendorf, On the Duty of Man and Citizen According to Natural Law, ed J Tully and M Silverthorne (1991), is the text relied on here. For a powerful modern discussion of Pufendorf, see T J Hochstrasser, Natural Law Theories in the Early Enlightenment (2000) (henceforth Hochstrasser, Natural Law Theories) 40–110. G Carmichael, S[amuelis] Puffendorfii De Officio Hominis et Civis, Juxta Legem Naturalem, Libri Duo. Editio nova, Aucta Observationibus and Supplements, . . . Adjectis a Gerschomo Carmichael (1718); G Carmichael, S[amuelis] Puffendorfii De Officio Hominis et Civis, Juxta Legem Naturalem, Libri Duo. supplementis et observationibus in academiae juventutis auxit et illustravit Gerschomus Carmichael, Philosophiae in Academia Glasguensi Professor. Editio Secunda priore Auctior et Emendatior (1724). Carmichael’s annotations were included in the Leiden edition published as S Pufendorf, De Officio Hominis et Civis Secundum Legem Naturalem Libri Duo (1769). For an English translation of Carmichael’s notes, see G Carmichael, Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael, ed J Moore and M Silverthorne, (2002) (henceforth Carmichael, Natural Rights). Limited parts of Carmichael’s comments can also be found translated in G Carmichael, Gershom Carmichael on Samuel Pufendorf’s De Officio Hominis et Civis Juxta Legem Naturalem Libri Duo, ed J N Lenhart, trans C H Reeves, privately published (1985). All references here will be to the English-language edition by Moore and Silverthorne. Carmichael, Natural Rights (n 142) 17. See, e.g., Hochstrasser, Natural Law Theories (n 141) 79–81; Haakonssen, Natural Law and Moral Philosophy (n 127) 46–49. On Leibniz, see P Riley, Leibniz’ Universal Jurisprudence: Justice as the Charity of the Wise (1996); P Riley, “Leibniz on justice as ‘the charity of the wise’” (2000) 8 Jahrbuch für Recht und Ethik 143. For an overview of Leibniz’s theory of natural law, see G Brown, “Leibniz’s Moral Philosophy”, in N Jolley (ed), The Cambridge Companion to Leibniz (1995) 411 at 413–423 (henceforth Companion to Leibniz).

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human socialitas.145 This has various significant consequences that we need not explore here. It is worth noting, however, that, following Locke, Carmichael developed a much more positive view of the state of nature than the German author, and adopted Locke’s labour theory of property.146 Moore and Silverthorne have claimed that “it was above all Carmichael who was responsible for establishing the natural jurisprudence tradition in the Scottish universities”.147 The significance of Carmichael should not be underestimated; but he was not alone. Indeed, it is difficult to accept that it was solely or largely due to his practice that natural jurisprudence became a staple of moral philosophy and ethics in Scotland.148 Thus the intense interest of the lawyers in the ius naturale and ius gentium has already been noted, as has the importance of their political implications in Scotland. Scott, the Edinburgh Regent who had justified the Darien scheme by reference to Grotius, had evidently been giving lectures on Grotius for some years, before he published, in 1707, for the use of Edinburgh students, a compend of Grotius’ treatise De Iure Belli ac Pacis.149 None of the Edinburgh Professors of Moral Philosophy in the first half of the eighteenth century 145 Carmichael, Natural Rights (n 142) 17, 21–29, 46–53. See the discussion in K Haakonssen, “Natural Law and Moral Realism: The Scottish Synthesis”, in M A Stewart (ed), Studies in the Philosophy of the Scottish Enlightenment (1990) (henceforth Stewart, Philosophy of the Scottish Enlightenment) 61 at 68–72; Moore and Silverthorne, Gershom Carmichael and the Natural Jurisprudence Tradition in Eighteenth-Century Scotland (n 140) at 77–78. 146 Moore and Silverthorne, “Gershom Carmichael and the Natural Jurisprudence Tradition in Eighteenth-Century Scotland” (n 140) at 80–83; Moore and Silverthorne, “Natural Sociability and Natural Rights in the Moral Philosophy of Gershom Carmichael” (n 140) at 8–10; P Stein, “From Pufendorf to Adam Smith: The Natural Law Tradition in Scotland”, in P Stein, The Character and Influence of the Roman Civil Law: Historical Essays (1988) (henceforth Stein, Character and Influence) 381 at 382–86. Stein (ibid at 386), succinctly summarises what he saw as Carmichael’s legacy: “the link between ethics and natural theology, the identification of benevolence as the prime virtue, the restriction of justice to duties whose performance can be compelled, the emphasis on rights rather than duties, the sharp distinction between perfect rights, enforceable, and imperfect rights, not enforceable, . . . the basing of property rights on labour rather than consent . . . ”. 147 Moore and Silverthorne, “Gershom Carmichael and the Natural Jurisprudence Tradition in Eighteenth-Century Scotland” (n 140) at 74. 148 The point is important. Carmichael is usually seen as a transitional figure in a historiography of the Scottish Enlightenment that can be traced back to the writings of Dugald Stewart at the beginning of the nineteenth century and which has been largely unquestioned. See the important essay: P Wood, “Introduction: Dugald Stewart and the Invention of ‘the Scottish Enlightenment’”, in P Wood (ed), The Scottish Enlightenment: Essays in Reinterpretation (2000) (henceforth Wood, Scottish Enlightenment) 1. For the general context, see R L Emerson, “Science and Moral Philosophy in the Scottish Enlightenment”, in Stewart, Philosophy of the Scottish Enlightenment (n 145) 11. 149 Hugonis Grotii de jure belli ac pacis librorum III. compendium, annotationibus & commentariis selectis illustratum. in usum studiosae juventutis academiae Edinensis (1707); see Finlayson, “Edinburgh University and the Darien Scheme” (n 136) at 99–100.

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has attained the reputation of Carmichael; yet their teaching was also influenced by natural law.150 Further in this line, in 1707, the chair of Public Law and the Law of Nature and Nations was established in the University of Edinburgh, the first chair of law to be created in Scotland in the modern period;151 its first holder offered classes in 1711 on the topic.152 (4) Natural law and Scots law Just as the natural law tradition was varied and complex in the first half of the eighteenth century, so it is fair to assume that Scottish reactions and contributions to it were likewise. Here it is important to note that Grotius, Cumberland, and Pufendorf were largely understood as mediated through the popular editions of Jean Barbeyrac.153 Other than for major figures, it is accordingly difficult to disentangle the various threads and interlocking influences that made up the tradition in the Scottish legal works so as to reach a clear classification of different approaches taken by individuals in Scotland. This is because typical themes in the literature of natural law occur in all works creating impressions of resemblance, even if the premises on which conclusions are founded may be very different, while the language of natural law affected all discussions of morals.154 It is easy to point to the complexity of the Scots lawyers’ reaction to modern natural law. Thus, there was a continuing tradition of expounding Grotius from the chair of Public Law and the Law of Nature and Nations in the University of Edinburgh. George Abercromby, appointed in 1735, had

150 See R B Sher, “Professors of Virtue: The Social History of the Edinburgh Moral Philosophy Chair in the Eighteenth Century”, in Stewart, Philosophy of the Scottish Enlightenment (n 145) 87 (henceforth Sher, “Professors of Virtue”). 151 A Grant, The Story of the University of Edinburgh During its First Three Hundred Years (1884) (henceforth Grant, The Story of the University of Edinburgh) 231–233; J W Cairns, “The origins of the Edinburgh Law School: The Union of 1707 and the Regius Chair” (2007) 11 EdinLR 300. 152 See J W Cairns, “The First Edinburgh Chair in Law: Grotius and the Scottish Enlightenment”, in R van den Bergh (ed), Ex iusta causa traditum: Essays in Honour of Eric H Pool (2005) 32 (henceforth Cairns, “The First Edinburgh Chair in Law”) at 37–39 [= Editio Specialis Fundamina: A Journal of Legal History (2005)]. 153 These were popular in Scotland as elsewhere. One can find them advertised in the Scottish press: Cairns, “Scottish Law, Scottish Lawyers and the Status of the Union” (n 138) at 258–259; see also Haakonssen, Natural Law and Moral Philosophy (n 127) 58–59. On Barbeyrac, see T Hochstrasser, “Conscience and reason: the natural law theory of Jean Barbeyrac” (1993) 26 Historical Journal 289. 154 A point well made in P C Westermann, “Hume and the Natural Lawyers: A Change of Landscape”, in M A Stewart and J P Wright (eds), Hume and Hume’s Connexions (1994) 83 (henceforth Westermann, “Hume and the Natural Lawyers”) at 84–85.

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used Grotius, De iure belli ac pacis, as his textbook.155 His successor, Robert Bruce of Kennet, advocate, who held the chair from 1759–1764, did likewise.156 In 1760, he published a compend of Grotius’ work for the use of his class.157 In contrast, John Erskine, Professor of Scots Law, expressed, in his Principles of the Law of Scotland, written for and based on his classes, the typical tripartite division of duties under natural law into three found in Pufendorf’s textbook De officio.158 Without developing a full analysis of Erskine’s method, it is evident that he certainly approached natural law from within the school of Pufendorf, and, in his major work, An Institute of the Law of Scotland, published posthumously, one can thus see he avowedly drew on J G Heineccius, the pupil of Christian Thomasius, an important and prolific writer in the tradition of Pufendorf.159 Erskine nonetheless cited Grotius for the definition of the law of nature and Cumberland (with whom he disagreed) on sanctions, while mentioning Pufendorf’s terminology, which he did not adopt, for the secondary law of nature.160 The influence of Heineccius in Scotland has not been much studied, but the significance of his work cannot be doubted. Thus, in the 1730s, John Stevenson, Professor of Logic in the University of Edinburgh, used Heineccius’ textbook on philosophy, first published in 1728, as well as Locke’s works, in his class. An edition of Heineccius’ textbook was published in Edinburgh in 1756.161 As Haakonssen speculates, it is probable 155 “A short account of the University of Edinburgh, the present professors in it, and the several parts of learning taught by them” (1741) 3 Scots Magazine 371; see Cairns, “The First Edinburgh Chair in Law” (n 152) at 41–43. 156 See Caledonian Mercury (8 October 1759): “Lectures upon Grotius de jure belli ac pacis”. 157 Hugonis Grotii de jure belli ac pacis librorum III. compendium. in usum studiosae juventutis academiae Edinensis (1760). Preliminary study suggests that this is a revised and expanded version of Scott’s Compendium (n 149) of 1707; but more work needs to be done. There is no indication in the volume that it was published for Bruce’s class, but the date is compelling: see Cairns, “The First Edinburgh Chair in Law” (n 152) at 43–46. 158 J Erskine, The Principles of the Law of Scotland: In the Order of Sir George Mackenzie’s Institutions of That Law (1754) vol i, 1–2 (I.i.2). 159 J Erskine, An Institute of the Law of Scotland. In Four Books. In the Order of Sir George Mackenzie’s Institutions of That Law (1773) (henceforth, Erskine, Institute) vol i, 2 (I.i.5). (It is also interesting to note the citation to Hobbes.) There has been little sustained modern discussion of Heineccius. On his legal theory, see E Reibstein, “J G Heineccius als Kritiker des grotianischen Systems” (1964) 24 Zeitschrift für auslandisches öffentlches Recht und Völkerrecht 236. 160 Erskine, Institute (n 159) 3 (I.i.6–7), 4 (I.i.12). 161 See The Autobiography of Dr Alexander Carlyle of Inveresk 1722–1805, ed J H Burton (1910) 47–48; J G Heineccius, Elementa philosophiae rationalis et moralis (1728); J G Heineccius, Elementa philosophiae rationalis, ex principiis admodum evidentibus justo ordine adornata. praemissa est historia philosophica (1756), on which see W McDougall, “A Catalogue of Hamilton, Balfour and Neill Publications”, in R Myers and M Harris (eds), Spreading the Word: The Distribution Networks of Print, 1550–1850 (1998) 187 at 213. Further on the

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that he also taught using Heineccius’ history of philosophy (also included in the Edinburgh edition).162 Heineccius set out his natural law theory in Elementa iuris naturae et gentium, commoda auditoribus methodo adornata, first published in Halle in 1737. In this he developed the “axiomatic method” that he also applied to his popular textbooks of Roman law.163 The Scot George Turnbull, sometime Regent at Marischall College and University of Aberdeen, translated Heineccius’ Elementa iuris naturae et gentium in 1741, adding his own comments and supplements.164 Heineccius’ axiomatic method influenced George Wallace, advocate, in working out the methodology for his (incomplete) System of the Principles of the Law of Scotland of 1760.165 He also drew on Heineccius to help explain the obligation to obey the law of nature.166 It is worth noting that the writers on law whom Wallace specifically praised for their learning and ability were Grotius, Samuel and Heinrich von Cocceji, Heineccius, and Baron Montesquieu.167 Like many other authors, Wallace was also very influenced by Francis Bacon, while considering it necessary to argue against David Hume’s epistemology in order to give a proper foundation to his account of the laws of nature.168 Finally, one can note that Heineccius’ axiomatic textbooks on Roman law, from the middle years of the eighteenth century, were the standard works used to teach the subject in Scotland.169 Indeed, there were to be two Scottish editions of Heineccius’

162

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editions of Heineccius’ works, see R Feenstra, “Heineccius in den alten Niederlanden: Ein bibliographischer Beitrag” (2004) 72 Tijdschrift voor Rechtsgeschiedenis 297 (henceforth Feenstra, “Heineccius in den alten Niederlanden”). The history was appended to the 1733 edition of the Elementa philosophiae: J G Heineccius, Elementa philosophiae rationalis et moralis, ex principiis admodum evidentibus justo ordine adornata. Accessere historia philosophica et index locupletissimus, editio nova et emendatior (1733); Haakonssen, Natural Law and Moral Philosophy (n 127) 89 n 68. On his axiomatic method, see J Schröder, Recht als Wissenschaft: Geschichte der juristischen Methode vom Humanismus bis zur historischen Schule (1500–1850) (2001) 183 (henceforth Schröder, Recht als Wissenschaft). The textbooks were J G Heineccius, Elementa iuris civilis secundum ordinem institutionum, commoda auditoribus methodo adornata (1725);  J  G  Heineccius, Elementa iuris civilis secundum ordinem pandectarum, commoda auditoribus methodo adornata (1728). See Feenstra, “Heineccius in den alten Niederlanden” (n 161) at 306–309. J G Heineccius, A Methodical System of Universal Law: Or, the Laws of Nature and Nations Deduced from Certain Principles and Applied to Proper Cases, ed and trans G Turnbull (1741; 2nd edn 1763) (all references here will be to the 1763 text) (henceforth Heineccius, A Methodical System of Universal Law). Wallace, System (n 116) vol i, xx. Ibid 13 n* (I.iii.20). Ibid 46 (I.viii.67). On the Cocceji, father and son, see Haakonssen, Natural Law and Moral Philosophy (n 127) 135–45. Montesquieu is discussed further below. Wallace, System (n 116) vol i, xx, 1 (I.i.1–2), 7–9 (I.ii.l1). For teaching at Glasgow, see J W Cairns, “Famous as a School for Law, as Edinburgh . . . for Medicine”: Legal Education in Glasgow, 1761–1801”, in A Hook and R B Sher (eds),

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textbook based on Justinian’s Institutes.170 Generations of Scots lawyers were thus familiar with Heineccius’ axiomatic approach. George Turnbull commented in his translation of Heineccius’ Elementa iuris naturae et gentium. [O]ne well versed in the knowledge of natural law, can never be at a loss to find out what ought to be the general positive law in certain cases, and how positive law ought to be interpreted in cases, which, tho’ not expressly excepted in a law, which must be general, yet are in the nature of things excepted.171

This reflects the actual practical use made of the ius naturale and ius gentium by Scots lawyers in their pleadings. This is readily demonstrated by examination of the Session Papers and other records. From the inception of the Court of Session it had been common for complex arguments to be reduced to writing.172 In particular, this had been recognised for “Informations” presenting arguments to the Inner House in matters reported to the Lords from the Outer House.173 By 1677, written Informations had “become ordinary”, in the words of the Court.174 The increasing practice of reducing matters to writing (and from 1710 to print) led to the development of a civil process that was essentially written, although oral debates at the bar continued to play a significant part.175 Large collections of Session Papers eventually accumulated.176 Study of

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The Glasgow Enlightenment (1995) 133 (henceforth Cairns, “Legal Education in Glasgow”) at 140–142 ; J W Cairns, “From ‘speculative’ to ‘practical’ legal education: the decline of the Glasgow Law School, 1801–1830” (1994) 62 Tijdschrift voor Rechtsgeschiedenis 331 at 343–345. For teaching at Edinburgh, see H Arnot, History of Edinburgh (1779) 398–399 (henceforth Arnot, History of Edinburgh); Grant, The Story of the University of Edinburgh (n 151) 365; J W Cairns, “The face that did not fit: race, appearance, and exclusion from the Bar in eighteenth-century Scotland” (2003) 9 Fundamina: A Journal of Legal History 11 at 17, 20 (henceforth Cairns, “The face that did not fit”). J G Heineccius, Elementa juris civilis secundum ordinem institutionum, commoda auditoribus methodo adornata (1780); J G Heineccius, Elementa juris civilis secundum ordinem institutionum, commoda auditoribus methodo adornata: nunc ab emblematibus liberata, integritati suae restituta, notis passim adspersis emendata, correcta, suppleta, a Christ Gottlob Bienero, J U D Antecessore Lipsiensi, ed N Little (1822). Heineccius, A Methodical System of Universal Law (n 164) at 323. See, e.g., Cairns, “Ius Civile in Scotland” (n 15) at 142. Act of Sederunt, 13 July 1596, in Acts of Sederunt (n 20) 26–27; Act of Sederunt, 6 November 1677, in Acts of Sederunt (n 20) 135–136. Act of Sederunt, 6 November 1677, in Acts of Sederunt (n 20) 135. For a brief discussion of the procedure of the Session, see Cairns, “The Dearest Birthright of the People of England” (n 21) at 4–5. For a discussion, see A Stewart, “The Session Papers in the Advocates Library”, in MacQueen, Miscellany Four (n 15) 199 (henceforth Stewart, “The Session Papers in the Advocates Library”); D R Parratt, “The Development and Use of Written Pleadings in Scots Civil Procedure”, unpublished PhD thesis, Edinburgh (2004) 18–152.

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these, though in its infancy, indicates the extent to which advocates routinely relied on divine law, natural law, and Roman law as well as Scots municipal law, in presenting their arguments to the Lords.177 It is also worth noting that the examples of drafting of written argument in a treatise on Scottish criminal procedure considered how they should be drafted with reference to the law of nature and the divine law as well as the ius gentium and Scots law.178 This provides a context for Turnbull’s remark on the advantages of study of the natural law as an aid to study of modern law: And it would not certainly be an improper way of studying our laws, first to get well acquainted with the laws of nature (large commentaries upon which are generally at the same time commentaries upon the Roman laws, the examples being commonly taken from thence), and then to go over the same laws of nature again in order, and to enquire into our laws under each head, and try them by the laws of nature, as the Roman laws are commonly canvassed by the maxims of natural equity, in treatises upon universal law.179

Given such opinions, it is unsurprising that in 1760 the Advocates advised all those intending to seek admission to their Faculty to study the law of nature and nations, “the fountain of Justice and equity”, announcing they were “satisfied with the merit and abilities of the Professor of that College”.180 The Professor to whom the resolution referred was Robert Bruce, who was a successful teacher who attracted a large class.181 In 1762, the Advocates again recommended that candidates for admission should study the “law of Nature and nations” as a part of “Learning . . . immediately connected with the Roman Law and Law of Scotland”. The Faculty’s examinators were to test the applicants on it “in so far as it is connected with the Civil Law or with the Law of this Country”.182

177 For examples, see J W Cairns, “Stoicism, slavery, and law: Grotian jurisprudence and its reception” (2001/2002) 22–23 Grotiana 197 at 222–231; J A Inglis, “Eighteenth century pleading” (1907–1908) 19 Juridical Review (o s) 42 (henceforth Inglis, “Eighteenth century pleading”) at 53. 178 Louthian, Form of Process Before the Court of Justiciary in Scotland (1732) 139–184 (henceforth Louthian, Form of Process). 179 Heineccius, A Methodical System of Universal Law (n 164) vol ii, 230–31. 180 The Minute Book of the Faculty of Advocates: Volume 3, 1751–1783, ed A Stewart, Stair Society (1999) (henceforth Minute Book) 94 (8 January 1760). 181 Bruce had forty students in his final year: Matriculation Roll of the University of Edinburgh: Arts-Law-Divinity vol i, 262 (Alexander Morgan transcriber, Edinburgh University Library (type- script (1933–1934)). 182 Minute Book (n 180) 119 (24 November 1762).

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E. MORALS AND LAW (1) Moral judgement and natural law By 1760, when the advocates introduced their regulation, a number of Scots had already made a significant contribution to the traditions that had arisen from seventeenth-century natural law. Haakonssen has argued that the “mainstream of Scottish moral philosophy in the eighteenth century” constituted “a basically cognitivist and realist tradition”.183 By this he meant that members of this tradition considered, first, that “moral judgements have truth value; that there are facts about which some moral judgements are true; and that these facts are the presence of certain qualities in persons, which cannot be reduced to subjective states of the person who judges”. Secondly, these philosophers shared the view that “man is naturally supplied with a special moral sense which simultaneously approves or disapproves of, and occasions, the apprehension of moral qualities”.184 Haakonssen claimed that this tradition encompassed Frances Hutcheson, George Turnbull, Lord Kames, Adam Ferguson, Thomas Reid and the Common Sense philosophers, and Dugald Stewart, and that its members “subscribed to a view of morals which did not set the sorts of limits to the scope of politics which we find at the heart of Hume’s and Smith’s thinking”.185 It is also evident that this approach influenced the accounts of natural law given by legal authors such as Erskine and Wallace.186 While it is unnecessary here to discuss the differing views of these philosophers in any detail, it is appropriate to consider aspects of their thinking. From the perspective of this study what is most important is how these theorists approached the issue of moral judgement.187 Influenced by the thinking of John Locke and the third Earl of Shaftesbury, and by the seventeenth-century “revolution” in the natural sciences, they sought an empirical foundation for morals, and developed varying ideas of a moral sense.188 Thus, Hutcheson, Professor of Moral Philosophy in Glasgow, 1728–1746, grounded ethics in observation and study of the thinking and 183 184 185 186 187

Haakonssen, Natural Law and Moral Philosophy (n 127) 64. Ibid 65–66. Ibid 64. See Erskine, Institute (n 159) 1–9 (I.i.1–29); Wallace, System (n 116), vol i, 1–60. The following draws on J W Cairns, “Legal Theory”, in A Broadie (ed), The Cambridge Companion to the Scottish Enlightenment (2003) (henceforth Broadie, Scottish Enlightenment Companion) 222. 188 See, e.g., D D Raphael, The Moral Sense (1947); Luigi Turco, “Moral Sense and the Foundation of Morals”, in Broadie, Scottish Enlightenment Companion (n 187) 136.

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behaviour of human beings. He argued that humanity by virtue of a moral sense was able to judge whether or not an action was right or wrong. Moral judgement was thus not founded in the reason (he argued strongly against ethical rationalists such as Samuel Clarke and William Wollaston), but in the senses, as morally beautiful actions gave pleasure.189 Hutcheson used his theory of the moral sense to provide a foundation to a system of natural law based on that of Pufendorf that, he hoped, avoided the criticisms made of the latter’s work by Leibniz.190 Turnbull developed a comparable approach in his writings and translation of Heineccius.191 The judge and prolific author, Henry Home, Lord Kames, followed Hutcheson’s rejection of ethical rationalism and accepted the idea of a moral sense as the explanation of how moral judgement was possible. Recognising the potentially utilitarian consequences of aspects of Hutcheson’s views, he developed them by arguing that there were two aspects to the moral sense: a sense of duty and a sense of propriety or fitness. He argued that while many moral actions were right and fitting to be carried out, they could not be compelled; on the other hand, just actions could be compelled as justice was derived from the sense of duty. On this basis he developed a theory of the laws of nature.192 189 On the interpretations of Hutcheson’s moral sense theory, see W K Frankena, “Hutcheson’s moral sense theory” (1955) 16 Journal on the History of Ideas 356; D F Norton, “Hutcheson’s moral sense theory reconsidered” (1974) 13 Dialogue: Canadian Philosophical Review 3; K P Winkler, “Hutcheson’s alleged realism” (1985) 23 Journal on the History of Philosophy 179; D F Norton, “Hutcheson’s moral realism” (1985) 23 Journal on the History of Philosophy 397. There is strong disagreement over the view (espoused by Norton and Haakonssen) that Hutcheson’s moral sense theory is cognitive. J D Bishop, “Moral motivation and the development of Francis Hutcheson’s philosophy” (1996) 57 Journal on the History of Ideas 277 at 284–285, is of the view that Hutcheson’s account of moral sense is ultimately inconsistent. The authoritative account of Hutcheson’s life remains W R Scott, Francis Hutcheson: His Life, Teaching and Position in the History of Philosophy (1900). 190 Haakonssen, Natural Law and Moral Philosophy (n 127) 65–85. Others have seen inconsistency here in Hutcheson: see, e.g., J Moore, “The Two Systems of Francis Hutcheson: On the Origins of the Scottish Enlightenment”, in Stewart, Philosophy of the Scottish Enlightenment (n 145) 37; J Moore, “Hutcheson’s theodicy: the argument and the contexts of a system of moral philosophy”, in Wood, Scottish Enlightenment (n 148) 239. See generally V M Hope, Virtue by Consensus: The Moral Philosophy of Hutcheson, Hume, and Adam Smith (1989) (henceforth Hope, Virtue by Consensus) 23–49. 191 Haakonssen, Natural Law and Moral Philosophy (n 127) 85–99; K A B Mackinnon, “George Turnbull’s Common Sense Jurisprudence”, in J J Carter and J H Pittock (eds), Aberdeen and the Enlightenment: Proceedings of a Conference held at the University of Aberdeen (1987) 104; D F Norton, “George Turnbull and the furniture of the mind” (1975) 36 Journal on the History of Ideas 701. 192 Kames first set out his moral theory in H Home, Lord Kames, Essays on the Principles of Morality and Natural Religion (1751). He further developed it in H Home, Lord Kames, Principles of Equity, 2nd edn (1767), and H Home, Lord Kames, Sketches of the History of Man (1774). See generally I R Ross, Lord Kames and the Scotland of His Day (1972) 222–246.

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The most radical proponent of a version of moral-sense theory was David Hume, who, in his Treatise of Human Nature (1739–1740), mounted a devastating attack not only on, inter alia, ethical rationalism (as had Hutcheson), but also on traditional natural law. If he owed much to Hutcheson, Hume nonetheless contended that the virtue of justice did not originate in the moral sense; instead, it was an “artificial” virtue, by which he meant that it originated solely in social convention.193 He thus argued that rules for the allocation of the scarce resources necessary for life developed out of customary practices on the basis of expediency and necessity.194 In the later Enquiry Concerning the Principles of Morals (1751), Hume stressed emphatically that the sole origin of justice was utility.195 His critics were many. Here we may single out Thomas Reid, first Regent in the King’s College and University of Aberdeen and then Professor of Moral Philosophy in Glasgow.196 Reid viewed Hume as a dangerously brilliant sceptic. Developing his own empiricist views, Reid argued that Hume’s emphasis on moral sense as founded in “feeling” was mistaken; rather, humankind possessed a mind with various innate powers. In particular, humanity had the cognitive capacity to form moral judgements, as one aspect of the first principles of human knowledge and intellectual powers of the mind that constituted what Reid designated Common Sense.197 On this basis, Reid went on to develop a natural jurisprudence based around the idea of a natural law commanded by God and grasped through human reason.198

193 D Hume, A Treatise of Human Nature, ed D F Norton and M J Norton (2000) (henceforth Hume, A Treatise of Human Nature) 307–366 (III.ii.1–12). The two-volume edition in the Clarendon Edition of the Works of David Hume is still awaited. 194 From a huge literature, see, e.g., K Haakonssen, The Science of a Legislator: The Natural Jurisprudence of David Hume and Adam Smith (1981) (henceforth Haakonssen, The Science of a Legislator) 4–44; Westermann, “Hume and the Natural Lawyers” (n 154); Hope, Virtue by Consensus (n 190) 50–82. 195 D Hume, An Enquiry Concerning the Principles of Morals: A Critical Edition, ed T L Beauchamp (1998) (henceforth Hume, An Enquiry) 13–27 (Section III) [= Clarendon Edition of the Works of David Hume, vol 4]. 196 On Reid’s life, see K Haakonssen, “Introduction”, in K Haakonssen (ed), Thomas Reid, Practical Ethics (1990) (henceforth Haakonssen, Thomas Reid, Practical Ethics) 1 at 6–37; see also The Correspondence of Thomas Reid, ed Paul Wood (2002). 197 Haakonssen, Natural Law and Moral Philosophy (n 127) 182–201; K Lehrer, “Beyond Impressions and Ideas: Hume vs Reid”, in P Jones (ed), The Science of Man in the Scottish Enlightenment: Hume, Reid and their Contemporaries (1989) 108. 198 Haakonssen, Thomas Reid, Practical Ethics (n 196) at 58–63; Haakonssen, Natural Law and Moral Philosophy (n 127) 201–205.

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(2) Conjectural history and legal development The language and concepts of natural law may have been commonplace in the first half of the eighteenth century, but certain aspects of such theories had undergone a major revolution by the date of the Advocates’ Resolution in 1760. Pufendorf’s theory of the contracts that brought to an end the state of nature and created civil society (a contract between the heads of families in the state of nature to create a civil society and then a contract between the sovereign and the governed) had already attracted criticism from his editors G G Titius and Barbeyrac, both of whom saw civil society as a progressive, incremental development into which humankind entered for varying reasons.199 Barbeyrac, here influenced by Gershom Carmichael, later retracted this criticism of Pufendorf, acknowledging that the idea of a social contract could act as a justification, which still permitted historical investigation of the origins of civil societies.200 One particularly dramatic intervention in this debate came from David Hume, who provided a powerful critique of the theory of a state of nature ended by a social contract.201 This debate provides the background to the discussion in, for example, Wallace’s System of 1760, in which the author argued that mankind had always lived in a social state. Yet, he thought, human beings could not have lived long together without the need of government, as ideas of properly would have existed from the first. He did not consider, however, that there would have been an original contract “at the first institution of government between the governors and governed”; rather, “the reins would be rashly put into the hands of the magistrate.” This meant that the “power . . . of the first magistrates must have been arbitrary; and the political constitution of the most antient states . . . fixed either by chance or by force”. To control the arbitrary actions of such magistrates, “general abstract rules, by which every case might be decided” would soon be established. Such rules “which are the laws, could be no other than expressions of their original notions of right and wrong”. As life became more complicated, more laws would be created and “legislation would grow without end, because it would at last be discovered to be necessary, that the law should extend to every contingency in human life”.202 Laws of nature could be immediately apprehended by the 199 See the discussion by K Haakonssen, “Commentary”, in Haakonssen, Thomas Reid, Practical Ethics (n 196) at 301, 410–412. 200 Ibid; Carmichael, Natural Rights (n 142) 124–127, 146–156. 201 Hume, A Treatise of Human Nature (n 193) 317–318 (III.ii.2.15–17), 345–348 (III.ii.2.1–5); Hume, An Enquiry (n 195) at 17 (III.15). 202 Wallace, System (n 116) vol i, xv–xvi.

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exercise of reason either by instant intuition or by deduction.203 They ought to provide the basis on which civil law was to be founded.204 Thus, while Wallace accepted the existence of a natural law, the state of nature was for him an almost essentially historical epoch in a conjectural history. Wallace presented a picture of law as always developing as new needs arose with the progress of humankind. In other words, he set out legal development as a part of a general, conjectural history of humanity. This, of course, reflected contemporary development in historiography in Scotland.205 Thus, in his general approach to law, Wallace drew on the work of Montesquieu, whose L’esprit des lois of 1748 had aroused considerable interest in Scotland.206 Montesquieu had eschewed organising his treatise around the universal principles of natural law; instead, he emphasised how varying forms of government and varying physical, social, and historical circumstances led to differing laws with diverse “spirits”.207 This approach evidently influenced Wallace’s thinking about law, even if he disagreed with some of the details in Montesquieu’s magnum opus.208 Wallace did not explicitly refer to Montesquieu’s insight that there were links between the laws of a nation and whether it lived by trade and navigation, or by cultivation of the soil, or by keeping flocks and herds, or by hunting.209 He did quote with approval, however, the French author’s opinion that “[l]aw in general is human reason insofar as it governs all the peoples of the earth; and the political and civil laws of each nation should be only the particular cases to which human reason is applied”, a sentence followed by an account of the inevitable particularity of laws related to government, climate, and economy.210 By the date of Wallace’s publication of his

203 Ibid 11–13 (I.iii.19–22). 204 Ibid 2 (I.i.5). 205 The literature is extensive and varied. See, e.g., W Zachs, Without Regard to Good Manners: A Biography of Gilbert Stuart, 1743–1786 (1992); D Allan, Virtue, Learning and the Scottish Enlightenment: Ideas of Scholarship in Early Modern History (1993); C Kidd, Subverting Scotland’s Past: Scottish Whig Historians and the Creation of an Anglo-British Identity, 1689–c 1830 (1993); S J Brown (ed), William Robertson and the Expansion of Empire (1997); K O’Brien, Narratives Of Enlightenment: Cosmopolitan History from Voltaire to Gibbon (1997) 56–166; J G A Pocock, Barbarism and Religion. Volume Two. Narratives of Civil Government (1999) 163–365. There is a useful outline of some of the issues at stake in Alexander Broadie, The Scottish Enlightenment: The Historical Age of the Historical Nation (2001). 206 For his biography, see R Shackelton, Montesquieu: A Critical Biography (1961). 207 Charles de Secondat de Montesquieu, The Spirit of the Laws, ed and trans A M Cohler, B S Miller and H S Stone (1989) (henceforth Montesquieu, The Spirit of the Laws). 208 See Wallace, (n 116) vol i, xii, 1. 209 Montesquieu, The Spirit of the Laws (n 207) 289 (XVTIII.8). 210 Ibid 8 (1.3); Wallace, System (n 116) vol i, 2 (I.i.4).

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System, a number of authors in both France and Scotland had already developed out of Montesquieu’s work a theory that society developed through various stages of differing modes of subsistence.211 In this respect a crucial Scottish work was Lord Kames’ Historical Law-Tracts of 1758, which combined his version of moral-sense theory with a “four-stage” theory of development derived and adapted from Montesquieu.212 Kames’ views represent one line of thinking that had developed in Scotland from the varying approaches to the moral sense as the foundation of moral judgement; it is worth stressing, however, that not all authors found the “four-stage” theory a useful explanatory device, even if they found Montesquieu’s work persuasive and insightful.213 (3) Development of a science of legislation There was also an important ideological and modernising message about Scots law in Kames’ historical discussion, in which reform was seen as necessary to recreate Scots law as a law for a commercial nation.214 While prior to the Union, reformers had wished to reduce Scots law to a series of statutes, Kames in contrast emphasised the role of courts, rather than of legislatures, in developing the law. He argued that courts possessed an equitable jurisdiction, according to which judges, drawing on the moral sense, were able to develop the law as necessary according to the principles of justice and utility. The courts had to recognise that historical development could turn moral duties of beneficence into duties of justice and develop the law accordingly.215 Adam Smith had a rather different view of the foundation of moral judgement, but he ultimately presented an argument about the role of the courts in legal development comparable in many ways to that of Kames. In The Theory of Moral Sentiments (1758), Smith argued that human beings possessed the 211 See, e.g., R L Meek, Social Science and the Ignoble Savage (1976) 68–130; P Stein, “The Four Stage Theory of the Development of Societies”, in Stein, Character and Influence (n 146) 395 (henceforth Stein, “The Four Stage Theory”). 212 H Home, Lord Kames, Historical Law-Tracts (1758) (henceforth Kames, Historical LawTracts) vol i, 92–94. Stein, “The Four Stage Theory” (n 211) at 403–405, considers that Kames was the first to develop the “four-stage” theory; I am inclined to disagree, but the argument is too complex to set out here. 213 See, e.g., A Ferguson, An Essay in the History of Civil Society 10, ed D Forbes (1966) (1767). 214 See, e.g., D Lieberman, The Province of Legislation Determined: Legal Theory in EighteenthCentury Britain (1989) (henceforth Lieberman, The Province of Legislation Determined) 144–175. 215 See generally H Home, Lord Kames, Principles of Equity (1760); see Lieberman, The Province of Legislation Determined (n 214) 159–175.

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ability to judge the propriety and merit of the behaviour of others through the mechanisms of sympathy and the concept of the impartial spectator. This made moral judgement possible. On this foundation, he argued that justice neither relied on some special moral sense nor was derived from “reason”. Rather, justice arose from the confrontation of mankind with episodes that aroused in the observer a perception that another had been wronged and that the wronged person’s sense of resentment was appropriate and ought to have an outlet in a due measure of punishment of the individual who had committed the wrong.216 Smith accordingly argued that the rules of justice arose in this way from the moral sentiments.217 Smith accepted a version of the “fourstage” theory, and accordingly saw law as historically dynamic, recognising that what was just was going to depend on the particular circumstances of differing societies. Moreover, he observed that laws, once formed, could be tenacious as sets of rules, resulting in legal provisions lasting beyond their usefulness and the circumstances that had given rise to them.218 On this basis, Smith developed a science of legislation, but not in the sense that it was necessary to reduce all law to legislative form.219 While he recognised that there could be a need for legislation to deal with some eventualities, in general, he favoured incremental development of the law through the activities of the courts. The best law emerged when juries and judges formed moral judgements of new circumstances presented to them and decided what ought to be done in individual cases. He told his class on rhetoric and belles lettres in Glasgow in 1763 that, in England, the “sentences of former Cases are greatly regarded and form what is called the common law”. In an unconscious echo of Stair, he stated that this “is

216 A Smith, The Theory of Moral Sentiments, ed D D Raphael and A L Macfie (1976; repr 1982) [= The Glasgow Edition of the Works and Correspondence of Adam Smith, I] (henceforth Smith, The Theory of Moral Sentiments) 86–91 (II.ii.3.4–12), 340–342 (VII.iv.36–37). See generally Haakonssen, The Science of a Legislator (n 194) 45–82. For a recent critique of Smith’s theorising about the virtues (including justice), see R Shaver, “Virtues, Utility, and Rules”, in K Haakonssen (ed), The Cambridge Companion to Adam Smith (2006) (henceforth Companion to Smith) 189. 217 See J W Cairns, “Adam Smith and the Role of the Courts in Securing Justice and Liberty”, in R P Malloy and J Evensky (eds), Adam Smith and the Philosophy of Law and Economics (1994) 31 (henceforth Cairns, “Adam Smith and the Role of the Courts”) at 36–40; Haakonssen, The Science of a Legislator (n 194) 83–98. 218 Haakonssen, The Science of a Legislator (n 194) 135–153, 178–189. See Cairns, “Adam Smith and the Role of the Courts (n 217) at 55; see also D Lieberman, “Adam Smith on Justice, Rights, and Law”, in Companion to Smith (n 216) 214. 219 See J W Cairns, “Ethics and the science of legislation: legislators, philosophers and courts in eighteenth-century Scotland” (2000) 8 Jahrbuch für Recht und Ethik 159 (henceforth Cairns, “Ethics and the science of legislation”) at 171–175.

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found to be much more equitable than that which is founded on Statute only”, because “what is founded on practise and experience must be better adapted to particular cases than that which is derived from theory only”.220 Thus, the best way for rules of justice, of “natural jurisprudence”, as Smith put it, to be transformed into laws was not by legislation, but instead by the operation of precedent, with courts deciding such questions as and when they arose.221 F. LEGAL EDUCATION AND LAW REFORM (1) Lord Kames and legal education One consequence of such an approach to law reform was a renewed focus on the need for adequately educated lawyers: “philosopher” lawyers who could understand natural jurisprudence and work towards its inscription as law through the system of precedent. This explains the Advocates’ concern in the 1760s that those who aspired to join the Faculty should be educated in natural law. Emphasising the need for suitable legal education, Kames argued that “[L]aw in particular becomes then only a rational study, when it is traced historically, from its first rudiments among savages, through successive changes, to its highest improvements in a civilized society”.222 Approached this way, Kames thought that legal education would train the student to understand how law developed historically and understand the links between law and social change.223 Kames concluded: Were law taught as a rational science, its principles unfolded, and its connection with manners and politics, it would prove an enticing study to every person who has an appetite for knowledge. We might hope to see our lawyers soaring above their predecessors; and giving splendor to their country, by purifying and improving its laws.224 220 A Smith, Lectures on Rhetoric and Belles Lettres, ed J C Bryce (1983; repr 1985) [= The Glasgow Edition of the Works and Correspondence of Adam Smith, IV] 175 (ii.200). The location of Smith’s copy of James Dalrymple, Viscount Stair, The Institutions of the Law of Scotland: Deduced from Its Originals, and Collated with the Civil, Canon and Feudal Laws, and with the Customs of Neighbouring Nations, 3rd edn (1759), is currently unknown: Adam Smith’s Library: A Catalogue, ed H Mizuta (2000) 79 (no 469). 221 Smith, The Theory of Moral Sentiments (n 216) 218 (VI.ii.intro.2). For the argument, see Cairns, “Ethics and the science of legislation” (n 219) at 167–175; Cairns, “Adam Smith and the Role of the Courts” (n 217) at 40–45. 222 Kames, Historical Law-Tracts (n 212) vol i, [v]. 223 H Home, Lord Kames, Elucidations Respecting the Common and Statute Law of Scotland (1777) (henceforth Kames, Elucidations) [vii]–xiii. 224 Ibid xiii.

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(2) John Millar of Glasgow The most important law teacher in Scotland in the second half of the eighteenth century, who educated many future leaders of the legal profession, was John Millar, from 1761–1801 Regius Professor of Civil Law in Glasgow.225 A protégé of Kames and a former pupil of Smith, Millar centred his teaching around the theories of natural jurisprudence that he had acquired from Smith, and, indeed, it would be a fair judgement to consider him the intellectual heir of his master’s science of legislation.226 By the time of Millar’s immediate predecessor in the chair, Hercules Lindesay, the duty of the office had come to be understood as that of offering two classes: one on the Institutes of Justinian, the other on his Digest. These were considered “the proper business of the Professorship”.227 Millar taught these two courses using as his textbooks the relevant works of Heineccius.228 Millar, however, expanded the scope of the curriculum in law at Glasgow, adding a class in Scots law, a class on government (initially described as on the public law of Scotland), and even a class on English law.229 It was traditional in the Scottish universities to teach the course on the Institutes twice each year, once in the winter session and again in the summer session.230 Millar quickly altered the nature of the second course 225 Cairns, “Legal Education in Glasgow” (n 169), gives a general assessment of Millar. There is a partial list of his pupils in William C Lehmann, John Millar of Glasgow, 1735–1801: His Life and Thought and his Contributions to Sociological Analysis (1960) 36–37. For further aspects of his teaching, see J W Cairns, “John Millar’s lectures on Scots criminal law” (1988) 8 Oxford J Legal Studs 364 (henceforth Cairns, “John Millar’s lectures”; J W Cairns, “Rhetoric, language, and Roman law: legal education and improvement in eighteenth-century Scotland” (1991) 9 Law & Hist Rev 31 at 39–49 (henceforth Cairns, “Rhetoric, language, and Roman law”; J W Cairns, “John Millar, Ivan Andreyevich Tret’yakov, and Semyon Efimovich Desnitsky: A Legal Education in Scotland, 1761–1767”, in T Artemieva, P Jones and Michael M (eds), Scotland and Russia in the Enlightenment. Proceedings of the International Conference 1–3 September 2000, Edinburgh (2001, St Petersburg Centre for History of Ideas) 20 [= The Philosophical Age: Almanac (2001) 15] (henceforth Cairns, “A Legal Education in Scotland, 1761–1767”). 226 See generally Haakonssen, Natural Law and Moral Philosophy (n 127) 154–181. 227 J W Cairns, “The Origins of the Glasgow Law School: The Professors of Civil Law, 1714–1761”, in P Birks (ed), The Life of the Law: Proceedings of the Tenth British Legal History Conference Oxford 1991 (1993) 151 (henceforth Cairns, “The Origins of the Glasgow Law School”) at 174–183, 185. The quotation is from J Craig, “Account of the Life and Writings of John Millar, Esq”, in J Millar, The Origin of the Distinction of Ranks: Or, An Inquiry into the Circumstances Which Give Rise to Influence and Authority, in the Different Members of Society, 4th edn (1806) i (henceforth Craig, “Account of the Life and Writings of John Millar, Esq”) at xix. 228 Cairns, “Legal Education in Glasgow” (n 169) at 140–142. 229 The chronology is set out in Cairns, “A Legal Education in Scotland 1976–1767”) (n 225) at 23–25; Cairns, “Legal Education in Glasgow” (n 169) at 136–139. 230 Cairns, “The Origins of the Glasgow Law School” (n 227) at 185; Arnot, History of Edinburgh (n 169) 398–399.

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on the Institutes, because, according to his first biographer, he considered “the employment of a whole winter in tracing . . . the exact line of Roman Law . . . a mere waste of time and study”. He decided accordingly to devote the second course to “Lectures on Jurisprudence”.231 In doing so, he adopted the analysis of law derived from Smith’s Lectures on Jurisprudence;232 indeed, his lectures rather resembled those of his teacher, granted his more focused attention on Roman law. He told his class that his aim in the second course on the Institutes (in contrast to that in the first) was to reason “on the principles whereon their decisions are founded”. Such principles were “to be the chief consideration and . . . we shall be led to compare the Roman law with that of other Nations”.233 He explained: It shall . . . be our cheif [sic] employment to enquire into the principles of the Roman Law, and to compare them with those of other countries. The aim of Students of Roman Law at this period, ought to be not merely to know what was the Roman System. That would be of little consequence of itself . . . It has however a regard paid it as the system of Lawiers and Judges of great experience, and of a country which subsisted for such a long tract of time, and where we may consequently expect to find the rules of Jurisprudence of the most perfect kind. As however in the most perfect of all human Systems, there are numberless imperfections and Blemishes, it will certainly be proper in those who study the Roman law at this period, to enquire into the justice or propriety of these regulations. This can only be done by comparing it with the Laws of other countries, and with ourown natural feelings of right and wrong. This is certainly a very usefull exercise, as it enlarges our experience.234

Millar accordingly started his class, after preliminary advice on reading, with a discussion of moral theory leading to an account of rights and the progress of law.235 He analysed law into classes of rights, which were asserted by actions. Rights concerned persons or things. The rights of persons arose from the relationships of husband and wife, parent and child, master and servant, guardian and ward. Rights of things were divided into real and personal: the former concerned property, servitude, pledge and exclusive privilege; personal rights arose from contract, delinquency or crime.236 It was described as a class “in which [Millar] treated of such general principles 231 Craig, “Account of the Life and Writings of John Millar, Esq” (n 227) at xx. 232 See Cairns, “Legal Education in Glasgow” (n 169) at 140; A Smith, Lectures on Jurisprudence, ed R L Meek, D D Raphael and P G Stein (1978; repr 1982) [= The Glasgow Edition of the Works and Correspondence of Adam Smith, V] 397–554. 233 NLS, Adv. MS 28.6.8, 1 (second sequence of pagination). 234 NLS, Adv. MS 20.4.7, fos lr–2r. 235 Idem fos 2r–23r. 236 NLS, MS 3930, 299–301 demonstrates this analytical breakdown.

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of Law as pervade the codes of all nations, and have their origin in those sentiments of justice which are imprinted on the human heart”.237 This is obviously Smith’s analytical jurisprudence.238 Millar thus developed in his second class on the Institutes a critical and analytical jurisprudence derived from Smith’s theories; he also applied it in his account of Scots law.239 Smith’s influence is further seen directly in the classes on government. Millar’s historical and comparative approach to different systems of government in different countries allowed a judgement “concerning the expediency of different institutions and enlarge[d] our views concerning the principles of Government”; this meant that “we ought to examine each particular system historically, tracing each regulation from the origins through all the subsequent changes”.240 The progress of government was explained utilising Smith’s stadial analysis.241 Millar’s classes thus gave his students a rich and detailed account of legislative science. In the class on Government, the students learned how the legislative power, national defence, and the securing of public tranquillity by the appointment of magistrates and the establishment of courts of justice created the framework within which private rights arose, were recognised, and could be enforced. In the second class on the Institutes, Millar set out an analytical and historical jurisprudence, focused on Roman law, while the classes on Civil Law and Scots law showed how rights were instantiated. There can be no surprise that, in 1777, Kames exempted Millar alone from his criticism of contemporary legal education, which he considered “trained [law students] to rely upon authority” and did not encourage them in “the exercise of reasoning”.242 Millar’s biographer noted that the course on Government instructed the “young Lawyer . . . in the spirit and real intention of the Laws”, revealing “to the future statesman . . . views of human society, of the nature and ends of Government, and of the influence of Public Institutions on the prosperity, morals, and happiness of states”;243 that on jurisprudence directed “the enlightened Legislator . . . in the noble, but arduous, attempt, to purify and improve the laws of his country”. The historical aspect of Millar’s legal theory prevented “inconsiderate innovation,

237 238 239 240 241 242 243

Craig, “Account of the Life and Writings of John Millar, Esq” (n 227) at xx. Haakonssen, The Science of a Legislator (n 194) 99–134. See Cairns, “John Millar’s lectures” (n 225) at 374–380. Glasgow University Library (henceforth GUL], MS Hamilton 116, 1–2. GUL, MS Gen 289, 31–33. Kames, Elucidations (n 223) [vii]–ix. Craig, “Account of the Life and Writings of John Millar, Esq” (n 227) at lvii.

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and indiscriminate reform”, since it demonstrated that “no institutions, however just in themselves, can be either expedient or permanent, if inconsistent with established ranks, manners, and opinions”.244 (3) Allan Maconochie and John Wright of Edinburgh Millar was not alone in this approach. We have noted that Bruce, as Professor of Public Law and the Law of Nature and Nations in Edinburgh, taught from a compend of Grotius; his choice of book suggests that he would have given a relatively traditional account of natural law.245 His immediate successor, James Balfour, allegedly failed to secure a class and was recorded by Arnot in 1779 as not teaching.246 The University had advertised Balfour’s classes for sessions 1777–1778 and 1778–1779;247 but there is no evidence that he either taught in those years or, indeed, was anticipated to be likely to teach. In fact, it is quite possible that the aim of the advertisements was to put pressure on him to resign; he was certainly replaced in 1779, when Allan Maconochie succeeded to the chair.248 Descriptions of Maconochie’s class survive: He traces the rise of political institutions from the natural characters and situation of the human species; follows their progress through the rude periods of society; and treats of their history and merits, as exhibited in the principal nations of ancient and modern times, which he examines separately, classing them according to those general causes to which he attributes the principal varieties in the forms, genius, and revolutions of governments. In this manner he endeavours to construct the science of the spirit of laws on a connected view of what might be called the natural history of man as a political agent; and he accordingly concludes his course with treating of the general principles of municipal law, political œconomy, and the law of nations.249

Together with some surviving fragments of his lectures, such accounts of Maconchie’s class indicate that he was instructing his class in the science 244 Idem at xl–xli. 245 Cairns, “The First Edinburgh Chair in Law” (n 152) at 43–46. 246 Arnot, History of Edinburgh (n 169) 398. On Balfour, see, e.g., Cairns, “The First Edinburgh Chair in Law” (n 152) at 46–47; Sher, “Professors of Virtue” (n 150) at 109–115. 247 Edinburgh Evening Courant (4 October 1777 and 5 September 1778); Edinburgh Advertiser (12 September 1777 and 4 September 1778). 248 See Cairns, “The First Edinburgh Chair in Law” (n 152) at 47. 249 H Arnot, The History of Edinburgh, 2nd edn (1788) 398. See also the description in [Henry Brougham], “Memoir of Allan Lord Meadowbank” (1845) 2 Law Review and Quarterly Journal of British and Foreign Jurisprudence 72 at 75–77 [repr as [Henry Brougham], Memoir of the Late Allan Maconochie of Meadowbank, One of the Senators of the College of Justice (privately printed 1845) 10–12].

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of legislation in a manner similar to that of Millar, with a focus on historical natural jurisprudence in the manner of Adam Smith, whose work had influenced him.250 Another teacher in Edinburgh who also, at least some of the time, flirted with such an approach in classes on Roman law was John Wright, who taught privately.251 Thus, in 1785, he stated that his classes would be “rendered as practical as possible, by comparing the rules of the Civil Law both with the maxims of Universal Jurisprudence, and with the principles of our own Law”.252 Like Millar, Wright did not expound the Digest of Justinian in its original order, but described himself as teaching it “in the order of the Institutions, and all the titles in the 50 books are, for that purpose, selected into a small printed Syllabus”.253 Perhaps mindful of Kames’ criticism of those who taught law as “naked facts” and did not give to the students “any exercise to the judgement”, Wright claimed that, in his teaching, “Explanations are not confined to mere facts, either of Law, or of Opinions; but extend to philosophical reasons, and to historical deduction.”254 (4) Education and legislative science From the third quarter of the eighteenth century, a vision of the science of legislation derived from the thinking of Adam Smith and Lord Kames was becoming entrenched in legal education. Law was seen as historically progressive, linked to differing types of societies, and as capable of reform through the work of lawyers in litigation. Legal education was geared to making lawyers sensitive to the needs and methods of legal development. G. CODIFICATION AND LEGISLATION It is possible to understand these developments in Scotland as the elaboration of varying versions of a historical natural jurisprudence. On continental Europe too, an empirical and “historical” natural law had developed out of the writing of Pufendorf, particularly through the work of Thomasius, who 250 Cairns, “The First Edinburgh Chair in Law” (n 152) at 48–51. Maconochie’s son is the first known owner of the second (dated 1766) of the two surviving sets of student manuscripts of Smith’s Lectures on Jurisprudence. See Adam Smith, Lectures on Justice, Police, Revenue and Arms Delivered in the University of Glasgow by Adam Smith, Reported by a Student in 1763, ed E Cannan (1896) xv–xvii. 251 For an assessment of Wright, see Cairns, “The face that did not fit” (n 169) at 12–28. 252 Edinburgh Advertiser (11 November 1785). 253 Edinburgh Evening Courant (8 November 1794). 254 Kames, Elucidations (n 223) viii–ix; Edinburgh Evening Courant (8 November 1794).

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made a sharp distinction between law and morality. Law was willed; but it ought to be made to conform to contemporary human needs. Natural law – morality – was merely advice to the legislator.255 (1) Christian Wolff and codification Christian Wolff, however, returned to a systematic, rationalist approach, rejecting Thomasius’ sharp distinction between law and morality and historical approach to natural law. Wolff accepted an essentially scholastic position that there was an intrinsic and objective morality stemming from human reason that was accessible to the individual human conscience. (Others were to link his views with those of Leibniz.) Human beings, according to the light of their reason, could choose whether or not to pursue the goal of perfection. Good actions were those that assisted an individual towards perfection; bad actions were those that led towards imperfection. It was possible through the exercise of human reason to know practical ethics, that is, what was natural law. Natural law was thus not dependent on the will of a legislator. The human capacity for reasoned deduction allowed natural law to be known. Logical deduction from a higher principle ensured the validity of individual laws.256 Wolff has been identified as particularly important in creating, through his geometric method, law as a closed system, in which judicial decisions become the “logical application of abstract principles and general concepts”. Whereas the method of the ius commune had been “to analyse an authoritative text and to draw a conclusion from it”, following Wolff’s approach, “the ultimate basis for decision was a synthetic legal concept which could be traced back to ultimate higher principles in a manner consonant with the system”.257 If natural law was deducible by reason, positive law was the product of will. For Wolff, subjects had conceded to the prince the power to legislate through exercise of will. The prince had the duty to seek the perfection 255 See, e.g., Wieacker, History of Private Law (n 61) 251–253; Hochstrasser, Natural Law Theories (n 141) 112–149. It is possible to identify utilitarianism in Thomasius’ work: Joachim Hruschka, “The greatest happiness principle and other early German anticipations of utilitarian theory” (1991) 3 Utilitas 165. 256 Wieacker, History of Private Law (n 61) 253–555; Hochstrasser, Natural Law Theories (n 141) 150–186. For an assessment of the relationship between the thought of Wolff and that of Leibniz, see C Wilson, “The Reception of Leibniz in the Eighteenth Century”, in Companion to Leibniz (n 144) 442 at 444–453. 257 Wieacker, History of Private Law (n 61) 255; see also Schröder, Recht als Wissenschaft (n 163) 170–175, 180–182.

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and happiness of his subjects through legislating natural law into positive law. This meant that Wolff (and similar philosophers) provided ideological support for the legislative schemes and projects for codification of the Enlightened, absolutist monarchs of Europe.258 As Klippel has pointed out, the “blueprint” that natural law provided for enlightened absolutism was the pursuit of “happiness”; this greatly extended the concerns of the state, which had to ensure the happiness of the citizens, thereby requiring to legislate very comprehensively for all aspects of social life.259 Together with a Wolffian approach to law, such an attitude promoted codification of private law, as well as extensive legislation on all fields of life, private and public. It is worth stressing that in the German lands such reforms were not always successfully managed or carried out, and that it is always necessary to remember the variation between the polities that made up the Empire.260 Nonetheless, this suggests an approach somewhat at variance with that which had developed in contemporary Scotland. It becomes important therefore, in the light of the above discussion, to return briefly to the issue of how Scots viewed legislation, since they were certainly aware of these developments in continental thought, so that, for example, an English translation of the Prussian Projekt des Corporis Juris Fridericiani was published in Edinburgh in 1762, while Turnbull had translated Heineccius, whose works, in any case, were well known.261 (2) Precedent and individual rights While Adam Smith and others were as concerned with legislative science in a broad sense as were the advisors to reforming rulers in the Empire, they did not see it as a necessary function of government to achieve such desired aims through comprehensive legislation. This was true, they thought, not only for matters of justice, but also for issues of “police”, those aspects of public regulation based on expediency.262 Sometimes it was indeed necessary to legislate, but it had to be done carefully: “Laws frequently continue in force 258 Wieacker, History of Private Law (n 61) 254; Hochstrasser, Natural Law Theories (n 141) 167. 259 See D Klippel, “Legal Reforms: Changing the Law in Germany in the Ancien Regime and in the Vormärz” (1999) 100 Proceedings of the British Academy 43. 260 Ibid at 44–55; Wieacker, History of Private Law (n 61) 257–275. Klippel provides a useful corrective to the idea of the “natural law codes” found in, inter alia, Wieacker’s work. 261 The Frederician Code; or, A Body of Law for the Dominions of the King of Prussia. Founded on Reason, and the Constitutions of the Country (1761) (this was based on a French edition); Heineccius, A Methodical System of Universal Law (n 164). 262 See, e.g., D Winch, “Science and the Legislator: Adam Smith and After” (1983) 93 Economic Journal 501 (henceforth Winch, “Science and the Legislator”).

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long after the circumstances, which first gave occasion to them, and which alone could render them reasonable are no more.”263 Moreover, even when it was necessary to legislate, such as, for example, to turn a duty of beneficence into one of law, it had to be carried out carefully, because, if neglected, the “commonwealth [would be exposed] to many gross disorders and shocking enormities”, but, “to push it too far is destructive of all liberty, security, and justice”.264 In contrast to the emphases in the ambitions for codification in the later eighteenth century in the German lands, the happiness of the community was not to be pursued at the expense of individual rights and liberties. Indeed, as Winch has put it, “[T]rue wisdom often consisted in respecting the superior knowledge that actors in the social drama have of their own affairs.”265 As Smith himself famously wrote in 1790, attacking the conceit of the “man of system:” Some general, and even systematical, idea of the perfection of policy and law, may no doubt be necessary for directing the views of the statesman. But to insist upon establishing, and upon establishing all at once, and in spite of all opposition, every thing which that idea may seem to require, must often be the highest degree of arrogance. It is to erect his own judgment into the supreme standard of right and wrong. It is to fancy himself the only wise and worthy man in the commonwealth, and that his fellow-citizens should accommodate themselves to him and not he to them. It is upon this account, that of all political speculators, sovereign princes are by far the most dangerous.266

(3) The attack on legislation For Scots law, as we have seen, this emphasised development primarily by precedent. Law was best built up progressively, case by case, as judges and juries reacted sympathetically to real situations and decided where justice lay. This avoided abstract speculation about what law was needed; rather, focusing on litigation demonstrated clearly what law was in fact needed and when. The choice between competing legal principles was made through decisions in litigation according to natural jurisprudence. As Robert Bell put it in 1794, if the law was formed through deciding cases it would possess “that flexibility, which enables it to follow the manners and customs of a nation through all the changes to which they are subject”. Legislation, on 263 A Smith, An Inquiry into the Nature and Causes of the Wealth of Nations vol i, 383 (III.ii.4), ed R H Campbell, A S Skinner and W B Todd (1976; repr 1979 and 1981) [= The Glasgow Edition of the Works and Correspondence of Adam Smith, II]. 264 Smith, The Theory of Moral Sentiments (n 216) 81 (II.ii.1.8). 265 Winch, “Science and the Legislator” (n 262) at 503. 266 Smith, The Theory of Moral Sentiments (n 216) 233–234 (VI.ii.2.17, 18).

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the other hand, meant that the law was “in a great measure stationary” and would eventually turn the “the statute-book” into “a contradictory, unwieldy, and oppressive mass”.267 Towards the end of the eighteenth century, therefore, Scots law was moving away from its earlier ideal of legislation as the best mode of law-making towards a system of precedent, and in a direction somewhat different from mainstream thought in much of continental Europe. To some extent this was due to the Union and the development of liberal tendencies in political thought: intellectually Scots looked more now to London than to Continental Europe; in contrast to the old Scottish Parliament, Westminster was a relatively reluctant legislator for Scots private law. In line with the way Scottish Enlightenment thought favoured piecemeal incremental reform, David Hume, nephew of the philosopher and a successful Professor of Scots Law in the University of Edinburgh from 1786 to 1822, counselled his students against “systematical views” of which “[m]en of genius” were “naturally fond”. He pointed to “the inconveniences and distresses which mankind would suffer if their affairs and intercourse were uniformly governed, according to the same invariable rule in all cases”. A student had to avoid the “hazard of . . . preferring too much those arguments which bear the appearance of deducing a conclusion logically from general principles”.268 A legislative, systematic approach to law reform in the manner of codification was to be avoided. In the 1790s, a commentator emphasised that it was the “decisions of the Court of Session” which had brought “our law to its present improved state”; it was the same source that could be expected to bring about “those farther improvements of which it is susceptible”. As the Scots moved away from the older ius commune, the development of historical natural jurisprudence had led them to the view that the “law of this country consists principally of the decisions of the Court of Session”. Moreover, this was to be considered “perhaps a fortunate circumstance . . . and one which may bring our jurisprudence to a state of excellency, by a natural and certain progress”.269 This was because courts did “not pronounce judgment until the whole facts necessary for judging the cause are fully known”. Moreover, courts could examine the question under consideration thoroughly and carefully and weigh up the consequences of a decision. When the same 267 Cases Decided in the Court of Session, From November 1790 to July 1792. Collected by Robert Bell, Clerk to the Signet (1794) (henceforth Cases . . . 1790–1792) vii–x. 268 D Hume, Baron David Hume’s Lectures 1786–1822, ed G C H Paton, Stair Society 1939– 1958) (henceforth David Hume’s Lectures 1786–1822) vol i, 4–5. 269 Cases . . . 1790–1792 (n 267) vi–vii.

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question was raised again “under circumstances nearly similar”, the former decision was reconsidered and this continued “until a general rule be formed, drawn from the united wisdom of our judges, and founded on the firm basis of experience”.270 Law was thus able to progress naturally and easily, in a manner “congenial to the nature of society”, accommodating itself to social change, so that “the alterations which become necessary, are produced by almost imperceptible degrees . . . without the appearance of innovation”.271 As the Scots moved away from the old ius commune, they thus moved not towards codification as an ideal, but instead towards a view that the best law emerged out of competing individuals seeking judicial resolution of their disputes. For this to work, however, the courts needed to be structured in such a way that maximised the possibilities of natural jurisprudence being turned into positive law in the sense of precedent. Moreover, as the acceptable sources of Scots law became limited to statutes and decisions, it was necessary to ensure that the reports of the latter be adequate to indicate any precedents. H. REFORMS, PROCEDURE, COURT, AND REPORTS As such views became current in Scotland, opinion grew in favour of major reform of the Court of Session in particular. Increasing the pressure for this was the perception that a growing backlog of cases was the product of both the structure of the Court and its form of process, as the volume of litigation doubled between 1760 and 1800.272 Reform of the Session was also thought to be the solution to the very high rate of appeal from the Court of Session to the House of Lords; in fact, by 1800, no less than four-fifths of all appeals to the Lords originated in the Court of Session, arguably causing the arrears of three years in judicial business that had built up before the House.273 (1) Romano-canonical procedure The Session had preserved the basic structure acquired in 1532 as the College of Justice, and still consisted of a President and fourteen Ordinary Lords. All fifteen sat together in the Inner House (nine being a quorum), 270 271 272 273

Ibid vii–viii. Ibid viii. Phillipson, The Scottish Whigs (n 115) 46–47. Ibid 85. For an example, see A C Loux, “The Great Rabbit Massacre – A ‘Comedy of the Commons?’ Custom, community and rights of public access to the Links of St Andrews” (2000) 22 Liverpool Law Review 123 at 137.

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deciding issues by a vote. The Court had continuously developed its version of Romano-Canonical procedure through Act of Sederunt, general practice, and reference to the writings on procedure of the ius commune.274 Each Lord Ordinary would sit in turn in the Outer House as Lord Ordinary of the Week, Lord Ordinary upon the Bills, as one of the two weekly Lords Ordinary on Oaths and on Witnesses, and Lord Ordinary on Concluded Causes. Though the offices were separate, the same individual might exercise them at the same time: for example, it was common for the Lord Ordinary of the Week also to serve as Lord Ordinary upon the Bills (in which capacity he dealt with requests to advocate cases to the Session from lower courts or to suspend the decrees of lower courts). The Lord Ordinary of the Week dealt with initial applications and dealt with “ordinary processes” enrolled before him on the basis of the pursuer’s libel and the defender’s defences. The litigants’ advocates would debate the cause before him viva voce, though it was also common for him to direct that their arguments be reduced to written Memorials if there were legal points of difficulty. Likewise, he might require that the pursuer produce written condescendences to clarify averments of fact and how they were to be proved. Should there be no need to take proof by oath or witness, it was possible for the Lord Ordinary to dispose of ordinary processes himself. It was always possible for litigants to ask the Lord Ordinary to review his own interlocutors or to take a reclaiming petition against his interlocutors to the Inner House. The Lord Ordinary could also report matters of difficulty to the Inner House for decision, in which case the litigants would prepare printed Informations setting out their arguments. The majority of causes were ultimately decided in the Outer House in this way. “Extraordinary processes” had to be determined by the Inner House.275 In truth, few ordinary processes of any significance failed to reach the Inner House, possibly more than once, by means of reports or reclaiming petitions. Each Lord Ordinary would also sit once a week at the side bar in the Outer House before the main sitting of the Court in order to deal with the further progress of causes originally brought before him as Lord Ordinary of the Week. Should there be a need to take proof either by oath or witness, this was passed to the relevant Lord Ordinary. This could only be done once 274 There is a convenient short account of procedure in Suggestions for Some Reformations in the Form of Process in the Court of Session (1787) (henceforth Suggestions for Some Reformations) 3–6. 275 Phillipson, The Scottish Whigs (n 115) 43–44; Cairns, “The Dearest Birthright of the People of England” (n 21) at 4.

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the Lord Ordinary of the Week had passed an Act of Litiscontestation authorising the taking of proof. In theory, this act could only be passed if the Lord Ordinary had ruled authoritatively on the legal issues in the case, having dealt with the claims of the pursuer and defences (exceptions) of the defender (perhaps after reclaiming petitions to the Inner House, or a report of matters of difficulty to the Inner House), so that the action could pass to proof of fact. The Lord Ordinary of the Week might decide, however, that the issues of fact and law were so inextricably linked that he passed an Act before Answer, that is, allowed the taking of proof before ruling on the pleas in law before him. In practice, the Lord Ordinary on Witnesses commonly granted a commission for someone else to question witnesses elsewhere on the basis of interrogatories. Parliament Hall, which served as the Outer House, was not ideal for questioning witnesses, who often, if in Edinburgh, were examined in convenient, nearby taverns.276 By the 1780s, the practice of examination of witnesses by the two Ordinaries on Oaths and Witnesses could be described as in disuse, because of the use of commissioners appointed by the Court.277 Once proof had been taken, if there had been an act of litiscontestation, the whole process was enrolled as a concluded cause. The office of Lord Ordinary on Concluded Causes had been created in 1693, with the duty of examining the proof, hearing the parties on the issues of probation, litiscontestation and testimony, and making a written report on the whole cause for the Inner House for advising.278 The Lord Ordinary prepared a document (printed by the later eighteenth century), setting out the pleadings of the parties and the evidence of the witnesses. This was usually called a Statement of the Cause. It was on this basis that the Inner House would decide the cause.279

276 Phillipson, The Scottish Whigs (n 115) 43–46; Stewart, “The Session Papers in the Advocates Library” (n 176) at 202; Cairns, “The Dearest Birthright of the People of England” (n 21) at 4–5. On the significance of litis contestatio, see R H Helmholz, “The Litis Contestatio: Its Survival in the Medieval Ius Commune and Beyond”, in Michael Hoeflich (ed), Lex et Romanitas: Essays for Alan Watson (2000) 73. Until 1686 evidence was taken by the judge in private and sealed only to be made available on advising of the cause by the whole court; after 1686, parties and their lawyers could be present when witnesses were examined and could have access to their depositions. Evidence Act, 1686, c 30, in APS (n 28) vol viii, 599. 277 Suggestions for Some Reformations (n 274) 5. 278 Act Anent Advising Concluded Causes, 1693, c 30, in APS (n 28) vol ix, 282–283. For a discussion, see Stair, Institutions (n 23) 1091 (appendix). 279 Phillipson, The Scottish Whigs (n 115) 43–44, 56; Cairns, “The Dearest Birthright of the People of England” (n 21) at 5. Matters were handled somewhat differently if there had been an act before answer: Stair, Institutions (n 23) 1091 (appendix).

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A complex cause would accumulate a large bundle of papers, and observers considered that litigation in the Court of Session had, by the mid-eighteenth century, despite the significance of oral debate, become a largely written process: “Ours is a court of papers. We are never seriously engaged but when we write,” wrote James Boswell in 1776.280 In 1789, one judge estimated that, in six months, 24,390 quarto pages had to be read for Inner House business.281 (2) Procedure and precedent Observers considered that the form of process used before the Court of Session was the main reason for the delay and the growing backlog of cases pending; with this we need not be concerned here.282 What we need to consider is the problems the form of process may have caused for the development of precedent. In particular, two observations are important. First, procedure was flexible and litigants were readily allowed to amend their pleadings, which meant that the nature of a case could be uncertain and the points of law at issue fluid as it progressed through the Court, so that what exactly was at issue could be unclear, leading to uncertainty as to the precedent established. Secondly, judges in the Inner House decided by a vote whether to find for the pursuer or defender. This meant that it was frequently doubtful as to why a case was decided one way or another: different judges – and it should be remembered that the quorum was nine – might have quite different reasons for deciding in favour of one or the other party. It therefore could be a problem to extract a clear precedent from a decision, other than by studying the final interlocutor in the light of the written pleadings; but these were not always clear themselves and very complex. As one advocate commented to the Court: In Cumulo one of your Lordships is moved by one Reason, and another by another, which Reasons, if they were examined or determined separately, would be repelled by the Plurality, which also is the Case why in most Sovereign Courts, especially in England, the Judges do resolve particular Points, which renders the Reason of the Decisions clear, and makes the Precedent of greater Use in other Cases.283

Another observer remarked: 280 J Boswell, Boswell’s Edinburgh Journals 1767–1786, ed H M Milne (2001) 238. 281 J Swinton, Considerations Concerning a Proposal for Dividing the Court of Session into Classes or Chambers; And for Limiting Litigation in Small causes; And for the revival of JuryTrial in Certain Civil Actions (1789) 23–24. 282 See Phillipson, The Scottish Whigs (n 115) at 46–61. 283 Quoted in Inglis, “Eighteenth century pleading” (n 177) at 52.

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The difference of opinion, which could not fail to arise from the different views of the case that suggested themselves to the minds of so many Judges, gave rise often to discussions, the result of which was not always to forward the cause. Few pleas could well be brought before the Court, without plausibility enough to secure the vote of one or more of the Judges . . . Among so many discordant decisions, too, the grounds of the judgment could not always be traced; and it was often difficult to decide, what actually had been held to be the law of the case.284

When the focus in arguing the law had been on statutes and well-known customs, as well as tracts of decisions, viewed against interpretation of the extensive sources of the ius commune, these had not been significant problems. As, however, the law became ever more focused on development through decided cases, the difficulties posed by inadequate reports with uncertain and conflicting reasoning behind decisions became ever more acute. Those who suggested reforms in the last quarter of the eighteenth century were mindful of this problem, though more concerned with other issues. Thus, in 1785, it was proposed to reduce the number of judges before the Session to ten. While fiscal issues were to the fore in this, one hope was also that improved discussion of the law among the judges would result.285 One of the proponents of the reform commented that “it has never been supposed that to determine a matter of law, there was any advantage in a multiplicity of Judges”.286 The failed reforms stimulated a debate over the problems of procedure, out of which emerged a relatively common view that it was necessary to separate more clearly issues of fact and law and perhaps introduce the civil jury.287 (3) Reforms, 1807–1825 In 1807, there was an abortive attempt to reform the Session, by splitting it into three chambers with concurrent jurisdictions, creating a permanent court of appeal, and making it possible for litigants in most instances to opt for jury trial. The aims behind these proposals were to some extent technical; but a Whiggish, ideological belief in the superiority of English

284 [James Ivory], Form of Process Before the Court of Session, the New Jury Court, and the Commission of Teinds (1815–1818) vol i, 17–18. 285 Phillipson, The Scottish Whigs (n 115) at 63. 286 I Campbell, An Explanation of the Bill Proposed in the House of Commons, Respecting Judges in Scotland (1785), quoted in Phillipson, The Scottish Whigs (n 115) at 75. 287 Phillipson, The Scottish Whigs (n 115) 77–84.

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trial by jury coloured the whole scheme.288 The next year, however, the Session was split into two Divisions, the First presided over by the Lord President, the Second by the Lord Justice-Clerk (the effective head of the (criminal) Justiciary Court, now given for the first time an official role in the Court of Session). The aim was that two courts of equal co-ordinate jurisdiction should dispose of work more quickly than one.289 The Act also authorised the appointment of a Commission to “enquire . . . particularly into the Forms of Process in the Court of Session.” It is obvious what the intentions were. The Commission was specifically instructed to consider the introduction of jury trial, the possibility of more pleading viva voce, the issue of taking evidence on commission, and the creation of permanent Lords Ordinary.290 A sense of the superiority of English procedure lay behind these. By 1813, Lords Ordinary were permanent in the Outer House, so that there now appeared to be a court of first instance and a court of second instance, rather than the older collegiate structure.291 In 1815, an act was finally passed in Parliament creating – for a trial period of seven years – a jury court, headed by a Lord Chief Commissioner with two Commissioners. The Jury Court dealt with issues that the Court of Session, by interlocutor, sent to it for determination by a jury.292 By 1819, the Jury Court had been judged to be successful. It was made permanent by an act of Parliament that now required Lords Ordinary to send for trial by jury certain classes of cases raised in the Outer House.293 In 1823 yet another Commission was established to consider procedure before the Session.294 This Commission was of the view that the permanent Outer House had been a success and that accordingly the number of permanent Lords Ordinary should be increased; any continuing problems could be dealt with by ensuring more efficient conduct of business. The resulting Act provided that, in ordinary actions, there would be a summons and defences 288 Much of the following account is derived from my discussion in Cairns, “The Dearest Birthright of the People of England” (n 21) at 3, 6–7. See also Phillipson, The Scottish Whigs (n 115) at 85–110; Cairns, “Historical Introduction” (n 8) at 151. 289 Court of Session Act 1808, 48 Geo III, c 151. 290 Ibid s 22; Phillipson, The Scottish Whigs (n 115) at 112–126. 291 Cairns, “Historical Introduction” (n 8) at 151–152. 292 Jury Trials (Scotland) Act 1815, 55 Geo III, c 42. The next two paragraphs are adapted from Cairns, “Historical Introduction” (n 8) at 151–152. 293 Jury Trials (Scotland) Act 1819, 59 Geo III, c 35; Cairns, “Historical Introduction” (n 8) at 152–153. 294 4 Geo IV, c 85 (1823); William M Gordon, “George Joseph Bell – Law Commissioner”, in  A  J  Gamble (ed), Obligations in Context: Essays in Honour of Professor D M Walker (1990) 79.

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that set out clearly what was at issue between the parties in matters of fact and law. Further, there would be no decision on the merits of the case until a record with its condescendences and pleas in law had been made up, adjusted, and closed. The Lord Ordinary could then decide the cause on its merits or report it to the Inner House. Procedures were to be expeditious, disciplined, and simple. Neither the Ordinaries nor the Inner House could be asked to reconsider their decisions. The list of causes that had to be sent to the Jury Court from the Court of Session was also very greatly expanded to cover the main areas of commercial law. There were now to be seven Lords Ordinary permanently in the Outer House, with the other judges split between the two divisions of the Inner House. In consequential acts of sederunt, the Lords recognised the significance of the changes and showed a determination not only to enforce strictly the new forms of process but also to ensure that pleading became primarily oral, rather than written.295 In 1830, in an act carrying out further major reform and rationalisation of the Scottish court structures, the Jury Court was abolished and its jurisdiction merged with that of the Court of Session.296 (4) Clarity of precedent The effect of these reforms, particularly the development of the system of the open and closed record, was to help clarify when there was a dispute over the applicable law in a case and to clarify what was at dispute in the law. As one commentator recognised in 1823, “in a great measure . . . the mode in which the pleadings are conducted” was the direct cause of “the difficulty of ascertaining precisely the grounds on which the decision is placed by the Court.”297 The new system of the closed record attempted to rectify this. Further, the ambition that pleading should become primarily oral forced advocates early to be more discriminating in the lines of argument on the law they would run before the judges, while allowing direct judicial probing of arguments as they were presented to the court.298 295 Court of Session Act 1825, 6 Geo IV, c 120; see C Hope, “Speech . . . on Moving the Court To Pass Acts of Sederunt for the Better Regulating of the Forms of Process in the Courts of Law in Scotland”, in The Acts of Sederunt of the Lords of Council and Session, from the 19th June 1821 to 8th July 1831 (1832) 97–103. 296 Court of Session Act 1830, 11 Geo IV and 1 Will IV, c 69, ss 1–16; see discussion in Phillipson, The Scottish Whigs (n 115) 158–164; Cairns, “Historical Introduction” (n 8) at 153–154. 297 [Robert Hannay], Letter to the Dean of the Faculty of Advocates, Relative to a Plan Which Has Been Proposed for Reporting the Decisions of the Court of Session (1823) 15. 298 It was not, however, until the Court of Session Act 1850, 13 and 14 Viet, c 36, s 14, that written argument in the old style was completely forbidden.

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While the new reforms had developed out of existing procedure, the changes resulted in a court in appearance and working radically different from what it had been. By the end of the third decade of the nineteenth century, the Court of Session had thus been restructured and its procedures reformed in such a way that, in deciding causes, it created clearer precedents. The need for this was recognised in the drafting of the act of 1825, which provided “that in order to preserve uniformity in the decisions of the court, and to settle doubtful questions of law which may arise”, if the judges in the Inner House were equally divided (each division consisted of four judges), the judges might direct that the cause be judged by both divisions sitting together, or by the whole court. Likewise, the judges of either division, “in such cases as it shall appear to them advisable to have any question occurring before them settled by the judgment of the whole court” could order that “such matter be heard before the whole judges”.299 The division of the court was not to be allowed to create conflicting precedents. As the living sources of Scots law became progressively limited to statutes and cases in the second half of the eighteenth century, so proper reporting of cases became ever more important. Reports tended to consist of an account of the facts and the law at issue culled from the written pleadings, together with the formal sentence of the court. Given how voluminous the pleadings could be and the variety of reasons on which judges may have decided, it was difficult to extract clear rulings on law from the decisions. This was compounded by the fact that the opinions of the judges were not systematically preserved. Indeed, when in a case of significance there would be between nine and fifteen opinions, ignoring them held some advantages for the reporter.300 With the division of the Session in 1808, the subsequent creation of a permanent Outer House, and the 1825 reforms that turned the Outer House into a first instance court and the Inner House primarily into one of second instance, the problem of the multiplicity of judicial opinions progressively disappeared. Further, the system of open 299 Court of Session Act 1825, 6 Geo IV, c 120, s 23. 300 See Cairns, “Historical Introduction” (n 8) at 172–175. They would sometimes be recorded in a case of significance, such as the “Douglas Cause” or the famous case on copyright. See A Summary of the Speeches, Arguments, and Determinations of the Right Honourable The Lords of Council and Session in Scotland, upon that Important Cause, Wherein His Grace the Duke of Hamilton and Others Were Plaintiffs, and Archibald Douglas of Douglas Esq.; Defendant. With an Introductory Preface, Giving an Impartial and Distinct Account of This Suit (1767); J Boswell, The Decision of the Court of Session, upon the Question of Literary Property; in the Cause John Hinton . . . Pursuer; Against Alexander Donaldson and John Wood, . . . and James Meurose . . . Defenders (1774). On the latter, see, e.g., R S Tompson, Scottish Judges and the Birth of British Copyright, 37 Juridical Review (1992) 18 at 27–31.

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and closed  record  also rendered individual legal points in question more obvious. (5) Law reports and common law By the end of the third quarter of the eighteenth century, commentators started to consider that “the reasoning upon the Bench” could be considered “the surest road to come at the true principles upon which each particular question was decided”.301 Robert Bell, who published reports for the years 1790–1792, was the first to make a systematic record of the opinions of the judges. He claimed that “it is what passes on the Bench; it is the opinion of the judges, which ought to be preserved in our reports” because “the principle of a decision” could not readily be gathered from the printed Session Papers.302 In 1808, the Faculty of Advocates itself expressed the view “[t]hat a report of the opinions of the Judges ought to accompany the decisions”, as otherwise, “the reports of decisions must always remain imperfect and unsatisfactory”.303 Thereafter judicial opinions were routinely reported, if not in a consistent fashion. The reporter sometimes preserved a direct account, but sometimes gave a precis. Indeed, it was not unknown for complex speeches to be omitted because of their very difficulty.304 The development of reporting accompanied and influenced the growth of a new approach to law that had developed out of the Scots Enlightenment. Lord Kames, for example, had not untypically considered that the importance of decisions lay in their congruence with reason.305 Scots lawyers, however, had gone beyond that view. In 1821, Robert Hannay stated that “[R]eports furnish not only the evidence of established rules, but materials for the invention of new.” By this he meant that “when cases occur which 301 Decisions of the Court of Session, From the Year 1738 to the Year 1752. Collected and Digested into the Form of a Dictionary. By Sir James Fergusson of Kilkerran, Baronet, One of the Senators of the College of Justice. Published by his Son (1775) iv. 302 Cases . . . 1790–1792 (n 267) v. See also the very interesting remarks on decisions in the advertisement to R Bell, Cases Decided in the Court of Session, Summer Session 1794, – Winter Session 1794–5, – and Summer Session 1795 (1796). 303 [R Hannay], Address to the Right Honourable Lord President Hope, and to the Members of the College of Justice, on the Method of Collecting and Reporting Decisions (1821) (henceforth, Hannay Address to the Right Honourable Lord President Hope), 6–7. 304 Ibid 7–8. 305 [H Home, Lord Kames], The Decisions of the Court of Session; From Its First Institution to the Present Time. Abridged, and Digested Under Proper Heads, In Form of a Dictionary. Collected from a Great Number of Manuscripts, Never Before Published, as well as from the Printed Decisions (1741) vol i, ii.

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neither Laws nor former Decisions comprehend”, Scots lawyers drew on “that artificial reason obtained by long study, observation, and experience, exercised upon analogies of existing laws, which are gathered from the comparison of statutes, rules, and cases, that is to say, by the comparison of facts, arguments, and decisions, with the grounds or reasons for them; such analogies becoming, through course of time and the sanction of decisions, a part of the Law itself ”. Hannay stressed the superiority of precedent as a source of law. Legislation, the alternative option, was dismissed as the product of “the common sense of unlettered men”, to which the “artificial reason” of the common law was compared to the latter’s benefit. Hannay must be referring to the famous defence of “the artificial reason” of English common law put forward by Coke against the exercise of “natural reason” (here described by Hannay as “common sense”).306 Hannay thus claimed that there was a reason immanent in the Scottish common law from which answers to new problems might be derived. While to some extent this begs to be compared to Wolff’s thinking, this meant that trained lawyers could extend the existing rules and develop them into new areas through analogical (rather than deductive) reasoning. It followed that, when, in fact, an unforeseen case came for decision, “the best Lawyers”, because of their “like trains of thought, like affections, like habits and wants”, would in general broadly agree on how it should be resolved.307 In sum, the decisions embodied in case reports become not exemplars of an authoritative rationality lying outside themselves, as Kames had once thought, but, rather, building blocks of law’s own rationality in a practical and historically developing tradition operated by educated lawyers. I. CONCLUSION: ANXIETIES OVER CODIFICATION (1) Transformations The mind-set of Scottish lawyers changed significantly over the course of the eighteenth century. In 1700, Scots law is best understood as representative of the usus modernus Pandectarum; there had developed in the seventeenth century, out of the older view of the ius proprium and the ius commune a Roman-Scots law, in which the ius civile was progressively integrated with 306 Hannay Address to the Right Honourable Lord President Hope (n 303) 28. On Coke, see G J Postema, Bentham and the Common Law Tradition (1986) 30–38, 61–63. 307 Hannay Address to the Right Honourable Lord President Hope (n 303) 27.

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Scottish material, all justified and rationalised by the ius naturale and the ius gentium. By 1800, however, the view that “the Civil Law was our Common Law” seemed quite outdated.308 Indeed, while well into the eighteenth century the term “common law” had meant the Romano-Canonical ius commune, now it was used, rather in the fashion of England, in opposition to statute law: the lex non scripta as distinct from the lex scripta.309 While statutes had once been seen as the main and most important source of Scots municipal law and its reform, now the focus of the lawyers, even if they recognised the primacy of statute in a hierarchy of sources, was on the dynamic development of law through decided cases. Statutes were considered to make the law stationary; they dealt with specific grievances, but led to rigidity. They limited future development. Judge-made law was superior, being responsive to social change and economic need.310 This view of the significance of case-law had developed of necessity, as the significance given to Roman law diminished and the Westminster Parliament neglected Scots law: lawyers were compelled to seek for development through the working of the Court of Session. Moreover, the path taken by natural jurisprudence in Scotland reinforced and validated this approach. One need not be of the opinion that, by the 1820s, all lawyers in Scotland had come to accept Hannay’s view of the artificial reason of Scots law, in which analogical reasoning led lawyers to solutions of all problems relying on their knowledge of Scots law as a closed system; yet the focus on the significance of case-law was universal. Reinforcing this were developments on Continental Europe. In the later eighteenth century, Roman law as a study was in retreat in much of Europe.311 In this respect, Scotland was no different; but at the same time, the practice of the elite of the Scottish legal profession studying Roman 308 R Bell, Memorial Presented to the Clerks to the Signet (1796) 5. 309 Hume (n 268) vol i, 11–14; see also Wallace, System (n 116) vol i, xvii. The terminology using “lex” is Hume’s. Detailing this change, anticipated by Stair, Inst (n 23) 87 (1.1.16), is not feasible here. For example, Louthian, Form of Process (n 178) 14, 111, 114, 118, 142, and 153, continues to use “common law” to refer to the Romano-Canonical ius commune, once in his text and then in his sample “Informations”. His second edition, J Louthian, The Form of Process Before the Court of Justiciary in Scotland. In Two Books (1752) 14, still uses it in the text in this sense, but no longer has sample “Informations”; on the other hand the second edition now shows awareness of the meaning of “common law” in England: ibid 17, 164, 211. P Turnbull‚ Analogia Legum: Or, A View of the Institutes of the Laws of England and Scotland, Set One against the Other; To Shew Wherein Those Two Laws Agree and Differ (1745) viii, stated that in Scotland (and Holland) the civil law “is the common Law by Adoption”. 310 Cases . . . 1790–1792 (n 267) vi–x. 311 J Q Whitman, The Legacy of Roman Law in the German Romantic Era (1990) (henceforth Whitman, The Legacy of Roman Law) 41–65.

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law abroad had come to an end.312 Meanwhile, Wolffian natural law and Enlightened despotism had placed codification very much on the agenda in northern Europe, to be achieved in some of the German lands. The success of Napoleon and of his armies had also led to codifications in many parts of Europe, even if of a rather different type from those of the last half of the eighteenth century.313 The same era in Scotland saw a focus on reform through the operation of the courts that resulted in an emphasis on improving legal education, so that lawyers were made fit for the role of promoting necessary legal development in line with a historically dynamic natural jurisprudence. This in turn led to a realisation of the need for reform of the courts and their procedures. The first thirty years of the nineteenth century accordingly saw a whirlwind of change in the Scottish courts and their procedures. By 1830, Romano-Canonical procedure had essentially disappeared. Jury trial had been introduced. (2) Reactions against reform So much legislative change caused reaction. The abortive proposals of 1807 for jury trial had already provoked much upset. Professor Hume commented that while the Treaty of Union meant Scotland had to accept “cautious and successive alterations of her ancient laws”, the proposals amounted “to as much as all the changes taken together, that have been made in the law of Scotland for the last two hundred years”. Rather than “an improvement of our law”, they were “a subversion of our law”.314 Walter Scott saw the same proposal as essentially introducing English law and as “calculated to . . . give to [England] . . . the insolent air of a conqueror, imposing his laws and customs on a colony”.315 Rebuking Francis Jeffrey for levity in discussion of reforms in the Court, Scott remarked: “No, no – ’tis no laughing matter, little by little, whatever your wishes may be you will destroy and undermine, until nothing of what makes Scotland Scotland shall remain.”316 As a Principal Clerk of Session, Scott was well able to judge the advantages and disadvan312 313 314 315

For some discussion of this, see Cairns, “Legal Study in Utrecht” (n 123) at 69–74. See, e.g., Wieacker, History of Private Law (n 61) 257–275. Quoted in Phillipson, The Scottish Whigs (n 115) 101. W Scott, “View of the changes proposed and adopted in the administration of justice in Scotland” (1810) 1 Edinburgh Annual Register for 1808 342, pt 2, at 358, reprinted in K Curry, Sir Walter Scott’s Edinburgh Annual Register (1977) 170 at 192. 316 J G Lockhart, Life of Sir Walter Scott, Bart (1902) vol ii, 284–285; H Cockburn, Memorials of His Time (1909) 207.

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tages of procedural reforms. At the time of the 1823 Commission, he commented on “the interference of these Englishmen”, who thought they were “only modelling our poor system after their own fashion”.317 Scott’s view, after the reforms of 1825 had come into operation, was that the new rules were too strict, so they were evaded by fictions; further, cases now ran too quickly through the Session and as a result went “by Scores” on appeal to the House of Lords. There they were currently dealt with swiftly in a satisfactory fashion, so that “[T]he consequence will in time be that the Scottish Supreme court will be in effect situated in London”. In apocalyptic mood, he mused that then “down fall – as national objects of veneration – the Scottish bench – the Scottish Bar – the Scottish Law herself – And – And – there is an end of an auld Sang”. This was “a catastrophe which the great course of events brings daily nearer”.318 Scott and Hume were famously conservative, but members of the Faculty generally found it difficult to adapt to the new style of procedure and to discard old practices.319 By 1827, the Faculty of Advocates could complain in a report: No Society of Advocates ever were tried more severely than the members of  this  Faculty have been, by the great and manifold changes in the practice of the profession which have taken place, for the benefit of the public during the  last twenty years. Those of them who were educated in an earlier period have been obliged to unlearn all their former habits, and, to train themselves to new and frequently varied systems: and the younger members of the profession have had no means of education at all, from any previous practice or rules of court.320

In 1830, even one of the supporters of the introduction of jury trial could write: “During the last twenty years one experiment after another has been made on the administration of justice here. Practitioners have no sooner learned the forms of court, than a new set of forms is introduced.” He thought that such a level of alteration might be tolerable at the end of a century, but that now the Scots had such changes inflicted on them every two

317 W Scott to Colin Mackenzie, 30 October 1823, in The Letters of Sir Walter Scott, 1823–1825, ed H J C Grierson (1935) [= Centenary Edition, 9] 113, 115. 318 Entry of 9 June 1826, in The Journal of Sir Walter Scott, ed W E K Anderson (1972; repr 1998) [= Canongate Classics 87] 179–180. 319 [Charles Hope], Notes by the Lord President, on the Subject of Hearing Counsel in the Inner House (1826) 6. 320 Report of a Committee of the Faculty of Advocates Approved and Adopted at a Meeting of Faculty Held February 10th, 1827 (1827) 28, quoted in Phillipson, The Scottish Whigs (n 115) 1.

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or three years.321 By 1830, Scots lawyers were weary of so much – arguably “Anglicising” – change. It was also clear by 1830 that, if the eighteenth century had been an era when the Westminster legislature had left Scots law largely alone, this was not at all likely to be the case in the nineteenth. Phillipson has commented that the final introduction of the jury trial into the Court of Session in 1830 “signalled the arrival of a new relationship between, government, parliament and Scotland”.322 These changes undoubtedly raised anxieties in Scotland, or at least among Scots lawyers, about the survival of Scots law. (3) Conflicts of law and the integrity of Scots law Over the same thirty-year period, the different jurisdictions in the same state had led, for the first time, to significant – and at the time notorious – conflicts between Scots and English law. These arose in the area of marriage, divorce and legitimacy. Both Scotland and England had continued the pre-Tridentine Canon law of marriage after the Reformation, with its focus on mutual consent and acceptance of the validity of clandestine marriages. In 1753, however, Lord Hardwicke’s Act had required the calling of banns, public marriage, and parental consent (if a party were under twenty-one years of age) for the validity of a marriage celebrated in England.323 Scots law was left unchanged, however, so that individuals, unable to marry in England, took advantage of this situation and married north of the border. Such marriages were accepted as valid in England.324 After the Reformation of religion, English law did not recognise judicial divorce entitling at least one of the parties to remarry.325 On the other hand, Scotland did recognise judicial divorce, initially on the ground of 321 Quoted in Phillipson, The Scottish Whigs (n 115) 163–164. 322 Idem 176. 323 Statute 26 Geo II, c 33 (1753); see R B Outhwaite, Clandestine Marriage in England, 1500–1850 (1995) 75–97; L Leneman, “The Scottish case that led to Hardwicke’s Marriage Act”, (1999) 17 Law and History Review 161; D Lemmings, “Marriage and the law in the eighteenth century: Hardwicke’s Marriage Act of 1753 (1996) 39 Historical Journal 339; E T Bannet, “The Marriage Act of 1753: ‘A most cruel law for the fair sex’” (1997) 30 Eighteenth-Century Studies 233. 324 See, e.g., L Leneman, “English marriages and Scottish divorces in the early nineteenth century”, (1996) 17 JLH 225 (henceforth “English marriages and Scottish divorces”). For a general overview of Scots practice taken from the court records, see L Leneman, Promises, Promises: Marriage Litigation in Scotland, 1698–1830 (2003). 325 R H Helmholz, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (2004) 540–556 [= Sir John Baker (gen ed) The Oxford History of the Laws of England, vol i]; R Phillips, Putting Asunder: A History of Divorce in Western Society (1988) 227–241; L Stone, The Road to Divorce: England 1530–1987 (1990) (henceforth Stone, The Road to Divorce) 301–367.

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adultery, but soon also on that of desertion.326 The temptation this presented to English people was obvious, and between 1789 and 1826 a number of English men and women sought a divorce in Scotland.327 The numbers were relatively few, however, probably because, when one individual, after his Edinburgh divorce, remarried in England, he was arrested and tried for bigamy, being sentenced to transportation for seven years (though subsequently released).328 English courts thus did not recognise Scottish divorces of individuals domiciled in England, creating the circumstance that couples were regarded as divorced and free to remarry in Scotland, but still married in England, with potential consequential uncertainties and conflicts over the legitimacy of children.329 Finally, Scots law accepted the Canon law’s rules on legitimation by subsequent marriage that England famously had supposedly rejected at the Council of Merton.330 It was evident that the illegitimate child of Scots, domiciled in England, who subsequently married in England, would not be legitimated and the Scots courts would not recognise that child as having a right to succeed in Scotland.331 It is easy, however, to imagine other potential problems and a number of difficult cases arose. Two cases litigated during the 1820s deserve particular attention. In the first, Rose v Ross, the majority of the Court of Session (in fact no less than ten judges, a full bench having been convened) found for the legitimacy of a child born in England to parents domiciled in England, who had married in Scotland, where the father was a landowner. Great stress was placed on the father’s continued

326 W D H Sellar, “Marriage, Divorce, and the Forbidden Degrees: Canon Law and Scots Law”, in W N Osborough (ed), Explorations in Law and History: Irish Legal History Society Discourses, 1988–1994 (1995) 59 at 70–76; D B Smith, “The reformers and divorce: a study on consistorial jurisdiction” (1912) 9 Scottish Historical Review 10; C J Guthrie, “The history of divorce in Scotland” (1911) 8 Scottish Historical Review 39; L Leneman, Alienated Affections: The Scottish Experience of Divorce and Separation, 1684–1830 (1998) (henceforth Leneman, Alienated Affections). 327 They are detailed either in Leneman, “English marriages and Scottish divorces” (n 324), or in Leneman, Alienated Affections (n 326) 218–232. 328 See, e g Leneman, “English marriages and Scottish divorces” (n 324) at 232–233; Leneman, Alienated Affections (n 326) 223–224; Stone, The Road to Divorce (n 325) 358–359. 329 There is a good discussion of the legal issues in David Hume’s Lectures 1786–1822 (n 268) vol i, 185–189. 330 See ibid vol i, 205–206. On England, see F W Maitland, Roman Canon Law in the Church of England: Six Essays (1898) 52–56; I D White, “Legitimation by subsequent marriage” (1920) 36 LQR 255. On the general context of the Council of Merton, see R H Helmholz, “Bastardy litigation in medieval England” (1969) 13 American Journal of Legal History 360. 331 David Hume’s Lectures 1786–1822 (n 268) vol i, 205–206.

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connections with Scotland and on the location of the land in Scotland.332 The House of Lords disagreed and overturned this decision on appeal.333 At the same time as the Court of Session dealt with this case, the English courts dealt with Birtwhistle v Vardill. This case involved the entitlement to succeed to an estate in England of a man born illegitimate in Scotland to a couple domiciled in Scotland who subsequently married. The child was undoubtedly legitimate in Scots law; but the English courts decided in 1826 that he could not succeed to an estate in England as, in English law, for inheritance to real property, the place where the property was situated was to govern the question of who was heir. This was ultimately affirmed by the House of Lords.334 All of these conflicts of law were well publicised: indeed, they were also to be the foundation of the discussion of these areas of law by Joseph Story in his famous work on international private law.335 What were perceived to be the problems with Scottish irregular marriages had been well, indeed spectacularly, canvassed in the famous case of Dalrymple v  Dalrymple, litigated before Sir William Scott in London in 181l.336 It created the very stuff of which popular novels were made.337 The view of the Inner House in Rose v Ross attracted the attention of The Times;338 the progress to the House of Lords of the two cases on the effects of legitimation created a pamphlet literature.339 Further, the possibility for English people of defeating the English law controlling marriage by elopement to Scotland was already part of popular culture. The issue came starkly to the fore in the well-publicised trial of Edward Gibbon Wakefield, Frances Wakefield, 332 Rose v Ross (1827) 5 S 605. See the speeches of the Commissaries and of the Lords of Session in (1830) 4 W & Sh, apps. III–IV, at 33–89. 333 Rose v Ross (1830) 4 W & Sh 289. 334 Doe, on the demise of John Birtwistle v Vardill, 5 B & C 438; 6 Bligh (n s) 479; 9 Bligh (n s) 32. 335 J Story, Commentaries on the Conflict of Laws, Foreign and Domestic, in Regard to Contracts, Rights, and Remedies, and Especially in Regard to Marriages, Divorces, Wills, Successions, and Judgments (1834) 81–87, 90–94, 101–103, 108–109, 117–118, 168–189, 277. 336 2 Hag Con 54; see also The Times (17 July 1811); J Dodson, A Report of the Judgement, Delivered in the Consistorial Court of London, on the Sixteenth Day of July, 1811, by the Right Honourable Sir William Scott, Chancellor of the Diocese, in the Cause of Dalrymple the Wife, Against Dalrymple the Husband. With an Appendix, Containing the Depositions of the Witnesses, The Letters of the Parties, and other Papers Exhibited in the Cause (1811). 337 See J W Cairns, “A note on the Bride of Lammermoor: why Scott did not mention the Dalrymple legend until 1830” (1993) 20 Scottish Literary Journal 19; J W Cairns, “The noose hidden under flowers: marriage and law in Saint Ronan’s Well” (1995) 16 JLH 234. 338 The Times (25 May 1827). 339 E Robertson, The Law of Legitimation by Subsequent Marriage: Illustrative of the Variances Between The Laws of Succession to Property in England and Scotland (1829).

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and Edward Thevenot, at the Lancaster assizes on 23 March 1827, for the abduction from her school of an heiress aged fifteen, with whom Edward Gibbon Wakefield had gone through a ceremony of irregular marriage at Gretna Green, just over the border in Scotland.340 The events and trial were closely followed in the newspapers.341 This scandalous case caused a significant outcry against the Scots law on marriage, which broadened to take account of that on divorce and legitimation, calling for a reform of Scots law along English lines.342 The debate provoked raised a more general issue that threatened the integrity of Scots law. This revolved around whether or not the Scots or English knew most about Roman law. This strange competition arose because Henry Brougham, in the House of Commons, opposed the appointment of a Scots advocate, William Menzies, to the bench of the Cape Colony.343 This touched on a very sensitive issue for the Faculty of Advocates, who tended to think that the English bar was unjustly favoured for colonial judicial appointments.344 The issue took an interesting twist, however, when Henry Brougham claimed that, if judges were needed who knew Roman law, the evidence from the trial of the Wakefields at Lancaster showed that the Scots were ignorant of it.345 In an era of reform of Scots law, which could be considered as “Anglicisation” (and indeed overtly was by some), to attack the Scots’ knowledge of Roman law was to attack what was seen as one of Scots law’s defining characteristics in contrast with English law. To impugn Scots lawyers’ knowledge of Roman law was to suggest that knowledge of Roman law was unimportant in Scotland. This was very threatening. 340 The Trial of Edward Gibbon Wakefield, William Wakefield, and Frances Wakefield, Indicted with One Edward Thevenot, a Servant, for a Conspiracy, and for the Abduction of Miss Ellen Turner, the Only Child and Heiress of William Turner, Esq, of Shrigley Park, in the County of Chester (1827); P Bloomfield, Edward Gibbon Wakefield: Builder of the British Commonwealth (1961) 1–14, 53–74; I O’Connor, Edward Gibbon Wakefield: The Man Himself (1928) 39–45; A J Harrop, The Amazing Career of Edward Gibbon Wakefield (1928) 28–42; R Garnet, Edward Gibbon Wakefield: The Colonization of South Australia and New Zealand (1898) 29–49. There is a recent attempt to get to grips with this episode in Wakefield’s career in G Martin, Edward Gibbon Wakefield: Abductor and Mystagogue (1997) 14–26. 341 See, e.g., The Times (22 March, 28 March 1826; 7 March, 26 March, 27 March, 29 March, 26 August 1827); The Morning Chronicle (9 June 1827). 342 See P Irvine, Considerations on the Inexpediency of the Law of Marriage in Scotland (1828); [Henry Brougham], “Scottish marriages of English persons” (1828) 47 Edinburgh Review 100. 343 S D Girvin, “William Menzies of Edinburgh: Judge at the Cape 1827–1850” (1993) 38 Juridical Review 279. 344 J W Cairns, “A History of the Faculty of Advocates to 1900”, in Stair Memorial Encyclopaedia (1992) vol xiii, 499–536 (§§ 1239–1285) and 534 (§ 1284). 345 J Browne, Remarks on the Study of the Civil Law; Occasioned by Mr Brougham’s Late Attack on the Scottish Bar (1828) (henceforth Browne, Remarks on the Study of the Civil Law) 10–11.

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Should Scots law come to be perceived as not being grounded in the Civil Law, it was but a short step to arguing, especially given the reforms in the courts and procedure in the period 1800–1830, that its differences from English law were too slight for it to be worth preserving.346 This was why the near-contemporary comment in the Westminster Review that “[t]he Scotch Law Books, whenever they profess to treat of the Roman Law, manifest only a superficial acquaintance with it, which is evident on the slightest inspection”, was one that provoked great offence.347 (4) Struggle over codification These anxieties about the continued survival of Scots law were rendered even more acute by the codification debates in England in the 1820s.348 These raised the obvious question: if Parliament reformed and codified English law, why should it not apply that code to Scotland, if there was nothing particularly distinctive about Scots law? This explains the worries that a number of Scots expressed about codification in that decade. For example, Sir Walter Scott, in his seven-volume biography of Napoleon published in 1827, devoted twenty pages to demonstrating the superiority of judge-made law to legislation and codification, very much drawing on the language of the Scottish Enlightenment thinkers. He placed his discussion overtly in the context of the current English codification debates.349 Scott’s attack on codification led to a critical review in The Jurist, an English legal periodical that favoured codification.350 One area of English law that had especially attracted the attention of those interested in codification was property law. In 1826, James Humphreys had proposed that it should be codified.351 Almost immediately, this generated 346 See the remarks by J P T, “Marriage, legitimation, and divorce” (1843) 29 The Law Magazine; or Quarterly Review of Jurisprudence 267 at 275. 347 Quoted in Browne, Remarks on the Study of the Civil Law (n 345) 41–42 n*. 348 M Lobban, The Common Law and English Jurisprudence, 1760–1850 (1991) 185–222; D Lieberman, “Legislation in a common law context”, (2006) 28 Zeitschrift für neuere Rechtsgeschichte 107 at 117–122. 349 W Scott, Life of Napoleon Buonaparte, 2nd edn (1827) vol vi, 44–65 (henceforth Scott, Life of Napoleon). 350 “Scott’s Napoleon: certainty of English law” (1827) 1 The Jurist, or Quarterly Journal of Jurisprudence and Legislation 405. 351 J Humphreys, Observations on the Actual State of the English Laws of Real Property: With the Outlines of a Code (1826); see B Rudden, “A Code Too Soon: The 1826 Property Code of James Humphreys: English Rejection, American Reception, English Acceptance”, in P Wallington and R M Merkin (eds), Essays in Memory of Professor F H Lawson (1986) 101.

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an extensive literature in pamphlets and the developing periodical literature.352 One man who intervened in that debate was John Reddie, a Scots advocate who had studied at Göttingen under Gustav Hugo, there writing a thesis on the praetor’s edict.353 On his return to Edinburgh, Reddie published a work on the history of Roman law and the recent developments in its study in Germany.354 In this Reddie stressed that his teacher Hugo had declared himself against codification and he claimed that F C von Savigny had successfully refuted A F J Thibaut’s call for codification in Germany.355 Reddie criticised Humphrey’s codification proposal in a pamphlet in 1828.356 His work was very heavily influenced by Savigny’s pamphlet of 1814 attacking Thibaut.357 Indeed the extent of the influence was such that a hostile reviewer of both pamphlets accused Reddie of plagiarism of the German

352 See, e.g., [C E Dodd], “Humphreys on the laws of real property” (1826) 34 Quarterly Review 540; “Bentham on Humphreys property code” (1826) 6 Westminster Review 446; E B Sugden, A Letter to James Humphreys, Esq. on His Proposal To Repeal the Laws of Real Property, and Substitute a New Code (1826); J Humphreys, A Letter to Edward B Sugden, Esq in Reply to His Remarks on the Alterations Proposed by James Humphreys, Esq, in the English Laws of Real Property (1827); “System and Administration of English Law” (1827) 45 Edinburgh Review 458 at 474–475, 480–482. On the development of legal periodicals in this era, see D Ibbetson, “Legal periodicals in England 1820–1870” (2006) 28 Zeitschrift fur neuere Rechtsgeschichte 175 at 179–184. 353 J Reddie, De edictis praetorum specimen primum Illustri in Academia Georgia Augusta jurisconsultorum ordini pro summis in utroque jure honoribus rite obtinendis offert (1825). On Hugo, see Wieacker, History of Private Law (n 61) 300–303; Whitman, The Legacy of Roman Law (n 311) at 87–91. On Scots who studied in Germany, see A Rodger, “Scottish  advocates in the nineteenth century: the German connection” (1994) 110 LQR 563. 354 J Reddie, Historical Notices of the Roman Law, and of the Recent Progress of its Study, in Germany (1826) (henceforth Reddie, Historical Notices of the Roman Law). On the development of Scots interest in the German Historical School, see J W Cairns, “The influence of the German Historical School in early nineteenth century Edinburgh” (1994) 20 Syracuse J. Int’l L & Com 191 (henceforth Cairns, “The Influence of the German Historical School”). 355 Reddie, Historical Notices of the Roman Law (n 354) 87–133. On Savigny, see Wieacker, History of Private Law (n 61) 303–316; Whitman, The Legacy of Roman Law (n 311) 102– 112; S G Gale, “A very German legal science: Savigny and the Historical School” (1982) 18 Stanford Journal of International Law 123. An elegant, brief account of this dispute is found in R Zimmermann, “Savigny’s legacy: legal history, comparative law, and the emergence of a European legal science” (1996) 112 LQR 576 at 577–580. 356 J Reddie, A Letter to the Lord High Chancellor of Great Britain, on the Expediency of the Proposal To Form a New Civil Code for England (1828) (henceforth Reddie, A Letter to the Lord High Chancellor of Great Britain). 357 F C von Savigny, Vom Beruf unserer Zeitfür Gesetzgebung und Rechtswissenschaft (1814; 2nd edn 1828; repr 1997), translated as F C von Savigny, Of the Vocation of Our Age for Legislation and Jurisprudence, trans A Hayward (1831; repr 1975).

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scholar.358 The vituperation heaped on Reddie reflected the reviewer’s strong favour for codification.359 It is telling that Reddie’s criticism of codification of English land law digressed into a discussion of the need to protect Scots law from legislative reform, and in particular, he referred to the pressure, arising from the trial of the Wakefields, to change the law on marriage: “Particular circumstances have recently called the attention of the public to the Scotish [sic] law of marriage, and doubtlessly, the preponderancy of voices in the Hall of St Stephens, could at once alter it, and cause the English form to be adopted in its stead.” He commented that the “forms of an institution, which is the root of society, . . . sanctioned and hallowed by a nation’s religion, are of too serious a nature, to be sacrificed to the evanescent prejudice of a day”.360 He placed these remarks in the context of the legal theory he adopted from Savigny. Law was national and arose from the activities of the people. He accordingly questioned “the propriety of an attempt, which has recently been made, by some learned lawyers, to assimilate the English and Scottish systems of jurisprudence, or rather, perhaps, to render everything English”.361 It was to be expected that different nations should have different laws: Long habitual customs, incorporated with the national character, assert a stronger sway than even specious and plausible metaphysics; and whilst a nation is satisfied with its own law, and feels no hardships arising from it, on the contrary, is convinced, that it answers every purpose which is required, that law ought not to be changed. And where alterations are found to be requisite, such only ought to be introduced, as coalesce and harmonize with the principles and doctrines of the whole system; and the extent of these alterations, and the mode in which they are to be effected, ought principally to be left to those, who are best qualified to appreciate the change, and whether it is “for the evident benefit of the subject.”362

Furthermore: 358 “Written and unwritten law” (1828) 2 The Jurist, or Quarterly Journal of Jurisprudence and Legislation 181. 359 It is not appropriate here to go into all the debates Reddie’s pamphlet generated, other than to remark that A C Holtius defended him against the unjust charge of plagiarism: (1830–1831) 10 Themis, ou Bibliothèque du Jurisconsulte et du Publiciste 351 at 353–354. On Holtius, see A Korthals Altes, “Adrianus Catharinus Holtius 1786–1861: Het allereerste handelsrecht”, in G C J J van den Bergh, J E Spruit and M van de Vrugt (eds), Rechtsgeleerd Utrecht: Levensschetsen van elf hoogleraren uit driehonderdvijftig jaar Faculteit der Rechtsgeleerdheid in Utrecht (1986) 57. 360 Reddie, A Letter to the Lord High Chancellor of Great Britain (n 356) 86–87. 361 Ibid 83. 362 Ibid 85–86.

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As a Scotsman, but in the spirit of the British Constitution, I will say, let our doctrines of private Jurisprudence, be framed of the same materials, which we have used for ages, let them be reared by the hands, of the successors of the original workmen, and let the solid foundation which supports the National fabric be undermined by no impolitic attempts at speculative uniformity. With the inhabitants of Scotland, the Scotish [sic] private and municipal law has arisen and been developed, and by them been improved; with them, let it remain, and with them, let it take its chance of being forgotten.363

Reddie’s remarks, with their evident allusion to the Articles of Union, indicate one way in which Scots were able to respond to what they saw as the menace of English threats to Scots law. Savigny’s pamphlet was viewed as providing arguments against unification of the law in Great Britain and as providing an ideological defence for Scots law in an era of legislation and centralisation. Moreover, his thinking could be and was interpreted as following on from the historical thinking of the Scottish Enlightenment. Thus, Hugo and Savigny were viewed as carrying on a project developed in eighteenth-century Scotland by Kames, Millar, and others.364 One of Millar’s students, who described himself in 1841 as “[h]aving been a pupil of the Scotch Historical School of Law”, accordingly portrayed Hugo as having had “the merit of completely changing the method of teaching law in Germany”, at the same time as “similar views of the mode of studying law, were inculcated in Scotland, by Lord Kames, Gilbert Stuart, and John Millar”.365 Thus validated as compatible with Scottish tradition, the approach of the German Historical School supported an argument that Scots law could and should carry on as an independent and uncodified system in the manner in which it had in the eighteenth century. In the era of codification, a Scottish legislative science suggested development through the work of the courts. The ambitions of James VI and I to unify the laws of his realms were not to be fulfilled in the reign of his descendant Victoria. Scotland was now considered to have a fundamental law in its common law. Further, as Scott put it in his Life of Napoleon: “[T]he opinion of a judge, given tota 363 Ibid 90–91. 364 See Reddie, Historical Notices of the Roman Law (n 354) 106 n 8, 125–126 n 32. Reddie also referred to the interesting, if tragic, figure of John Wilde, Professor of Civil Law in Edinburgh, 1792–1800, who shared many of the ideals of the German Historical School. Ibid 93 n 94. On Wilde, see Cairns, “The influence of the German Historical School” (n 354) at 193–194; Cairns, “Rhetoric, language, and Roman law” (n 225) at 43–46; Cairns, “The face that did not fit” (n 169) at 21–22. 365 J Reddie, An Historical View of the Law of Maritime Commerce (1841) ix; J Reddie, Inquiries in the Science of Law (1840) 2nd edn (1847) 52.

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re cognita, must always be a more valuable precedent, than that which the same learned individual could form upon an abstract and hypothetical question.”366 Justice emerged best through the operation of the common law.

366 Scott, Life of Napoleon (n 349) vol vi, 58.

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8 Importing Our Lawyers from Holland: Netherlands Influences on Scots Law and Lawyers in the Eighteenth Century* Perhaps the most significant cultural figure in Edinburgh life in the first half of the eighteenth century was Sir John Clerk of Penicuik, Baron of the new Exchequer Court established after the Union.1 It is notable that a lawyer should have had this role, just as it is generally remarkable how many of the literati of the Scottish Enlightenment were lawyers: Lord Kames, Lord Monboddo and John Millar are only the most obvious and brightest stars in this firmament.2 Clerk spent two years as a student in the University of Glasgow studying logic and metaphysics – years that he was to regret as wasted because of the nature of these disciplines as taught at Glasgow. In October 1694, however, he sailed for the Netherlands, there to pursue the study of law at the University of Leiden. He studied Civil (Roman) Law for two years with Philippus Reinhardus Vitriarius, and for one further year with Johannes Voet.3 Vitriarius was originally German, * A first version of this essay was read as a paper at the Saltire Society’s Conference, “Scotland in Europe: The Cultural Factor”, held in Edinburgh from 31 July to 2 August 1992. I am grateful for the criticism and comments of participants at that event, as at the Mackie Symposium. I benefited from helpful discussions with Professor R Feenstra and Dr M Ahsmann of Leiden. The latter kindly commented on an earlier draft. I am delighted to acknowledge permission of the Trustees of the National Library of Scotland, Angus Stewart, QC, Keeper of the Advocates Library, and the Librarians of the Universities of Aberdeen and Edinburgh to cite and in some instances to quote from manuscript material in their care. 1 See generally I Gordon Brown, “Sir John Clerk of Penicuik 1676–1755: Aspects of a Virtuoso Life”, PhD thesis, University of Cambridge (1980). I am grateful to Dr Brown for permission to consult his unpublished thesis. 2 I Simpson Ross, Lord Kames and the Scotland of his Day (1972); E L Cloyd, James Bumet: Lord Monboddo (1972); William C Lehmann, John Millar of Glasgow, 1735–1801: His Life and Thought and His Contributions to Sociological Analysis (1960). 3 J M Gray (ed), Memoirs of the Life of Sir John Clerk of Penicuik, Baronet, Baron of the Exchequer, Extracted by himself from his own Journals 1676–1755 (1892) 12–13, 15 (henceforth Clerk, Memoirs). Clerk’s studies are now the subject of an important paper reprinting his correspondence with his father: K van Strien and M Ahsmann, “Scottish law students in

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and a distinguished scholar of German public law. He is of note for attempting to relate Civil Law to its sources in natural law, and for writing an elementary work on natural law according to the method of Hugo Grotius. He was interested in the philosophical and political origins of law. Thus, his course on Civil Law, published in Leiden in 1697 as Universum jus civile privatum ad methodum institutionum Justiniani compositum a Philippo Reinhardo Vitriario jurisconsulto et antecessore Lugdunensi, was subtitled as a work in quo praeter principia, et controversias juris civilis, indicantur fontes juris naturae et gentium, unde illa deducta esse videntur.4 As well as Civil Law, Clerk initially studied with Vitriarius the law of nature and nations of Grotius, until this met with the vehement disapproval of his father.5 Voet is the more famous man for his scholarly Commentarius ad Pandectas, first published in two volumes in Leiden in 1698 and 1700; he was best known to generations of students, however, for his Compendium juris juxta seriem Pandectarum published in Leiden in 1682.6 The young Clerk acutely remarked of Voet: “This man I found very distinct, for he keept close to his own Compend on the Instituts and Pandects, but he was far from being such a Corpus Juris as Professor Vitriarius was.”7 The letters recently published by van Strien and Ahsmann show that Clerk and his father disagreed over whom he should study with – his father preferring Voet and Noodt to Vitriarius.8 Modern scholars would certainly regard Noodt and Voet as the more significant men.9 As well as classes with law professors, Clerk attended courses taught by J Perizonius and J Gronovius whom he described as famous professors of “eloquence” and whose teaching he described as covering history, Tacitus and

4

5 6 7 8 9

Leiden at the end of the seventeenth century: the correspondence of John Clerk, 1694–97” (1992) 19 Lias 271, continued in (1993) 20 Lias 1 (henceforth van Strien and Ahsmann, “Clerk”). A thorough study of Vitriarius is wanting, but see R Feenstra and C J D Waal, SeventeenthCentury Leyden Law Professors and their Influence on the Development of the Civil Law: A Study of Bronchorst‚ Vinnius and Voet (1975) (henceforth Feenstra and Waal, Law Professors) 11, 43–44 n 193. For a list of his publications, see M J A M Ahsmann and R Feenstra, Bibliographie van hoogleraren in de rechten aan de Leidse Universiteit tot 1811 (1984) nos 988–1014 (henceforth Ahsmann and Feenstra, Bibliographie Leiden). Van Strien and Ahsmann, “Clerk” (n 3) at 292. Feenstra and Waal, Law Professors (n 4) 35–44. For a list of his publications, see Ahsmann and Feenstra, Bibliographie Leiden (nos 1015–1102). Clerk, Memoirs (n 3) 15; the letters in van Strien and Ahsmann, “Clerk” (n 3), suggest that Clerk studied criminal law with Voet. Van Strien and Ahsmann, “Clerk” (n 3) at 292–293. G C J J van den Bergh, The Life and Work of Gerard Noodt (1647–1725): Dutch Legal Scholarship Between Humanism and Enlightenment (1988) (henceforth van den Bergh, Gerard Noodt).

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Suetonius.10 These would have been courses on Roman and Greek antiquities covering history, political institutions and legal institutions as discovered from classical authors. Both these men were noted classical philologists.11 Clerk attended a class on church history with F Spanhemius,12 and one on theology with Johannes van Marck.13 These were also two very distinguished scholars in their field.14 The energetic Clerk also studied mathematics, philosophy and music: he was evidently more interested in mathematics and music than Civil Law, and he went on to become a moderately distinguished composer, whose work currently enjoys a revival, given the contemporary vogue for baroque music.15 He also learned to draw with Francis van Mieris and studied Dutch, French and Italian.16 This was an education in law inspired by the French humanism of the sixteenth century. Its main focus was on the texts of the Corpus iuris civilis  – the texts of Roman law gathered together in the early sixth century and consisting of the Institutes, an elementary text book, the Digest or Pandects, a vast collection of writings of Roman lawyers, the Code, a collection of imperial legislation, and the Novels, a collection of later legislation. The type of history and philology taught by Perizonius and Gronovius aided and deepened comprehension of the Roman legal sources. Studies of eloquence were obviously important for a lawyer. Philosophy could explain the moral foundation of law: Vitriarius emphasised the foundation of Civil Law in natural law. Mathematics dealt with logic, reasoning and structure, all of which were important in the organisation and conceptualisation of law. This was a type of legal education – polite, gentlemanly, scholarly, the education of a legal virtuoso – unavailable in Scotland. It did not focus on narrow, technical skills. It was an education suited to an aristocrat, and it is worth noting that Archibald Campbell, first Earl of Ilay and third Duke of Argyll, had an education in Utrecht similar to that of Clerk at much the same time; he valued it sufficiently to ensure that his nephews, the Earl of 10 Clerk, Memoirs (n 3) 15–16. 11 See, e.g., H J de Jonge, “The Study of the New Testament”, in Th H Lunsingh Sheurleer and G M Posthumus Meyjes (eds), Leiden University in the Seventeenth Century: an exchange of learning (1975) 65 at 68–69 (henceforth de Jonge, “New Testament”). 12 Clerk, Memoirs (n 3) 16. 13 Van Strien and Ahsmann, “Clerk” (n 3) at 301. 14 On Spanheim, see de Jonge, “New Testament” (n 11) at 86; on Johannes van Marck, see P C Mulhuysen and Fr K H Kossmann (eds), Nieuw Nederlandsch Biografisch Woordenboek (1933) vol ix, cols 648–650. 15 Clerk, Memoirs (n 3) 14–15; D Johnson, Music and Society in Lowland Scotland in the Eighteenth Century (1972) 59–60. 16 Clerk, Memoirs (n 3) 16–17.

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Bute and James Stuart Mackenzie also studied law in the Netherlands.17 Van Strien and Ahsman conclude that Scots rarely attended the free public prelections, but generally went to private collegia. Their studies initially emphasised the Institutes and natural law, but, after six months to a year, they combined these with study of the Digest. They also studied feudal law, and sometimes criminal and even Canon Law.18 The broader studies were also important: Clerk may not have studied natural sciences (though he contracted a friendship with the great Boerhaave),19 but others did. John Spotswood, for example, studied chemistry, while John Erskine attended dissections in the anatomy theatre in Utrecht and took a course in natural philosophy.20 Scots law students took as much advantage as they could of their attendance at Dutch universities. Exactly how many Scots sought this type of education in the Netherlands will never be known. The matriculation record for Utrecht in particular is very incomplete. What is certain is that large numbers went to the Netherlands to study law, especially between 1650 and 1750, with a peak between 1675 and 1725.21 This crucial period can fairly be represented as that when the Faculty of Advocates came of age.22 Around 40 per cent of the advocates admitted between 1661 and 1750 can definitely be traced as having studied law in the Netherlands:23 given the problems with the records of matriculations, this undoubtedly under-represents the numbers who did so, especially in the crucial period from 1675 to 1725. These fifty years were when legal education was finally established in the Universities of Edinburgh and Glasgow.24 17 J W Cairns, “William Crosse, Regius Professor of Civil Law in the University of Glasgow, 1746–49: a failure of enlightened patronage” (1993) 12 History of Universities 159 at 161. 18 Van Strien and Ahsmann, “Clerk” (n 3) at 300–302. 19 Clerk, Memoirs (n 3) 17–18. 20 National Library of Scotland (hereafter NLS), MS 2934, fo 127v; W MacLeod (ed), Journal of the Hon John Erskine of Carnock 1683–87 (1893) 166–167, 176 (henceforth Erskine, Journal). 21 See, e.g., P Nève, “Disputations of Scots Students Attending Universities in the Northern Netherlands”, in W M Gordon and T D Fergus (eds), Legal History in the Making (1991) 95 at 96, 98 (henceforth Nève, “Disputations”); R Feenstra, “Scottish–Dutch Legal Relations in the Seventeenth and Eighteenth Centuries”, in T C Smout (ed), Scotland and Europe 1200–1850 (1986) 128 at 132 (henceforth Feenstra, “Scottish–Dutch Legal Relations”). Van Strien and Ahsmann, “Clerk” (n 3) at 279–281, bring forward evidence to suggest that at the very period in the 1690s when matriculations in Leiden were considerably greater than in Utrecht, far more Scots were studying in the latter university. 22 J W Cairns, “Sir George Mackenzie, the Faculty of Advocates, and the Advocates’ Library”, in Sir George Mackenzie, Oratio inauguralis in aperienda jurisconsultorum bibliotheca (1989) 18 (henceforth Cairns, “Mackenzie”). 23 Feenstra, “Scottish–Dutch Legal Relations” (n 21) at 133. 24 Sir Alexander Grant, The Story of the University of Edinburgh during its First Three Hundred Years, 2 vols (1884) vol i, 232–233, 284–288 (henceforth Grant, University of Edinburgh);

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This suggests that Dutch models of legal education would be influential in the new schools of law. This paper will map out a preliminary approach to dealing with this, and will explore some of its potentially wider ramifications for the Scottish Enlightenment. A widely read gazetteer of the newly united Britain in the first half of the eighteenth century was John Chamberlayne’s Magnae Britanniae Notitia: Or, the Present State of Great Britain: between 1708 and 1755 this work published in London went through seventeen editions. It provides valuable – if sometimes already for its time out-of-date – information about geography, commerce and government, indicating what was thought to be significant about Scottish and English institutions from both an insider’s and an outsider’s point of view. In the account of the Faculty of Advocates in Scotland, there is a prominent, detailed and accurate description of the examination and admission of an advocate. The intrant was first examined in private viva voce by the seven private examinators on Civil (Roman) Law. If found sufficiently qualified he was then allocated a title of Roman law on which he had to print theses in Latin for debate. Appended to the theses were corollaria or annexa – further unrelated theses for debate. These theses were then defended in public and a number of public examinators were elected each year to impugn them. Following a successful defence, the intrant had to write a speech in Latin on one of the laws or fragments of the title on which his theses had been printed. This he delivered before the Lords of Council and Session. He then took oaths of loyalty to the government and an oath de fideli administratione of his public office of advocate and was duly admitted. It was also possible to be admitted by an examination in Scots law, but the work only briefly alluded to this.25 This mode of admitting members to the Faculty was rich in symbolism and allusion. It emphasised that the Faculty was above all a learned corporation, which valued scholarly academic knowledge. These ceremonies of admission deliberately followed those for a university degree in law. In regulating the public examination or trial in early 1693 the Faculty J W Cairns, “The Origins of the Glasgow Law School: The Professors of Civil Law, 1714–61”, in P Birks (ed), The Life of the Law (1993) 151 (henceforth Cairns, “Origins of the Glasgow Law School”). 25 J Chamberlayne, Magnae Britanniae Notitia: Or, the Present State of Great Britain (1708) 500, and (1755) part II, book II 105 (henceforth Chamberlayne, Magnae Britanniae Notitia). This description remained identical through all editions. See further J W Cairns, “The Formation of the Scottish Legal Mind in the Eighteenth Century: Themes of Humanism and Enlightenment in the Admission of Advocates”, in N MacCormick and P Birks (eds), The Legal Mind (1986) 253 (hereafter Cairns, “Admission of Advocates”).

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had ruled that it would “both add to the honor of the society and to the regulation of the candidat if the said publict tryall shall proceid in the same way and method as is practised abroad”.26 Although Civil Law was central to the Scottish legal tradition and had influenced Scots law, these examinations were not intended to show knowledge adequate for practice but to demonstrate academic scholarship.27 They demonstrated that among the lawyers of Scotland the advocates were an elite group, set apart by learning as well as status. It is instructive in this respect to look at the opinions of John Spotswood who was to become an influential private teacher of law in Edinburgh in the first quarter of the eighteenth century,28 At the age of nineteen he was apprenticed in 1686 to James Hay of Carriber, Writer to the Signet, with whom he stayed until 1692.29 Scots Calvinists of the later seventeenth century believed it important to lead an examined life. Spotswood was no exception. One autumn during these six years, possibly early in them, Spotswood set out his aims and intentions for the approaching winter. Worrying that the study of Scots law might divert him from learning the styles of Scots law with Hay, he wrote: “The study of the Scotch law may very fitly be carried along with that of the civil if ever I read it and if it shall be God’s will that I do not reach the degree and dignity of an advocat what is more necessary in the first place to be known by a writer or Agent than the Scotch styles and formes of processes . . . .”30 Spotswood’s remark hints at the division that there was perceived to be between the education of an advocate and that of a writer. Writers needed to know the style of the deeds they drafted and have a grasp of the process by which causes were agented through the courts. The work of one possessing the “degree and dignity of an advocate” was more profoundly intellectual: law was a system of rules to be grasped by the intellect. The primary focus of scholarly knowledge was Roman law. This view of the roles and education of advocates and writers presupposed different systems of education for their respective professions. Advocates required a period of study of law in a university to follow courses in Roman law and related disciplines; writers were trained through a system of apprenticeship.

26 J Macpherson Pinkerton (ed), The Minute Book of the Faculty of Advocates, Volume 1, 1661– 1712, Stair Society vol 29 (1976) 121 (3 January 1693) (henceforth Advocates’ Minutes i). 27 Cairns, “Admission of Advocates” (n 25) at 255–261. 28 J W Cairns, “John Spotswood, Professor of Law: A Preliminary Sketch”, in W M Gordon (ed), Miscellany III, Stair Society vol 39 (1992) 131 (henceforth Cairns, “Spotswood”). 29 NLS, Ch 1566; NLS, MS 2934, fo 127v. 30 NLS, MS 2934, fo 177r.

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It would be easy to exaggerate the contrast between the two branches of the legal profession. It is clear that many writers followed a university education in law, although unnecessary; it is likewise clear that a number of advocates – such as Spotswood – had an initial training in the office of a writer, though it is worth noting that Lord Kames was later to consider this the worst way to train an advocate.31 This said, it must still be stressed that the advocates valued education in a university in Roman law in a way that the writers did not. The Faculty of Advocates emerged out of the group of men appointed in the sixteenth century to plead before the Lords of Council and Session reconstituted as the College of Justice in 1532.32 If much about the early advocates is obscure, one thing is certain – from the beginning, education in Roman and Canon Law was valued. Thus, of the approximately 60 successful intrants between 1575 and 1608, two-thirds based their claim for admission as an advocate on academic study of the Roman and Canon Laws in a university, most frequently in France; others were admitted on the basis of their long experience on “practick”, typically gained as a servitor to an advocate.33 There were therefore two modes of admission as an advocate – one by academic study (though usually linked in the sixteenth century with attendance at the courts), the other by a virtual apprenticeship. These two ways of joining the Faculty continued into the seventeenth century, while developing in a way that it is not necessary to explore here.34 The Restoration period, however, saw a number of significant changes, marking the Faculty’s struggle for greater independence from the Lords of Session. First, the Faculty secured the right to examine and to recommend for admission all intrants who sought entry on the basis of academic knowledge, ultimately developing the system of trials outlined above. For a while the Lords retained the right to admit others “extraordinarily” without remitting them to the Dean and Faculty for examination on Civil Law, in 1688, however, the Faculty persuaded the Lords to examine such intrants on their knowledge of the styles, form of process, and principles of Scots law. Finally the Lords by an Act of Sederunt in 1692 changed this so that those entering

31 G Scott and F A Pottle (eds), Private Papers of James Boswell from Malahide Castle, 18 vols (1928–1934) vol xv, 269; see also Erskine, Journal (n 20) xix–xx. 32 R K Hannay, The College of Justice: Essays on the Institution and Development of the Court of Session (1933) 135–164 (henceforth Hannay, College of Justice). 33 Ibid 145–147; J W Cairns, “The law, the advocates and the universities in late sixteenth-century Scotland” (1994) 73 Scottish Historical Review 171. 34 Hannay, College of Justice (n 32) 149–153.

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extraordinarily would be remitted to the Dean and Faculty for examination of the “practick”, styles and form of process of Scots law.35 These crucial developments, whereby the Faculty gained considerable control over who entered their ranks, occurred in the same era as the founding of their great library around 1680.36 It was a period when the Faculty felt strong enough openly to defy the Lords on a number of occasions, if not always successfully.37 The Faculty had matured into a corporation of learned lawyers secure in and conscious of their status. One vital aspect of this was their social background. The researches of the late Dr Ian Rae have shown that the social composition of the Faculty started to change significantly at this time: “Men from the upper classes of peers and landed gentry, who are relatively modestly represented at the beginning of the period [the 1620s], became the most significant group after the Restoration.”38 This change explains why the advocates became so concerned after 1660 to stress that the law that they practised was a liberal science rather than a mechanical art. Liberal sciences were taught in universities; mechanical arts were learned by tradesmen though apprenticeships – a mode of teaching not socially suitable for a gentleman. The way to ensure that men of proper education and background came to the faculty was to promote examinations that required an extensive academic training in Civil Law, and to discourage entry by examination in Scots law through requiring doubled entry dues and through stigmatising it as less “honourable”.39 The Faculty were very successful in this policy. Dr John Shaw has pointed out that of the 295 advocates who were admitted between 1707 and 1750, we know the nature of the trials of 260 of them: they were all on Civil Law.40 It seems likely that the remaining thirty-five were also all admitted by trial on Civil Law, since in argument before the House of Lords in the case of Catanach et al v Gordon in 1745, counsel for Gordon stated that, since  the Union, no advocate had been admitted but upon trial in Civil

35 Cairns, “Admission of Advocates” (n 25) at 255–257. 36 T I Rae, “The Origins of the Advocates’ Library”, in P Cadell and A Matheson (eds), For the Encouragement of Learning (1989) 1 (henceforth Rae, “Origins”); Cairns, “Mackenzie” (n 22). 37 J M Simpson, “The Advocates as Scottish Trade Union Pioneers”, in G W S Barrow (ed), The Scottish Tradition: Essays in Honour of Ronald Gordon Cant (1974) 164. 38 Rae, “Origins” (n 36) at 4. 39 Hannay, College of Justice (n 32) 155–158; W Forbes, A Journal of the Session (1714) viii; J Spottiswoode, The Form of Process, Before the Lords of Council and Session (1711) xxxix. 40 J Stuart Shaw, The Management of Scottish Society, 1707–1764: Power, Nobles, Lawyers, Edinburgh Agents and English Influences (1983) 27.

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Law.41 In this respect it is likewise telling that in reforming the requirements for admission in 1750, the Faculty acted as if entry by trial in Scots law had fallen into desuetude, and merely added a new compulsory examination in Scots law to the existing trials in Civil Law.42 If in the early nineteenth century the rigour of the Faculty’s examinations became questionable,43 certainly in the first half of the eighteenth century intrants thought it necessary to prepare thoroughly for them, so that Hercules Lindesay, a future Professor of Civil Law in Glasgow, and no doubt others, could eke out a living by specially tutoring intrants for their trials in Civil Law.44 Given that before 1699 there were no classes in Civil Law taught in Scotland, except occasionally in King’s College, Aberdeen,45 these examinations encouraged those intending admission to the Faculty to travel abroad to study. In going abroad to study law between 1675 and 1725, Scots were continuing a long tradition. This raises the question of why they went to the Netherlands. Scots had studied generally in France, especially in Paris, in the late medieval period. Politics, however, affected where they tended to go. Thus, when Paris became difficult for Scots between 1408 and 1417, they moved to Cologne and then, after its foundation in 1425, to Leuven in the southern Low Countries, until the revolt in the Netherlands in the 1550s caused them to look elsewhere. Through the sixteenth century many continued to study in French universities.46 Others went to the German lands (one thinks of Sir John Skene at Wittenberg),47 or, after its foundation in 1575, to Leiden.48 It has been suggested that the similar Calvinist theology of the Dutch and the Scots reformed Churches encouraged Scots

41 See copy of Lord Chancellor Hardwicke’s notes on arguments of counsel in Aberdeen University Library, MS M 387/8/2; on the background to this case see R L Emerson, Professors, Patronage and Politics: the Aberdeen Universities in the Eighteenth Century (1992) 66–69. 42 Cairns, “Admission of Advocates” (n 25) at 264–265. 43 Ibid at 275. 44 Cairns, “Origins of the Glasgow Law School” (n 24) at 184. 45 Cairns, “SpotsǠood” (n 28). On Aberdeen, see J W Cairns, “Lawyers, law professors, and localities; the universities of Aberdeen, 1680–1750” (1995) 46 Northern Ireland Legal Quarterly 304. 46 Nève, “Disputations” (n 21) at 95–96; Feenstra, “Scottish–Dutch Legal Relations” (n 21) at 129; J Durkan, “The French Connection in the Sixteenth and Early Seventeenth Centuries”, in T C Smout (ed), Scotland and Europe 1200–1850 (1986) 19. 47 On Skene, see J W Cairns, T D Fergus and H L MacQueen, “Legal Humanism and the History of Scots Law: John Skene and Thomas Craig”, in J MacQueen (ed), Humanism in Renaissance Scotland (1990) 48 at 52. 48 Nève, “Disputations” (n 21) at 96. See also J K Cameron, “Some Scottish Students and Teachers at the University of Leiden in the Late Sixteenth and Early Seventeenth Centuries”, in G G Simpson (ed), Scotland and the Low Countries, 1124–1994 (1996) 122.

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to study in the Netherlands.49 No doubt this was one encouraging factor. And the attitude and atmosphere of the universities were generally liberal and tolerant, so that oaths troubling to a Calvinist, Presbyterian conscience were not demanded. Thus, John Erskine noted in his Journal for 7 April 1685: “I was this day matriculate. The Rector enquired if I would take the colledge oath, but did not propose it by way of an oath, having only desired my promise that I should do or not do such things as he spoke of.”50 This said, many Scots continued to study law in France through much of the seventeenth century in numbers that will probably remain unknown. Obvious examples of convincedly Protestant Scots who studied in France are Sir George Mackenzie at Bourges and Sir John Lauder of Fountainhall at Orléans and Poitiers.51 The wars of William of Orange with France in the 1690s, however, meant that that country was closed to Scots for study.52 This no doubt in part explains the large number of Scottish students in the Netherlands at that period. The pattern of study for medical and other students at this time was much the same as for law students.53 From the second half of the century the Netherlands moreover had become the preferred country of exile for Scots refugees, while Scottish trading links with the northern Netherlands were close and plentiful at this time. The importance of this lay not only in ensuring Scots’ familiarity with the Netherlands and their universities, but also in making it easy to organise the complex financing of studies through a well-organised system of bills of exchange and letters of credit passing between Scotland and the Netherlands. The trading links and the presence of numerous Scots merchants in the Netherlands made this possible.54 At the same time, the Dutch universities were at their intellectual peak in the early modern period between 1675 and 1725. There were scholars of

49 See, e.g., A Murdoch, “The Advocates, the Law and the Nation in Early Modern Scotland”, in W Prest (ed), Lawyers in Early Modern Europe and America (1981) 147 at 150. 50 Erskine, Journal (n 20) 111. 51 Cairns, “Mackenzie” (n 22) at 18; D Crawford (ed), Journals of Sir John Lauder Lord Fountainhall with his Observations on Public Affairs and other Memoranda 1665–76 (1900) 14, 112–114. Mackenzie’s petition for admission as an advocate (NLS, Advocates’ MS 25.2.5 (i), fo 290r) claimed that he had studied in both France and the Netherlands; a letter published by van Strien and Ahsmann, “Clerk” (n 3) at 44, suggests that it was at Bourges only. 52 See, e.g., T C Smout, Scottish Trade on the Eve of Union 1660–1707 (1963) 64–65, 245; W Ferguson, Scotland’s Relations with England: a Survey to 1707 (1977) 176. 53 See the tables in Nève, “Disputations” (n 21) at 96, 98. 54 For a recent overview, see T C Smout, “Scottish–Dutch Contact 1600–1800”, in J Lloyd Williams (ed), Dutch Art and Scotland: a Reflection of Taste (1992) 21 at 21–25.

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European pre-eminence in all disciplines.55 In medical studies in particular, Leiden probably led Europe at this time; Clerk’s friend Boerhaave was to reach special fame and influence, and the Dutch medical faculties were to have a determining influence on the development of medical education in Edinburgh.56 As with medicine so with law. Over the crucial fifty-year period when Scots law students flocked to the Netherlands, the Professors of Law in Leiden were Antonius Matthaeus III (professor at Leiden, 1672–1710), Johannes Voet (professor, 1680–1713), Philippus Reinhardus Vitriarius (professor, 1682–1719) and Gerard Noodt (professor, 1686–1725). These were four very distinguished men. Apart from Vitriarius, all had also taught at other universities in the Netherlands.57 Among their immediate successors were also men of the first rank such as Antonius Schulting and Johannes Westenberg.58 Over much the same period, Utrecht, the other university favoured by Scots law students, had as professors Voet and Noodt (before they were called to Leiden), Lucas van de Poll, Johannes van Muyden, and Cornelius van Eck.59 If not as distinguished as their Leiden colleagues, van Muyden and van Eck were popular teachers and writers of successful compendia for students.60 If Franeker was less popular with Scots, some certainly went there attracted by the fame of Ulrik Huber, whose works gained a wide circulation and popularity in Scotland.61 A little later, Jean Barbeyrac’s fame 55 See, e.g., Th H Lusingh Schleurleer and G H M Posthumus Meyjes (eds), Leiden University in the Seventeenth Century: an Exchange of Learning (1975); G W Kernkamp et al., De Utrechtse Universiteit 1636–1936, 2 vols (1936); G Th Jensma, F R H Smit and F Westra (eds), Universiteit te Franeker 1585–1811: bijdragen tot de geschiedenis van de Friese hogeschool (1985). 56 G A Lindeboom, Herman Boerhaave: the Man and his Work (1968); E Ashworth Underwood, Boerhaave’s Men at Leyden and After (1977). 57 Feenstra and Waal, Law Professors (n 4) 11, 36 n 146, 43–44 n 193; van den Bergh, Gerard Noodt (n 9). 58 Feenstra and Waal, Law Professors (n 4) 12 n 12; R Feenstra, “Ein später Vertreter der niederländischen Schule: Johann Ortwin Westenberg (1667–1737)”, in Festschrift für Heinz Hübner zum 70. Geburtstag am 7. November 1984 (1984) 47. 59 See R Welten, “Utrechts Hoogleraren in de Rechten (1636–1815): enkele aspecten van de geschiedenis van de rechtenfaculteit te Utrecht” (1987) 55 Tijdschrift voor Rechtsgeschiedenis (henceforth TvR) 67 at 87–88. 60 G C J J van den Bergh, “Cornelius van Eck 1662–1732: een dichter-jurist”, in G C J J van den Bergh, J E Spruit and M van de Vrugt (eds), Rechtsgeleerd Utrecht: levensschetsen van elf hoogleraren uit driehonderdvijftig jaar Faculteit der Rechtsgeleerdheid in Utrecht (1986) 37. 61 T Johannes Veen, Recht en Nut: Studiën over en naar aanleiding van Ulrik Huber (1636– 1694) (1976); T Johannes Veen, “De lege regia: Opmerkingen over de Independentie van Geschiedbeschouwing, Politieke Theorie en Interpretatie van Romeins Recht bij Ulrik Huber”, in G Th Jensma, F R H Smit and F Westra (eds), Universiteit te Franeker: bijdragen tot de geschiedenis van de Friese hogeschool (1985) 321; T Johannes Veen, “Interpretations of Inst. 1.2.6, D. 1.4.1 and D. 1.3.31: Huber’s historical, juridical and political-theoretical reflections on the lex regia” (1985) 53 TvR 357. On Huber in Scotland, see A Watson, Joseph Story and the Comity of Errors (1992) 81–84.

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as a scholar of natural law and expounder of Grotius and Pufendorf attracted Scots students to Groningen where he taught from 1717 to 1744, even if that town could be disparagingly described by one Scot as “the most fit place for study in the World” because there was “no manner of diversion”.62 Some of these professors – such as Voet, van Eck and van Muyden – were simply successful and able expounders of Roman law; others – such as Noodt and Schulting – were noted for their philological skills and historical concerns; and yet others – such as Huber – for their interest in political theory. Some were interested in all of these. Furthermore, it is of crucial importance that most were interested in natural law, teaching it either from Grotius or Pufendorf.63 From Noodt, for example, Scots would have learned views favouring religious toleration, constitutionalism, political liberty, and commerce: what one might call proto-Enlightenment values.64 In general, Scots who studied law in the Netherlands would have learned it as a polite, enlightened science, related to the study of philosophy, philology and history. This was a legal education suitable for gentlemen. At the same time as the Faculty of Advocates remodelled their examinations, created their library, and gained greater independence from the Lords of Session, they started to campaign for the creation of chairs of Law in the Scottish universities. The type of legal education they wished to develop in Scotland was one modelled on the humanistic legal studies found in the Netherlands. The Faculty commented in 1695: “The professione [i.e. professorship] of the laws carys necessarly with it all the belles Letres and the knowledge of ancient and modern history . . . .”65 They evidently were thinking of chairs in Civil Law, and indeed at one time suggested it might be possible to attract “eminent professors from abroad”.66 it is always possible that they had the Netherlands in mind. The University of Edinburgh also became interested in the 1690s in establishing a chair in Law.67 The university and the Faculty, however, did not succeed in raising the money to endow a chair. No one else seemed willing to fund one, until 62 Thomas Dundas to Charles Mackie, 10 January 1728, Edinburgh University Library (henceforth EUL), MS La. II. 91. 63 C J H Jansen, “Over de 18e eeuwse docenten natuurrecht aan Nederlandse universiteiten en de door hen gebruikte leerboekan” (1987) 55 TvR 103. 64 Van den Bergh, Gerard Noodt (n 9) 321–333 and passim. 65 Advocates’ Minutes i (n 26) 160. See generally Cairns, “Mackenzie” (n 22) 23, 33 n 43; Cairns, “Spotswood” (n 28) 145–146. 66 Advocates’ Minutes 1 (n 26) 160. 67 A Bower, The History of the University of Edinburgh; chiefly compiled from original papers and records, never before published, 2 vols (1817) vol i, 328–334, 344–346 (henceforth Bower, University of Edinburgh).

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in 1698 Alexander Cunningham, a noted classicist, was given by Parliament a salary as Professor of Civil Law “in this Kingdome”: this was renewed in 1704 for a further five years.68 Cunningham did not teach, however, and this grant was probably simply a means of providing a pension for a protégé of the Duke of Queensberry.69 Private enterprise filled the gap. Between 1699 and 1710 three advocates teaching in Edinburgh can be traced: Alexander Drummond, John Spotswood and John Cuninghame.70 Spotswood and Cuninghame were the most important of these three; and both of them had studied law in Leiden.71 Drummond initially offered classes on both Scots law and Roman law, but in fact appears only ever to have taught the latter, claiming to teach a course on Justinian’s Institutes “as they are taught abro[a]d by Explanation and Examination”.72 These were obviously classes on the model of the collegia explicatoria and collegia examinatoria found in the Dutch law faculties.73 Drummond taught between 1699 and probably 1706. Cuninghame, from 1705 until his death in 1710, gave courses on Scots law (using Mackenzie’s Institutions of the Law of Scotland) and on Justinian’s Institutes and Digest. Spotswood started to teach in 1702, giving classes in Justinian’s Institutes and various classes on Scots law. He stopped teaching in 1706. Cuninghame was the most successful of these three and captured the market, driving Drummond and Spotswood out of business. Thus, when he died in 1710, there was a tremendous scramble to take over his students.74 These three first teachers modelled their classes or “colleges” on the collegia privata given by professors in the Netherlands.75 If Cuninghame was the most successful of these early private teachers, we know most about Spotswood.76 He taught Justinian’s Institutes from the 68 Acts of the Parliaments of Scotland, ed T Thomson and C Innes, 12 vols (1814–1875) vol x, 176 (Act 1698 c 37), appendix, 27–28. and vol xi, 203 (Act 1704 c 9). 69 See W A Kelly, “Lord George Douglas (1667/1668?–1693?) and his Library”, in W M Gordon (ed), Miscellany III, Stair Society vol 29 (1992) 160; Feenstra, “Scottish–Dutch Relations” (n 21) at 134–136. 70 Cairns, “Spotswood” (n 28) at 133–134. 71 Album studiosorum academiae Lugduno-Batavae MDLXX–MDCCCLXXV (1875) cols 700, 724 (henceforth Album Leiden). 72 Cairns, “Spotswood” (n 28) at 133 and n 15; Edinburgh Gazette, 11/14 September 1699. 73 See van Strien and Ahsmann, “Clerk” (n 3) at 288. 74 ‘Cairns, “Spotswood” (n 28) passim. 75 See van Strien and Ahsmann, “Clerk” (n 3) at 288–289; on the terminology, see M J A M Ahsmann, Collegia en Colleges: Juridisch Onderwijs aan de Leidse Universiteit 1575–1630 in het Bijzonder het Disputeren (1990) 324–336; M J A M Ahsmann, “Collegia Publica et Privata: erne Erscheinung deutscher Herkunft an den niederländischen juristischen Fakultäten um 1600?”, in R Feenstra and C Coppens (eds), Die rechtswissenschafthehen Beziehungen zwischen den Viederlanden und Deutschland in historischer Sicht (1991) 1. 76 The information and analysis in this paragraph is derived from Cairns, “Spotswood” (n 28).

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Compendium institutionum Justiniani sive elementa juris civilis, a popular textbook by J F Böckelmann, a German who taught at Leiden from 1670 to 1681. Böckelmann had revolutionised the teaching of Roman law in the Netherlands by introducing the methodus compendiaria, whereby Roman law was taught from a compend rather than from the original texts. Spotswood tried to develop on his own the type of curriculum available at Leiden, and he expressed the Humanistic view that to be an educated lawyer it was necessary “to attain the Knowledge of the Laws, Civil, Feudal, Canon, and Municipal, beside the full Knowledge of History, Politicks, Philology, and Classical learning”. He expected his students to be proficient in languages and to be “skillfull in Grammar, Rhetorick, and Logick”, and, at one stage, he provided for them two teachers of history and philology, because, as lawyers, they required “to be made Partakers of the Grecian and Roman Wit and Prudence”. Like his teacher Vitriarius, he paid attention to Grotian natural law as the foundation of Civil Law. This type of education proved popular, as, until Cuninghame started to monopolise legal education, Spotswood could attract as many as thirty-seven students in a year over various courses: this was a substantial number, and his students included some future men of distinction. These three early private teachers showed that there was a demand for formal legal education in Scotland. Though this demand seems to have been primarily for classes in Civil Law and secondarily for classes in Scots law, the first chair in Law to be created in the modern period in Scotland was the Regius Chair of Public Law and the Law of Nature and Nations in the University of Edinburgh.77 The title of this chair indicates that its province was to be the Grotian law of nature and nations made familiar to Scots by collegia Grotiana in the Netherlands; by this time, natural law theory had become central to Scottish ethical thought, whether it was of the school of Grotius or of Pufendorf.78 This chair was funded by the conversion of a large number of bursaries in divinity for its support. While it has been suggested that this chair was created purely for the benefit of its first holder, Charles Areskine, a Regent in Philosophy in Edinburgh,79 this seems unlikely.80 The reason why this was the first chair in Law rather than one in Civil Law was presumably the recent renewal of Alexander Cunningham’s parliamentary 77 Grant, University of Edinburgh (n 24) vol i, 232–233. 78 R L Emerson, “Science and Moral Philosophy in the Scottish Enlightenment”, in M A Stewart (ed), Studies in the Philosophy of the Scottish Enlightenment (1990) 11. 79 See, e.g., Bower, University of Edinburgh (n 67), vol ii, 65–66. 80 See William Scott to James Anderson, 7 December 1714, NLS, Adv MS 29.1.2 (iv), fos 180–181.

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privilege as Professor of Civil Law. Areskine was given leave to study law in the Netherlands, which he did, returning to be admitted as an advocate in 1711 and advertising classes later in the same year.81 The competition for Cuninghame’s classes after his death went on for a number of years. Private teachers offered classes not only in Roman law and Scots law, but also in relevant classical literature.82 But in October 1710, James Craig, evidently one of the more successful competitors, was appointed Professor of Civil Law in the University of Edinburgh by the Town Council as patrons. They dealt with the difficult issue of endowing the chair by not awarding him a salary. One was granted a few years later out of the revenues of the beer tax in Edinburgh.83 Although Craig’s appointment did not get rid of all the competition for a while, by the end of the decade he seems to have been the only person teaching Civil Law in Edinburgh. While Craig’s education in law is obscure, it is possible that he studied law in the University of Utrecht.84 He probably taught his course on the Digest using van Eck’s Principia iuris civilis.85 This class was thus modelled on a collegium privatum as taught by a Dutch professor, but Craig also gave – at least at one time – regular free public praelectiones, which anyone might attend, though he later described his regular classes as prelections.86 The establishment of this chair in 1710 was explained as justified by the success of private teaching.87 That it came in 1710 was no doubt because Alexander Cunningham’s parliamentary privilege had expired the previous year. Late in 1713, in emulation of this development in Edinburgh, the faculty of the University of Glasgow secured the establishment of a chair of Civil Law with an allocated salary. Little is known of how the first professor, William Forbes, taught Civil Law, but it is likely that he taught it on the model of Dutch collegia using a textbook, such as Voet’s Compendium juris civilis juxta seriem pandectarum. From the chair of Moral Philosophy, Glasgow developed a very strong tradition in the teaching of natural law, 81 EUL, MS Dc.6.108; Sir Francis J Grant (ed), The Faculty of Advocates in Scotland, 1532– 1943, with Genealogical Notes (1944) 66 (henceforth Grant, Advocates); Scots Courant, 12/14 November 1711. 82 See Cairns, “Spotswood” (n 28) at 154 n 189. 83 H Armet (ed), Extracts from the Records of the Burgh of Edinburgh 1701 to 1718 (1967) 201– 202 (henceforth Edinburgh Records); Grant, University of Edinburgh (n 24) vol i, 284–285. 84 The argument for this is involved, and I shall deal with it elsewhere. 85 Grant, University of Edinburgh (n 24) vol i, 285 n 1, vol ii, 364. 86 See, e.g., Scots Courant, 10/12 May 1710, 11/13 September 1710, 17/20 November 1710, 21/23 March 1711. 87 Edinburgh Records (n 83) 202.

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while, at least at one stage, law students could attend classes in universal history and the classics which were relevant for them.88 The next step in the development of legal education in the University of Edinburgh was the appointment of Charles Mackie as Professor of Universal History in 1719. Initially, he had no permanently endowed salary, but eventually had one allocated out of the beer duties. Mackie had studied at Edinburgh, Groningen and Leiden; in the last university he had matriculated in the Faculty of Law. Mackie developed courses in Greek and Roman antiquities for law students, and significant numbers of them may be traced in his class lists. These were classes comparable to those of Perizonius and Gronovius in Leiden. This important need for students of Civil Law was thereby met.89 The final stage in the provision of a full curriculum in legal studies in Edinburgh came with the appointment of Alexander Bayne as Professor of Scots Law in 1722, with a salary allocated from the tax on beer.90 Bayne had studied Scots law and Roman law with Spotswood, before going on to study law in Leiden.91 Bayne was admitted to Lincoln’s Inn in London, and lived there for a number of years as secretary to the Earl of Wemyss, before returning to be admitted as an advocate in 1714.92 He taught Scots law using Mackenzie’s Institutions, and went on to develop a separate course in criminal law.93 Again, this was modelled on the collegium privatum as found in the Netherlands, even though he referred to the classes as prelections; and Bayne also provided an examinatory college.94 Thus, while teaching Scots law, Bayne also followed Dutch models. By the 1720s, legal education was being offered in the Universities of Edinburgh and Glasgow in Civil Law and Scots law on the Dutch model, along with related studies of natural law, universal history, and Greek and

88 Cairns, “Origins of the Glasgow Law School” (n 24) at 152–183; J W Cairns, “The Influence of Smith’s Jurisprudence on Legal Education in Scotland”, in P Jones and A S Skinner (eds), Adam Smith Reviewed (1992) 168. 89 L W Sharp, “Charles Mackie, the first Professor of History at Edinburgh University” (1962) 41 Scottish Historical Review 23. 90 Grant, University of Edinburgh (n 24) i, 285, 288; W Menzies, “Alexander Bayne of Rires, Advocate” (1924) 36 Juridical Review 60. 91 Cairns, “Spotswood” (n 28) at 148; Album Leiden (n 71) col 792. 92 The Records of the Honourable Society of Lincoln’s Inn, vol 1 (Admissions 1420–1796) (1896) 367; Sir William Fraser, Memorials of the Family of Wemyss of Wemyss, 3 vols (1888) vol iii, 180–192; Grant, Advocates (n 81) 11. 93 J W Cairns, “John Millar’s lectures on Scots criminal law” (1988) 8 OJLS 364 at 383–386. 94 See Alexander Bayne, Professor of the Municipal Law, To the Gentlemen who have attended his College of Prelections, single sheet, NLS, Pressmark S.302.b. 1 (no 53).

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Roman antiquities. These classes were modelled on Dutch collegia privata and were not “public” other than in the sense that anyone could attend who paid the fee. They could be described as private colleges by the professors themselves (as by Charles Areskine in 1711), and by outsiders describing the universities.95 It is particularly telling that Dutch textbooks were very much the basis of instruction in Civil Law. We have already noted Spotswood’s and Craig’s choice of textbooks; one of the private teachers in Edinburgh (probably Robert Craigie) taught from Voet’s Compendium of the Digest (as perhaps did Forbes).96 As yet, some students at least did not find this sufficient, and a number of Spotswood’s and Cuninghame’s pupils (such as Bayne) continued to go to the Netherlands on a peregrinatio academica to take classes from the great Dutch professors and to see some of the world. The Netherlands presented Scots with polite, enlightened legal education of a type suited for the learned gentlemen that the Faculty of Advocates considered themselves to be. It was a legal education not focused on narrowly technical rules, procedures and styles, but one that emphasised the liberal connections of law with history, philosophy and even the natural sciences. While it is impossible to quantify or to be precise about the effects of this education on Scots lawyers, it is fair to conclude that it made a contribution to the mental world of the Scots advocates which made them open and receptive to the ideas and concerns of the European Enlightenment. Likewise, it was a model of legal education derived from that found in the Netherlands that was developed in Scotland first by private teachers and then by the Universities of Edinburgh and Glasgow – a model that was eventually to produce an enlightened law professor of the prominence and importance of John Millar in Glasgow.97 It is instructive in this respect to look at the first professors as a group. They tended to have significant scientific concerns. Spotswood retained all his life a strong interest in chemistry and mathematics.98 Bayne was an 95 Scots Courant, 12/14 November 1711: “private Lecture[s] on the Laws of Nature and Nations”; Chamberlayne, Magnae Britanniae Notitia (1737), separately paginated list of Scottish office holders, 21: “private Lessons”. 96 See NLS, Adv MSS 81.8.1–2; EUL MSS Gen 1855–1856. Internal evidence shows that these lectures undoubtedly were given in Edinburgh. The dates of the lectures correspond more closely (if not exactly) with the dates advertised by Craigie in the Scots Courant for his classes than with those of any other teacher. On Forbes, see Cairns, “Origins of the Glasgow Law School” (n 24) at 176. 97 See, e.g., J W Cairns, “‘Famous as a School for Law, as Edinburgh . . . for Medicine’: Legal Education in Glasgow, 1761–1801”, in A Hook and R B Sher (eds), The Glasgow Enlightenment, (1995) 133. 98 Cairns, “Spotswood” (n 28) at 135–136.

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amateur astronomer who had observations published in the Philosophical Transactions of the Royal Society of London. He may have had interests in chemistry.99 Charles Areskine’s library catalogue suggests he had a major interest in the natural sciences.100 Bayne was a talented musician, whose first published work, after his advocates’ theses, was on musical theory and practice, and who helped establish the harpsichord maker Thomas Fenton in Edinburgh.101 He was described as “the particular friend” of Richard Steele, and hence friendly also with Joseph Addison and with their friends in London.102 It has been plausibly conjectured that he was sometimes the “A B” occasionally referred to in the Spectator and the Tatler.103 Indicative of the circles within which Bayne moved is the marriage of his daughter to the great portrait painter Allan Ramsay.104 These connections and interests all help to indicate that these early professors who established the pattern of legal education in Scotland were concerned with law as a polite discipline closely linked to the moral and natural sciences. The library catalogues of Areskine, Bayne and Spotswood demonstrate their breadth and depth of interests.105 They – and the others  – all believed law to be a rational discipline, capable of being set out in a scientific form deduced from natural first principles. In this, of course, they can be seen as following on from Stair who had been much influenced by Grotius;106

99 R L Emerson, “Society, Science and Morals in Scotland, 1700–40”, paper delivered at Swedish Colloquium for Advanced Study in the Social Sciences, Uppsala, Sweden, 5–7 October 1990 (I am grateful to Professor Emerson for permission to cite his unpublished paper). 100 NLS MS 3283. See also ibid. 101 A[lexander] B[ayne], An Introduction to the Knowledge and Practice of the Thoro’ Bass (1717); Scots Courant, 8/10 December 1718, 21/23 January 1719. 102 D F Bond (ed), The Tatler, 3 vols (1982) vol ii, 32 n 1 (henceforth Tatler); see also his letters in J  Duncombe (ed), Letters by Several Eminent Persons Deceased, Including the Correspondence of John Hughes, Esq. . . . and Several of his Friends, 2 vols (1770) vol i, 56–59, 69–72, 94–102, 205–207, 210–213, 223–227. 103 Tatler (n 102) vol i, 271–272 (no 38, 7 July 1709), ii, 32 (no 84, 22 October 1709), ii, 326 (no 145, 14 March 1710), iii, 186 (no 228, 23 September 1710); D F Bond (ed), The Spectator, 5 vols (1965) vol i, 392 (no 92, 15 June 1711) (there are other instances). I am grateful to Roger Emerson for bringing this to my attention. 104 A Smart, Allan Ramsay: Painter, Essayist and Man of the Enlightenment (1992) 26, 72. 105 NLS MS 3283; A Catalogue of Curious and Valuable Books, Being the Library of Mr John Spotiswood of that Ilk Advocate, lately deceas’d (1728); A Catalogue of Curious and Valuable Books, Being Chiefly the Library of the late Mr Alexander Bane Professor of Scots Law in the University of Edinburgh (1749) (NLS MS 816(8)). 106 N MacCormick, “The rational discipline of law” (1981) Juridical Review 146; W M Gordon, “Stair, Grotius and the Sources of Stair’s Institutions”, in J A Ankum, J E Spruit and F B J Wubbe (eds), Satura Roberto Feenstra sexagesimum quintum annum aetatis complenti ab alumnis collegis amicis oblata (1985) 571.

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what had also determined their intellectual outlook was their experience of legal education in the Netherlands. After 1750 Scots evidently found study in the Netherlands less valuable; legal education was now firmly established in Scotland, and, as the Scottish Enlightenment developed, was to go through a golden age in the University of Glasgow after 1760. At the same time, the Dutch law faculties were losing some of their lustre. Knowledge and politeness could be found at home in  a particular Scottish form. Yet, this had built on a Netherlands’ model: “[W]e . . . import our lawyers from Holland”, said Reuben Butler to Bartoline Saddletree in The Heart of Midlothian.107 (It is presumably significant that Saddletree bears a form of the name of the great medieval Roman lawyer, Bartolus.) Scotland also imported a method of legal education which was eventually naturalised in the later eighteenth century. Paulus Pleydell – who possesses the name of one of the greatest of Roman lawyers – is described in Guy Mannering as having in his study and consulting room “the best editions of the best authors, and in particular an admirable collection of classics”. The advocate explains: “‘These’, said Pleydell, ‘are my tools of trade. A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect’.”108 This echoes the views of Spotswood on the types of education distinguishing writers – masons – from advocates – architects: in part, it was their experience of legal education in the Netherlands that helped the advocates to see how they could become architects rather than masons, with important consequences for the history of Scots law and Scottish legal education in the era of the Enlightenment.

107 Sir Walter Scott, The Heart of Midlothian, ed A Lang, 2 vols (1893), vol i, 62. 108 Sir Walter Scott, Guy Mannering, or the Astrologer, ed A Lang, 2 vols (1892) vol ii, 89.

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9 Three Unnoticed Scottish Editions of Pieter Burman’s Antiquitatum Romanarum brevis descriptio A. SCOTLAND AND THE NETHERLANDS The Scottish student in the universities of the northern Netherlands is a well-documented phenomenon of the late seventeenth and early eighteenth centuries. If many individuals undertook general liberal studies in the humanities and sciences, the great focus of attention was on the professional subjects of law, medicine and theology. It should always be remembered, however, that these disciplines were construed broadly in an essentially Humanist framework.1 Such study in the Netherlands promoted and reinforced the tendency of Scottish scholars to operate within the Dutch cultural and intellectual world.2 The influence of this world on Scottish

1 E A Underwood, Boerhaave’s men at Leyden and after (1977) 24; R W Innes Smith, Englishspeaking Students of Medicine in the University of Leiden (1932); R Feenstra, “Scottish–Dutch Legal Relations in the Seventeenth and Eighteenth Centuries”, in R Feenstra, Legal Scholarship and Doctrines of Private Law, 13th–18th Centuries (1996) XVI (= Academic Relations Between the Low Countries and the British Isles 1450–1700, ed H de Ridder-Symoens and J M Fletcher (= Studia historica Gandensia 273) (1989) 25–45); P Nève, “Disputations of Scots Students Attending Universities in the Northern Netherlands”, in W M Gordon and T D Fergus (eds), Legal History in the Making: Proceedings of the Ninth British Legal History Conference, Glasgow 1989 (1991) 95; K van Strien and M Ahsmann, “Scottish law students in Leiden at the end of the seventeenth century: the correspondence of John Clerk, 1694–1697” (1992) 19 Lias 271 and (1993) (20) Lias 1; J K Cameron, “Some Scottish Students and Teachers at the University of Leiden in the Late Sixteenth and Early Seventeenth Centuries”, in G G Simpson (ed), Scotland and the Low Countries, 1124–1994 (1996) 122; J W Cairns, “Importing our Lawyers from Holland: Netherlands’ Influences on Scots Law and Lawyers in the Eighteenth Century”, in Scotland and the Low Countries 136. 2 D Osler, “Scoto-Dutch Law Books of the Seventeenth and Eighteenth Centuries”, in J M Fletcher and H de Ridder-Symoens (eds), Lines of Contact: Proceedings of the Second Belgian, British, Irish and Dutch Historians of Universities held at St Anne’s College, Oxford, 15–17 September 1989 (=  Studia historica Gandensia 279) (1994) 57; J W Cairns, “Alexander Cunningham’s

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intellectual life, however, despite some important research, has more often been noticed than explored in any kind of detail.3 This short paper will examine the scholarly connections between Scotland and the Northern Netherlands through discussion of the publication of a Dutch textbook in Edinburgh to serve the needs of students at the university. The publication is scarcely a major episode in Scottish intellectual history. It is this that makes it particularly telling, for it demonstrates how much the Scots of the period operated in the scholarly world of the Netherlands and then propagated its values, not only in publications, but also in the classrooms of the Scottish universities. The impact of important individual works by noted scholars and intellectuals cannot and ought not to be denied; the day-to-day influence of lesser works, however, was at least as important in propagating ideals, values and accepted knowledge. We should look to these sources, more minor in terms of the accepted historical canon, to gain a more rounded understanding of this cultural phenomenon. The textbook discussed here may not in itself be important, but its publication and use suggest significant new lines of inquiry in studying the Scottish Enlightenment. B. ANTIQUITATES AND THE CURRICULUM From the foundation of the University of Leiden in 1575 the Dutch universities had developed a particularly strong tradition of classical studies supported by a relatively uncontrolled and active publishing industry.4 Obvious early names are those of Justus Lipsius and J J Scaliger.5 In the later period when Scottish study in the Netherlands was at its peak, there were a number of distinguished classicists and historians of the ancient world such as Jacob Gronovius (1645–1716), Jacob Perizonius (1651–1715) and Pieter Burman (1668–1741) active in the Dutch universities. All these men attracted Scottish students to their various classes on history and classical authors. proposed edition of the Digest: an episode in the history of the Dutch Elegant School of Roman Law” (2001) 69 Tijdschrift voor Rechtsgeschiedenis 81, 307. 3 See, e.g., the works cited in n 1 above. 4 J E Sandys, A History of Classical Scholarship, 3 vols, 3rd edn (1921; repr 1967) vol ii, 300–332 (henceforth Sandys, Classical Scholarship); R Pfeiffer, History of Classical Scholarship from 1300 to 1850 (1976) (henceforth Pfeiffer, Classical Scholarship) 124–129. 5 G Oestreich, “Justus Lipsius als Universalgelehrter zwischen Renaissance und Barock”, in Th H Lunsingh Scheurleer and G H M Posthumus Meyjes (eds), Leiden University in the Seventeenth Century: An Exchange of Learning (1975) 177 (henceforth Scheurleer and Posthumus Meyjes, Leiden University); J H Waszink, “Classical Philology”, in Scheurleer and Posthumus Meyjes, Leiden University 161 (henceforth Waszink, “Classical Philology”).

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While Perizonius has been the subject of a major modern study, and there has been some general examination of history teaching in the universities of the Netherlands, the life and work of Pieter Burman has yet to find its scholar.6 A few brief remarks may nonetheless be made. Burman was born in Utrecht in 1668, the son of a professor. He was educated at the Gymnasium in that city and then at the Universities of Utrecht and Leiden. He took his doctorate utriusque juris in Utrecht. Burman’s main interest was in classical studies, and he was appointed professor extraordinarius in Utrecht in 1696 and professor ordinarius in 1698, holding a chair in History and Eloquence. He stayed in Utrecht until 1715, when he was called to the chair in Leiden in History and Eloquence in succession to the deceased Perizonius.7 Chairs of this name were typically occupied by Latin philologists in the Dutch polyhistorical tradition who were expected to teach historiae, antiquitates and eloquentia.8 Among the various courses Burman taught was one on universal history. He based this on the standard textbook, originally of the sixteenth century, written by the Italian Jesuit, Orazio Torsellino (Tursellinus), called Epitome historiae universalis.9 Editions were published for Dutch educational use in Franeker in 1688 by Leonard Strik and in Utrecht by the famous publisher and bookseller, Willem van de Water, in 1703, 1710 and 1718.10 These would have supplied the needs of Burman’s students among others. This use of 6 Th J Meijer, Kritiek als herwaardering: het levenswerk van Jacob Perizonius (1651–1715). (1971). There has been important recent work on some of the scholars and classicists who did not hold university posts, e.g., B H Stolte, Henrik Brenkman (1681–1736) Jurist and Classicist: a Chapter from the History of the Roman Law as Part of the Classical Tradition (1981) (henceforth Stolte, Henrik Brenkman) and T Wallinga, “Laurens Gronovius”, (1997) 65 Tijdschrift voor Rechtsgeschiedenis 459; J Roelevink, “Lux veritatis, magistra vitae: the teaching of history at the University of Utrecht in the eighteenth and the early nineteenth centuries” (1988) 7 History of Universities 149 (henceforth Roelevink, “University of Utrecht”). On Burman, see Sandys, Classical Scholarship (n 4) vol ii, 443–445. For a useful general survey in English of his life and work, based on secondary sources, see M Markoff, “Pieter Burman: his Influence on Scholarship, Bibliography, and the Literary World”, unpublished essay for the degree of MLS (1977) (henceforth Markoff, “Pieter Burman”). 7 Nieuw Nederlandsch Biografisch Woordenboek, 10 vols (1911–1937) vol iv, cols 354–358. 8 Waszink, “Classical Philology” (n 5) at 161: Pfeiffer, Classical Scholarship (n 4) 129, 138, 162. For a recent assessment of the changing intellectual context, see W Schmidt-Biggemann, “New Structures of Knowledge”, in H de Ridder-Symoens (ed), Universities in Early Modern Europe (1500–1800) (= A History of the University in Europe, vol ii) (1996) 524–527. 9 For Burman’s use of this work for his class, see National Library of Scotland, Adv MS 5.1.4. On the use of Tursellinus in the Netherlands more generally, see Roelevink, “University of Utrecht” (n 6) at 159. 10 I consulted the edition Horatii Tursellini, Romani, historiarum, ab origine mundi, usque ad annum, a Christo nato MDXCVIII. epitomae libri decem (1710). I have been unable to study any copies of the other editions.

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Tursellinus was contrary to the practice found in, for example, Germany. It owed much to the influence of Perizonius, who had adopted it as his textbook. Roelevink has pointed out that there were a number of factors promoting use of Tursellinus’s Epitome: it was concisely written in elegant Latin; it was strictly chronological; and the chronological system it used corresponded closely to that of Scaliger, which was followed by most Dutch scholars.11 Burman also taught a course on Roman antiquities, for which he wrote a popular textbook entitled Antiquitatum Romanarum brevis descriptio printed in Utrecht in 1702 and 1711 by van de Water, and which was to go through many editions.12 This work was intended to provide a very full outline for his classes, and was in the style of a compend. It was divided into three parts: the first dealt with topics such as the City of Rome, Roman religion, sacrificial rites and the games; the second dealt with civil and political society, discussing citizenship, the assemblies of the Roman people, statutes and the ius civile, and the courts; and the third dealt essentially with military matters. This account of the civic, religious, political, legal and military structures of Rome was evidently popular and useful, and went through a number of editions in the Netherlands and elsewhere. Such works and classes on antiquitates took their inspiration from Varro’s lost Antiquitatum rerum humanarum libri xxv, which had attempted a systematic account of Roman life as viewed from its historical origins. In the Renaissance this Varronian ideal was progressively recovered resulting in a typical classification of antiquitates into antiquitates publicae, privatae, sacrae, militares. Antiquarians such as Justus Lipsius rediscovered Roman chronology, topography, law and religion from epigraphic, literary, numismatic and archaeological sources.13 By the end of the seventeenth century there was a sufficient corpus of such literature on ancient Rome for its main works to be gathered into a Thesaurus by J G Graevius between

11 Roelevink, “University of Utrecht” (n 6) at 159. 12 The copy available to me was: Petri Burmanni viri clar. antiquitatum Romanarum, brevis descriptio. In usum collegiorum recusa (1742). I have carried out no work on establishing any kind of checklist of the works of Burman and their various editions. I have been unable to trace any bibliographical study of his published output, although one is clearly needed. I cannot personally vouch for the editions of 1702 and 1711. Appended to Markoff, “Pieter Burman” (n 6) is a list of “Works Published During his Lifetime”. This seems to give only first editions, and lists for the Antiquitatum Romanarum brevis descriptio that of 1711. I located that of 1702 in the National Union Catalogue, supposing it is not a ghost. 13 For Burman’s engagement in controversy in these fields, see I Calabi Limentani, “Spanheim, Burman, Maffei: L’origine della equivoca rivalità tra numismatica ed epigrafia” (1991) 32 Studi Secenteschi 191 at 202–204 (= Bibliotheca dell’ “Archivum Romanum” Serie 1 vol 245).

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1694 and 1699.14 Accordingly the study of antiquitates provided a quite different perspective on the ancient world from that found in courses on universal history, which still generally followed the ancient historians.15 It is also obvious that study of antiquitates was of great importance in reaching a full understanding of the texts of the Roman law. Burman’s legal training would have allowed him to give full and proper weight to the law of the Roman commonwealth. His class would have been of particular interest to law students because of the manner in which it explored the social and political structures of the ancient world, drawing on the evidence of classical authors. Not only was such matter helpful in gaining a more profound understanding of Roman law, it was also required by the regulations for the study of law in Leiden put forward at the end of the seventeenth century, which had been deeply influenced by French humanism.16 As legal education developed in the Scottish universities in the early eighteenth century, the same desire to link the study of law with that of history was experienced.17 C. ANTIQUITATES IN SCOTLAND In a paper originally delivered in 1946, the late Dr L W Sharp, the Librarian of Edinburgh University, discussed the life and career of Charles Mackie, who was appointed Professor of Universal History in the University of Edinburgh in 1719. Mackie taught a course on universal history and one on Roman antiquities.18 In a useful discussion of Mackie’s classes Sharp investigated the question of whether or not Mackie had ever published any scholarly work and suggested that “[t]here is just a possibility that one work of Mackie did get into print”.19 He noted that in Mackie’s accounts with the

14 Thesaurus antiquitatum Romanarum, in quo continentur lectissimi quique scriptores, qui superiori out nostro saeculo Romanae reipublicae rationem, disciplinam, leges, instituta, sacra, artesque togatas ac sagatas explicarunt et illustrarunt, congestus a Joan. Geo. Graevio, 12 vols (1694–1699). 15 The above draws heavily on A Momigliano, “Ancient history and the antiquarian”, in A Momigliano, Contributo alia storia degli studi classici (1955) 67 (= (1950) 13 Journal of the Warburg and Courtauld Institutes 285). 16 Stolte, Henrik Brenkman (n 6) 8. 17 J W Cairns, “John Spotswood, Professor of Law: a Preliminary Sketch”, in Miscellany III, Stair Society vol 39 (1992) 131 at 145–146; J W Cairns, “Netherlands’ Influences on Scots Law and Lawyers”, in Miscellany III, Stair Society vol 39 (1992) 148 at 149–150. 18 L W Sharp, “Charles Mackie, the first Professor of History at Edinburgh University” (1962) 41 Scottish Historical Review 23 (henceforth Sharp, “Charles Mackie”). 19 Ibid at 38.

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Edinburgh bookseller, John Paton, the professor was credited with £1/10/– for sixty copies of a book entitled Antiquitatum descriptio over the years 1744–1747.20 He suggested that Mackie supplied the bookseller with copies of a book that he had had printed for the class on Roman antiquities. He also noted that Mackie’s successor, William Wallace, wrote to Mackie in 1757 that the students in the class on Roman antiquities were looking for copies of the text for the class, and that the booksellers had informed them that the only copies were in the possession of Mackie himself.21 Sharp observed that the University Library possessed a work entitled Antiquitatum Romanarum brevis descriptio, dated 1759. He surmised that this was a new impression of an earlier work by Mackie intended to meet the requirements of Wallace’s classes, concluding that “the Brevis description . . . is Mackie’s own textbook and his only printed book”.22 Sharp’s surmise that the text of 1759 was a new impression or edition of an earlier work can be proven to be perfectly correct. At least two copies of the 1759 edition, printed in Edinburgh by Hamilton, Balfour and Neill, the university printers, can be located.23 I have identified in New York Public Library one copy each of two editions of the same work printed in Edinburgh by Thomas Ruddiman dated 1721 and 1733 respectively.24 Comparison demonstrates these to contain the same text as that published in 1759. An examination of the imprints from 1721 and 1733 shows that, while superficially very similar, they are separate editions of the work, and not one edition with the title page cancelled and a new title page affixed.25 These two Ruddiman imprints were noted neither by George Chalmers in the list of works printed by Ruddiman appended to his biography of the printer, nor by Douglas Duncan in his more recent study.26 That of 1721 is one of

20 21 22 23

EUL, MS La II.90.6.1. W Wallace to C Mackie, 26 November 1757, EUL, MS La II.91.D.52. Sharp, “Charles Mackie” (n 18) at 39. Edinburgh University Library, pressmark Q.22.38; National Library of Scotland, pressmark Nha.0212(3). 24 Antiquitatum Romanarum, brevis descriptio. Edinburgi: in aedibus Tho Ruddimanni, 1721; Antiquitatum Romanarum, brevis descriptio. Edinburgi: in aedibus Tho Ruddimanni, 1723. 25 I have been unable to examine the full text of the edition of 1721, as its binding did not permit its being copied. Copies of a number of pages were sufficient to demonstrate that it is a different edition from the copy dated 1733. For example, most notably, the italic font was different. I have not attempted a proper bibliographic description of the volumes. 26 G Chalmers, The Life of Thomas Ruddiman, A.M. The Keeper, for almost Fifty Years, of the Library Belonging to the Faculty of Advocates at Edinburgh (1794) (henceforth Chalmers, Life of Thomas Ruddiman) 450–467; D Duncan, Thomas Ruddiman: a Study in Scottish Scholarship of the Early Eighteenth Century (1965) (henceforth Duncan, Ruddiman) 170–173.

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Ruddiman’s earliest imprints. Unfortunately it is impossible to determine from Ruddiman’s records for whom these books were printed.27 Sharp’s plausible association of this work with Mackie can now also be further supported. In the autumn of 1721 Mackie first taught his class on Roman antiquities, although he had only advertised his class on universal history in the Edinburgh press.28 He must have arranged with Ruddiman to print this work for his students’ use in this year. The date confirms Sharp’s surmise. Sharp erred, however, in supposing this to be the original work of Mackie. What first Ruddiman and later Hamilton, Balfour and Neill had printed was the text of Burman’s work of the same title but without the author’s name. Mackie would have been perfectly familiar with Burman’s book, as he had spent the years 1715 to 1719 in Leiden with Alexander Leslie, the second son of the Earl of Leven. He acted as tutor to the younger man, who was studying law to prepare for admission as an advocate, both Mackie and Leslie matriculating as law students on 26 October 1715.29 Over the academic year 1717–1718 we know that Leslie attended a class on universal history, which would have been that of Pieter Burman.30 A fellow-Scot who lodged in the same house later recalled that Leslie “studied the Law and wrote out Burman’s Lectures . . . from [Mackie’s] Notes”.31 Both evidently attended the classes. Given that Leslie was studying law, it seems likely that he also attended Burman’s class on Roman antiquities. At any rate it is obvious how Mackie became aware of Burman’s textbook.32 The lack of a credit to Burman as author on the title page is puzzling. There is no immediately obvious solution. Burman and Mackie were in contact at the period of the first edition, as the former wrote to the Scot on 18 June 1720

27 Nothing relevant appears in Ruddiman’s accounts and notes of contracts. Cf National Library of Scotland, MS 763. 28 The date can be deduced from the “Alphabetical List of those who attended the Prelections on History and Roman Antiquitys” that Mackie drew up in 1746: Edinburgh University Library, MS Dc.5.242 Caledonian Mercury, 30 October 1721. 29 Album studiosorum Academiae Lugduno-Batavae MDLXX–MDCCCLXXV (1875) col 844. 30 C Mackie to Lord Balgony, 26 October 1717, Scottish Record Office, Leven and Melville Muniments, GD. 26/13/505/9. 31 L Gordon to C Mackie, 7 June 1755, Edinburgh University Library, MS La. II.91.D.42. 32 It may be worth noting that Mackie’s only publication seems to be a letter in the Royal Society of London’s Philosophical Transactions, “Giving Some Account of the Present Undertakings, Studies, and Labours, of the Ingenious, In Many Considerable Parts of the world . . . for the years 1742 and 1743”, 42 (1744) 420–421. The letter was to Professor MacLaurin, who communicated it to the Royal Society, on the topic of venereal disease in Edinburgh in 1497. I am much indebted to Professor Emerson for drawing this to my attention.

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to congratulate him on his appointment to a chair in Edinburgh.33 There is no allusion, however, to the publication in the subsequent correspondence of the two men.34 It is tempting to seek the clue to unravel the puzzle in the complex controversy surrounding Ruddiman’s edition of the works of the sixteenthcentury Scottish Humanist, George Buchanan. Buchanan was a hero of the Whigs of eighteenth-century Scotland, who represented him as an exponent of Presbyterianism and limited monarchy. They understood his political theory as a justification of the Revolution Settlement and the deprivation of James VII. Ruddiman was both a Jacobite and an Episcopalian. The printer of Buchanan’s Opera omnia, Robert Freebairn, joined the Earl of Mar in the Rebellion of 1715. It is unsurprising in these circumstances that Ruddiman, who was highly critical of Buchanan in a number of respects, aroused the ire of a number of Whigs and Presbyterians, who initiated a project to refute him and defend Buchanan. This group has become known as the “Associated Critics”. A Dutch publisher decided to produce an edition and employed Burman to revise Ruddiman’s notes and provide his own preface. Burman approached his former pupil, Mackie, for assistance. Mackie brought this proposed edition to the notice of the “Associated Critics”, who wished to discourage Burman’s edition.35 The individuals with whom we are concerned are thus involved in this dispute. It is difficult, however, to see it as having any bearing on Ruddiman’s Antiquitatum Romanarum brevis descriptio on behalf of Mackie, without the author’s name on the work. Thus the first edition appeared in 1721 before Ruddiman’s edition of Buchanan had become current, and before the Dutch edition was in prospect. Burman was also very respectful of Ruddiman’s scholarship, although he did incur the latter’s wrath.36 33 P Burman to C Mackie, 18 June 1720, Edinburgh University Library, MS La 11.91.B.27. 34 P Burman to C Mackie, 22 February 1723, Edinburgh University Library, MS La II.91.B.37; P  Burman to C Mackie, 30 October 1723, Edinburgh University Library, MS La II.91.B.39; C  Mackie to P  Burman, 28 March 1724, Universiteitsbibliotheek Leiden, Burm Q.23.1; P Burman to C Mackie, 27 April 1724, Edinburgh University Library, MS La II.91.B.41; C Mackie to P Burman, 19 May 1724, Universiteitsbibliotheek Leiden, Burm Q. 23.2; C Mackie to P Burman, 6 March 1728, Universiteitsbibliotheek Leiden, Burm Q.23.3. 35 For standard accounts of this episode, see D D McElroy, Scotland’s Age of Improvement: A  Survey of Eighteenth-Century Literary Clubs and Societies (1969) 25; D D McElroy, “A  century of Scottish clubs 1700–1800”, typescript, National Library of Scotland (1969) vol i, 51–2–52–2; Chalmers, Life of Thomas Ruddiman (n 26) 74–77; C Kidd, Subverting Scotland’s Past: Scottish Whig Historians and the Creation of an Anglo-British Identity, 1689–c 1830 (1993) (henceforth Kidd, Subverting Scotland’s Past) 92–94. I believe these standard accounts to be mistaken in a number of respects, as I hope to show elsewhere. 36 See Duncan, Ruddiman (n 26) 70 n 90, 107–108, 108 n 32.

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In any case, if Ruddiman was a vigorous combatant, it is difficult to see this leading him to suppress Burman’s name on a title page. James Anderson was linked with the “Associated Critics”: Ruddiman was to publish his posthumous Diplomata Scotiae and provide a preface.37 The very fact that Ruddiman printed the second Scottish edition of Burman’s book for Mackie suggests he did not let scholarly dispute affect his printing work. It may be that the previously warm relations between Mackie and Burman cooled after 1724 and the attempt by the “Associated Critics” to discourage the Dutch edition of Buchanan’s Opera omnia. Again, however, it is difficult to see this as having any bearing on the issue, given the first Scottish edition of Burman’s work had already appeared in 1721, while Mackie felt able to write a letter to the Dutch professor in 1728 recommending a young Scottish student.38 It is perhaps best to conclude either that Mackie and Ruddiman were happy to produce for profit a pirated edition of Burman’s work without revealing the author, or that, as is possible, Burman had given Mackie permission to publish but wished (for some reason, perhaps relating to a contract with his Dutch publisher) not to be identified as the author of the work when it was printed in Edinburgh. The matter must ultimately remain uncertain. D. SCOTLAND, THE NETHERLANDS, AND THE ENLIGHTENMENT These three Scottish imprints of Burman’s work serve as further confirmation of the pervasive influence of Dutch intellectual life on Scotland at this crucial period, when the Scottish universities were starting to undergo dramatic institutional and intellectual development. Charles Mackie taught universal history and Roman antiquities until he retired from teaching in 1753, always using Tursellinus’s Epitome and Burman’s Antiquitatum Romanarum brevis descriptio. His successors carried on this tradition. Mackie’s classes were evidently much influenced by his personal experience of education

37 Selectus diplomatum et numismatum Scotiae thesaurus, in duas partes distributus . . . Ex mandato Parliamenti Scotici collegit, digessit et tantum non perficienda curavit egregius ac patriarum antiquitatum callentissimus vir Jacobus Andersonus Scriba regius. Quae operi consummando deerant supplevit, et praefatione, tabularum explicatione, aliisque appendicibus, rem Scotiae diplomaticam, nummariam et genealogicam haud parum il-lustrantibus, auxit et locuplevit Thomas Ruddimanus, AM (1739). 38 C Mackie to P Burman, 6 March 1728, Universiteitsbibliotheek Leiden, Burm Q.23.3.

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in the Netherlands, and, from the first chair of History in Scotland, he sought to put this Dutch learning into wider currency among the educated youth of Scotland. These ideas were, of course, common currency in the European republic of letters of the early eighteenth century, but it is none the less important to note this route for their influence and the consequent prominence of the Dutch polyhistorical tradition. A description of Mackie’s classes is instructive: He gives a college on Tursellini Epitome Historiarum; in which, beginning from the earliest account of time, he explains the great revolutions that have happened in the world. After the declension of the Roman Empire in the West, he gives an account of the migrations and settlement of the several nations which overspread that empire, and of the different forms of government by them introduced; upon the rains of which the present constitutions of most countries in Europe are founded. He likewise shews the rise and progress of the Papal tyranny, etc. . . . He likewise gives a separate college on the Roman Antiquities; in which he describes the Manners, Customs, Religion, Civil Government and Military Affairs of the Romans. He explains the solemnities used in making Laws, the forms of proceeding before the Praetors and other courts of Law and Equity, with many other things necessary to a right understanding of numberless passages in the body of the Roman Law.39

Two courses covering the fall of the Roman Empire, the rise of the barbarian kingdoms and the like, and the “manners and customs” of the Romans are suggestive to any student of Scottish thought in the eighteenth century. No doubt Mackie’s classes ultimately reflected an essentially Humanist concern with the moral lessons of history and a chronological desire to establish the true dates of important historical events that had influenced or affected religious history, but he seems also to have been interested in a type of universal history that focused on the rise and fall of great empires. Moreover a class on antiquitates inevitably explored society from a perspective quite different from that of traditional politics, instead examining significant structures that helped constitute the fabric of Roman society. The tremendous interest in historical studies in the later eighteenth century in Scotland and the particular direction it took may be partly attributed to Mackie’s classes, which were after all attended by, among many notables, William Robertson and Sir James Steuart.40 Indeed Colin Kidd has recognised that, when Robertson “reestablished the history of the Scottish Reformation in the context . . . of the dynamics of the early modern European states system”, 39 “A Short Account of the University of Edinburgh, the present professors in it, and the several parts of learning taught by them” (1741) 3 Scots Magazine 371 at 372. 40 See Edinburgh University Library, MS Dc 5. 242.

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he did so under the influence of Mackie’s teaching, while Karen O’Brien has also suggested the influence of Mackie on Robertson’s scheme of history and attitude to historical evidence.41 David Allan has rightly argued that we must be mindful of the continuity of themes and issues in Scottish historical writing, yet the generation that followed Mackie, influenced by Montesquieu, drew on the moral philosophy of the Scottish Enlightenment to provide an intellectual mechanism to synthesise Mackie’s separate courses on universal history and Roman antiquities into a history that combined “manners” and “chronology”, and universal history and antiquitates to provide a developmental model of historical change according to social, political and economic factors.42 This was novel. Mackie’s close adherence in his classes and teaching to models derived from the Netherlands demonstrates the importance of Dutch historical scholarship in putting into play in Scotland some of the ideas that were later to justify David Hume’s famous claim to the publisher, William Strahan, in 1770 that “[t]his is the historical Age and this the historical Nation”.43

41 Kidd, Subverting Scotland’s Past (n 35) 194; K O’Brien, Narratives of Enlightenment: Cosmopolitan History from Voltaire to Gibbon (1997) 101. 42 D Allan, Virtue, Learning and the Scottish Enlightenment: Ideas of Scholarship in Early Modern History (1993). R L Emerson, “Conjectural History and Scottish Philosophers”, in D Johnson and L Ouellette (eds), Historical Papers 1984 Communications historiques (1984) 63. N  Phillipson, “Providence and Progress: An Introduction to the Historical Thought of William Robertson”, in S J Brown (ed), William Robertson and the Expansion of Empire (2008) 55 at 57–58. Phillipson does not mention Mackie’s class on antiquities. Such a class would have been at least as important as that on universal history in developing historical concern with culture and manners. 43 J Y T Grieg (ed), The Letters of David Hume, 2 vols (1932) vol ii, 230.

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10 Legal Study in Utrecht in the late 1740s: The Education of Sir David Dalrymple, Lord Hailes* A. INTRODUCTION In the annals of Scottish legal history, one interesting, but somewhat neglected, figure is Sir David Dalrymple, third Baronet of Hailes (1726–1792).1 Unusually for a Scots lawyer of his era, he was educated at Eton and was admitted to the Middle Temple on 8 August 1744.2 In 1745, he moved to study at the University of Utrecht, remaining there until 1747. After public defence, on 20 February 1748, of his theses on D 13.1‚ de condictione furtiva, he was admitted to the Faculty of Advocates in Edinburgh on 24 February.3 * I am grateful to the Trustees of the National Library of Scotland, the Librarian of Edinburgh University Library, the Keeper of the Records of Scotland, Mr Angus Stewart, QC, Keeper of the Advocates Library, and the Librarian of the Beinecke Rare Book and Manuscript Library of Yale University for permission to cite and quote from unpublished manuscript material in their respective cares. In quoting from manuscript material I have preserved the original spelling, but have expanded common contractions. I am grateful to Dr Brian Hillyard of the National Library of Scotland for giving me access to two unpublished papers on the Newhailes Library. In all quotations from manuscript sources original spelling has been preserved, but common contractions have been expanded. 1 The only single study is R H Carnie, “A Biographical and Critical Study of the Life and Writings of Sir David Dalrymple, Lord Hailes”, unpublished PhD thesis, University of St Andrews (1954) (henceforth Carnie, “David Dalrymple, Lord Hailes”). As well as the DNB, and, when available, the Oxford DNB, reference could also be made to the now rather outdated and in some respects unreliable J Ramsay, Scotland and Scotsmen in the Eighteenth Century, ed by Allardyce (1888) vol i, 393–415 (henceforth Ramsay, Scotland and Scotsmen). 2 R A Austen-Leigh, The Eton College Register 1698–1752, Alphabetically Arranged with Biographical Notes (1927) 96; Register of admissions to the honourable Society of the Middle Temple from the fifteenth century to the year 1944 (1949) vol i, 334; C E A Bedwell, “Scottish Middle Templars, 1604–1869” (1920) 17 Scottish Historical Review 100 at 106. 3 F J Grant (ed), The Faculty of Advocates in Scotland, 1532–1943, with Genealogical Notes (1944) (henceforth Grant, Faculty of Advocates) 49; The Minute Book of the Faculty of Advocates. Volume 2, 1713–1750 ed by J M Pinkerton, Stair Society vol 32 (1980) 219. A copy of the printed theses is available in the Advocates Library: Disputatio juridica, ad tit I. lib.

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With excellent family connections, he had a steady career at the Bar (though allegedly more valued for his written pleadings than his forensic oratory).4 He was elevated to the Bench of the Court of Session in 1766, taking the judicial title of Lord Hailes. In 1776, he was also appointed one of the Commissioners of the Justiciary Court.5 Hailes is best remembered, however, for his work as an historian, particularly of the Middle Ages in Scotland. The dates of Hailes’ life are significant. The contemporary of both David Hume (1711–1776) and Adam Smith (1723–1790) (in the small circle of Edinburgh and the Scottish literati he inevitably knew both), he lived through the main years of the Scottish Enlightenment.6 Historical writing was of major significance in eighteenth-century Scotland and it could plausibly be claimed to be central to much social thinking of the period. The reasons for this are complex and the subject of scholarly debate;7 but it is worth pointing out that, for example, Hume himself was best known in his own time as an historian, with his History of Great Britain (1754–1762) compared to the work of Voltaire.8 He famously declared in a letter to his publisher, the Scot William Strahan, in 1770: “I believe this is the historical Age and this the Historical Nation.”9 Among other noted Scottish historians of the era, we can note, above all, the justly famed William Robertson (1721–1793), Principal

4 5 6

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XIII. Pand. de condictione furtive: quam, . . . pro advocate munere consequendo, publicae disquisitioni subjicit David Dalrymple (1748). To understand the examinations for admission as an advocate, see J W Cairns, “Advocates’ hats, Roman law and admission to the Scots Bar, 1580–1812” (1999) 20, 2 JLH 24. For the judgement of Hailes as an advocate, see Ramsay, Scotland and Scotsmen (n 1) vol i, 395–396. Grant, Faculty of Advocates (n 3) 49; G Brunton and D Haig, Historical Account of the Senators of the College of Justice, from its Institution in 1532 (1832) 529. For recent general studies outlining some of the main issues relating to the Scottish Enlightenment, see the essays in P Wood (ed), The Scottish Enlightenment: Essays in Reinterpretation (2000), especially the chapter by the editor, and A Broadie (ed), The Cambridge Companion to the Scottish Enlightenment (2002). A good short introduction to the politics is provided by J S Shaw, The Political History of Eighteenth-Century Scotland (1999). Two recent general monographs providing a unified interpretation, with which not all scholars would agree, are A Broadie, The Scottish Enlightenment (2001) (henceforth Broadie, Scottish Enlightenment) and D Allan, Scotland in the Eighteenth Century; Union and Enlightenment (2002). For a recent challenging account, see C Kidd, Subverting Scotland’s Past: Scottish Whig Historians and the Creation of an Anglo-British Identity, 1689–c 1830 (1993) (henceforth Kidd, Subverting Scotland’s Past). For illuminating remarks from the perspective of a publisher, see W Zachs, The First John Murray and the Late Eighteenth-Century London Book Trade with a Checklist of his Publications (1998) (henceforth Zachs, First John Murray) 165–172. See also D Allan, Virtue, Learning and the Scottish Enlightenment (1993); Broadie, Scottish Enlightenment (n 6) 43–77. For a recent account, see K O’Brien, Narratives of Enlightenment: Cosmopolitan History from Voltaire to Gibbon (1997) (henceforth O’Brien, Narratives of Enlightenment) 55–92. J Y T Grieg (ed), The Letters of David Hume (1932) vol ii, 230.

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of the University of Edinburgh, who achieved quite outstanding critical and financial success with a series of works, in particular his History of Scotland (1759)‚ History of the Reign of the Emperor Charles V, With a View of the Progress of Society in Europe, from the Subversion of the Roman Empire to the Beginning of the Sixteenth Century (1769), History of America (1777), and Historical Disquisition Concerning the Knowledge which the Ancients had of India (1791).10 Among lesser luminaries, we can point to John Millar (1735– 1801), Professor of Civil Law in Glasgow, and protégé of Adam Smith and Lord Kames, who published Historical View of the English Government from the Settlement of the Saxons (1787) and Origin of the Distinction of Ranks (1771).11 Another worth mentioning is Gilbert Stuart (1743–1786), a rather troubled and difficult character who published a variety of works, including The History of Scotland from the Establishment of the Reformation till the Death of Queen Mary (1782) and A View of Society in Europe in its Progress from Rudeness to Refinement (1778).12 While some works, such as those of Robertson, were tending to transcend the distinction, most of the historical writing generally associated with the Scottish Enlightenment is either narrative and philosophical history, such as Hume’s History of Great Britain, or “conjectural” history, such as Millar’s Origin of the Distinction of Ranks.13 Hailes’ interest in Scottish history was of a different type. He followed on rather more from the Scottish antiquarian tradition that had produced, for example, the painstaking and brilliant study of diplomatic undertaken by James Anderson (1662–1728).14 In this Hailes took considerable interest, for example, urging the study of medieval and other hands on Boswell.15

10 See the essays (including a bibliography of writings on Robertson) in S J Brown (ed), William Robertson and the Expansion of Empire (1997); O’Brien, Narratives of Enlightenment (n 8) 93–165. 11 On Millar, see J W Cairns, “‘Famous as a School for Law, as Edinburgh . . . for Medicine’: The Glasgow Law School, 1761–1801” (henceforth Cairns, “Famous as a School for Law as Edinburgh . . . for Medicine”), in A Hook and R B Sher (eds), The Glasgow Enlightenment (1995) 133; Rendall, “Clio, Mars and Minerva: The Scottish Enlightenment and the Writing of Women’s History”, in T M Devine and J R Young (eds), Eighteenth-Century Scotland: New Perspectives (1999) 134. 12 W Zachs, Without Regard to Good Manners: A Biography of Gilbert Stuart, 1743–1786 (1992) (henceforth Zachs, Without Regard to Good Manners). 13 These terms have their problems, with which I shall not deal here. On conjectural history, see Broadie, Scottish Enlightenment (n 6) 64–75; R L Emerson, “Conjectural History and Scottish Philosophers” (1984) Canadian Historical Association Historical Papers 63. 14 C Kidd, “Antiquarianism, religion and the Scottish enlightenment” (1995) Innes Review 139. 15 Hailes to Boswell, 23 September 1771, Beinecke Rare Book and Manuscript Library, Yale University (henceforth Yale) MS Gen 89 C 1442.

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Hailes is best known for his pioneering work Annals of Scotland (1776– 1779), which is marked by its rigorous and critical approach to the sources for medieval Scottish history.16 Legal historians, however, know him, first, for his Examination of Some of the Arguments for the High Antiquity of Regiam Majestatem; and an Inquiry into the Authenticity of Leges Malcolmi (1769). This showed that some ancient Scottish legal texts were not of their purported antiquity (a matter of some significance, as they were relied on to present essentially patriotic arguments that feudalism came to Scotland before it came to England).17 This said, legal historians are probably most familiar with his Catalogue of the Lords of Session, from the Institution of the College of Justice in the Year 1532 with Historical Notes (1767), particularly in its still current guise of Historical Account of the Senators of the College of Justice, from its Institution in 1532 edited, expanded, and continued by George Brunton and David Haig (1832; 1849). Though flawed and outdated, it is still a useful starting point for research.18 Hailes was not only willing to use the fruits of his detailed antiquarian researches to aid others, he would assist them more generally. Thus, William Robertson requested his assistance when working on his History of Scotland, even sending a draft fragment for comment.19 David Hume, with whose religious views Hailes had little truck, asked him to comment on his proofs.20 When working on the Wealth of Nations (1776), Adam Smith sought – and obtained – historical information from Hailes about prices, including those of corn and cattle.21 Hailes commented on James Beattie’s draft work on scepticism, which put forward a position that he found much more

16 D Dalrymple, Annals of Scotland. Vol i: From the Accession of Malcolm III, Surnamed Canmore, to the Accession of Robert I (1776); vol ii: From the Accession of Robert I, Surnamed Bruce, to the Accession of the House of Stewart (1776). See Zachs, First John Murray (n 7) 63–65 and the Checklist of Murray Publications in ibid 271 (no 121), 286 (no 218). 17 H L MacQueen, “Regiam Majestatem, Scots law, and national identity” (1995) 74 Scottish Historical Review 1 at 20–23; Kidd, Subverting Scotland’s Past (n 7) 147–150. 18 Hailes was a prolific author. There is a useful checklist of his publications in Carnie, “Sir David Dalrymple, Lord Hailes” (n 1) 342–377. 19 Robertson to Hailes, 22 October 1753, 26 August 1756, 26 July, 18 November 1757, 8 November 1758, National Library of Scotland (henceforth NLS) MS 25294 fos 7, 37–38, 55–56, 57–58, 74–76, discussed in O’Brien, Narratives of Enlightenment (n 8) 96. 20 Hume to Hailes, 3 May 1753, NLS MS 25294 fo 3. On the complex relationship between Hailes and Hume, see R H Carnie, “The Hume–Hailes relationship” (1978) 14 Forum for Modern Language Studies 289. 21 Smith to Hailes, 15 January, 5 March 1769; Hailes to Smith, 6 March 1769; Smith to Hailes, 12 March, 16 and 23 May 1769, in E C Mossner and I S Ross (eds), The Correspondence of Adam Smith (1987) 139–155 (nos 115–120).

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sympathetic than that of Hume.22 On a practical level, he was also willing to allow Gilbert Stuart, when staying at his parental home at Fisherrow by Musselburgh, to have access to his great library at nearby Newhailes.23 Others, of course, assisted Dalrymple, notably his protégé James Boswell, while Samuel Johnson commented on the texts of Hailes’ Annals.24 Hailes also gave occasional assistance to Johnson.25 In an issue of Fundamina dedicated to Margaret Hewett, it seems particularly appropriate to discuss the legal education of Lord Hailes. Professor Hewett is well known for her work in translating some of the older sources of the Roman–Dutch law. Many of these sources would have been familiar to the Scots lawyers of Hailes’ generation. For example, one of the works she has translated is the treatise De criminibus of Antonius Matthaeus II. This commentary on the two libri terribiles (D 47, 48) of the Digest, first published in 1644, turns up with relative frequency in Scottish libraries, commonly in the fourth edition of 1679.26 It was one of the most important works used in Scottish criminal practice through much of the  eighteenth century. Thus, in 1752, in relying on Matthaeus’ De criminibus in interpreting the Scots crime of hamesucken, the then Lord Advocate, William Grant of Prestongrange, described it as an “approved work”.27 Lord Hailes acted as an advocate depute (an assistant public prosecutor).28 There can be little 22 Beattie to Hailes, 3 September 1767, 28 May 1770, NLS MS 25301 fos 77–78, 164–165; see J  Beattie, Essay on the Nature and Immutability of Truth; in Opposition to Sophistry and Scepticism (1770). 23 Zachs, Without Regard to Good Manners (n 12) 95. 24 Zachs, First John Murray (n 7) 64. A considerable amount of correspondence concerning Johnson’s input survives: see, e.g., the letters of Hailes to Boswell, 3 May, 9 May 1774, 6 [7] April, 7 June, 9 September 1775, Yale MS Gen 89 C 1446, C 1447, C 1452, C 1456 and C 1458. See further Hailes to Boswell, n d, Edinburgh University Library (henceforth EUL) MS La.II.603. See also Boswell to Hailes, 18 January 1776, Yale MS Gen 89 L 601. 25 Boswell to Hailes, 12 April 1774, Yale MS Gen 89 L 599; Hailes to Boswell, 13 April 1774, Yale MS Gen 89 C 1445. There are other examples. 26 On the complex issue of the editions, see M Ahsmann, Bibliografie van Hoogleraren in de Rechten aan de Utrechtse Universiteit tot 1811 (1993) (henceforth Ahsmann, Bibliografie) 86–89 (nos 135–152). The Hewett translation was published in four volumes between 1987 and 1998, with Stoop as Research Editor. 27 See the Information for the Lord Advocate in HM Advocate v Macgregor, found in National Archives of Scotland, JC 3/28, 540 at 565. See J W Cairns, “Hamesucken and the Major Premiss in the Libel, 1672–1770: Criminal Law in the Age of Enlightenment”, in R F Hunter (ed), Justice and Crime: Essays in Honour of the Right Honourable the Lord Emslie (1993) 138 at 156–157. 28 In 1758, when James Boswell followed his father on the Northern Circuit, he travelled with Hailes who went as Advocate Depute: see the letters of Boswell to Temple, 29 July, 16 December 1758 in The Correspondence of James Boswell and William Johnson Temple, 1756– 1777, ed by T Crawford (1997) (henceforth Correspondence of Boswell and Temple) vol i, 6–9, 14–16.

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doubt that he knew the work and two copies (of the second and fourth edition respectively) are found in his family’s library.29 This is another example of the extent to which Scots were familiar with – or indeed inhabited – the intellectual world of the northern Low Countries. By Hailes’ day, however, the Scots generally were turning away from Dutch scholarship with its focus on classics and the ancient world. Yet, Hailes’ intellectual life and concerns show the extent to which those with a strong scholarly interest in classics could benefit from study in a country in which classical research remained a serious endeavour, even if a decline in achievements had by now set in. Indeed, Hailes, though of his time, was much more of an érudit in the tradition of Dutch scholars in the polyhistorical tradition, such as Jacob Gronovius or Pieter Burman, than the philosophe generally thought to be typical of the Enlightenment. This raises a number of interesting questions which will be considered in the conclusions. B. THE DALRYMPLES AND THEIR LIBRARY The surname Dalrymple is instantly recognisable to all familiar with the history and practice of Scots law, and Sir David was the great grandson of James Dalrymple, Viscount Stair, author of The Institutions of the Law of Scotland (1681), a major work that provided a synthesis of Scots law in the era of the usus modernus. Sir David’s grandfather, also Sir David (c  1660–1721), the first baronet (created 1701), was a younger son of Stair.30 Admitted as an advocate in 1688 after studying law in Utrecht (c 1685), he had an important public career: MP for Culross in the Scottish Parliament from 1698 to 1707; Commissioner for the Union with England in 1706; MP for the Haddington Burghs from 1708 to 1721 in the new British Parliament; and Auditor-General of the Exchequer from 1720 to 1721. He also held important legal posts: Solicitor General, 1701–1709; Lord Advocate, 1709–1711 and 1714–1720; and Dean of the Faculty of Advocates from 1712 to 1721.31 In 1709, the first baronet bought the unpretentious, but architecturally very important, proto-Palladian villa, called Whitehill, near Musselburgh, 29 NLS pressmarks Nha.K168 (2nd edn) and Nha.K177 (4th edn). 30 J Balfour Paul, Scots Peerage, 9 vols (1904–1914) vol viii, 114–147. 31 See, e.g., ibid vol viii, 143–147; Parliaments of Scotland: Burgh and Shire Commissioners, ed by M D Young (1992) vol i, 174; G E Cokayne, Complete Baronetage, 5 vols (1900–1906) vol iv, 396–398; G  W  T  Ormond, The Lord Advocates of Scotland from the Close of the Fifteenth Century to the Passing of the Reform Bill, 2 vols (1888) vol i, 301–312.

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built in 1686 by James Smith. He renamed it Newhailes, after his East Lothian estate of Hailes.32 He was a great and noted book collector in an age when many Scots lawyers were bibliophiles.33 In 1718–1720, he had a huge library wing added to Newhailes – in volume almost as great as Smith’s entire existing villa.34 Here he housed the extensive library that he had collected, which continued to be augmented through the century.35 There are, very roughly, around 1,200 law books in the Newhailes collection.36 Around two-thirds of these books are works on Roman law with some Canon Law; of the remaining third, probably under a third consists of books on Scots law (including duplicates and some rather ephemeral items), while the rest consists, in roughly equal proportions, of French law (with a strong focus on French customs and statutes), and English law. C. SCOTLAND AND THE IUS COMMUNE The owners of Newhailes collected a law library typical of its period in Scotland in terms of its contents: some law collections were bigger, some smaller. It was primarily a collection on Roman law, with many editions of the texts of the Corpus iuris civilis: some with the Gloss of Accursius, some taking into account the new textual scholarship of the Renaissance. There are also the most important works of interpretation of the Roman texts, such as those of Bartolus, Paulus de Castro, Jason de Mayno, Donellus, Hotman and Cujas, to name but a few. The library also contains the works of more modem commentators, such as those of contemporary (to the first Sir David) 32 See C McWilliam, Lothian (except Edinburgh) [The Buildings of Scotland] (1978) 351. 33 See T I Rae, “The Origins of the Advocates’ Library”, in P M Cadell and A Matheson (eds), For the Encouragement of Learning: Scotland’s National Library 1689–1989 (1989) 1 at 9–15. 34 I Gow, “‘The Most Learned Drawing Room in Europe’? Newhailes and the Classical Scottish Library”, in D Mays, M S Moss and M K Oglethorpe (eds), Visions of Scotland’s Past, Looking to the Future: Essays in Honour of John R Hume (2000) 81 at 84–86. 35 The greater part of it is currently located in the National Library of Scotland under the pressmark Nha, although, at least in part, it may be transported on deposit to the library room at Newhailes‚ now owned by the National Trust for Scotland. 36 They are generally within pressmarks I, K and L. There is the odd item, not a law book, with such a pressmark, but not very many. As well as books, there is one other important category of legal material found in pressmarks Misc 157 and Misc 73, consisting of 61 and 163 printed papers respectively, primarily of the type known as Session Papers, but also including some “Informations” from serious criminal trials. Some such papers also occur in the main collections of law books. There was a major sale of 437 lots by Sotheby’s in 1937, basically of valuable items “cherry-picked” from the collection, such as incunabula and presentation volumes inscribed to Hailes by Boswell and Johnson. None the less, lot 110 was fifty-seven volumes of Hailes’ legal papers. See the unpublished paper by B Hillyard, “Newhailes Library”, given 3 December 1999 at the National Trust’s Newhailes Study Day.

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Dutch scholars, such as Cornelis van Bijnkershoek, Antonius Schulting, Johannes Voet and Gerard Noodt. Much of the collection of Roman law was published before 1720 and it may be the first baronet who primarily collected it, although much more research is required to determine this.37 While the motivation of book collectors is an interesting topic, there can be little doubt that the predominance of Roman law in Scottish law libraries of this period reflects not only its scholarly importance but also its practical significance. By the middle of the sixteenth century, Scotland had become a country of the ius commune. The new central court, developed out of the Royal Council as the Session and reconstituted in 1532 as the College of Justice, used Romano-Canonical procedure. Many of its judges were trained in the ius commune, as were many of the advocates admitted to plead before it.38 It is no real exaggeration to say that, in the middle years of the sixteenth century, before the court had firmly developed its own procedures and precedents, the most important work in practice in Scotland was the commentary by Nicholas de Tudeschis (Panormitanus) on the Decretals, particularly on the second book, much relied on in questions of procedure. Scots law was seen to consist of statutes and customs, but the most important sources for decision-making were undoubtedly the texts of Canon and Civil Law with their glosses and interpreters. Scottish statutes would be applied, but these were few and customs were difficult to ascertain, so the Civil and Canon Laws, considered as the ius commune, were what the courts used as immediately applicable, failing “native” material, or even where they disliked an alleged Scottish custom.39 In 1596, the Lords of Session issued an Act of Sederunt (a type of rule of practice and procedure), reinforcing the use of written pleadings called “Informations”, promising that they would “try quhat is prescryveit or decidet thairanent, als weill be the common law as be the municipall law or practick of this realme”.40 The term “common law” here means 37 In making these remarks, I have had the benefit of reading the unpublished paper by Hillyard, “Newhailes Library” (n 36). 38 See J W Cairns, “Historical Introduction”, in K Reid and R Zimmermann (eds), A History of Private Law in Scotland: Volume 1: Introduction and Property (2000) 14 (henceforth Cairns, “Historical Introduction”) at 57–74, 82–101. 39 These remarks are based on my study of Sinclair’s Practicks, of which the best MS is EUL MS La.III.388a. I have used the text prepared by Dr Athol Murray with notes by Profesor Gero Dolezatek, available at http://www.uni-leipzig.de/ jurarom/Scotland. See generally A L Murray, “Sinclair’s Practicks”, in A Harding (ed), Law Making and Law Makers in British History (1980) 90. 40 The Acts of Sederunt of the Lords of Council and Session, from the 15th of January 1553, to the 11th of July 1790 (1790) 26. For a further discussion of Informations and their place in the practice of the court, see J W Cairns, “‘The Dearest Birthright of the People of England’: the

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the ius commune – the Civil and Canon Laws. Around 1603, a Scots lawyer writing for an English audience, probably in the context of James VI’s union projects, stated that the municipal laws of Scotland were the statutes and that there was no “common law” in Scotland (in the sense used in English law); instead, the Lords of Session were described, failing statutes, as having “recourse and doe decide accordinge to the ymperiall civill lawe”, although the precedents that by now had developed were recognised and followed.41 Decisions of the Court of Session were accordingly collected from the very beginning, as the Court gave a unique shape to the contemporary practice of the ius commune in Scotland. At the time the Newhailes collection was initially assembled, reference to Roman law was still an integral part of legal argument before the Scottish courts, although the nature of reliance on it and the justification of its use had changed somewhat from the sixteenth century. With its plentiful maxims and rich literature, Roman law remained a continuing source of arguments to interpret and develop Scots law.42 By 1700, such use of Roman law was justified by placing Scots law within a framework of the law of nature and nations; Roman law was applicable as representing that law. Scotland was a country of the usus modernus pandectarum, and there was developing what one might call a Roman–Scots law on analogy with the Roman–Dutch.43 D. THE SCOTS AND UNIVERSITY STUDY Before 1700, Scots lawyers had generally learned their Roman law abroad. The vagaries of politics, religion and war affected the choice made of universities, although one can generally say that, from the late Middle Ages to the Early Modern period, French universities were preferred. Scottish stubborn adherence to the Avignon Popes even after French rejection of them, the English occupation of parts of France, and the St Bartholomew’s Day Massacre could all affect choices, however, temporarily driving the Scots away from their preferred universities to others such as Leuven, Wittenberg or Civil Jury in Modern Scottish Legal History”, in J W Cairns and G McLeod (eds), “The Dearest Birthright of the People of England”: The Jury in the History of the Common Law (2002) 1 at 4–5. 41 J D Mackie and W C Dickinson (eds), “Relation of the manner of judicatores of Scotland” (1922) 19 Scottish Historical Review 254 at 268. 42 See Cairns, “Historical Introduction” (n 38) at 135–139. 43 See J W Cairns, “The Civil Law Tradition in Scottish Legal Thought”, in D L Carey Miller and R Zimmermann (eds), The Civilian Tradition and Scots Law: Aberdeen Quincentenary Essays (1997) 191 at 200–217.

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Cologne. None the less, the Scottish desire to pursue legal study in France is evident, even after the Reformation of religion.44 Through the course of the seventeenth century, this changed. Progressively more and more Scottish law students attended universities in the United Provinces. This reached a peak between 1680 and 1730, influenced by the general intellectual strength of the Dutch universities at this period, Louis XIV’s revocation of the Edict of Nantes in 1685, and William of Orange’s accession to the Scottish throne with consequent involvement in war with France. Numbers of Scottish students in the Netherlands remained basically strong, however, until roughly 1750, after which they collapsed.45 This means that Hailes’ studies at Utrecht came towards the very end of the era of Scottish study in the Dutch universities. By the time James Boswell studied at Utrecht (on the advice of Hailes, favoured over Leiden where his father and grandfather had studied law) in 1763–1764, the era of the Scottish law student in the Netherlands was over.46 Indeed, from the 1740s, there was a dramatic decline in the number of all foreign students attending the Dutch universities.47 Boswell, in fact, found himself the only anglophone student in Utrecht.48 Not only were the Scottish universities of Edinburgh and Glasgow now successfully teaching law, but the Dutch universities were by this time in marked decline. The ever-perceptive Boswell recognised that they were indeed “much fallen”.49 Exploring the legal education of a noted Scots lawyer in Utrecht in the 1740s also will throw light on legal education in the Netherlands at a period

44 R K Hannay, The College of Justice: Essays on the Institution and Development of the Court of Session (1933) 145–147; J Durkan, “The French Connection in the Sixteenth and Early Seventeenth Centuries”, in T C Smout (ed), Scotland and Europe, 1250–1850 (1986) 19. Among a variety of specialised studies of Scots students in France, M C Tucker, Maîtres et étudiants écossais à la Faculté de Droit de l’Université de Bourges (1480–1703) (2001) is worth noting. 45 R Feenstra, “Scottish–Dutch Legal Relations in the Seventeenth and Eighteenth Centuries”, in R Feenstra, Legal Scholarship and Doctrines of Private Law, 13th–18th Centuries (1996) XVI at 36 (henceforth Feenstra, Legal Scholarship and Doctrines of Private Law) (= H de Ridder-Symoens and J M Fletcher (eds), Academic Relations between the Low Countries and the British Isles, 1450–1700. Proceedings of the First Conference of Belgian, British and Dutch Historians of Universities held in Ghent, September 30–October 2, 1987 (1987) 25); K Van Strien and M Ahsmann, “Scottish law students in Leiden at the end of the seventeenth century. The correspondence of John Clerk, 1694–1697” (1992) 19 Lias 271 and (1993) 20 Lias 1 (henceforth Van Strien and Ahsmann, “Scottish law students in Leiden”). 46 Boswell in Holland, 1763–1764, Including His Correspondence with Belle de Zuylen (Zélide)‚ ed F A Pottle (1952) 2–3, 12, 17. 47 See J I L Israel, The Dutch Republic: Its Rise, Greatness, and Fall 1477–1806 (1995) (henceforth Israel, Dutch Republic) 1049–1051. 48 Boswell to Temple, 23 September 1763, Correspondence of Boswell and Temple (n 28) vol i, 69–71. 49 Boswell to Temple, 17 June 1764, ibid vol i, 101–104.

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when the great days were coming to an end. Understandably, scholarship has paid much more attention to the famous Dutch professors and the institutions in which they taught in the days of development and when the universities were at their peak.50 In comparison, there has been relatively 50 The only recent major institutional study of legal education in the Netherlands is M Ahsmann, Collegium und Kolleg: der juristische Unterricht an der Universität Leiden 1575–1630 unter besonderer Berücksichtigung der Disputationen, trans I Sagel-Grande (2000). In the period up to around 1730, one can also point in recent literature to R Feenstra and C J D Waal, Seventeenth-Century Leyden Law Professors and Their Influence on the Development of the Civil Law: A Study of Bronchorst, Vinnius and Voet (1975) (a fundamental work from which much further research has flowed); J J Veen, Recht en Nut: Studiën over en naar aanleidning van Ulrik Huber (1636–1694) (1976); R Feenstra, “Jacob Maestertius (1610–1658): zijn juridisch onderwijs in Leiden en het Leuvense dìsputatiesysteem van Gerardus Corselius” (1982) Tijdschrift voor Rechtsgeschiedenis 297; R Feenstra, “Ein später Vertreter der niederländischen Schule: Johann Ortwin Westenberg (1667–1737)”, in G Baumgärtel, E Klingmüller, H-J Becker and E Wacke (eds), Festschrift für Heinz Hübner zum 70 Geburtstag am 7 November 1984 (1984) 47 (=Feenstra, Legal Scholarship and Doctrines of Private Law (n 45) XV) (henceforth Feenstra, “Johann Ortwin Westenberg”); R Feenstra, “Johan Frederick Böckelmann (1632–1681): Een markant Leids Hoogleraar in de Rechten”, in S Groenveld, M E H N Mout and I Schöffer (eds), Bestuurders en Geleerden: Opstellen over Onderwerpen uit de Nederlandse Geschiedenis van de zestiende, zeventiende en achtiende Eeuw, aangeboden aan Prof Dr J J Wolter bij zijn Afschied als Hoogleraar van de Rijksuniversrteit te Leiden (1985) 137; R Feenstra, “De Franeker juridische Faculteit in nationaal en internationaal Perspectief, Inleidende beschouwingen gevolgd door een Studie over juridische Onderwijsliteratuur sinds het Midden van de zeventiende Eeuw”, in G T Jensma, F R H Smit and F Westra (eds), Universiteit te Franeker 1585–1811: Bijdragen tot de Geschiedenis van de Friese Hogeschool (1985) (henceforth Jensma, Smit and Westra (eds), Universiteit te Franeker) 289; M Ahsmann and R Lagrouw, “Pericula Schotana, wederwaardigheden onder Franeker juridische professoren ten tijde van Henricus Schotanus (1585–1605)”, in G T Jensma, F R H Smit and F Westra (eds), Universiteit te Franeker 305; M Van de Vrugt, “Antonius Matthaeus II 1601–1654”, in G C J J Van den Bergh, J E Spruit and M Van de Vrugt (eds), Rechtsgeleerd Utrecht: Levensschetsen van elf Hoogleraren uit driehonderdviftig jaar Faculteit der Rechtsgeleerdheid in Utrecht (1986) 23 (henceforth Rechtsgeleerd Utrecht); G C J J Van den Bergh, “Cornelius van Eck 1662–1732: Een dichter-jurist”, in Rechtsgeleerd Utrecht 37; M Ahsmann, “De juridische faculteit te Franeker 1585–1635, een studie over de professoren en hun onderwijs met lijsten van verdedigde disputaties” (1986) 54 Tijdschjrift voor Rechtsgeschiedenis 3; G C J J Van den Bergh, The Life and Work of Gerard Noodt (1647–1725): Dutch Legal Scholarship between Humanism and Enlightenment (1988) (henceforth Van den Bergh, Life and Work of Gerard Noodt); R Feenstra, “Les juristes de l’ancienne université de Franeker et leurs recueils de disputationes (période de 1635 à 1735)” (1988) Studi Senesi, supplemento alla centesima annata 604 (= R Feenstra, Legal Scholarship and Doctrines of Private Law (n 45) XIV); R Feenstra, “Der juristische Unterricht in Steinfurt im 17 Jahrhundert und die an niederländische Universrtäten berufenen Steinfurter Professoren der Rechte, mit einem besonderen Beitrag über A A Pagenstecher”, in H Holzhauer and R Toellner (eds), Symposion 400 Jahre Hohe Schule Steinfurt (1991) 36 (henceforth Feenstra, “Der jusristische Unterricht in Steinfurt im 17 Jahrhundert”); K Van Strien and M Ahsmann, “Scottish law students in Leiden”(n 45); M Ahsmann, “Teaching in Collegia: The Organization of Disputations at Universities in the Netherlands and in Germany during the 16th and 17th Centuries”, in Università in Europa: le istituzioni universitarie del medio evo ai nostri giorni strutture, organizzazione, funzionamento (1995) 99; M Ahsmann, “Henricus Scotanus (1548–1605), Franekers eerste juridische hoogleraar” (1995) Gens Schotana 205.

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little detailed study of individual professors and the development of the Dutch law schools after around 1730.51 The attempt, therefore, to explore, in so far as possible, some of the details of the actual studies of an individual law student at this transitional period has therefore its own, wider value. E. LORD HAILES’ STUDIES (1) Hailes’ notebooks The Newhailes Papers, preserved in the National Library of Scotland, unfortunately contain no correspondence from or with Hailes during his time at Utrecht.52 Nor do they contain any relevant financial information or accounts. Some information about his studies in Utrecht is preserved, however, in his later correspondence with James Boswell over 1763–1764.53 51 In, for example, Rechtsgeleerd Utrecht (n 50), there is no jurist judged to merit an individual chapter between Van Eck (died 1732) and Holtius (died 1861). Some specialist studies, do, of course pay attention to the period after the academic golden age: R Feenstra, “De Franeker juridische faculteit in nationaal en intemationaal perspectief‚ inleidende beschouwingen gevolgd door een studie over juridische onderwijsliteratuur sinds het midden van de zeventiende eeuw”, in Jensma, Smit and Westra (eds), Universiteit te Franeker (n 50) 289; R Feenstra, “Die leydener juristische Fakultät im 17 und 18 Jahrhundert”, in L Rathmann (ed), Leipziger Beiträge zur Universitätsgeschichte (1987) 43; Jansen, “Over de 18e eeuwse docenten natuurecht aan Nederlanse universiteiten en de door hen gebruikte leerboeken” (1987) 55 Tijdschrift voor Rechtsgeschiedenis 103 (henceforth Jansen, “De 18e eeuwse docenten natuurrecht”); R Welten, “Utrechtse hoogleraren in de rechten (1636–1815): enkele aspecten van geschiedenis van de rechtenfaculteit te Utrecht” (1987) 55 Tijdschrift voor Rechtsgeschiedenis 67 (henceforth Welten, “ Utrechtse hoogleraren in de rechten”); Feenstra, “Canon Law at Dutch Universities from 1575 to 1811”, in R H Helmholz (ed), Canon Law in Protestant Lands (1992) 123 (= Feenstra, Legal Scholarship and Doctrines of Private Law (n 45) XI) (henceforth Feenstra, “Canon Law at Dutch Universities”); M Ahsmann, “Teaching the ius hodiernum: legal education of advocates in the northern Netherlands (1575–1800)” (1997) 65 Tijdschrift voor Rechtsgeschiedenis 423. The single obvious major study of a particular professor is C J H Jansen, Natuurrecht of Romeins Recht: Een Studie over Leven en Werk van F A van der Marck (1719–1800) in het Licht van de Opvattingen van zijn Tijd (1987) (henceforth Jansen, Natuurrecht of Romeins Recht); its very title indicates the change taking place in the focus of legal scholarship. The experience of one Leiden student in the later period is interestingly discussed in W R E Velema, Enlightenment and Conservatism in the Dutch Republic: The Political Thought of Elie Luzac (1721–1796) (1993) (henceforth Velema, Enlightenment and Conservatism) 82–87. 52 Scottish archives are particularly rich in information about legal studies in the Dutch Republic: see, e.g., K Van Strien and M Ahsmann, “Scottish law students in Leiden” (n 45); J W Cairns, “Alexander Cunningham’s proposed edition of the Digest: an episode in the history of the Dutch elegant school of Roman law” (2001) 69 Tijdschrift voor Rechtsgeschiedenis 81 (Part I) and 307 (Part II) (henceforth Cairns, “Alexander Cunningham”) at 314–319. 53 The total correspondence (from 1760 to 1791) between Boswell and Hailes is located in NLS MS 25295 (letters of Boswell to Hailes in the Newhailes Papers); Yale MS Gen 89 L 597–617 (copies of letters from Boswell to Hailes) and C 1414–1479 (Hailes to Boswell); and EUL MS La II.180

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A friend of Boswell’s father, Lord Auchinleck, Hailes mediated in the often-troubled relationship between the father and son. As already noted, it was on Hailes’ advice that Boswell went to Utrecht, rather than Leiden, which Hailes described as “a dull place”.54 Despite the lack of a direct personal account, it is none the less possible to gain some information about the classes that Hailes attended. This is because some remains of his studies in Utrecht can be identified in the Newhailes Papers and the Newhailes Library. The most important of these is a series of identically bound volumes that consists of five textbooks bound with interleaves, which Hailes has annotated.55 One is an interleaved copy of Grotius erotematicus of 1688 bound in two volumes.56 The next is Notitia praecipuarum Europae rerumpublicarum by Otto in its “fourth” edition bound with interleaves in two volumes.57 The third is a copy of the “seventh” edition of Pufendorf’s De officio hominis et civis, in the edition, Utrecht, 1723, bound with interleaves in a single volume.58 The fourth is a copy of the 1738 edition of Heineccius’ Elementa juris secundum ordinem institutionum bound with interleaves in four volumes.59 The final set of notes in this series consists of a copy of Van Eck’s Principia iuris in

54

55 56 57

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and MS La II.603 (a letter from Boswell to Hailes in each). Each of these collections contains some material relevant to Utrecht. The letters from the Newhailes Papers have been printed, some in Letters of James Boswell, ed C B Tinker 2 Vols (1924) vol i, 10–14, 16–18, 23–25, 28–32, 38–41 with the remainder in A G Hoover, “Boswell’s letters at Newhailes” (1953) 22 University of Toronto Quarterly 244. Four letters from Hailes to Boswell are printed in Boswell, Boswell in Holland 1763–1764, including his correspondence with Belle de Zuylen (Zélide) (1952) col by F A Pottle, 39–41‚ 88–89, 94 n 1‚ 235–236 (the last in part only) (henceforth Boswell in Holland). The total correspondence was the basis of C M Weis, “The Correspondence of James Boswell and Sir David Dalrymple”, unpublished PhD thesis, Yale University (1952) (not available to me). Hailes in fact initially favoured Geneva, where there already were some friends of his, but when Lord Auchinleck wanted Boswell to go to the Netherlands, Hailes argued for Utrecht over Leiden. Hailes to Boswell, 16 June, 1 July 1763, Yale MS Gen 89 C 1422–1423. They have identical, distinctive red spines and rather roughly marbled boards. It is possible to identify other works acquired by Hailes at the same time with the identical binding. Grotius erotematicus, sive Hugonis Grotii in quaestiones reducti de jure belli ac pacis lib. III. Dirigente Johann. Georg. Simone (1688); NLS MSS 25331–25332. Everardi Ottonis jcti & antecessoris notitia praecipuarum Europae rerumpublicarum. Editio Quarta, aucta & emendata (1739); NLS MSS 25341–25342. On this work, see Ahsmann, bibliografie (n 26) 110 (no 252). S Pufendorf, De offìcio hominis et civis juxta legem naturalem libri duo (1723). While the other interleaved notebooks are in the manuscript collection, this is still in the library of printed volumes, pressmark Nha.K283. It obviously should be associated with the other works listed here. J G Heineccius, Elementa juris civilis secundum ordinem institutionum (1738); NLS MSS 25337–25340. The work was first published in Amsterdam in 1725.

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the edition of 1724 bound in four interleaved volumes.60 There is enough internal evidence in some of these to suggest that all contain notes from his studies in Utrecht. It is likely that he bought them from a bookseller in Utrecht, already bound with interleaves, in preparation for the classes he intended to take. There are three further, rather more difficult, manuscripts to be considered in this connection. The first is an interleaved copy of Wieling’s Lectionum iuris civilis libri duo bound in calf.61 While Hailes may have taken this to Utrecht, it was purchased when he was still in Britain, as on a flyleaf he has written “Dav. Dalrymple 1744”.62 Its only major annotations, on a few interleaves, deal with litigation concerning Musselburgh and are unrelated to the text.63 The only other annotations are upside down on the verso of a number of interleaves at the back of the volume and are again unrelated to the text.64 The manuscript is otherwise without annotations.65 Given that Abraham Wieling was a professor at Utrecht from 1739 until his death early in 1746, it is tempting to suppose that Dalrymple had bought this work in advance, with a mind to study in Utrecht. If so, he seems to have made no great use (if any) of it there (or elsewhere). The second, bound in vellum in two volumes, is an interleaved copy of Wieling’s Repetitio institutionum of 1740.66 This will be discussed further below. The remaining manuscript to consider is a five-volume set of notes entitled “Elementa juris secundum ordinem institutionum”.67 The title indicates a set of notes on the tremendously popular elementary text of that name by Heineccius. Again, there is nothing specifically to identify these notes with Hailes’ time in Utrecht; nonetheless they are worth considering in this connection and will be discussed further below. 60 C van Eck, Principia juris civilis secundum ordinem digestorum. Pars prima [-altera]. Editio Quinta, prioribus correctior et auctior (1724). NLS MSS 25333–25334 consists of the pars prima. It lacks the identifying title page and preliminary pages. The pagination, however, reveals it as this edition. NLS MSS 25335–25336 contain the pars altera, clearly identified as this edition. On this work, see Ahsmann, Bibliografie (n 26) 73 (no 83). 61 A Wieling, Lectionum iuris civilis libri duo, in quibus vulgata quorundam capitum scriptura defenditur. Accedit nunc primum oratio pro glossatoribus (1740); NLS MS 25345. See Ahsmann, Bibliografie (n 26) 161 (no 466). 62 NLS MS 25345, fo 6. 63 Ibid fos 10, 30, 31, 36, 38, 40, 42, 44, 46. 64 Ibid fos 376v, 378v, 380v, 382v, 384v. (There once was something written on the top half of the recto of fo 376; but it has been torn out.) 65 Thus all the interleaves in NLS MS 25345 from fo 50 to fo 376 are blank and there are no marginal or interlineal annotations. 66 A Wieling, Repetitio institutionum iuris civilis (1740); NLS MSS 25343–25344. The second volume consists of the much shorter appendix to this work. See M Ahsmann, Bibliografie (n 26) 160 (no 462). 67 NLS MSS 25314–25318.

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(2) Hailes in Utrecht Like most Scots students at Utrecht, Hailes did not matriculate.68 He appears, however, to have arrived in Utrecht in the autumn of 1745.69 The date of arrival is consistent with what we know of his time at Eton and his admission to the Middle Temple.70 He informs us that he spent a year and a half in Utrecht.71 This may be an underestimation; he was still in Utrecht in February 1747.72 He lived there, with a single servant, at a cost of around £200–300 per annum.73 He had returned to Scotland, via London, by July 1747.74 The civic disturbances that broke out in the Dutch Republic in April 1747 may have hastened his departure.75 While Scots were primarily interested in acquiring knowledge and skills in Roman law in their studies in the Netherlands, they also wished to pursue other subjects potentially useful to them in their careers or which were considered useful acquisitions for a gentleman. In particular, certainly earlier in the eighteenth century, they were generally interested in classes on

68 He is not mentioned in the Album studiosorum academiae Rheno-Traiectinae MDCXXXVI– MDCCCLXXXVI: accedunt nomina curatorum et professorum per eadem secula (1886). Nor (for that matter) is his grandfather included in this Album. 69 There is no precise information on this. I would speculate that it was in the second half of 1745, as he was taught by Professor Wieling who died in January 1746. It also seems likely that he would have travelled to Utrecht before the start of the Jacobite Rising in August, 1745, especially given the Battle of Prestonpans was fought not far from his family home on 20 September. Some support for an arrival in 1745 is provided by an annotation to the second volume of the interleaved copy of Grotius erotematicus, NLS MS 25332 at fo 300. There Hailes heads an index of editions of Grotius with the comment that it was written by Wieling in 1737 and designates him as “Antecess. Traject. (1745)”. Given that Wieling had been a professor at Utrecht since 1739, 1745 seems likely to be a date personal to Hailes, indicating when he started his studies with the professor. 70 Austen-Leigh, Eton College Register 1698–1752 (n 2) 96. With his younger brother James, he is found in a class list at Eton in 1742; both are gone by the next surviving list, from 1745. Hailes told Boswell (no date, but probably 11 February 1763 Yale MS Gen 89 C 1414) that, at fifteen, he was his “own master” and that at seventeen he was sent “as a travelling governor to a Brother” several years younger than himself. This suggests that the education at Eton may have been more for his brother James’ benefit than for that of Hailes himself. James became an army officer. Hailes may have left Eton prior to his admission to the Middle Temple, but it is worth noting that NLS MS 25416 fo 34v has the comment “Interprete e schola Etonensis” and the date 1745. Like others he may have remained at Eton while entered in the Middle Temple. 71 See, e.g., the commonplace book he stated he began at Utrecht in 1746: NLS MS 25423 fo 7v. 72 Lady Jane Douglas to Mrs Carse, 10 February 1747 in NLS MS 25327 at 35–38. 73 That at least was the sum he informed Boswell was necessary for a gentleman to live there “as genteely [sic] as any man of sense would wish”: Hailes to Boswell, 1 July 1763, Yale MS Gen 89 C 1423. On servants, see Hailes to Boswell, 10 July 1763, Yale MS Gen 89 C 1425. 74 See the note he added to the death notice of his friend Van Voorst: NLS MS 25300 fo 19. 75 Israel, Dutch Republic (n 47) 1067–1078.

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natural law, history, antiquities, and public law generally.76 The description of Hailes’ notebooks above shows that he generally followed this tradition, studying natural law, Justinian’s Institutes, Justinian’s Digest, and public law. These were also the subjects he later encouraged Boswell to study.77 At Eton, then a relatively small school, Hailes had acquired the classical education that was the necessary foundation of his legal study.78 Like many Scots, during his studies in the Netherlands, he learned the French that he sometimes displays in his correspondence.79 Indeed, one of the arguments he used to counter Boswell’s desire to study in France was that he could learn French as well in Utrecht as in France.80 Hailes evidently conceived a strong affection for the Netherlands and the Dutch people and he described himself as having “lived long peaceably and contentedly” among them. While there, he had a “painful experience” of the heart involving a Dutch lady.81 The extent to which he gained competency in the Dutch language is unknown, but he evidently had some, as his friend E L van Voorst corresponded with him in that language from Hailes’ return to Scotland in 1747 until the Dutchman’s death early in 1748.82 Hailes had found pleasure in learning to skate on the frozen canals.83 He encouraged Boswell to study at Utrecht with the following affectionate recollection: I believe Utrecht may be a very good place. I may have a partiality for it from the happy years which I spent in that beautifull [sic] City, and from the great partiality and friendship which I met there, from men and women. [I]f you should chance to be fixed upon Utrecht, you will be among my friends male and female, as if you were at Edinburgh, and though my Ladys [sic] may be too old

76 J W Cairns, “‘Importing our Lawyers from Holland’: Netherlands’ Influences on Scots Law and Lawyers in the Eighteenth Century”, in G G Simpson (ed), Scotland and the Low Countries 1124–1994 (1996) 136 (henceforth Cairns, “Importing our Lawyers from Holland”) at 137– 139; Van Strien and Ahsmann, “Scottish law students in Leiden” (n 45) at 290–298. 77 Hailes to Boswell, 1 July 1763, Yale MS Gen 89 C 1423; Boswell to Hailes, 23 and 30 July 1763, NLS MS 25295 fos 16–18, 19–20; Hailes to Boswell, 26 September 1763, Yale MS Gen 89 C 1429. Since Boswell had already studied law in Scotland, Hailes advised him to take a course on the Institutes only if it took his fancy. 78 H C Maxwell Lyte, A History of Eton College (1440–1898) (1899) 301–334. 79 Hailes to Count Nassau, c 23 July 1763 (copy), Yale MS 89 C 1426; Hailes to Boswell, 2 December 1763, Yale MS Gen 89 C 1430; Hailes to Boswell, 27 June 1764, EUL MS La II.180. 80 Hailes to Boswell, 16 June 1763, Yale MS 89 C 1422; Boswell to Hailes, 25 June 1763, NLS MS 25295 fos 5–8. 81 NLS MS 25423 fo 7v. This was with the lady who subsequently became Mme Sichterman, whom Boswell later met: Hailes to Boswell, 11 April 1764, Yale MS Gen 89 C 1431. 82 Van Voorst to Hailes, 13 October, 10 August, 8 September, 26 December 1747, 14–15 January 1748, NLS MS 25300 fos 3, 4–5, 9, 14–15. 83 Hailes to Boswell, 26 September 1763, Yale MS Gen 89 C 1429.

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for your acquaintance, yet their daughters are I suppose as agreeable as their mothers were.84

In Utrecht, Hailes had enjoyed a wide acquaintance among leading members of Utrecht society, such as Count Nassau and the family of Van Tuyll van Serooskerken, from which sprang Boswell’s Zélide.85 Many individuals in Utrecht later remembered him with respect, as Boswell was always pleased to tell him.86 His correspondence with Boswell about Utrecht revived his memories and strong affections for the city and its people.87 He was even able to some extent to persuade doubting Boswell – who clearly took considerable persuading – of its social attractions.88 (3) The law professors in Utrecht During Hailes’ time in Utrecht, the teachers in the Faculty of Law were:89 Jacobus Voorda (1698–1768), a distinguished Romanist and author in the elegant tradition, professor in Utrecht from 1730 to 1760, who had the duty of teaching the ius hodiernum added to his chair from 1737 and whose lectures de statutis have been translated into English by our honorand;90 Abraham Wieling (1693–1746), already mentioned, a protégé of Cornelis van Bijnkershoek, professor iuris civilis et feudalis from 1739 and professor juris publici Romano-Germanici from 1743 until his death on 10 January 84 Hailes to Boswell, 16 June 1763, Yale MS Gen 89 C1422. 85 Hailes wrote a letter of introduction to Nassau for Boswell: Hailes to Count Nassau, c 23 July 1763 (copy), Yale MS Gen 89 C 1426. For his memory of Boswell’s Zélide and her family, see Hailes to Boswell, 11 April 1764, Yale MS Gen 89 C 1431. 86 Boswell to Hailes, 9 July 1763 NLS MS 25295, fos 11–12; Hailes to Boswell, 11 April 1764, Yale MS Gen 89 C 1431. 87 Hailes to Boswell, 11 April 1764, Yale MS Gen 89 C 1431. 88 See, e.g., Hailes to Boswell, 1 July 1763, Yale MS Gen 89 C1423; Boswell to Hailes, 9 July 1763, NLS MS 25295 fos 11–12; Hailes to Boswell, 18 July 1763, Yale MS Gen 89 C 1425; Boswell to Hailes, 23 July 1763, NLS MS 25295 fos 16–18. It took Boswell some time to appreciate Utrecht and he initially found the Dutch rather cold: Boswell in Holland (n 53) 6–10; 80. Hailes wrote the appropriate steadying letter about Dutch manners: Hailes to Boswell, 2 December 1763, Yale MS Gen 89 C 1430. 89 See generally Welten, “Utrechtse hoogleraren in de rechten” (n 51). There is a useful chronological list of the law professors at ibid 87–89 and also in M Van de Vrugt, “Album scholasticum”, in Rechtsgeleerd Utrecht (n 50) 216 (henceforth Van de Vrugt, “Album scholasticum”). 90 See G C J J van den Bergh, Die holländische elegante Schule: Ein Beitrag zur Geschichte von Humanismus und Rechtswissenschaft in den Niederlanden 1500–1800 (2002) (henceforth Van den Bergh, Holländische elegante Schule) 210–212; Nieuw Nederlands Biographisch Woordenboek (henceforth NNBW) (1911–1937) vol iii, col 1338; Ahsmann, Bibliografie (n 26) 149–152 (nos 414–429); Tractatus de statutis, eorum potestate ei interpretatione, item jure, quod ex trum diversitate e conflictu inter sese existit, ediderunt et Anglice verterunt M L Hewett et P van Warmelo (1985).

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1746;91 Petrus Wesseling (1692–1764), a distinguished philologist, Professor of History, Eloquence and Greek in the Faculty of Letters from 1735, and Professor of Natural Law and the ius publicum Romano-Germanicum in the Faculty of Law from 26 September 1746;92 and F G Houck (1708–1767), Professor of ius civile from 20 June 1746.93 Houck and Wesseling were both born in Steinfurt in Germany, but had been educated in the United Provinces where they had subsequently pursued academic careers.94 It is notable that two of these professors were appointed during Hailes’ time in Utrecht to replace Wieling, another German. This means that, when Hailes arrived in 1745, the Faculty of Law consisted of Wieling and Voorda. From mid-January until the start of the summer of 1746 there was only one professor occupying a chair in Law; from September onwards there were three in post.95 At first sight, it seems most probable that Hailes started his studies with Wieling, since, nearly twenty years later, he requested that Boswell purchase for him an engraved print of Wieling’s portrait.96 (4) Justinian’s Institutes If Hailes followed the common earlier pattern of study, he will have started with classes on Justinian’s Institutes and natural law.97 He later advised Boswell to take a class on the Institutes at Utrecht only if it took his fancy, but this was because Boswell had already studied Roman law in Scotland and was not in need of this type of introduction.98 So far as we know, Hailes

91 Van den Bergh, Holländische elegante Schule (n 90) 213–215; Welten, “Utrechtse hoogleraren in de rechten” (n 51) 99; NNBW (n 90) vol iii, col 1418; Ahsmann, Biographie (n 26) 154–165 (nos 433–484). There are interesting remarks on Wieling in Van den Bergh, Life and Work of Gerard Noodt (n 50) 314–318. 92 See Welten, “Utrechtse hoogleraren in de rechten” (n 51) 98–99; J E Sandys, History of Classical Scholarship (1908) (henceforth Sandys, Classical Scholarship) vol ii, 453–454; Biographie universelle, ancienne et modeme (1827) vol l, 395–400. As an historian and teacher, Wesseling is a central figure in J Roelevink, Gedicteerd verleden: Het onderwijs in de algemene Geschiedenis aan de Universiteit te Utrecht, 1735–1839 (1986). On his career, see J Roelevink, Gedicteerd verleden 154–166. 93 Welten, “Utrechtse hoogleraren in de rechten” (n 51) 92; NNBW (n 90) vol ii, cols 606–607; Ahsmann, Biografie (n 26) 81–82 (nos 113–119). 94 Geography meant that links between Steinfurt and the Netherlands were common. See, on the lawyers, R Feenstra, “Der juristische Unterricht in Steinfurt im 17 Jahrhundert” (n 50). 95 I have ignored the issue of whether Hailes may have taken some classes from private teachers. 96 Hailes to Boswell, 11 April 1764, Yale MS Gen 89 C 1431. 97 Cairns, “Importing our Lawyers from Holland” (n 76) at 136–139. 98 Hailes to Boswell, 1 July 1763, Yale MS Gen 89 C 1423. On Boswell’s studies of Roman law in Edinburgh and Glasgow, see F A Pottle, “Boswell’s University Education”, in Johnson, Boswell

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had not formally studied Roman law prior to his departure for Utrecht, although he may have carried out some reading in advance of his arrival. If it is a fair assumption that Hailes himself probably wanted to attend a course on the Institutes, it must be pointed out that the only evidence that he did so is provided by the observation that the binding of the interleaved volumes containing Heineccius’ textbook on the Institutes is in conformity with that of other interleaved textbooks definitely containing notes from classes at Utrecht. These notes on the Institutes present a number of puzzles that might raise questions about their origin while it is difficult to identify who may have been Hailes’ teacher for the course. Turning first to internal evidence provided by the notes, it may be pointed out that the only dates found in any of the volumes of the interleaved Heineccius are on a leaf at the end of the second. There one finds: “Upon the 30th of November in the morning” and “Seven quarters paid Decr 26 1747”.99 The second of these two dates is months after Hailes left Utrecht. Neither date is on the face of it directly linked to the progress of a class; the second evidently marks something else. This raises the issue of whether these notes reflect, not teaching in Utrecht, but rather in Edinburgh, where Hailes was by December 1747. Did he in fact omit study of the Institutes when in Utrecht? Do these notes perhaps reflect his preparation for admission as an advocate in Edinburgh? One can easily envisage Hailes, perhaps in the house his father once occupied in Edinburgh at World’s End Close, preparing for his examinations using Heineccius.100 It is certainly plausible that Hailes attended the classes of the Professor of Civil Law in Edinburgh in preparation for his examinations for admission as an advocate. Certainty is impossible, since, for this period, the names of students in the law classes at Edinburgh have not been preserved. In 1747, the chair of Civil Law was held by Kenneth Mackenzie of Dolphinton, who had studied at Leiden, taking classes on Roman law with Gerard Noodt and Anton Schulting and on history with Pieter Burman.101 Mackenzie had been

and Their Circle: Essays Presented to Lawrence Fitzroy Powell in Honour of his Eighty-fourth Birthday (1965) 230 (henceforth Pottle, “Boswell’s University Education”) at 243, 246. 99 NLS MS 25338 fo 124. 100 For the house at World’s End Close, see NLS MS 25281 fo 108, which, in 1743, Sir James Dalrymple insured for the sum of £2,000 (Scots). They are no longer listed as living there (or elsewhere in the Royal Burgh) by 1752: Gilhooley, A Directory of Edinburgh in 1752 (1988) 67. 101 See K Mackenzie to G Mackenzie, 20 March 1720 NLS MS 1209 fo 191; Album studiosorum academiae Lugduno Batavae MDLXXV–MDCCCLXXV: accedunt nomina curatorum et professorum per eadem secula (1875) col 860.

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appointed in 1745 in place of Thomas Dundas, who had studied at Groningen under Barbeyrac.102 Dundas had taught his course on the Institutes using the compend of Johannes van Muyden.103 No evidence has yet been uncovered on Mackenzie’s practice in this respect, although his successor, Thomas Dick, was teaching using Heineccius’ Elementa by the end of the 1770s.104 This raises the possibility that Mackenzie taught using Heineccius’ work in 1747. We do not have the precise dates of Mackenzie’s classes in 1747–1748. His normal practice was, however, to start his first course on the Institutes early in November. His second course on the Institutes normally began around the beginning of March.105 This makes it perfectly feasible that he would have been roughly half way through his textbook by the end of December. This therefore confirms that it is possible that these notes of Hailes on Heineccius reflect teaching in Edinburgh, with the date indicating where Hailes had reached in a course on the Institutes, although made as a memorandum about something else. (Of course, he could have studied Heineccius in Utrecht and then again with Mackenzie in Edinburgh.) An alternative plausible explanation of Hailes’ use of the manuscript in December 1747 is, however, possible. This involves consideration of the five-volume set of notes entitled “Elementa juris secundum ordinem institutionum”.106 These notebooks in fact consist of a transcript of Heineccius as far as Inst 2.8, along with relatively extensive further additional comments and explanations of the text. At one time there must have been further notebooks, now missing.107 The additional comments are indicated in a way conventional for the period by repetition (underlined) of a word or phrase from Heineccius’ text. Comparison shows that many of the comments on Heineccius in this manuscript are derived from the notes on Heineccius in the interleaved manuscript. There are other notes 102 See Dundas to Mackie, 10 January 1728, EUL MS La II.91.B; Album studiosorum academiae Groninganae [1614–1914] (1915) 175; A Grant, Story of the University of Edinburgh During its First Three Hundred Years (1884) (henceforth Grant, Story of the University of Edinburgh) vol ii, 364–365. 103 J Van Muyden, Compendiosa institutionum Justiniani tractatio in usum collegiorum (1687); Ahsmann, Bibliografie (n 26) (nos 196–201); “A short account of the university of Edinburgh, the present professors in it, and the several parts of learning taught by them” (1741) Scots Magazine 371. 104 H Arnot, History of Edinburgh (1779) 399; Grant, Story of the University of Edinburgh (n 102) vol ii, 365. 105 See, e.g., Caledonian Mercury, 14 October 1746; 17 October 1749; 8 March 1750; 4 March 1751. 106 NLS MSS 25314–25318. 107 Thus, NLS MS 25314 ends with Heineccius, Elementa § 98, while MS 25315 starts with §203; MS 25317 ends with § 384, while MS 25318 starts with §414.

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from as yet unidentified sources.108 We know that Hailes believed that to make a copy of a whole book fixed attention on the subject of the book and helped imprint it on the memory.109 Hailes can only have filled these notebooks (and those missing) with the text of Heineccius and notes on that text in order to study the principles of Roman law in some detail and commit them to memory. A plausible suggestion for his doing so is preparation for his examinations for admission as an advocate. He may well have been preparing for these in December 1747; the appearance of this date in the interleaved text may originate in his working through his old lecture notes to compile the new manuscript. The date therefore is not necessarily associated with the making of the original notes in the interleaved volumes. This is speculative; but however that may be, it is most likely that the notes on Heineccius in the interleaved volumes derive from his studies at Utrecht, even if, perhaps, not directly from a class. There is no evidence that he ever studied law in Edinburgh; the binding of the interleaved volumes firmly connects them with those volumes that definitely were used in Hailes’ studies in Utrecht. A further slight support for this view can be drawn from the notes on Van Eck’s Principia, which, as we shall see, definitely originate in classes at Utrecht. These only start in the middle of D 1.3; the notes on Heineccius, however, have a relatively full account of appropriate preliminary matters such as Justinian, Tribonian and Roman law in general. If the same professor taught both classes, one can well imagine that he did not see a need to repeat in it matter already covered in a class on the Institutes. It would therefore make sense to begin in the course of D 1.3. This then raises the question of which professor it was whose classes on the Institutes Hailes may have attended. It seems unlikely that he studied with Jacobus Voorda who taught the Institutes using the compend of J O Westenberg, Principia juris secundum ordinem Institutionum Justiniani in usum auditorum vulgata.110 Thus if Hailes attended such a class immediately on his arrival, the only candidate for his teacher is Wieling. This is supported

108 The library at Newhailes contained another copy of this work of Heineccius also in the edition of 1738 (NLS pressmark Nha.1176), which has relatively extensive marginal annotations from Inst 2.1 onwards. About the origins of these it is difficult to be certain; they do not appear to have influenced the contents of these five volumes. 109 Boswell to Hailes, 23 July 1763, NLS MS 25295 fos 16–17. 110 Feenstra, “Johann Ortwin Westenberg” (n 50) at 53–54; Jansen, “De 18e eeuwse docenten natuurrecht” (n 51) at 104. For this work, see Ahsmann and Feenstra, Bibliografie van Hoogleraren in de Rechten aan de Leidse Universiteit tot 1811 (1984) (henceforth Ahsmann and Feenstra, Bibliografie) 361–362 (nos 1129–1137). There is no copy of this work in the Newhailes Library.

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by his later act of piety in trying to secure a copy of the professor’s portrait and the likelihood that he started his class on the Digest with Wieling. There is a major problem, however, in identifying Wieling as the teacher of Hailes’ course on the Institutes. Van der Horst has suggested that a manuscript dating from c 1743–1746 contains notes from Wieling’s class.111 This covers the very period when Hailes was in Utrecht. The manuscript contains notes on the very popular compend of Justinian’s Institutes by J F Böckelmann, first published in 1679.112 There is an associated manuscript dated 1743 entitled “Notata et dictata in Justinum [sic]. Ipse ego ex variis libris atque dictatis in alios libros collegi atque composui”, which Van der Horst also suggests may derive from Wieling’s classes.113 Van der Horst’s attribution of these manuscripts to classes of Wieling is based on the observation that, in 1728–1729, Wieling had lectured at Franeker on Böckelmann’s Differentiae, a different work, however, which considered the differences between Canon Law, Civil Law and modern law.114 Should Van der Horst be correct, it would be implausible that any of the material discussed above derived from Wieling’s class on the Institutes. It is worth noting, however, that the manuscript of 1743 does not purport to be from a single class, but is a composite work, gathered from a variety of books and lectures on “other books” while there appears to be nothing definite to associate the notes on Böckelmann’s compend with Wieling. The probable note-taker was Pieter Ragay who matriculated in 1750.115 There is in fact no evidence that these notes derive from Wieling’s class. Of course, this does not means that Wieling did not use Böckelmann’s compend, nor that the argument made above is correct. It simply shows that Van der Horst’s argument is not conclusive. It is perhaps helpful here to consider the interleaved copy of Wieling’s Repetitio institutionum. Of all these interleaved volumes, this is in fact the

111 K van der Horst, Catalogus van de Collectie Collegedictaten van de Utrechtse Universiteitsbibliotheek (1994) 40; Utrecht University Library (henceforth UUL) HS 8*.A.4–5 “Dictata in Compendium Böckelmanni” (I have not examined this manuscript). 112 J F Böckelmann, Compendium institutionum Justiniani sive elementa juris civilis in brevem et facilem ordinem redacta (1679). On editions, see Ahsmann and Feenstra, Bibliografie (n 110) 61–64 (nos 32–44). 113 UUL HS 8*.A.3 (I have not examined this manuscript). 114 Feenstra, “Canon Law at Dutch Universities” (n 51) at 133. J F Böckelmann, Tractatus postumus de differentiis juris civilis, canonici et hodierni: Cornelius van Eck edidit, recensuit et praefatione auxit (1694); for details of editions, see Ahsmann and Feenstra, Bibliografie (n 110) 65–66 (nos 49–52). 115 Album studiosorum academiae Rheno-Traiectinae (n 68) col 148. In Utrecht, matriculation, if it occurred at all, normally did so only towards the end of a student’s period of study, probably because he was considering taking a doctorate.

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most heavily annotated, not only on the interleaves, but also on the printed pages, with extensive marginal and interlineal notes. These annotations are frequently rough, scribbled and sometimes in pencil. New and different notes in ink have often been written over the pencil notes. There are deletions, while interleaves have often been torn out, especially towards the beginning of the volume. It is thus a work of which Hailes made very extensive use indeed. It also contains drawings or cartoons of faces and individuals of the type that occasionally turns up in some of the other manuscripts discussed here.116 Though there is no internal evidence to associate these volumes with Hailes’ studies in Utrecht, it is very possible that he used this work there. On the other hand, since he returned to Scotland by July 1747, and will have passed some of the time in the next eight months preparing for his examinations for admission to the Faculty of Advocates, he may have used this work, which imparts knowledge through the mechanism of questions and answers, to prepare for his private examinations. Since these were conducted in Latin on Roman law, the work was particularly well adapted for this use. Of course, this does not exclude the possibility of his also having used it in Utrecht in a private college on the lnstitutions.117 What one can certainly conclude is that Hailes relied heavily on this work in learning the Civil Law, probably more than once.118 In sum, if Hailes indeed took a course on the Institutes at Utrecht, it is most likely that he did so early in his time there. If so, it is most plausible that Wieling taught him, given Hailes’ later commission to Boswell to purchase an engraving of the professor, the extensive use of his Repetitio institutionum, and some other evidence mentioned below. Further, Hailes made an extensive study of the Institutes using Heineccius’ textbook as well as Wieling’s Repetitio. (5) Natural law In 1763, Boswell decided that one of the classes he should take in Utrecht was on natural law.119 It was not clear whether this was on Hailes’ advice, though it was obviously a decision of which the older man would have approved. Moreover, in 1762, the Faculty of Advocates had decided that 116 NLS MSS 25343–25344. There are no annotations on the second volume which contains the appendix to this edition of Wieling’s work. 117 If so, the cartoons may be images of his teachers in Utrecht. 118 It has not proved possible to determine whether he drew on these notes in preparing his annotated text of Heineccius. 119 Boswell to Hailes, 23 July 1763, NLS MS 25295 fos 16–17.

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candidates for admission should be examined “upon the Law of Nature and Nations in so far as it is connected with the Civil Law or the Law of this Country” and thereby encouraged students to attend classes in that subject.120 For one with ambitions to join the Faculty, such a class thus held an advantage. The Faculty’s decision in 1762 reflected the long-held view that study of the law of nature and nations was necessary for a proper education in law.121 The interleaved copies of Grotius erotematicus and Pufendorf’s De officio hominis et civis raise a presumption that Hailes took a class on natural law. On an early leaf of Grotius erotematicus, he has written his name and the date 4 April 1746;122 on the flyleaf of Pufendorf’s work he has again written his name and the date 5 November 1746, along with the Latin word “Constantia”, which occurs on a number of works associated with his time in Utrecht. Both these dates are right in the middle of his period in Utrecht and indicate that Hailes probably bought these works to aid his study of natural law. This said, the volumes are very lightly annotated. There are some very sparse annotations to the first volume of Grotius erotematicus. The second volume has no notes whatsoever on the interleaves; but, on fly leaves at the end, Hailes has copied a guide to editions of Grotius’ treatise and to authors on Grotius, which, he states, was authored by Professor Wieling of Utrecht in the year 1737 and which was found in his papers. Hailes has dated the heading to the list 16 October 1746.123 The interleaved copy of Pufendorf has notes only so far as opposite the tenth page of the main sequence of pagination. These, however, are few in number; but they could be the start of lecture notes. These volumes are thus rather enigmatic. Are they notes from a class? If so, from which professor? Further, did Hailes perhaps attend two classes on natural law, one founded on Grotius’ De jure belli ac pacis and the other on Pufendorf’s De officio? Do they perhaps reflect unfulfilled aspirations to attend a particular class? Or, do they denote starting a class or classes and then giving it or them up? There are a number of possible teachers. According to Jansen, natural law was taught in Utrecht by Voorda and Wesseling between 120 The Minute Book of the Faculty of Advocates. Volume 3. 1751–1783, ed by A Stewart, Stair Society vol 46 (1999) 112, 119. 121 See, e.g., Cairns, “Importing our Lawyers from Holland” (n 76) at 137–139. It is worth pointing out that Boswell did not take a class in natural law, only studying Civil Law with C H Trotz: Pottle, “Boswell’s University Education’’ (n 98) at 250–251. Trotz did offer, at one time at least, classes on natural law based on Grotius: Jansen, “De 18e eeuwse docenten natuurrecht” (n 51) at 106. 122 NLS MS 25331 fo 3. 123 NLS MS 25332 fos 300–302.

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1745 and 1747.124 Wesseling was in fact the first individual in a Dutch university to hold a chair specially designated for natural law.125 Jansen points out that Wieling had taught natural law at Franeker between 1727 and 1739, but does not note this as within his sphere of teaching at Utrecht.126 Although Jansen has not specifically recognised Wieling as teaching natural law at Utrecht, we need not instantly dismiss the possibility. Jansen’s identification of Voorda, for example, as teaching the subject is based on the survival of a single set of notes; the topic was not within the formal scope of Voorda’s chair. Voorda evidently taught it in a collegium privatum; Wieling may have done so too and no notes have been preserved. Here it may be pointed out that Wesseling succeeded Wieling in having the public law of the Holy Roman Empire within the scope of his chair; the inclusion of natural law may have been a formal recognition of Wieling’s earlier practice. Given all these uncertainties, discussion must start with consideration of the dates of 4 April and 5 November 1746. If the first relates to the current taking or start of a course on natural law, Voorda was the only law professor in post at the time. In teaching natural law, he used as his text the Institutiones juris naturae et gentium in usum Christiani Ludovici marchionis Brandenburgici ad methodum Hugonis Grotii conscriptae of Ph R Vitriarius (1647–1720).127 Given that Vitriarius’ textbook followed the structure of Grotius’ De jure belli ac pacis, it is conceivable that a crib, such as that bought by Hailes, might be useful. The interleaved Grotius erotematicus could then be seen as suggesting study with Voorda. The major problem with identifying Voorda as Hailes’ teacher, however, is that there is presently no copy of the professor’s chosen textbook preserved in the Newhailes Library, although it does contain two other works by Vitriarius.128 This is, however, hardly conclusive.

124 Jansen, “De 18e eeuwse docenten natuurrecht” (n 51) at 106–108, 114–115. 125 Van den Bergh, Life and Work of Gerard Noodt (n 50) 131 n 29; Velema, Enlightenment and Conservatism (n 51) 84. 126 Jansen, “De 18e eeuwse docenten natuurrecht” (n 51) at 107, 114; cf Van de Vrugt, “Album Scholasticum” (n 89) at 238. 127 Jansen, “De 18e eeuwse docenten natuurrecht” (n 51) at 106, 114. For editions, see Ahsmann and Feenstra, Bibliografie (n 110) 327–330 (nos 1002–1011). 128 Universum jus civile privatum ad methodum institutionum Justiniani compositum a Philippo Reinhardo Vitriario . . . in quo praeter principia, & controversias juris civilis, indicantur fontes juris naturae & gentium, unde illa deducta esse videntur (1697) (Nha.l162); Institutiones juris publici Romano-Germanici selectae. Philippi Reinhardi Vitriarii, jcti & antecess. Lugd. Bat. antiquum & modernum imperii Romano-Germanici statum: vera ejus principia, controversias illustres, & earum rationes cum affirmantes, tum negantes, & decidentes, methodo institutionum Justiniani ex ipsis fontibus exhibentes (1723) (Nha.l173).

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By the second date, that on the interleaved Pufendorf, Wesseling had taken up his chair. The date could therefore reflect the start of a class on Pufendorf given by Wesseling; the latter, however, is known to have taught natural law, at least in 1747, from the popular modern textbook of Heineccius, Elementa juris naturae et gentium (1737).129 That Hailes studied with Wesseling, with whom he certainly took one class, is plausible. In this  respect, however, it is worth noting that the Newhailes Library does not contain a copy of Heineccius’ textbook on natural law: would Hailes really not have acquired or kept the book his teacher used as the basis of the class? While one supposes the answer would probably be affirmative, there  are other possible reasons why no copy has survived. Of course, it is feasible that Wesseling offered a course based on Pufendorf in 1746–1747. If Hailes, however, had indeed taken a class with Wesseling based on Heineccius, starting in the autumn of 1746, this could explain why Hailes’ copies of Grotius erotematicus and Pufendorf De officio hominis et civis were so little used and why, in October 1746, he wrote at the end of Grotius erotematicus the account of editions and critical studies of Grotius. Should identity of binding be any guide, when in the Netherlands, Hailes acquired Heineccius’ Praelectiones on Pufendorf’s elementary treatise De officio and on Grotius’ treatise De jure belli ac pacis.130 But this really gives no support for Wesseling as his teacher; the acquisition of these works would suit any potential class. Furthermore, the suggestion that he attended Wesseling’s class in the autumn of 1746 would provide no direct solution for the date on the early leaf of Grotius erotematicus; the copy, however, may have been bought early by Hailes to start off studies on his own, having been stocked by booksellers to supply Wieling’s classes. It is always possible, of course, that Hailes simply bought the copy of Pufendorf for private study of natural law (although he was later to stress to Boswell the superiority of attending classes over private study).131 Copies of Pufendorf’s De officio hominis et civis may have been commonly stocked by Utrecht booksellers, as it had been the foundation of the classes on natural 129 Jansen, “De 18e eeuwse docenten natuurrecht” (n 51) at 108, 115. 130 J C Heineccius, Praelectiones academicae in Sam. Pufendorfii de officio hominis et civis libros II (1742) (Nha.l184); J C Heineccius, Praelectiones academicae in Hugonis Grotii de jure bellis ac pacis libros III (1744) (Nha.l185). The first of these has at least one marginal note by Hailes (at 9). He had also acquired Heineccius, Elementa philosophiae rationalis et moralis ex principiis ad modum evidentibus iusto ordine adornata (1740); this is not in the same binding as the lecture notes (Nha.O64). 131 Boswell to Hailes, 16 July 1763, NLS MS 25295 fos 14–15; Hailes to Boswell, 25 July 1763, Yale MS Gen 89 C 1427.

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law given by Everardus Otto (1685–1756).132 Otto, who had left his chair in Utrecht in 1739 for Bremen in his native Germany, had been a professor of public law as well as of the ius civile;133 in 1728, drawing on his teaching, he had even produced an edition of Pufendorf’s De officio hominis et civis, annotated with, as well as his own notes, those of G G Titius.134 Hailes owned a copy of the 1740 edition of Otto’s Pufendorf;135 it is likely that he acquired this in Utrecht for his studies and the sparse notes in the interleaved Pufendorf contain cross-references to, for example, Titius’ Observationes. Finally, we should canvass the issue of whether Wieling, though dead by the earlier of the two dates discussed, could have taught Hailes natural law. If Wieling had taught natural law in Utrecht, it is a fair assumption that he would have followed the practice he had developed in Franeker, and lectured on Grotius’ De iure belli ac pacis.136 It is possible that Utrecht booksellers stocked works such as Grotius erotematicus to supply Wieling’s (or for that matter Voorda’s) students with matter to assist their studies. For a class based on Grotius’ great work, Grotius erotematicus would provide an easy, logical introduction and crib, well designed for student use, to a relatively long and difficult book, just as Wieling’s Repetitio was a help to the student of elementary Roman law. If Hailes had taken a private course on Grotius with Wieling it must have been before the latter’s death in January 1746. This would leave the date 4 April 1746 on the flyleaf to be explained and there is no obvious explanation. On the one hand, the fact that Hailes inserted at the end of the second volume a guide by Wieling to editions of Grotius and authors on him might suggest a greater link with the professor. Hailes, however, may simply have been interested in this because of his admiration for his dead professor, the list having come to light after the sale of Wieling’s library in 1746, a sale in which Hailes, as a book collector, must have been interested.137 132 Jansen, “De 18e eeuwse docenten natuurrecht” (n 51) at 107, 114. 133 On Otto, see NNBW (n 90) vol ii, 1040; Welten, “Utrechtse hoogleraren in de rechten” (n 51) at 88; Van de Vrugt, “Album Scholasticum” (n 89) at 230; Van den Bergh, Holländische elegante Schule (n 90) 196–198. His publications are listed in Ahsmann, Bibliographie (n 26) 100–116 (nos 204–279). 134 S Pufendorfii de officio hominis et civis secundum legem naturalem libri duo. Everardus Otto in usum auditorum recensuit et adnotationes illustravit. Accedunt Titii ad eosdem observationes (1728); Ahsmann, Bibliographie (n 26) 111 (no 255). 135 NLS Nha.Misc.224; Ahsmann, Bibliografie (n 26) 111 (no 256). 136 Jansen, “De 18e eeuwse docenten natuurrecht” (n 51) at 106–107, 114. 137 Bibliotheca Wielingiana sive catalogus exquisitissimorum librorum, in omni scientarum genere, quibus olim usus fuit . . . Abraham Wieling, academiae Ultrajectinae, dum viveret, antecessor: horum publica auctio habebitur . . . in aedibus defuncti (1746).

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There is, however, one further indication of Hailes’ interest in Wieling and his views of natural law. Towards the end of his life, Wieling became embroiled in a dispute with theologians in Utrecht over issues of orthodoxy including the foundations of natural law. To go into this would take us far outside the scope of this paper.138 The dispute was at its height when Hailes arrived in Utrecht. He collected for the Library at Newhailes three of the works involved this controversy, including J V Blondeel’s crucial Dissertatio inauguralis de legibus and Wieling’s initial reaction and posthumously published further defence.139 If this might suggest a close interest in the thinking of his teacher, it must be pointed out, however, that, a convinced Christian and profound anti-sceptic associated with the Moderates within the Church of Scotland, Hailes would have found this debate of great interest in any case. This said, of the relatively extensive pamphlet literature provoked by this debate, these three works are the only ones to have been preserved in the Newhailes Library. We can conclude that Hailes certainly studied natural law in Utrecht, if only on his own – he after all did make some use of Grotius erotematicus and Pufendorf, De officio hominis et civis. Further, the Library at Newhailes contained several editions of Grotius De jure belli ac pacis.140 These cannot be associated with Hailes’ period in Utrecht, however, with one very important exception. This is a handsome copy of Barbeyrac’s translation with notes. It is in the same binding as most of the Utrecht notes, and on a flyleaf of the first volume Hailes has written “Constantia”, the practice found in other volumes associated with his time in Utrecht.141 This copy has occasional marginal notes by Hailes, primarily in French, with some in English, and relevant quotations in Latin and Greek. These are not class notes, however. Perhaps we see Hailes here working on a copy of Grotius 138 See, e.g.‚ Jansen, Natuurrecht of Romeins Recht (n 51) 10. 139 Dissertatio juridica inauguraliis de legibus quam . . . publico submittit examini Valentinus Joannes Blondeel (1745) (Nha.l191(1) (this is the enlarged second edition)); A Wieling, Larva calumniatoribus detracta (1745) (Nha.l191(2)); A Wieling, Nubes testium sive apologetici pars altera. Opus postumum edidit et praefationem adiecit Cornelius Valerius Vonck (1746) (Nha. l191(3)). Vonck had been Wieling’s pupil; his foreword to this work caused him some problems: Jansen, Natuurrecht of Romeins Recht (n 51) 14. 140 H Grotius, De jure belli ac pacis libri tres, in quibus jus naturae et gentium, item juris publici praecipua explicantur (1667) (Nha.l199); (1680) (Nha.l198); (1701) (Nha.l193). It also contains two compends of the work: Hugonis Grotii de jure belli ac pacis librorum III compendium, annotationibus et commentariis selectis illustratum in usum studiosae juventutis Academiae Edinensis (1707) (Nha.L166); Hugonis Grotii de jure belli ca pacis librorum III compendium, annotationibus et commentariis selectis illustratum (1718) (Nha.L165). 141 Le droit de la guerre, et de la paix par Hugues Grotius. Nouvelle traduction, par Jean Barbeyrac (1724) (Nha.M22–23).

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with the aim of perfecting his French while also studying natural law.142 He also acquired Barbeyrac’s translation of Pufendorf’s De offìcio hominis et civis when in Utrecht.143 The copy has no annotations (although it lacks the temptingly wide margins of the Grotius). (The fact that it was Grotius he chose to study carefully in French might give some slight hint that he actually studied natural law with Wieling.) All of this means that we cannot be certain whether Hailes took a class or classes on natural law at all and, if he did, with whom. It was possible for him to have studied with Wesseling or Voorda or Wieling. Any conclusion reached as to his teacher or teachers depends on how much weight is put  on the significance of the dates in the textbooks, or the preservation of Wieling’s list of editions and commentaries.144 The issue has to be left open. (6) Public law In 1763 Hailes recommended Boswell to study public law and specifically advised him to attend the class on “Notitia rerum publicarum” given by the still-living Wesseling.145 Hailes’ papers show that he himself took Wesseling’s class on public law; thus, he wrote on one of the interleaves in his copy of Otto’s Notitia praecipuarum Europae rerumpublicarum that, on 1 October 1746, he began to study the Notitia rerumpublicarum under the direction of the newly appointed professor.146 The tradition of using this work in 142 He later advised Boswell that it might amuse him to take a course on Rerum publicarum notitia while studying French: Hailes to Boswell, 26 September 1763, Yale MS Gen 89 C 1429. 143 Les devoirs de I’homme, et du citoien, tels qu’ils lui ont prescrit par la loi naturelle. Traduits du Latin du baron de Pufendorf, par Jean Barbeyrac (1735, 1734; the second volume is dated 1735); Nha.l183. This is in the same binding as the rest of the “Utrecht” books and Hailes has written “Constantia” on the flyleaf. 144 In support of some link with Voorda, Hailes appears to have bought when in Utrecht a copy of the professor’s Ad legem Falcidiam commentarius (1730) (Nha.K265). See Ahsmann, Bibliografie (n 26) 150 (no 418). The copy is identically bound to the “Utrecht” notebooks. He has written on the flyleaf “Constantia”, which, as noted, often occurs elsewhere among his books acquired in this period. 145 Hailes to Boswell, 1 July 1763, Yale MS Gen 89 C 1423; Hailes to Boswell, 26 September 1763, Yale MS Gen 89 C 1429. Boswell doss not appear to have done so, although he does mention attending Wesseling’s class on 20 September 1763: Boswell in Holland (n 53) 24. This was presumably an experimental “trial” attendance. All his subsequent references to attending classes are to those of Trotz. By letter on 11 December 1764, D J Tuyll van Serooskerken reported Wesseling’s death to Boswell. In his response (from Geneva) on 25 December 1764 Boswell commented that “[t]he learned world has lost a very great man by the death of Monsieur Wesseling. [He had] heard of no Professor of Public Law in Switzerland or in Germany”. See Boswell in Holland (n 53) 315, 318. 146 NLS MS 25341 fo 9: “Anno 1746, die 1 Octobris. Notitiae Rerumpublicarum sub auspiciis viri Clarissimi Petri Wesselingii operam dare incepi.”

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Utrecht will have survived from the time of Otto, who, as noted, had been a professor of public law as well as of the ius civile until his departure from Utrecht in 1739. Wieling had presumably also used it in his classes. After the introductory Prolegomenon, the work has six chapters, on Germany, France, Spain, Britain, Portugal, and the United Provinces, covering such matters as history, famous men, public affairs, and famous writers. Hailes has made extensive notes on the general principles set out in the introduction and also on Germany (the first chapter) and the United Provinces (the last chapter). There are no notes on France, Spain, Britain or Portugal. Whether this reflects the course taught by Wesseling in 1746–1747 or Hailes’ own interests is uncertain.147 Judging by the binding, Hailes also acquired in Utrecht a copy of Institutiones juris publici Romano-Germanici selectae by Vitriarius senior. It contains no annotations by Hailes. He may nonetheless have bought it to assist his studies.148 (7) Justinian’s Digest Hailes’ attendance at a course on the Digest in Utrecht is quite certain. That he should have taken a class on the major source of Roman law is to be expected and he also recommended that Boswell take one on the Digest.149 As we shall see, the internal evidence of the annotations in the four interleaved volumes of Van Eck’s Principia juris digestorum in the edition of 1724 demonstrates that they are Hailes’ notes from Utrecht. The Principia was a compend designed for classes on the Digest, it was especially useful for the private “collegia” that dominated instruction in the Dutch law schools and was the foundation of classes in Utrecht until the nineteenth century.150 The important issue then becomes to decide who taught Hailes. In theory, he could have studied the Digest with Houck, Voorda or Wieling. The possibility of Voorda having been his teacher can be quickly dismissed, since Voorda taught the Digest using a different compend, namely Westenberg’s 147 One other set of notes from Wesseling’s class is known to survive: J Roelevink, Gedicteerd verleden (n 92) 343 (no 41). Hailes’ set of notes from Wesseling was unknown to Roelevink. Comparison of the two sets would be worthwhile, although it has not proved possible in the preparation of this article. 148 Philippi Reinhardi Vitriarii, jcti., et antecess. Lugd. Bat. institutiones juris publici Romano-Germanici selectae antiquum et modernum imperii Romano-Germanici statum: vera ejus principia, controversias illustres, et earum rationes cum affirmantes, tum negantes, et decidentes, methodo Institutionum lustiniani ex ipsis fontibus exhibentes (1723) (Nha.l173); Ahsmann and Feenstra, Bibliografie (n 110) 322 (no 992). 149 Hailes to Boswell, 1 July 1763, Yale MS Gen 89 C 1423. 150 Jansen, “De 18e eeuwse docenten natuurrecht” (n 51) at 103.

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Principia iuris secundum ordinem Digestorum seu Pandectarum in usum auditorum vulgata.151 As regards the other two possible teachers, it is necessary to examine Hailes’ notes for clues. Starting with the first two volumes of Hailes’ manuscript, one can point out that there are no annotations by Hailes before D 1.3, other than the doodles, especially of faces and figures, with which he was apt to decorate some of these manuscripts.152 On the verso of an interleaf towards the end of the first volume, however, he has written an epitaph on Wieling.153 The third volume (the start of the pars altera of Van Eck’s work) is heavily annotated up to D 29.2, while the fourth, in contrast, is only very lightly annotated. At the beginning of the third volume, Hailes has written: “F. G. Houck Excerpta in Digest. Justiniani L 20 Tit 1. Traject. ad Rhenum. 9 Mart. 1747”.154 The next folio is the printed page of Van Eck’s work starting with D 20.1.155 This confirms that Hailes was attending a class on the Digest, taught by Houck using this work, that had reached D 20.1 by 9 March 1747 and that these four volumes are the remnants of his study of the Digest in Utrecht. Hailes may even have attended Houck’s inaugural lecture at Utrecht, delivered on 20 June 1746; he certainly acquired a copy of its text for the Library at Newhailes.156 The epitaph on Wieling (I have not attempted to trace whether it is original or copied, though the former is more likely) is intriguing. Why was it placed here? Are we perhaps to understand that Hailes started a course on the Digest with Wieling, using Van Eck’s Principia, immediately before the professor’s death, later to continue his studies under Houck, after the latter’s appointment later in 1746? Or was the epitaph inserted here by chance, and simply reflects the fact that Hailes had studied with Wieling, but not this course? There can be no certainty. As noted, the first three of these four volumes on the Digest are fairly regularly annotated, starting from D 1.3 so far as 28.6. Thereafter there are only very occasional notes and most of the interleaves and margins of the printed text are blank, other than on D 39.1 and 39.2. The fourth volume 151 Feenstra, “Johann Ortwin Westenberg” (n 50) at 54–55; Jansen, “De 18e eeuwse docenten natuurrecht” (n 51) at 103. On the work, see Ahsmann and Feenstra, Bibliografie (n 110) 362–364 (nos 1139–1150). There is no copy found in the Newhailes Library. 152 NLS MSS 25333–25334. 153 NLS MS 25333 fo 154v. 154 NLS MS 25335 fo 3. 155 Ibid fo 4. 156 F G Houck, Oratio inauguralis de proprio obligationum jure ex variis causarum figuris, dicta publice die XX. Junii MDCCXLVI. cum professionem juris civilis ordinariam, in illustri Trajectina Academia auspicaretur (1746) (NLS Nha. M138(8)) (henceforth Houck, Oratio inauguralis); Ahsmann, Bibliografie (n 26) 82 (no 118).

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is annotated only so far as D 39.6; thereafter it is blank.157 The start from only D 1.3 suggests that the history of the Digest and of Roman law was not covered in this course. This supports the idea that this matter was covered in a course on the Institutes. The complete break-off of notes from D 39.6 perhaps suggests that the class was not completed by the time Hailes left, probably to return to Scotland. There could, however, be other reasons. (8) Conclusions on Hailes’ studies The only definite knowledge we have about Hailes’ studies is that he studied public law with Wesseling and the Digest from Van Eck’s Principia with (at least in part) Houck. He also obviously studied some subject or subjects with Wieling, given his later act of piety in seeking a print of the latter’s portrait. That Wieling is marked out in this way is significant. Granting this, it seems fair to assume that he studied at least some Roman law with Wieling. Thus, it is possible that he studied the Institutes and perhaps the first part of the Digest with Wieling. He seems very likely to have taken a course on natural law, just possibly with Wieling, but there can be no certainty. Should the above analysis be correct (and it should always be recalled that some of it involves varying degrees of speculation), it is possible to make some more general remarks about legal education in Utrecht in Hailes’ time. First, as noted, Otto’s Notitiae rerumpublicarum remained in use in the class on public law.158 Secondly, it confirms that Van Eck’s Principia (though first published in 1689) remained a popular work for teaching the law in the Digest and was used by Houck and possibly Wieling. Thirdly, Heineccius’ works were clearly becoming popular manuals for classes. Jansen has shown this for the German’s work on natural law, which was used by Wesseling; it seems possible that someone, perhaps Wieling or even Houck, was now using his work on the Institutes. Whether or not the German’s compend of the Institutes was the basis of a class taken by Hailes, one can say as a minimum that he certainly was extensively exposed to it in Utrecht. Finally, booksellers, unsurprisingly, continued to be able to supply interleaved works for students to assist in their studies, even if some of these, such as Grotius erotematicus or Wieling’s Repetitio institutionum were not necessarily directly used in classes as a teaching compend. In 1747, Lady Jane Douglas visited Utrecht. Her travels and movements at this period were later to be a significant aspect of the proof in the famous 157 There are a few words in Greek on the final flyleaf. 158 As Roelevink has also noted: Roelevink, Gedicteerd verleden (n 92) 343 (no 41).

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“Douglas Cause”.159 She wrote to a correspondent on 10 February 1747 about the young men she had met in Utrecht. Much of her concern is with young Lord Blantyre, who was there with his tutor, Andrew Baxter, also tutor to Mr John Hay. She commented as follows: I could also say a great many advantageous things of Mr Hay and Mr Dalrymple, who have a great deal of merit, excellent good sense, mighty good scholars, and are both equally free of all vice with the other. But if I go on at this rate you’ll grow afraid that I intend to draw the pictures of all the gentlemen in Utrecht: so shall have done with characteristics, only I must add, that Mr Dalrymple, your neighbour Sir James’s son, has employed his time so well, and has acquired so much learning of all kinds, that were he not an eldest son, he would be fitter to sit in the President’s chair, than he who at present occupies it; having already as much knowledge of the law, and a much larger share of natural parts.160

The extent to which Lady Jane’s judgement is reliable is obviously questionable; the President of the Court of Session whom she thought to be more ignorant and less able than the young Hailes was Duncan Forbes of Culloden, usually considered one of the most talented occupants of the office. Nonetheless, the comment shows that Hailes must have generally appeared a scholarly young man of considerable learning. His years at Eton and Utrecht must have left their mark. F. THE IMPACT OF UTRECHT ON HAILES Hailes’ desire for a print of Wieling’s portrait is eloquent testimony to his view of the professor; he also described Wesseling to Boswell as “a

159 There is a brief narration of her movements at this time in A summary of the speeches, arguments, and determinations of the right honourable the Lords of Council and Session in Scotland, upon that important cause wherein his grace the Duke of Hamilton and others were plaintiffs, and Archibald Douglas of Douglas Esq.; defendant. With an introductory preface. giving an impartial and distinct account of this suit (1767) 8–9. 160 Lady Jane Douglas to Mrs Carse, 10 February 1747 found in (printed) Proof in Conjoined Processes in Douglas Cause in NLS MS 25327 35–38. Mrs Carse lived in Inveresk, hence the reference to Sir James Dalrymple as her neighbour. The ambiguous remark about vice is intriguing. Baxter, the tutor of Blantyre and Hay, has been identified as the centre of what has been described as a “homosocial university club” involving students at Utrecht and Leiden at this period. There was certainly a group of young men around Baxter who cultivated strong, romantic friendships. It is perhaps unlikely that Lady Jane was alluding to this, since it would have been rather obscure to her correspondent. She perhaps is thinking of vices such as drinking and gambling. See G S Rousseau, “‘In the House of Madam Vander Tasse, on the Long Bridge’: A Homosocial University Club in Early Modern Europe”, in K Gerard and G Hekma (eds), The Pursuit of Sodomy Male Homosexuality in Renaissance and Enlightenment Europe (1989) 311.

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very learned man” and encouraged him to take the professor’s class.161 We have no evidence of his opinion of Houck or Voorda (other than he took the former’s class, which must count for something). Assessing the influence of these teachers on Hailes presents a variety of problems. He did not become a professor or write much in the field of law. Study of his sets of Session Papers might reveal much about his intellectual formation at Utrecht; this, however, would be a massive task, far outwith the scope of this paper. Hailes’ books, however, may provide some evidence. If the Library at Newhailes offers any guide, of those who taught Hailes, the only ones whose work particularly interested him intellectually were Wieling and Wesseling. Thus, as noted, he only owned Houck’s inaugural lecture at Utrecht (Houck, however, was not a fecund author) and Voorda’s Ad legem Falcidiam commentarius.162 Both these works were probably bought by Hailes during his time in Utrecht.163 (1) Wieling and Legal Humanism The works of Wieling that Hailes owned are of greater interest. The two controversial works arising out of Wieling’s dispute with theologians have already been noted.164 Also, of course, he owned the interleaved set of Wieling’s Lectionum juris civilis libri duo and copy of his Repetitio institutionum already discussed. Another work owned, produced for a special occasion, was Wieling’s De logomachis iurisconsultorum oratio.165 He also purchased Wieling’s posthumously published edition of Huber’s Opera minora, a collection with a Humanistic orientation.166 Of particular 161 Hailes to Boswell, 1 July 1763, Yale MS Gen 89 C 1423. 162 Houck, Oratio inauguralis (NLS Nha.M138(8)) (n 156); Ahsmann, Bibliografie (n 26) 82 (no 118); Iacobi Voorda Icti & antecessoris Frissii ad legem Falcidiam commentarius, quo multa iuris Justinianei loca exponuntur, illustrantur, emendantur, vindicantur. Accedit eiusdem dissertatio de legato partitionis (1730) (Nha.K265); Ahsmann, Bibliografie (n 26) 150 (no 418). 163 The copy of Voorda’s Ad legem Falcidiam commentarius is identically bound to the “Utrecht” notebooks. Hailes has written on the flyleaf “Constantia”, which, as noted, often occurs elsewhere among his books acquired in Utrecht. Since Houck gave his inaugural lecture during Hailes’ time in Utrecht, one suspects he bought it then. Voorda was a reasonably prolific scholar. The absence of any interest in his output might support the supposition that Hailes, after all a great book collector, did not study with him. 164 A Wieling, Nubes testium (n 139); Wieling, Larva calumniatoribus detracta (n 139). 165 Abrahami Wieling, iurisconsulti, et antecessoris, de logomachis iurisconsultorum oratio. Dicta in auditorio maximo die XXI. Julii, A. AE. V. MDCCXLIV. quum nobilissimus iuvenis. Matthias Straalmannus, Amstelaedamensis, iuris utriusque doctor publice ac more maiorum inauguraretur (1744) (Nha.M138(6)); Ahsmann, Bibliografìe (n 26) 164 (no 477). 166 Ulrici Huberti jcti & antecessoris Franequerani opera minora et rariora, juris publici et privati. Edidit suisque animadversionibus illustravit Abrahamus Wieling (1746) (Nha.K178);

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note, however, is Hailes’ acquisition of a copy of Wieling’s Iurisprudentia restituta.167 This work, drawing on the writings of (inter alia) Labitte, Agustín and Brenkman, dealt with the palingenetic concerns central to much of the scholarship of the Legal Humanists of the Dutch Elegant school. For example, when, around 1720, Johannes van de Water considered a proposal to make a new edition of the Van Leeuwen edition (1664) of the Gothofredus’ text of the Corpus iuris, his view, supported by Noodt and Schulting, was that it should include the Index of Labitte and works of Agustín and Brenkman.168 That Wieling was a jurist in the Humanist tradition, even with his interest in natural law, is evident from the most cursory glance at his publications.169 Roelevink, for example, has described him as combining the qualities of Humanist and jurist in his person.170 Whether Hailes bought the copy of Iurisprudentia restituta because of his own interest in palingenetic problems is a moot point, since he may simply have acquired it because of its provenance, it being the copy gifted to J J Vitriarius by Wieling and presumably bought by Hailes from the sale of Vitriarius’ library after the Leiden professor’s death in 1745.171 On the other hand, suggesting some intellectual engagement with the substance of the volume, the sole work of Voorda he acquired in Utrecht was also concerned with such textual issues.172 To determine the extent to which Hailes had a personal interest in this type of work would require a far greater study of the Newhailes Library than the current short discussion would permit. Certainly, the Library  contains a great deal of the relevant works and editions for such scholarship; given, however, that it was a collection assembled by learned lawyers over several generations, it is difficult to know whether such works were acquired out of genuine personal intellectual engagement with their  contents or

167

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169 170 171 172

Ahsmann, Bibliografie (n 26) 165 (no 482). This copy is bound in the way typical of the rest of Hailes’ “Utrecht” books and notes. Iurisprudentia restituta, sive index chronologicus in totum iuris Iustinianei corpus, ad modum Iac. Labitti, Ant. Augustini, & Wolfg. Freymonii, nova tamen & faciliore methodo collectus. Accesserunt opuscula IV. I. Usus Pandectarum per. Iac. Labittum cum notis Wilh. Schumuccii. II. Henrci Hahnii oratio de uso chronologiae in jure. III. Henrici Brencmanni dissertatio de legum inscriptionibus. IV. Bern. Henricii Reinoldi oratio de inscriptionibus legum Dig. & Cod. In usum auditorum animadversiones passim adjecit Abraham Wieling (1727) (Nha.l197). Van den Bergh, Life and Work of Gerard Noodt (n 51) 79–80, 294–295. On Brenkman, see B H Stolte, Henrik Brenkman (1681–1736) Jurist and Classicist: A Chapter from the History of Roman Law as Part of the Classical Tradition (1981). See Ahsmann, Bibliografie (n 26) 154–165 (nos 433–484). Roelevink, Gedicteerd verleden (n 92) 258. See the inscription in Wieling, Jurisprudentia restituta (1727) (n 167) (Nha.l197). Voorda, Ad legem Falcidiam commentarius (n 163).

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for the completeness of the collection or, indeed, for their value. The collectors  must have had enough knowledge to appreciate them, but it may have been bibliophilic passion rather than intellectual curiosity that motivated the acquisitions. For that matter, it is not always clear who purchased such works and when they entered the Library. One can point out, however, that Hailes was learned enough in Roman law to list examples of absurd argument in the Corpus iuris.173 Moreover, he was certainly capable of writing notes of a learned nature on Roman law, citing the work of such Humanist authors as Otto, Cujas, Bijnkershoek and Noodt, being familiar, for example, with Voet’s citation of the conjectural emendation of “vinculorum verberatio” in D 48.19.7 that had been proposed by Alexander Cunningham (“our fellow-countryman”, Hailes noted).174 Thus, while it must remain an open question whether or not Wieling inspired in Hailes a particular concern with legal humanism and the elegant jurisprudence of the Dutch school, Hailes certainly acquired in Utrecht not only the knowledge of Roman law necessary for working, as a Scots lawyer, with  the  Roman texts and their interpreters, but also some knowledge of and a level of interest in the Dutch Elegant school. (2) Wesseling, Greek criticism, and Christian texts There are fewer books by Wesseling than by Wieling in the Newhailes Library. It is the nature of these works when considered alongside Hailes’ own works that is, however, significant. Wesseling was a prolific author and editor.175 Primarily a Greek scholar, he was an excellent polyhistor of extensive erudition, learned in theology, legal science and philology, who is now best known for his editions of Diodorus Siculus and Herodotus.176 Not only erudite, he was an excellent critic. He had been a pupil of Perizonius and was a close associate of the outstanding Greek scholar of the age in the Netherlands, Tiberius Hemsterhuis.177 He was also a popular and successful teacher.178 Hailes may have studied public law with Wesseling, but the works of his teacher that he acquired were as follows: Oratio funebris in memoriam magni et generosi viri Sicconis a Goslinga (1732) (this dated from Wesseling’s days 173 NLS MS 25423 fo 134. 174 NLS MS 25423 fos 219–226; see Cairns, “Alexander Cunningham” (n 52) at 346. 175 Unfortunately, if understandably, he is not dealt with by Ahsmann, because he was more of an historian than a jurist: Ahsmann, Bibliografie (n 26) 21. 176 Roelevink, Gedicteerd verleden (n 92) 3; Sandys, Classical Scholarship (n 92) vol ii 453–454. 177 Roelevink, Gedicteerd verleden (n 92) 2; Sandys, Classical Scholarship (n 92) vol ii, 447–453. 178 Roelevink, Gedicteerd verleden (n 92) 43–47, 50–52, 114; on his classes, see ibid 102–105.

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at Franeker);179 Wesseling’s important work on Greek and Latin textual criticism, Observationum variarum libri duo, in quibus muvlti veterum auctorum loci explicantur atqve emendatur (1740);180 the latter is found bound in the Library with Wesseling’s Probabilium liber singularis, in quo praeter alia insunt vindiciae verborum Joannis et Deus erat Verbum (1731), the two having been purchased by Hailes in Utrecht;181 and finally Wesseling’s Diatribe de Judaeorum archontibus ad inscriptionem Berenicensem, et dissertatio de Evangelis jussu Imp. Anastasii non emendatis in Victorem Tunnunensem (1738).182 The significance of Hailes’ acquisition of these works of Wesseling is that, while the Scotsman is now best known for his works on medieval history and Scottish source materials, he was a notably devout Christian with a profound interest in the classics, going far beyond their value as the elegant and necessary accomplishment for an educated gentleman and their practical utility for a lawyer. Here we can probably see a strong influence from his studies in Utrecht. Hailes was particularly interested in his former teacher’s field of Greek textual criticism and had a special fascination with the differing styles and metres of Greek poetry. In 1754, he donated to Lord Auchinleck a copy of the Edinburgh edition (by Robert Hunter) of Anacreon, Sappho, Erinna.183 It is possible that he had been involved in the production of this edition.184 He was to spend many years pursuing an edition of the fragments of the Greek lyric poets, which he considered he could emend suitably and restore to verse, with the aim of giving an idea of the style of each author.185 In 1757, he corresponded with James Moor, Professor of Greek in Glasgow, and John Callander about his aims in producing his edition.186 The famous Foulis Press in Glasgow, noted for its fine editions of the classics, was approached about printing the work.187 Remains of his work on the texts of the lyric poets are to be found in his papers and in the Newhailes Library. Thus, there are 179 180 181 182 183 184 185 186 187

NLS pressmark Nha.Misc.100. NLS pressmark Nha.D257(2). NLS pressmark Nha.D257(1). Thus, he has written “Constantia” on the flyleaf of the volume. NLS pressmark Nha.C256(1). See the provenance on flyleaf of Hai tou Anakreontos odai [sic]: kai ta Sapphous, kai Erinnas leipsana (1754) (NLS pressmark Bdg.s.820). B Hillyard, “Newhailes Library”, unpublished paper read to the Friends of Edinburgh University Library, 20 April 1999 (henceforth Hillyard, “Newhailes Library”). Hailes to Boswell, 28 July 1763, Yale MS Gen. 89 C 1428. See also NLS MS 25423 fos 6 and 186. Moor to Hailes, 11 November 1757 NLS MS 25294 fo 61; Callendar to Hailes, 9 November 1757 NLS MS 25294 fos 62–63. Moor to Hailes, 11 November 1757 NLS MS 25294 fo 61.

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emendations of the fragments of Anacreon to be found in a copy of the edition by Joseph Trapp of the poet’s work.188 Other critical notes with learned annotations on Anacreon can be found, as well as notes on Alcaeus, Sappho and Simonides, as Hailes worked towards understanding, emending and restoring the texts.189 In 1763, as Boswell was about to set out for Utrecht, Hailes asked him‚ as part of this project, to find out whether there were any manuscripts or corrections relating to the fragments of the Greek lyric poets in the library of the University of Leiden and also whether there was a manuscript there of Anacreon.190 It was from Boswell’s father, Lord Auchinleck, that Hailes had gained the impression that there might be such manuscripts at Leiden. Hailes’ interest in the classics was maintained throughout his life.191 While no doubt initially nurtured at Eton, it must have been developed and expanded in Utrecht. Thus, in one of his commonplace books, he set out observations criticising the famously arrogant Greek philologist Jan Cornells de Pauw, noting that he had “writt these . . . some years ago at Utrecht”.192 Hailes’ preference for the classics was such that Boswell, in congratulating him on his marriage in 1764, could gently tease him by suggesting that if there were now to be many “Sir Davids”, all the English poets would be rendered into Latin verse.193 Indeed, the setting of English poetry into Latin verse was an abiding interest of Hailes.194 He was even willing to take issue with the Latinity of Thomas Ruddiman.195 Hailes’ fascination with the Greek and Roman classics and the need to work on their texts may indeed be the main significance of Boswell’s description of him as an “accurate critic”.196 188 Anacreontis Teii carmina: accurate edita; cum notis perpetuis; et versiones latina, numeris elegiacis paraphrastice expressa. Accedunt . . . fragmenta poetriae Sapphus 2nd edn (1742) (Nha.H165). Hailes’ emendations are found on the paste-down and final flyleaf at the end of the volume. See Hillyard, “Newhailes Library” (n 184) for further discussion. 189 NLS MS 25423 fos 6, 186; NLS MS 25416 fos 48–56. 190 Hailes to Boswell, 28 July 1763, Yale MS Gen 89 C 1428; Boswell to Hailes, 2 August 1763 NLS MS 25295 fos 21–22. 191 See NLS MS 25416: notes on classical authors, 1744–1781 and MS 25415 notebook of Greek verses (the latter MS is currently misplaced). 192 NLS MS 25423 fo 149. The remarks were prompted by his reading Quinti Calabri praetermissorum ab Homero libri XIV. Graece, cum versione Latina et integris emendationibus Laurentii Rhodomanni; et adnotamentis selectis Claudii Dausqueji; curante Joanne Cornelio de Pauw (1734) (Nha.H285). 193 Boswell to Hailes, 28 February 1764 Yale MS Gen 89 L 597 (copy). 194 See NLS MS 25416 fos 1–26. 195 NLS MS 25423 fos 183–184. On Ruddiman, see D Thomas, Ruddiman: A Study in Scottish Scholarship of the Early Eighteenth Century (1965). 196 Boswell’s London Journal 1762–1763, ed by F A Pottle (1950) 188: “Sir David is a man of great ingenuity, a fine scholar, an accurate critic, and a worthy member of society.”

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Testifying to Hailes’ Christian beliefs are his notebooks with notes and translations of the Greek New Testament.197 He also published a number of translations and editions of works on early Christian history. This may indeed be one of the ways in which the influence on him of the work of Wesseling appears; this said, since one cannot trace the specific influence of his teacher, these studies may simply be an expression of his own religious temperament. Thus, in 1776, he published Account of the Martyrs at Smyrna and Lyons. This was a translation with notes of Martyrium Polycarpi and Ecclesiarum Viennensis et Lugdunensis epistola de martyrio S Pothini episcopi et aliorum plurimorum.198 The text was relatively short, but Hailes produced extensive notes (in length far exceeding the text) revealing his engagement with the works and his interest in early Christianity in the Roman Empire. The same year saw the publication of the first volume of Gibbon’s Decline and Fall.199 Gibbon inevitably considered the same type of material as Hailes, but his urbane and sceptical treatment of Christianity was far removed from that of Hailes. The next year, Hailes published an edition of the fifth book of the Divinae institutiones of Lactantius, an important early Christian author.200 The extensive notes again reveal Hailes’ breadth of learning. Next came Remains of Christian Antiquity. This two-volume work of early Christian sources in translation appeared in 1778–1780 and to some extent carried on from his Martyrs of 1776 (and was evidently so regarded).201 By now Hailes was starting to take issue with Gibbon’s work.202 The first volume contained an appendix relating to the 1776 Martyrs, some of which picked up matter contained in Gibbon’s Decline and Fall.203 Indeed, the extensive notes to both these volumes contain much comment on Gibbon’s work and his handling of early Christian sources.204 Continuing with this line of work, Hailes published a translation of the Octavius of Marcus Minucius Felix

197 NLS MSS 25395–25410. 198 Account of the Martyrs at Smyrna and Lyons, in the Second Century. With Explanatory Notes (1776). 199 E Gibbon, The History of the Decline and Fall of the Roman Empire (1776)‚ the preface of the first edition of which is dated 1 February 1776. 200 L Coelii Firmiani Lactantii Divinarum institutionum liber quintus; sive, de justitia, ed by D Dalrymple (1777). 201 D Dalrymple, Remains of Christian Antiquity. With Explanatory Notes (1778–1780) (henceforth Dalrymple, Remains of Christian Antiquity). 202 The library at Newhailes contained the third edition of the first volume that appeared in 1777: NLS Pressmark Nha.B119. 203 See, e.g., Dalrymple, Remains of Christian Antiquity (n 201) vol i, 169–170, 170–173. 204 See, e.g., ibid vol ii, 34, 86, 111–119 (in separately paginated notes).

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in 1781; again Gibbon is a target.205 In 1782, Hailes published an English translation of Lactantius’ De mortibus persecutorum, again with criticisms of Gibbon.206 The following year appeared his Disquisitions concerning the Antiquities of the Christian church.207 Here much of the work again is an attack on the details of Gibbon’s historical scholarship. Finally, in 1786 he directly took up the challenge he considered posed by Gibbon’s Decline and Fall and published An Inquiry into the Secondary Causes which Mr Gibbon has Assigned for the Rapid Growth of Christianity. This work reveals Hailes’ dissatisfaction with Gibbon’s worldly approach to early Christianity and attitude to the early sources. Hailes concluded that “it appears that the things which Mr Gibbon considered as secondary or human causes, efficaciously promoting the Christian religion, either tended to retard its progress or were the manifest operation of the wisdom and power of God”.208 It is worth noting that this work was translated into Dutch and published in Hailes’ old university town of Utrecht in 1793.209 Wesseling’s influence on Hailes raises an interesting issue about how we are to locate him intellectually. Roelevink considers Wesseling not to have been an Enlightened historian and, instead, as continuing to work within the old Humanist tradition.210 Of course, modern scholarship has made such categories as “Enlightenment” and “Humanism” more complex and problematic than once they seemed. The old simplicities about the Enlightenment as essentially politically radical and anti-clerical, found in works such as those of Peter Gay, are no longer accepted.211 National Enlightenments and conservative Enlightenments have been identified: the complexity of the historical and intellectual phenomena labelled “Enlightenment” is now emphasised. Nonetheless, Roelevink’s view of Wesseling raises interesting questions about Hailes and his intellectual 205 Marcus Minucius Felix, Octavius: A Dialogue (1781). 206 Lactantius, Of the Manner in Which the Persecutors Died: A Treatise, trans by D Dalrymple (1782). 207 See P Gaskell, A Bibliography of the Foulis Press, 2nd edn (1986) 364 (no 656). Proof sheets of an otherwise unrecorded edition of this with extensive MS notes by Hailes survive in NLS Pressmark Tyn.381(1). 208 D Dalrymple, An Inquiry into the Secondary Causes which Mr Gibbon has Assigned for the Rapid Growth of Christianity (1786) 210. In 1790 Hailes published another translation from an early Christian source: Address of Q. Sept Tertullian to Scapula Tertullus, Proconsul of Africa. Unlike his other translations this includes the Latin text of the original. 209 D Dalrymple, De twee oorzaken welke Mr. Gibbon heft gesteld voor den spoadigen voortgang van hat Christendom onderzocht (1793). The printer was W van Yzerworst. 210 Roelevink, Gedicteerd verleden (n 92) chs 6 and 7. 211 P Gay, The Enlightenment: An Interpretation. The Rise of Modern Paganism (1956); P Gay, The Enlightenment: An Interpretation. The Science of Freedom (1969).

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development at Utrecht. These issues are made more pressing by the recent study of Gibbon by Pocock, especially given Hailes’ censure of Gibbon’s work.212 It was Wesseling’s focus on human actions and deeds in a type of conscious and critical polyhistory that has led Roelevink to consider him as a Humanist rather than an Enlightened historian. His approach was pragmatic and factual. He did not attempt a rational explanation of the development of humankind.213 This, of course, does sound rather like Hailes’ work in his Annals. No less a figure than Cosmo Innes stated that, while what Hailes “did was of inestimable value”, nonetheless, “surely it was not necessary that an author using the same title which Tacitus gave to his greatest historical work, should make his ‘Annals’ little better than a chronicle of kings and queens and battles, and births and deaths – a sort of almanac of history”.214 This, of course, is just to say in another way, as pointed out earlier, that Hailes worked in the antiquarian tradition and not in the new styles of conjectural and narrative history. A picture could thus emerge of Hailes as working in an essentially pre-Enlightenment tradition. In support of such a picture, one can note that Hailes attacked sceptics, “free thinkers” and “rational enquirers”. Among others, Voltaire, Hume, Buffon and Lord Shaftesbury were subject to his censure.215 Voltaire’s history was a particular object of criticism.216 If Voltaire is taken as an emblematic figure of Enlightenment, Hailes could thereby seem “unenlightened”: an opponent of “enlightened” history and the new sciences of man. Hume, however, is another emblematic figure of Enlightenment. While once Hume and Hailes had been on cautiously friendly if scarcely intimate terms, relationships between them distinctly soured, especially after the famous episode when, as Keeper of the Advocates Library, Hume was rebuked by the Curators of the Library (of whom Hailes was one) for purchasing “indecent Books” without authority.217 Hailes, however, was able to praise 212 J G A Pocock, Barbarism and Religion (1999). I realise that Pocock is talking of the “enlightenments” of Gibbon: nonetheless, Gibbon does in some way come to be seen as emblematic or paradigmatic of “enlightenment”. 213 Roelevink, Gedicteerd veneden (n 92) 279, 299–308, 328. See also J Roelevink, “Lux veritatis, magistra vitae: the teaching of history at the University of Utrecht in the eighteenth and early nineteenth centuries” (1988) 7 History of Universities 149. 214 C Innes, Lectures on Scotch Legal Antiquities (1872) 8–9. 215 Hailes to Boswell, 28 July 1763, Yale MS Gen 89 C 1428; NLS MS 25423 fo 191. 216 Hailes to Boswell, 2 December 1763, Yale MS Gen 89 C 1430. 217 The most recent account of this famous story is in B Hillyard, “The Keepership of David Hume” in Cadell and Matheson (eds), For the Encouragement of Learning (n 33) 103. See also R H Carnie, “Hume–Hailes Relationship” (n 20).

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Hume’s historical work (if in a way that had a sting in its tail). In 1763 he wrote to Boswell, perhaps with some irony: Blockheads are the men who set men of genius to rights, you will find this after a second perusal of Hume’s history and you will discover dull men who may correct the errors and supply the omissions of his entertaining work.218

While despising Hume’s scepticism, Hailes was thus able to appreciate the qualities – and deficiencies – of his work.219 All this tends to show that such simple oppositions such as enlightened/unenlightened do not really work. Moreover, Hailes in his reaction to Hume and others was quite typical of many Scots of the Enlightenment. Thus, he despised zealotry of all types. This was his complaint to Boswell about the North Briton: zealots were worthy of pity, but false zealots were detestable.220 Hailes was a member of the Select Society, an important club for the propagation of ideals of improvement in the 1750s (from the debates in which, issues of revealed religion were excluded).221 While he has his own individual and particular concerns and interests, he fits quite comfortably into the mould of the Scottish enlightened lawyer, with his concerns for tolerance, reason, and moderation. Education in Utrecht easily supported these tendencies. G. GENERAL CONCLUSIONS Hailes was in one of the last significant cohorts of Scots students to study law in the Netherlands. Fifteen years later, Boswell was to find himself the only British student in Utrecht: the change had been dramatic. This is part of a more general and complex phenomenon, as the Dutch universities generally lost the large numbers of foreign students they had formerly attracted as the once great Dutch Republic declined. The disappearance of the Scots mirrored the disappearance of other foreign students. In retrospect, scholars can identify this decline as due to economic problems in the Dutch towns 218 Hailes to Boswell, n d (but 11 February 1763), Yale MS Gen 89 C 1414. 219 Hailes had a typically eighteenth-century sense of irony. This comes through in his courteous criticisms of Gibbon and in his translation into elegant Latin of Hume’s memoir of his life and Adam Smith’s letter to William Strahan which was originally published with Hume’s Memoir. Smith’s letter was rendered in Latin verse: David Humei, Scoti, summi apud suos philosophi, de vita sua acta, liber singularis; nunc primum Latine redditus (1787) Adami Smithi, LLD, ad Gulielmum Strahanum, armigerum, de rebus novissimis Davidis Humei, epistola, nunc primum Latine reddita (1788). 220 Hailes to Boswell, 31 March 1763, Yale MS Gen 89 C 1417. 221 See R L Emerson, “The social composition of enlightened Scotland: the Select Society of Edinburgh‚ 1754–1764” (1973) Studies in Voltaire and the Eighteenth Century 291 at 324.

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that led, first, to a failure to attract famous foreign professors, as tempting salaries were no longer offered, and, secondly, to a failure to invest in the equipment and laboratories made necessary by the scientific and medical developments of the eighteenth century.222 This said, it is nonetheless important to consider why the Scots lawyers in particular stopped attending at their hitherto favoured law schools of Utrecht and Leiden. Does Hailes’ experience, albeit that of one individual, help enlighten our understanding of this change? One of the main factors contributing to Scots no longer travelling to the Netherlands to study law must have been the availability of a suitable legal education at home. Thus, before Boswell travelled to Utrecht to study law, he had already taken classes in Roman law and Greek and Roman antiquities in Edinburgh with Professors Robert Dick and William Wallace respectively and Roman law in Glasgow with Professor Hercules Lindesay.223 Most of his compatriots no longer felt the need to travel to a Dutch law school. The education they received at home sufficed. This, however, is not quite as simple as it might seem. Law had been taught at Glasgow (with varying degrees of success) from 1714, while in Edinburgh a reasonably successful school of law had developed from the second decade of the century onwards.224 For the next thirty years or so, many Scots still thought it was worthwhile to continue their legal studies by spending an expensive year or two abroad, taking courses with men of the distinction such as Schulting, Noodt, Wieling or Voorda. When Roman law was still highly valued, an intending advocate might well find such a practice valuable, especially since none of the teachers of Roman law in the Scottish universities in the first half of the century was a man of distinction in the field. This practice was reinforced by a perception of other advantages, of an essentially social nature, to be derived from study abroad, as well as the possibility of learning French and other modern languages. Thus, at the peak period when Scots studied law in the Netherlands, they were primarily interested in acquiring an education in the Humanistic

222 Israel, Dutch Republic (n 47) 1049–1051. 223 Pottle, “Boswell’s University Education” (n 98) at 243–246; G Turnbull, “Boswell in Glasgow. Adam Smith, Moral Sentiments and the Sympathy of Biography”, in A Hook and R B Sher (eds), Glasgow Enlightenment (n 11) 163 does not discuss the class with Lindesay. 224 See J W Cairns, “The Origins of the Glasgow Law School: The Professors of Civil Law, 1714–61” in P Birks (ed), The Life of the Law: Proceedings of the Tenth British Legal History Conference (1993) 151; Cairns, “Importing our Lawyers from Holland” (n 76) at 146–153. There had also been a number of successful private teachers of law: J W Cairns, “John Spotswood, Professor of Law; A Preliminary Sketch”, in W M Gordon (ed), Miscellany III, Stair Society vol 39 (1992) 131.

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study of Roman law for which the Dutch law schools were then famed. This does not mean that all of the Scots were necessarily deeply concerned with elegant jurisprudence for its own sake, though no doubt some of them were; rather, they sought the training in Roman law and the related disciplines of Greek and Roman antiquities and universal history that allowed them to understand and apply the Roman legal texts as used in Scottish legal practice. What also made the Netherlands’ universities such an attractive place for such study was the vibrant tradition of classical scholarship that supported and made possible the high standards of study of Roman law: this applied even to professors, such as Johannes Voet, who worked more in the tradition of the usus modernus than in that of elegant jurisprudence.225 Of course, not only did the Dutch polyhistorical tradition make a major contribution to the success of Dutch scholarship in Roman law, many Scots law students also took classes with such famous polyhistors as Gronovius or Perizonius.226 By the time Hailes was a student in Utrecht, however, Scots were already turning away from the traditions of Dutch Humanism and classical scholarship. In law and related disciplines, the polyhistorical tradition was progressively being supplanted by a focus on the natural history of mankind with a more empirical approach that originated in the revolutions in the methodology of the natural sciences in the seventeenth century. Study of the ancient world was no longer considered the most important foundation of knowledge.227 In particular, theories of law developed in Scotland that subjected rational natural law theories (of the type taught in the Netherlands) to a critique derived from varying versions of the theory of a moral sense and from study of the natural history of mankind. The most radical proponent of such a theory was, of course, David Hume, but others, such as Lord Kames and George Turnbull, set out similar views.228 Roman law as a universal system of justice was under question. At the same time, while once admission to the Faculty of Advocates had been based on examination solely on Roman law, in 1750 a compulsory examination in Scots law was introduced for all

225 Cairns, “Alexander Cunningham” (n 52) at 353–357; J W Cairns, “Three Unnoticed Editions of Pieter Buman’s Antiquitatum Romanarum brevis descriptio” (1997) 21 The Bibliotheck 20. 226 See Cairns, “Alexander Cunningham” (n 52) at 315, 317. 227 See, e.g., the remarks in ibid at 357. 228 For some discussion, see J W Cairns, “Ethics and the science of legislation: legislators, philosophers and courts in eighteenth-century Scotland” (2000) 8 Jahrbuch für Recht und Ethik 159; J W Cairns, “Legal Theory”, in A Broadie (ed), The Cambridge Companion to the Scottish Enlightenment (2003) 22.

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aspiring to join the Bar.229 By 1780, Boswell could remark to the judge, Lord Kames, that “[t]he study of the Civil law is much gone out”; Kames explained that whereas once Roman law had been used to help settle points of Scots law, “a man would be laughed at were he to quote civil law now that they are settled”.230 The net result was that fewer Scots aiming for admission as an advocate saw an advantage in legal study abroad. At the same time, the Scots law schools started to offer students exactly what they wanted. For example, from 1761 onwards, Glasgow developed as a leading law school under John Millar, who was to hold the chair of Civil Law for forty years.231 A pupil of Adam Smith, he attracted students from all over the British isles and even exerted influence, through two Russian pupils, on the fledgling law school at Moscow.232 The type of elegant and Humanistic study of Roman law that interested Wieling or Voorda or Noodt did not interest Millar at all; nor, however, was he interested in the more practice-oriented teaching of Roman law associated with, say, Voet and the usus modernus. His approach was quite different. He taught Roman law in two courses on the Institutes and one on the Digest, using the Humanist-oriented compendia of Heineccius.233 Millar’s concerns, however, were far from those of the erudite German scholar. For Millar, the value of studying Roman law was that it provided an experimental model by which his students could understand the nature of law. In other words, it provided illustrations of the Smithian natural jurisprudence he espoused. Study of Roman law “was a very usefull [sic] exercise, as it enlarges our experience”. Knowing, however, “what was the Roman System . . . would be of little consequence of itself”.234 At the same time, professors of Scots law, such as David Hume in Edinburgh were developing a more sophisticated understanding of Scots law as a complete and autonomous system.235

229 J W Cairns, “The Formation of the Scottish Legal Mind in the Eighteenth Century: Themes of Humanism and Enlightenment in the Admission of Advocates”, in N MacCormick and P Birks (eds), The Legal Mind: Essays for Tony Honoré (1986) 253 at 264–265. On the development of the examinations in Roman law, see Cairns, “Advocates’ hats” (n 3). 230 Private Papers of James Boswell from Malahide Castle, ed by G Scott and F A Pottle (1928– 1934), vol 15, 290–291. On the general history of Scots law in this period, putting these changes in context, see Cairns, “Historical Introduction” (n 38) at 147–177. 231 Cairns, “‘Famous as a School for Law, as Edinburgh . . . for Medicine’” (n 11). 232 Ibid at 148–150; J W Cairns, “John Millar, Ivan Andreyevich Tretyakov, and Semyon Efimovich Desnitsky: A Legal Education in Scotland, 1761–1767”, in T Artemieva, P Jones and M Mikeshin (eds), The Philosophical Age: Scotland and Russia in the Enlightenment (2001) 20. 233 Cairns, “‘Famous as a School for Law, as Edinburgh . . . for Medicine’” (n 11) at 139–142. 234 NLS Adv MS 20.4.7 fos 1–2. 235 Cairns, “Historical Introduction” (n 38) at 168.

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Thus, developments in Scottish thinking about law in the context of the more successful development of the Scottish law schools helped reinforce a trend away from pursuing studies in the Dutch law schools. Of course, such developments were scarcely unique to Scotland. The history of law in the eighteenth century in Europe is generally marked by an increasing emphasis on law as a national system, while the further development of theories of natural law raised questions about the importance of the intensive and detailed study of Roman law that had hitherto been the focus of a university education in law.236 In the Netherlands too, in the middle years of the century, natural law theorising was becoming of increasing importance;237 the idea of the jus hodiernum was giving way to the idea of a vaderlands recht.238 The value of Roman law was under attack, even if an individual, such as D G van der Keessel, could call in 1762 for the intensification of the study of Roman law.239 There was one crucial difference, however, between the developments in Scotland and the Netherlands. In the latter, the study of natural law became focused on the theories of Christian Wolff.240 This development would not have been sympathetic to the approach to law developing in Scotland at this period. If the Scots had gone to the Netherlands to study Roman law and if the value of Roman law was under attack in both Scotland and the Netherlands, after 1750 study at Leiden or Utrecht must have seemed unattractive. Moreover, the general approach to law, as evidenced by the increasing influence of the theories of Wolff, was one that would have been unsympathetic to Scots lawyers. The general decline of the universities and the descent of the Netherlands into a more volatile politics must also have been a significant discouragement to Scots to study there. In Hailes’ final year, the second Orangist Revolution, marked by riots and civil disturbances, broke out, leading to the restoration and reinforcement of the role of the stadholderate under William IV.241 The reaction against this in turn led to the Patriot Revolution of the 1780s, leading in its turn to an Orangist

236 See, e.g., L Brockliss, “Curricula”, in H De Ridder-Symoens (ed), A History of the University in Europe. Volume II: Universities in Early Modern Europe (1986) 563 at 599–608. 237 This is the general thrust of Jansen, Natuurrecht of Romeins Recht (n 51). See also Velema, Enlightenment and Conservatism (n 51) 110–114. 238 C J H Jansen, “De ontdekking van het vaderlandse recht in de achtiende eeuw” (1992) 24 Documentieblad Werkgroep Achttiende Eeuw 57. 239 Velema, Enlightenment and Conservatism (n 51) 114. 240 Jansen, Natuurrecht of Romeins Recht (n 51) 85–113; Velema, Enlightenment and Conservatism (n 51) 85–87. 241 Israel, Dutch Republic (n 26) 1066–1078.

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counter-revolution, before the success of the armies of the new French Republic led to the establishment of the Batavian Republic in 1795.242 It is easy to see why study in the Netherlands was no longer attractive as the United Provinces disintegrated under economic pressure and political unrest. No longer an intellectual powerhouse and major publishing centre, the Dutch Republic was degenerating into a more peripheral offshoot of Europe with a provincial enlightenment. What then, finally, of Hailes? His enthusiasm for Utrecht suggests that he had not found his studies there pointless or of little value. Here what must have been crucial was Hailes’ own enjoyment and appreciation of the classics. Whether or not he was particularly concerned with elegant scholarship in Roman law, he was sufficiently enthusiastic about his teacher Wieling to write an epitaph on him and to seek a print of his portrait. He pursued a critical study of Greek lyric poetry of the type associated with his other teacher, Wesseling. He was interested in Latin composition. He worked on the sources of early Christian history. Though one should not put too much weight on the example of one man, his experience tends to support the view set out above that it was the intertwined disciplines of Roman law and classics (including philology, antiquities and history) that gave value to the Scots in their study in the Netherlands. Once the value of such studies became questioned, decline in attendance inevitably followed. Dutch Humanism may have done much to stimulate the thinking of the early Scottish Enlightenment; the route then taken by Scottish thinkers made later Dutch scholarship of less importance, in his own day, John Millar was a more significant intellectual than Van der Keessel. None of Boswell’s law teachers in Scotland was a man of distinction; but neither was his Utrecht teacher, Trotz. Boswell had been taught, however, by a distinguished mathematician, Matthew Stewart, in Edinburgh and in Glasgow had taken the classes of Adam Smith on moral philosophy and on rhetoric and belles lettres. Boswell later came greatly to dislike Smith as a man; at the time he was enthusiastic about his classes.243 It was in the University of Glasgow, not in that of Utrecht, that Boswell encountered a towering intellect. The world had changed.

242 Ibid 1098–1121. 243 Pottle, “Boswell’s University Education” (n 98) at 241‚ 246–248.

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11 The Formation of the Scottish Legal Mind in the Eighteenth Century: Themes of Humanism and Enlightenment in the Admission of Advocates* On 25 January 1854 the Faculty of Advocates established a committee to consider and report on “The Qualification of Intrants”. When presented, the committee’s report, dated 11 July 1854, noted that intrants had to satisfy three requirements for admission as an advocate. The first was to show a knowledge of Latin as a test of general scholarship. This was examined by requiring the intrant to read aloud a passage of the Digest ad aperturam libri. The committee commented that this “ensures but slight acquaintance with the Latin language”. Next, there were examinations in Civil Law and Scots law, but – stated the committee – these had “degenerated into nearly a formal proceeding” and could be passed “by persons whose study of the subjects of Civil and of Scotch jurisprudence has not been great”. The committee reserved its greatest scorn for the third qualification: the preparation of a Latin thesis upon a title of the Digest. The committee said of this thesis that, “written as it is, in very many cases, by others than the person whose name it bears, it is no test of the scholarship of its professed author, and tends somewhat to throw ridicule upon the whole of the Faculty examinations”.1 Such criticisms were not new. In 1818 the Professor of Logic and Rhetoric in the University of Glasgow, George Jardine, in an influential work on

* Much of this paper derives from study of the records of the Faculty of Advocates, and I am most grateful for the courtesy of permission to examine and to cite them. I have benefited much from the comments of Peter Birks, John MacLean and Hector MacQueen, on an earlier draft. 1 J Lorimer, The Universities of Scotland Past, Present, and Possible: With an Appendix of Documents Relating to the Higher Instruction (1854) appendix A (henceforth Lorimer, appendix A) 1–2.

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educational method and theory, had stated that the Faculty’s examinations rendered “the study of the law altogether nugatory”.2 In 1826 in evidence before a Royal Commission investigating the Scottish universities, Thomas Thomson, a member of the Faculty, Deputy Clerk Register, and a noted scholar, had said the examinations were “too slight to afford anything like a test of actual advancement”,3 and the Whig advocate and one of the founders of the Edinburgh Review, Francis Jeffrey, had merely commented that the Faculty’s examination was a “farce”.4 While in 1854 the Faculty’s committee thought that for two centuries there had been a general continuity in desired admission requirements,5 it seems, on the contrary, that in the course of the eighteenth century a crucial change took place, whereby the Faculty’s views on the necessary qualifications of an advocate markedly shifted from a Humanist-inspired overwhelming, stress on examination in Civil Law as valuable and sufficient in itself, to a rationalist and Enlightenment emphasis both on proof of polite learning (in the sense of polished and civilised knowledge) and on examinations in Civil and Scots Laws, now viewed as prerequisites for practice. It is impossible to fix any precise date for this change in attitude, not only because elements and themes from Humanism and Enlightenment could be present together, but also because many of the Enlightenment emphases grew out of Humanism, even if they came to take on a new meaning in the changing circumstances of Scottish life. Despite there being obvious difficulty in relating specific events to major cultural movements – which are not, in any case, monolithic – to approach the changing views on the admission of advocates from the perspectives of Humanism and Enlightenment does provide a basic and useful interpretative framework for understanding them.6 It may be added that many of the proposals put 2 G Jardine, Outlines of Philosophical Education, Illustrated by the Method of Teaching the Logic Class in the University of Glasgow, 2nd edn (1825) (henceforth Jardine, Philosophical Education) 462. 3 Report of the Royal Commission of Inquiry into the Universities of Scotland, Minutes of Evidence vol I (1837) PP XXXV 405. 4 Ibid 394. 5 Lorimer, appendix A (n 1) 19–20. 6 Obviously the picture to be presented here lacks an appropriate sociological dimension. The following works usefully point to ways forward in this respect; J S Shaw, The Management of Scottish Society 1707–1764 (1983) (henceforth Shaw, Management) 18–40: N T Phillipson, “Lawyers, Landowners, and the Civic Leadership of Post-Union Scotland”, in D N MacCormick (ed), Lawyers in their Social Setting (1976) 171 (henceforth Phillipson, “Lawyers, Landowners, and Civic Leadership”), also “The Social Structure of the Faculty of Advocates in Scotland 1660–1840”, in A Harding (ed), Law Making and Law Makers in British History, Royal Historical Society vol 22 (1980) 146; A Murdoch, “The People Above”: Politics

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forward in the eighteenth century were only to be fully worked out in the very different context of nineteenth-century professionalism,7 and this paper, therefore, will not deal with the finally effective reforms (although events after 1800 and before 1700 will be discussed to some extent, as not to do so would be arbitrary and artificial).8 Changes in admission requirements could initially seem a rather narrow topic; but not only do they relate to wider intellectual issues in early modern Scotland, they are also an important part of the history of the formation of the legal mind, even if the conclusions here may tend to the tentative. A. ADMISSIONS, 1660s–c 1750 The qualifications for admission as an advocate at the start of the eighteenth century were set out by Spottiswoode and Forbes.9 There were two modes of entry. The first was by trial on Civil Law. Such an intrant, after petitioning the Lords of Session for admission, was referred by them to the Dean of the Faculty of Advocates for both a private and a public examination in Latin on Civil Law. After succeeding in such examinations, the intrant read a lesson on Civil Law to the Lords and was thereafter admitted. This procedure was first clearly established by an Act of Sederunt of 1664,10 solicited from the Lords of Session by the Faculty11 and confirmed by the Lords in 1688.12 The private examination took place before a number of elected examiners, and the public

7 8 9

10 11

12

and Administration in Mid-Eighteenth Century Scotland (1980) 52–62, and “The Advocates, the Law and the Nation in Early Modern Scotland”, in W Prest (ed), Lawyers in Early Modern Europe and America (1981) 147; and P S Lachs, “Scottish Legal Education in the Nineteenth Century”, in E W Ives and A H Manchester (eds), Law, Litigants and the Legal Profession, Royal Historical Society vol 36 (1983) 155–161. R Cocks, Foundations of the Modern Bar (1983) indicates the kind of work that could be done. See, e.g., Lorimer, appendix A (n 1) 48–58 and, more generally, M S Larson, The Rise of Professionalism: A Sociological Analysis (1977). Lord Macmillan, A Man of Law’s Tale (1952) 25–33, gives the details of admission in the late nineteenth century. J Spottiswoode, The Form of Process Before the Lords of Council and Session, 2nd edn (1718) (henceforth Spottiswoode, Form of Process) xliii–xlvi; W Forbes, A Journal of the Session Containing the Decisions of the Lords of Council and Session (1714) (henceforth Forbes, Journal) viii. Spottiswoode held a private “college” of laws in Edinburgh at the start of the eighteenth century. Forbes was the first appointee to the Glasgow chair in Law. R K Hannay, The College of Justice: Essays on the Institution and Development of the Court of Session (1933) (henceforth Hannay, College of Justice) 153. J M Pinkerton (ed), The Minute Book of the Faculty of Advocates, 1661–1712 and 1712–1750, Stair Society vols 29 and 32 (1976 and 1980) (henceforth Minute Book) vol i, 8–9 (2 and 9 July 1664 and 7 November 1664). The Acts of Sederunt of the Lords of Council and Session, from the 15th of January 1553, to the 11th of July 1790 (1790) (henceforth Acts of Sederunt) 181 (6 July 1688).

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examination, on a specific title of the Civil Law, before the entire Faculty. From 1669 the examiners were always appointed at the Faculty’s anniversary meeting in January.13 On 17 December 1692 the Faculty considered further proposals on the public trial and decided that in future intrants should print and publish theses and corollaries to be impugned by any member of the Faculty. The Lords were to be informed of this, and a number of advocates were to consider and report on the topic to the first meeting of the Faculty in January 1693. The Dean was to draw up the necessary Act.14 On 3 January 1693 the Faculty accordingly agreed on an Act whereby, after the private examination, the Dean was to assign to intrants a title of Civil Law for such printed theses and corollaries, which were to be defended in Latin in the public examination. The Dean and the private examiners were to oversee the writing of the theses and any member of Faculty could impugn them, though the Dean was specially to appoint for this task six or seven members of Faculty who were to be unknown to the intrant.15 On 19 November 1698 the Faculty decided that the function of censuring and revising intrants’ theses before printing, to ensure no error or incongruity of style and matter, was to be given solely to the Curators of the Library, the Clerk, and the Library Keeper.16 The Faculty introduced further changes on 22 March 1707, when it determined to replace the nomination of six or seven public examiners by the Dean with an election at its anniversary meeting. Public examiners were authorised to examine candidates generally on their assigned titles.17 The lesson before the Lords was an early requirement.18 From 1680, if not before, the practice was for the Dean to assign a law from the title on which an intrant had been publicly examined as the subject of this lesson.19 This practice continued after the introduction of the printed theses. The second mode of entry was by trial on Scots law and applied to candidates who were admitted “extraordinarily” upon a bill. Originally candidates who entered by bill were not examined at all; but on the prompting of the Faculty20 the Lords issued an Act of Sederunt on 6 July 1688 which 13 Minute Book (n 11) vol i, 19 n 6. 14 Ibid vol i, 119. 15 Ibid vol i, 121. On 6 January 1694 (ibid vol i, 130) the Faculty decided that intrants should have notice of who these public examiners would be. 16 Ibid vol i, 190. 17 Ibid vol i, 268. See also ibid vol i, 207 (1 February 1700), where first is determined the extent of the permitted questioning. 18 Hannay, College of Justice (n 10) 142–143. Hannay suggests that some public lessons related to instruction; I am inclined to doubt this. 19 Minute Book (n 11) vol i, 51 (11 December 1680); and see n 2 thereon. 20 Ibid vol i, 85 (5 June 1688).

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required that in future any admitted on a bill should be examined by the Lords on their knowledge of Scots or municipal law.21 On 25 June 1692 the Lords issued a new Act by which such intrants on a bill were to be remitted to the Dean and Faculty for trial on Scots law.22 Initially there was only a public examination on Scots law, and the Minutes give no clear indication of how it was carried out;23 but on 15 January 1696 the Faculty decided that in future there would be both a private and a public examination for intrants on Scots law. Two or more advocates were accordingly to be added to the private examiners. The Dean was to assign one or more titles of Scots law to the intrant for the public examination, which was to be conducted exactly like the public examination in Civil Law, except that no theses were to be printed.24 Such intrants did not read a lesson before the Lords. These two modes of entry found some precedent in earlier practices for admission, and their regularisation in the late seventeenth century undoubtedly was part of the advocates’ search for greater corporate status, noted for that period by Hannay.25 With some adjustments and fine tuning,26 this system remained in operation until 1750. It may be added that initially the titles for theses appear to have been allocated randomly to intrants from the whole Corpus Iuris Civilis; but from 1717 the titles, with only few exceptions, were given out in sequence for theses. The sequence started with the Institutes and, after its titles were exhausted, moved on to the Digest. While the Faculty’s minutes do not explain this change in distributing titles, it shows an efficient and logical method which avoided duplication. According to Professor Honoré’s own interesting arguments, the compilers of these very titles would have been sympathetic to such an economical and direct approach. Both Spottiswoode and Forbes stated that to enter by trial on Civil Law was more honourable.27 This provides a key to understanding the procedures established in the late seventeenth century. Entry by bill was tainted with suspicions of judicial favouritism. Thus an Act of Sederunt of 24

21 22 23 24 25 26

Acts of Sederunt (n 12) 181. Ibid 200. Minute Book (n 11) vol i, 115–116 (2 July 1692) and 117 (8 and 23 July 1692). Ibid vol i, 164–165. Hannay, College of Justice (n 10) 135–164. E.g., Minute Book (n 11) vol i, 185, 190, 207, 209 and 268. It has not seemed worthwhile to pursue the minutiae of development. 27 Spottiswoode, Form of Process (n 9) xlv: “The Admission by a Trial on the civil Law is looked to be the most honourable, and makes the Intrant to be more respected, than those who pass upon Scots Law.”; Forbes, Journal (n 9) viii.

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November 1691 forbade admission by bill of close relatives of judges;28 this was repeated in the Act of 1692 already referred to.29 Those who entered by bill need not have undertaken the lengthy and expensive study of Civil Law, usually abroad, which was considered likely to ensure that the intrant’s “breeding” was “more liberall and worthy”.30 The Act of 1688 accordingly required the Lords of Session to be well informed of the “integrity and honest deportment”31 of intrants by bill, and that of 1692 required the Lords to be “well informed of the person’s integrity, good-breeding, honest deportment and fitness for exerceing the office of ane advocate”.32 No such requirements of fitness were made of intrants by examination on Civil Law. It seems rather curious that ordinary intrants were not tested on Scots law at all. The Act of 1692 does talk of “the ordinar tryall” as being “both in our law and the civill law”;33 but there is no evidence that there was in fact an examination on Scots law for such intrants, and Spottiswoode is quite definite on the point.34 In practice, no doubt many, if not all, ordinary intrants would have studied Scots law from books and attended the courts and the consultations of advocates, and a number seem to have spent time in the chambers of Writers to the Signet;35 but the lack of any examination of them on Scots law is none the less striking, especially when, given the trial on Scots law of intrants by bill, it must have been conceivable – and indeed possible – to examine all intrants on it. Examination on Civil Law alone must have had a value quite outwith any consideration that learning in Civil Law was a prerequisite for a knowledge of Scots law adequate for practice, for otherwise all intrants should have undergone such examination. The explanation must be sought elsewhere. I would suggest that the advocates’ stress on education in Civil Law is related to the Humanist culture of late seventeenth-century Scotland, and 28 Acts of Sederunt (n 12) 195. 29 Ibid 200. 30 J Lauder, Lord Fountainhall, Historical Notices of Scottish Affairs, Selected from the Manuscripts of Sir John Lauder, 2 vols (1848) (henceforth Fountainhall, Historical Notices) vol ii, 464. 31 Acts of Sederunt (n 12) 181. 32 Ibid 200. 33 Ibid. 34 Spottiswoode, Form of Process (n 9) xliii–xliv. Perhaps the Act was alluding to the practice of intrants having studied the “practick” before admission, and so narrating in their petitions for admission: Hannay, College of Justice (n 10) 143–147. 35 See, e.g., W MacLeod (ed), Journal of the Hon John Erskine of Carnock, Scottish History Society vol xiv (1893) xix–xx, and Lord Kames, reported in G Scott and F A Pottle (eds), Private Papers of James Boswell from Malahide Castle, 18 vols (1928–1934) (henceforth Boswell, Private Papers) vol xv, 269.

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the advocates’ vision of their place within that culture as a universitas of learned men. It was a culture much concerned with questions of honour, precedency and status. Scottish Humanism has been studied mainly from the perspective of literature:36 the role of law in it has been little attended to.37 It is associated with figures such as Pitcairne, Sibbald, Mackenzie of Rosehaugh and, in the eighteenth century, Ruddiman.38 I do not wish here to discuss Humanism generally, or even its Scottish variant; but it may be said that its focus on an attempt to gain a proper understanding of the ancient world through philological and historical analysis, in order to apply knowledge thereby gained to the contemporary world, contained a paradox for legal studies. Philological analysis of Civil Law revealed its historical origin and its contingency as the law of a specific people and time;39 yet Humanism also stressed the continued applicability of Civil Law as a system of universal law, and it remained, with Canon Law, the sole object of legal study in European universities until towards the end of the seventeenth century.40 Gennaro, in his significantly entitled Respublica Jurisconsultorum 36 E.g., D Duncan, Thomas Ruddiman, A Study in Scottish Scholarship of the Early Eighteenth Century (1965) (henceforth Duncan, Thomas Ruddiman); J MacQueen, Progress and Poetry (1982) (henceforth MacQueen, Progress and Poetry) 1–41; and F W Freeman, Robert Fergusson and the Scots Humanist Compromise (1984). 37 With honourable exceptions: see H Ouston, “York in Edinburgh: James VII and the Patronage of Learning in Scotland, 1679–1688”, in J Dwyer, R A Mason and A Murdoch (eds), New Perspectives on the Politics and Culture of Early Modern Scotland (1982) 133 (henceforth Ouston, “York in Edinburgh”) at 144–149; and A J MacLean, “Mackenzie and Scottish Criminal Law”, unpublished paper read to the Scottish Legal History Group, Edinburgh, 13 October 1984. I am much indebted to the insights of Mr MacLean’s paper in particular. 38 Archibald Pitcairne and Sir Robert Sibbald were prominent physicians and Episcopalians (Sibbald briefly became a Roman Catholic). Sibbald was instrumental in the foundation of the Royal College of Physicians in Edinburgh. Pitcairne wrote Latin poetry (including an elegy on Sir George Mackenzie). See, e.g., Ouston, “York in Edinburgh” (n 37) and Duncan, Thomas Ruddiman (n 36) passim. Sir George Mackenzie of Rosehaugh is too well known to require introduction. A Lang, Sir George Mackenzie (1909) is unfortunately out of date. A new biography of this major figure is much wanted. For Thomas Ruddiman, see Duncan’s biography (n 36). Ruddiman was a noted literary scholar and Latinist; he eventually took charge of the Advocates Library. 39 As ever, the work of Alan Watson has been most enlightening and stimulating in developing this line of thought on the significance of Humanism, and I am considerably indebted to it: A Watson, The Making of the Civil Law (1981) (henceforth Watson, Making of the Civil Law) 72–77. See also J G A Pocock, The Ancient Constitution and the Feudal Law (1957) 1–29, 70–123; J H Franklin, Jean Bodin and the Sixteenth-Century Revolution in the Methodology of Law and History (1963) 18–58; D R Kelley, Foundations of Modern Historical Scholarship: Language, Laws, and History in the French Renaissance (1970). The work of Hotman was especially important in this respect: Watson, Making of the Civil Law 73–76; D R Kelley, Francois Hotman: A Revolutionary’s Ordeal (1973) 183–197. 40 See C Chêne, L’enseignement du droit Français en pays de droit écrit (1679–1793) (1982) 1–7; J W Cairns, “Institutional Writings in Scotland Reconsidered”, in A Kiralfy and H L MacQueen

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(1731), said of Roman law that: “unlike the laws of other peoples, it is not restricted by the limits of need and mere nature. Only the Romans are discovered to have invented so many ways of giving justice to everyone”.41 In 1689 Sir George Mackenzie, that epitome of Scottish Humanism, in his oration on the inauguration of the Advocates Library, stated that: “Of books on Roman Law, pride of place must be given to the text itself and its various editions, since on it both our calling and our library are based. It is a divine achievement, which we owe more to Heaven than to Rome, vouchsafed to us on earth to be a pattern to legislators and an arbiter among the races of men.”42 Scots lawyers, drawing on the other aspect of legal Humanism, had, however, no difficulty in distinguishing clearly between Scots and Civil Law,43 and in a very well-known passage Mackenzie commented: “I love equally ill to hear Civil Law spoke to in the terms of a Stile Book or accidental Latin (as is most ordinary) as to hear the genuine words of our Municipal Law forced to express the phrases of the Civil Law and Doctors.”44 Examination on and learning in Civil Law allowed the advocates to consider themselves members of a pan-European legal culture, a Respublica Jurisconsultorum. The trials of intrants in Civil Law closely corresponded to the examinations and laureation procedures of contemporary European universities. The Act of Faculty regulating public trial by printed theses stated that this mode of examination was “observed amongst other nations” and that it would “add to the honor of the society . . . if the said publict tryall shall proceid in the same way and method as is practised abroad”.45 Experience of the universities of the Netherlands must have influenced the Faculty here. The foundation of the Advocates Library and the attempts to establish a professor of law in Edinburgh46 were other aspects of the

41

42 43 44 45 46

(eds), New Perspectives in Scottish Legal History (1984) 76 (henceforth Cairns, “Institutional Writings”), and “Blackstone, an English institutist: legal literature and the rise of the nation state” (1984) 4 OJLS 318 (henceforth Cairns, “Blackstone, an English Institutist”) for the general background. G Gennaro, La république des jurisconsultes, trans Dinouart (1768) 14. This was the only edition available to me. I decided to translate Dinouart’s translation, though aware of the possibility of adding a different layer of meaning to Gennaro’s words, as it did not seem particularly useful to quote him in French. G Mackenzie, “Oratio Inauguralis” (1689), trans J H Loudun (1946) 2 Transactions of the Edinburgh Bibliographical Society 273 at 278. J Dalrymple, Viscount Stair, Institutions of the Law of Scotland (1981) 80, 85–89 (1.1.12, 16), and Mackenzie, Institutions of the Law of Scotland (1688) 1.1, passim. G Mackenzie, “What Eloquence is fit for the Bar”, Pleadings in Some Remarkable Cases (1673) 7· Minute Book (n 11) vol i, 121 (3 January 1693). Hannay, College of Justice (n 10) 135–164.

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advocates’ conception of themselves as a learned body equivalent to a university. Since the advocates hoped that the foundation of one or two chairs of Law would obviate the necessity of study abroad, and might even attract foreign students, and since they considered the possibility of acquiring professors from abroad, it may be inferred that the chair or chairs were to be, at the very least, mainly and substantially devoted to Civil Law.47 One bred in Civil Law was considered necessarily well bred or educated, as Civil Law studies were thought to encompass the totality of knowledge and ensure in themselves a complete liberal education. The Gloss of the thirteenth century had argued that it was unnecessary for lawyers to study theology because theology was included in the Civil Law. This attitude survived Humanism, and Kelley comments that “the study of law, more than any other field, represented an encyclopedia, a total Weltanschauung for jurists”.48 The Faculty adopted this view when, on 24 December 1695, in its proposals for erecting a chair or chairs of Law, it commented that: “The professione of the laws carys necessarly with it all the belles Letres and the knowledge of ancient and modern history.”49 Examination of intrants in Civil Law was not related to the main requirements of practice at the Scots Bar, which was then largely devoted to the property concerns of the landed classes, areas of practice where the law was not particularly, if at all, Roman in origin.50 This said, it cannot be denied that areas of Scots law had been Romanised by 1700, nor that Civil Law at the start of the eighteenth century could still play, and apparently was to play, a creative role in Scots law.51 In this context, the advocates’ stress on Civil Law could be seen as linked to practice at the Bar. 47 Minute Book (n 11) vol i, 65–66 (12 January 1684), and 159–160 (24 December 1695). That there were to be two chairs could suggest that one might be devoted to Municipal Law, and there is some circumstantial evidence to support this. On the other hand, it could be that one professor was to teach the Institutes and the other the Pandects (later there were to be separate courses on these in Edinburgh and Glasgow). It is impossible to be certain; but what is quite definite is that Civil Law teaching was what concerned the Faculty. 48 D R Kelley, The Beginning of Ideology: Consciousness and Society in the French Reformation (1981) 186. 49 Minute Book (n 11) vol i, 160. 50 Consider the oft-quoted description by W Eccles, An Historical Account of the Rights and Privileges of the Royal College of Physicians and of the Incorporation of Surgeons in Edinburgh (1707) 14, of the Court of Session as “the Land-Mercat Club”. See also Phillipson, “Lawyers, Landowners, and Civic Leadership” (n 6) at 176–177. 51 Though the detail of the reception of Roman law in Scotland still needs further study, rather more than excellent beginnings are made in A Watson, Legal Transplants: An Approach to Comparative Law (1974) 36–56, and “The Rise of Modern Scots Law”, La formazione storica del diritto moderno in Europa (Atti del Terzi Congresso Internazionale della Società Italiana di Storia del Diritto, 3 vols, 1977) vol iii, 1167–1176. Also very useful is P Stein, “The influence of Roman law on the law of Scotland” (1963) 8 Juridical Review 205.

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While the emphasis on examination in Civil Law is plausibly to be connected with the continuing reception and influence of Roman law in Scots law, it is quite clear that the reason for examining most intrants only on Civil Law was not a practical one. The advocates’ trials on Civil Law certainly promoted advantageously “the advancement of the knowledge of the comon [i.e. Civil] law” among the Faculty;52 but the advantage did not derive from the fact that Civil Law was potentially a usable source for Scots law. Had this been so, all advocates should have been tried on Civil Law, and, indeed, a fortiori on Scots law; the advantage rather was that study of Civil Law guaranteed the advocates’ profession as a liberal art and ensured that the Faculty was an honourable society. On the other hand, admission by trial on Scots law was positively discouraged by the requirement to pay twice the fees exacted from intrants in Civil Law;53 and Fountainhall noted a number of intrants and advocates admitted by bill who claimed they would rather resign their gowns than pay the high fees.54 The evidence put forward by Shaw indicates that advocates entered overwhelmingly by trial on Civil Law: of the 295 who were admitted between 1707 and 1750, 260 were tried on Civil Law, while the trials of the remainder are unknown55 (which does not necessarily mean they were tried on Scots law). Though the regulations for admission did not change until 1750, the Humanism that gave meaning to trial exclusively on Civil Law lost ground in the early years of the eighteenth century.56 Though it is inexpedient here to enter into an account of the origins and nature of the Scottish Enlightenment,57 it may be said that its roots obviously lie in the seventeenth century and beyond, there being a certain continuity of development from Humanism to Enlightenment in Scotland, and that it is connected with the political, cultural and material changes Scottish society had undergone and was undergoing.58 It is impossible to sum up in a few words a movement as 52 53 54 55 56 57

Minute Book (n 11) vol i, 121 (3 January 1693). Spottiswoode, Form of Process (n 9) xiv. Fountainhall, Historical Notices (n 30) vol ii, 787 and 805. Shaw, Management (n 6) 27. Duncan, Thomas Ruddiman (n 36) 147. I do not intend to suggest that Scotland earlier was “unenlightened”: G Donaldson, “Stair’s Scotland: the intellectual inheritance” (1981) 26 Juridical Review 128. 58 Out of a growing but varied literature I have found useful: J Clive, “The Social Background of the Scottish Renaissance”, in N T Phillipson and R Mitchison (eds), Scotland in the Age of  Improvement (1970 225; N T Phillipson, “Towards a Definition of the Scottish Enlightenment”, in P Fritz and D Williams (eds), City and Society in the 18th Century (1973) 125, and “Culture and Society in the 18th Century Province: The Case of Edinburgh and the Scottish Enlightenment”, in L Stone (ed), The University in Society, 2 vols (1975) vol ii,

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complex as the Scottish Enlightenment; but certain themes stand out. There was a desire to explain scientifically the material and social world. Economic progress and agricultural improvement were of vital concern. History was made a discipline of major importance. While the Scottish universities had in the seventeenth century mainly been institutions for the education of the clergy, there was now a broadening of curricula to emphasise subjects which promoted polite learning and civic virtue.59 At the same time, and plausibly linked with these strands in the Enlightenment, changes in Scots law and legal culture were under way. Chairs teaching Scots Law and Civil Law were established in Glasgow and Edinburgh.60 The origins of feudalism in Scotland and the significance of the Regiam Majestatem were debated and disputed.61 Scots law had been reduced to an intelligible system in the writings of Stair and Mackenzie.62 Even before Montesquieu formulated such ideas in a coherent, theoretical way,63 Scots considered their law to be particularly suited and adapted to the “genius” of the Scottish people.64 Furthermore, after 1750 or thereabouts, the practice of Scots going abroad, particularly to the Netherlands, to study law came generally to an end.65 Though many of the general themes of the Enlightenment would only become explicit in the second half of the eighteenth century, together with

59

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62 63 64 65

407; MacQueen, Progress and Poetry (n 36) 1–41; and the essays in R H Campbell and A S Skinner (eds), Origins and Nature of the Scottish Enlightement (1982). R G Cant, “The Scottish universities and Scottish society in the eighteenth century” (1967) 57 Studies on Voltaire and the Eighteenth Century 1953, and “Origins of the Enlightenment in Scotland: the Universities”, in Origins and Nature of the Scottish Enlightenment 42; P Jones, “The Polite Academy and the Presbyterians, 1720–1770”, in Politics and Culture of Early Modern Scotland 156 and “The Scottish Professoriate and the Polite Academy, 1720–46” (henceforth Jones, “Scottish Professoriate”), in I Hont and M Ignatieff (eds), Wealth and Virtue: the Shaping of Political Economy in the Scottish Enlightenment (1983) 89. Instructive in this respect are the emphases on certain courses and their content in “A short account of the University of Edinburgh, the present professors in it, and the several parts of learning taught by them” (August 1741) 3 Scots Magazine 371: see Jones, “Scottish Professoriate’ at 97. J Coutts, A History of the University of Glasgow (1909) 193–194, and A Grant, The Story of the University of Edinburgh during its First Three Hundred Years, 2 vols (1884) vol i, 283–290. See, e.g., H Home, Lord Kames, Essays upon Several Subjects Concerning British Antiquities (1747) 1; A MacDouall, Lord Bankton, An Institute of the Law of Scotland in Civil Rights, 3 vols (1751–1753) vol i, 13–19, 29–32, 38–39, and D Dalrymple, Lord Hailes, Annals of Scotland, 3 vols, 3rd edn (1819) vol iii, 275–326. These debates deserve further study. Stair, Institutions (1681) and Mackenzie, Institutions (1684). See n 43 above for current editions. C de Montesquieu, The Spirit of the Laws, trans T Nugent, 2 vols (1823) vol i, 6. See Cairns, “Institutional Writings” (n 40) 105–106 and “Blackstone, an English institutist” (n 40) 323–324. See, e.g., A Bayne, Institutions of the Criminal Law of Scotland (1730), 5–6. This attitude among institutists precedes Montesquieu’s famous formulation. Phillipson, “Lawyers, Landowners, and Civic Leadership” (n 6) at 194, appendix.

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the renewed stress already mentioned on the specifically Scottish aspects of Scottish legal culture, they must have tended in the long run to undermine the near-exclusive reliance on examination in Civil Law as the necessary requirement for admission as an advocate. Given this background, it is hardly surprising that the examination of intrants came under scrutiny. As early as 1724, the Dean, Lord Advocate Robert Dundas of Arniston, proposed to the Faculty that all intrants should be examined in both Civil and Scots Law, though this proposal, while agreed in principle by the Faculty and the Lords of Session, ultimately came to nothing.66 Dundas’s proposal was based on the rational ground of “preventing Persons entring into the Society not endowed with a sufficient Stock of Knowledge”.67 In 1728 the Faculty considered inviting university students of Civil Law to take part in the impugning and disputing of theses to render “the publick Examinations of Intrants more solemn”.68 There is further evidence of dissatisfaction with the current procedures. Reflecting in 1778, Lord Kames considered that his education in law prior to his admission in 1723 had been dull and inappropriate. He had spent time in a writer’s chamber and had also attended the lectures of Professor Craig on Civil Law.69 The Faculty’s examinations only required “common mechanical preparation”, which Kames neglected in pursuit of more interesting legal studies: a neglect which he told James Boswell nearly caused him to stumble at his trials.70 Though Kames spoke with the benefit of hindsight, his comments are instructive, not only in demonstrating his attitude in 1723, but also in revealing the views held on the earlier entrance procedures and requirements by such a significant Enlightenment figure in the last quarter of the eighteenth century. B. ADMISSIONS, 1750–1828 In 1748 Robert Dundas of Arniston was appointed Lord President. On receiving the congratulations of the Faculty on his promotion to head the Bench, he took the opportunity in returning his thanks to set out what he considered to be the educational prerequisites for admission as an advocate. 66 67 68 69 70

Cairns, “Institutional Writings” (n 40) 95–97. Minute Book (n 1) vol ii, 74 (15 February 1724). Ibid vol ii, 110 (2 January 1728). Boswell, Private Papers (n 35) vol xv, 269 and 270. Ibid vol xv, 271. Kames was distracted from his preparation by deeper study of the Civil Law, including apparently the perennially popular search for interpolations.

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He stated that “there was no science or part of polite and useful Learning for the knowledge of which some in the Faculty were not distinguished” and he hoped that the Faculty would continue not only to be learned in Civil and Scots Law but also to maintain its reputation for the other branches of learning which were requisite for “the Character of Gentlemen” and necessary even for the practice of an advocate’s profession. He accordingly recommended the advocates to advise prospective members: that over and above being careful to learn thoroughly the principles of the Roman Law and the Laws of Nature and Nations they should take pains to acquire the other Sciences and accomplishments becoming the Character of Gentlemen, particularly not to neglect Academical learning, before they should apply themselves to study the municipal Laws of their Country, in order to the practice thereof. That it was more natural, yea necessary, that the Law should be the last part, not the beginning of their Studies.71

Lord President Dundas’ remarks likely reflected the views of many members of the Faculty, and they set the tone for over fifty years’ debate on the proper qualifications of an advocate. The debate focused on the relative significance of Scots and Roman law, the importance of polite learning (Ramsay stated that Dundas while “no polite scholar . . . was far from despising polite literature”),72 and the character of advocates as gentlemen. Dundas’ views could be interpreted as a continuation and renewal of the Humanist stress of the late seventeenth century; but this seems unlikely, or only partly correct. The changing curricula of the Scottish universities would have meant that preparatory studies in “Academical learning” would not be of a Humanist cast. Dundas, as Dean, had also been the main proposer of reform in 1724. In this respect it is notable that Dundas succeeded Duncan Forbes of Culloden, and Ramsay of Ochtertyre remarked that Forbes died “when a new tide of opinions and manners was setting in strong”.73 The first move came in 1749, when it was again proposed that all intrants be examined in Scots law as well as Civil Law. As in 1724, the grounds were rational: “it was of the highest importance to the publick Interest of the Nation and the honour of the Faculty that the Members thereof should be sufficiently qualifyed for their Office” so that intrants “should be exactly examined”. The abolition of heritable jurisdictions by the Heritable

71 Minute Book (n 1) vol ii, 225 (3 November 1748). 72 J Ramsay, Scotland and Scotsmen in the Eighteenth Century from the MSS of John Ramsay, Esq of Ochtertyre, ed A Allardyce, 2 vols (1888) (henceforth Ramsay, Scotland and Scotsmen) vol i, 69. 73 Ibid vol i, 65.

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Jurisdictions (Scotland) Act 1746 (20 Geo II c 43) was considered to make this reform more pressing because advocates would now be appointed to the shrieval Bench.74 This proposal was carried out, and from 1750 intrants were first to be examined privately on Civil Law, and then, after a year’s elapse, to be examined privately on Scots law. After this, the intrant was to be examined publicly by defending his printed theses on a title of the Civil Law.75 The year’s gap between the private examinations on Civil Law and Scots law was likely intended to allow the intrant to attend university classes on Scots law, which were normally taken after those on Civil Law.76 Though not mentioned in the advocates’ proposals, the Act of Sederunt issued by the Lords on 28 February 1750 to give effect to them also stated: “That, in order to his public examination, the candidate shall, and may annex to his theses, such positions from the law of Scotland, in the native idiom to the subject of dispute, upon the trial, as he shall think proper . . .”77 The spirit behind these new provisions, with their stress on the necessity of “the regular and speedy dispatch of business” and “the full administration, and free course of justice”,78 was radically different from that which supported the late seventeenth-century trials, with their Humanist emphasis on Civil Law. The new admission procedures made no provision for requiring students to attend certain classes or to be qualified in polite literature and learning. In the 1750s and 1760s the Faculty tried in a number of resolutions to compel prospective intrants to attend the classes in the University of Edinburgh on Universal History, Greek and Roman Antiquities, and the Law of Nature and Nations, because “it concerns the honour of the Faculty that their members should be versant in every part of polite literature”.79 Given the views of the Faculty in 1695 on the benefits of establishing Law chairs in Scotland, these resolutions could be seen as demonstrating a continuing Humanism; and no doubt to some extent they do. On the other hand, the new intellectual background in Scotland would give these courses a content infused with Enlightenment ideas.80 The number of resolutions passed by 74 Minute Book (n 1) vol ii, 231–232 (3 January 1749). 75 Ibid vol ii, 239–240, 241 and 241–242. For further details of regulations, see National Library of Scotland, FR 2, “Minutes of the Faculty of Advocates 1751–1783” 4 and 11. 76 Later practice shows this to have been so. 77 Acts of Sederunt (n 12) 450–451. 78 Ibid. 79 FR 2 84 (30 November 1756), 127 (8 January 1760), 147 (5 January 1762), 156 (24 November 1762) and 259 (19 November 1768). The chair of Universal History was under the patronage of the Faculty; encouraging students would improve the earnings of the appointee. 80 See the syllabi in “A short account of the University of Edinburgh” (1741) 3 Scots Magazine 371 at 371 and 372–373.

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the Faculty suggests that there was difficulty in enforcing them, and the Faculty required the private examiners to ask intrants questions relating to these courses. The Faculty’s examinations in Civil Law were conducted in Latin, and in this period anxiety began to be expressed about the sufficiency of intrants’ knowledge of the language. On 5 March 1768 the Dean and Faculty deplored Professor Millar’s innovation of lecturing in English rather than Latin to the Civil Law class in Glasgow, and the Dean was requested to approach the Rector of the University of Glasgow to ask him to order Millar to end this practice.81 On 17 January 1777, on the motion of Andrew Crosbie, the Faculty appointed a committee to consider what he had described as a great decline in knowledge of Latin among intrants and to suggest remedies.82 Though continued on 20 December 1777, the committee does not seem to have reported; and on that date Alexander Wight, praeses of the last set of Civil Law examiners, stated that neither he nor his colleagues had any reason to complain of the standards of candidates’ Latin.83 Whether there had been a decline in intrants’ knowledge of Latin cannot now be known, apart from, perhaps, by a study of their theses. Certainly Boswell’s theses of 176684 were notoriously found by Johnson to contain errors. Johnson concluded his criticisms by stating: “Ruddiman is dead.”85 This was an apt remark on two levels. Ruddiman was a noted Latinist, and one of his tasks as Keeper of the Library and Clerk Depute of the Faculty had been to revise and censure theses.86 At a deeper level, Johnson’s remark highlights the fact that the Faculty’s lingering commitment to the Humanist ideals that created the custom of printing and defending Latin theses was contradicted by the new circumstances and learning of Scotland in the later eighteenth century, whereby Civil Law was to be seen as just one element in the polite learning required of intrants, rather than as the totality of polite learning. Linked with this must have been a reassessment of the general role of Civil Law in an advocate’s education. The attempted reform in 1724 and the effective one of 1750 conceived of trial on Scots law as a test of knowledge for practice: 81 82 83 84

FR 2 255–256. Ibid 414. Ibid 432–433. J Boswell, Disputatio juridica, ad Tit X. Lib XXXIII Pand de supellectile legata (1766). See F A Pottle, The Literary Career of James Boswell, Esq (1929) 24–26. 85 J Boswell, Life of Johnson Together with Boswell’s Journal of a Tour to the Hebrides and Johnson’s Diary of a Journey into North Wales, ed G B Hill, rev L F Powell, 6 vols (1934–1950) vol ii, 21. 86 See text at n 16 above.

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what then was the purpose of the private and public examinations in Civil Law when assessed by the same, rather than Humanist, criteria? In 1780 Kames remarked to Boswell that no one now read the commentators on Civil Law, to which Boswell responded: “The study of Civil law is much gone out.” Kames explained that whereas Civil Law had originally been used to help settle points of Scots law, “a Man would be laughed at were he to quote civil law now that they are settled”.87 The Humanism which had promoted exclusive trial on Civil Law also ultimately promoted study of local and national laws: and the new intellectual stress on Scots law, together with the growing rationalist emphasis in trials, seems to have put at issue the purpose of the study of Civil Law for advocates, when it was no longer considered the sole means of ensuring the Faculty’s status as a body of learned men, and when, judged by the new rationalist criteria, its usefulness in Scots law was thought to have declined. Further proposals for reform were provoked in the 1780s by a minor crisis faced by the Faculty when in 1781 John Wright petitioned for admission.88 Wright had started life as a shoemaker in Greenock,89 and at the time of his petition was a private teacher of law and mathematics. In the Faculty’s minutes, opposition to Wright’s admission was stated to be on account of his advanced age,90 and the fear that he did not intend to practise law. Boswell reported in his Journal, however, that Wright’s petition was opposed because he was “of low origin and gaining his livelihood as a teacher of law and Mathematicks”.91 After what the minutes suggest may have been a heated debate, the Faculty decided not to interfere, and Wright was in due course admitted. The Wright affair, and the embarrassment it must have brought to the Faculty, presumably caused reflection on what Lord President Dundas had called the character of the advocates as gentlemen, and in 1785  the Faculty  appointed a committee to consider and draft resolutions on the proper qualifications of intrants.92 The committee laid its draft before the Faculty on 2 July 1785.93 On 18 July the Faculty debated, amended and 87 Boswell, Private Papers (n 35) vol xv, 290–291. 88 FR 2 489–491 (8 December 1781). 89 F J Grant, The Faculty of Advocates in Scotland 1532–1943 with Genealogical Notes, Scottish Record Society vol 76 (1944) (henceforth Grant, Faculty of Advocates) 222. 90 Grant does not give a date of birth. 91 Boswell, Private Papers (n 35) vol xv, 48. 92 National Library of Scotland, FR 3, “Minute Book of the Faculty of Advocates 1783–98” 25 and 26 (26 February and 5 March 1785). 93 FR 3 30.

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approved the draft regulations.94 These were: first, that an intrant would not be admitted to trials until he furnished proof of seven years’ attendance at a university, three of them in law; secondly, that such an intrant had to be under twenty-seven years of age;95 and thirdly, that the Faculty at its anniversary meeting would appoint seven members to form a committee to determine whether an intrant should be sent for trial on law. This third proposal provided a mechanism whereby the Faculty could reject petitioners for admission on grounds other than failure to pass their trials: in the debate over Wright’s admission the Faculty had decided that it had not power under its regulations to reject him – it had to examine any petitioner remitted to it by the Lords of Session.96 The requirement as to age was obviously aimed at someone in Wright’s position. The provision on university education, first, would promote the polite learning and academic education called for by Lord President Dundas in 1748 and encouraged by the Faculty’s resolutions in the 1750s and 1760s, and secondly, when combined with that on age, would also operate as a bar to intrants from less wealthy classes. The premises on which the regulations were based are instructive. The committee considered that the “enlightened understanding” and “liberal sentiments” appropriate for practice at the Bar had to be acquired “by an early course of well directed study, and an early admission” to the Faculty. While the educational provision was important, it was vital that it be undertaken young, so that the “habits of life” of the advocate be suited to his office: indeed the “most material of all qualifications” could not be acquired by academic education alone. The committee considered that the Faculty had always sought that its members should not only pursue legal studies but also have “a knowledge of the learned languages and philosophy, in a word that liberal education” which was the mark of “the scholar and the gentleman”. The honour of the Faculty as a whole was seen as linked to the character and repute of each member. The proposals requiring four years’ 94 Ibid 31. National Library of Scotland, FR 339r (Miscellaneous Papers of the Faculty of Advocates) Box IV contains two versions of this report, entitled “Report of the Committee appointed to prepare Regulations, respecting the Course of Studies, necessary to be followed, and the other Qualifications, which ought to be required, in those who wish to become Members of the Faculty”. One is obviously an earlier draft, because of the amendments made to it and its lack of certain passages found in the other. Whether the later version is that approved by the Faculty and the changes in it those made by the Faculty, or the final draft presented to the Faculty, cannot be known. The contents of the report were not entered in the minutes. 95 In the earlier draft, twenty-five years: in the later draft “twenty-seven” is written over an erasure. 96 FR 2 490–491 (8 December 1781).

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education in arts are very significant. They demonstrate a complete rupture with the old Humanist ideals and stress on Civil Law, in that by the 1780s the four-year arts curricula of the Scottish universities, especially Edinburgh and Glasgow, reflected Enlightenment ideals in their stress on philosophy, science, belles-lettres, and polite learning generally.97 Though the Faculty committee considered that general scholarship had always been demanded of intrants, while once that demand had been met by education in Civil Law, now the new learning of the Enlightenment was to be required. The proposal of three years’ study of law derived presumably from the practice of devoting two years to Civil Law (a course on the Institutes followed by one on the Digest) and a further year to Scots law. Despite the Faculty agreeing on these regulations, they either do not seem to have been presented to the court for approval, or were not approved:98 the reason is unknown. It is unjust and misleading to judge the Faculty by modern standards, as the concern for “politeness” reflected the ideals of the Scottish Enlightenment; and Ramsay of Ochtertyre clearly thought that Lord President Craigie, for example, had been too learned in law and too lacking in the “elegancies of life”, so that his story was one to “teach Ministers of State never to place a man at the head of a supreme court of justice who is deficient in point of breeding”.99 One who was “underbred” and lacking in “manners” was unfitted for the Bar and Bench. Concern with the character of intrants was found in the late seventeenth century; but the Humanist learning of intrants on Civil Law was taken to be a guarantee of their integrity, liberality and good breeding. By the time of Wright’s petition for admission, Civil Law alone was obviously no longer thought to guarantee suitability, perhaps because it had not yet gained a clear new role in the admission of advocates, and because the development of the Scots law faculties opened the possibility of Civilian learning to broader strata of Scots society. Towards the end of 1787, reform in admission requirements was again mooted.100 The new proposals, which were unanimously agreed, were for intrants to present to the Dean certificates “of their having had a regular and 97 See references in n 59 above. 98 FR 3 31 (18 July 1785) indicates a clear intention to send the regulations to the Lords for approval. 99 Ramsay, Scotland and Scotsmen (n 72) vol i, 116. See also his remarks at 380, 386, 390–391 and 392, where he seems to have linked deficiencies in Braxfìeld to his background and education, and 418–419, where Macintosh is described as having been considered “an underbred, forward, pragmatical man, who was not likely to do honour to the Faculty. And he was no belles-lettres man or philosopher, which was in those days the best recommendation to the tonish men”. 100 FR 3 62 (1 December 1787).

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proper education” which the Dean would lay before the Faculty, who would then vote by ballot whether or not to remit the candidate to the examiners.101 What exactly the certificates were to cover is not specified; but the testimony of Thomas Thomson indicates that, following the new Enlightenment emphases, they were “evidence of attendance upon the Philosophy classes” and “certificates of attendance upon the Civil and Scotch Law”.102 This new procedure was first used on 12 February 1788, and continued into the 1790s.103 On 2 August 1788 the writing of theses and the public examination came under consideration. The motion put forward noted that many members were dissatisfied with the existing examination. The basis of the examination on specific titles and the nature of the disputes and impugning were both questioned. It was thus suggested that “discourses” or “essays” be prescribed rather than theses, and that the examination should take “a simpler and more natural form” than the impugning and defence of an advocate’s theses, corollaries and annexa in “syllogistical disputes”.104 (It should be remembered that the theses were not dissertations but generally consisted of a proemium briefly discussing the law in the title, then a series of theses extracted from it, followed by a number of corollaries or annexa.) This motion obviously expresses dissatisfaction with what was seen as an antiquated procedure smacking of a despised scholasticism. Though Civil Law itself as the object of the public examination does not seem to have been attacked, this move suggests that its position in the established procedures was not sacrosanct, and the attempt to revitalise the examination possibly reflects attitudes such as those of Kames and Boswell in 1780, and hints at a re-evaluation of the place of Civil Law in the trials of intrants. (It is notable that the Act of Sederunt of 1750 had already permitted intrants to append propositions of 101 Ibid 63 (10 December 1787). 102 1837 PP XXXV 405. It is likely, however, that certificates relating to attendance in Scots Law were not immediately required, as a number of candidates had their remits to the examiners postponed until they finished their Civil Law classes, while Civil Law was generally attended before Scots Law. See FR 3 100–101 (17 January 1789) and 190–191 (17 December 1791). Perhaps such certificates had to be produced to the examiners in Scots Law. 103 FR 3 75–76. When exactly the practice ended is unclear. A report considered by the Faculty on 27 November 1813 (National Library of Scotland, FR 4, “Faculty Minutes 1799–1813” 442–450) implies that it ended in 1791; but in that year only the balloting ended (see below). FR 3 190–191, after the ending of balloting, and the evidence of Thomas Thomson (admitted 10 December 1793) indicate that the practice continued thereafter. The problem is that the stopping of balloting ended the reporting of presentation of certificates in the minutes, apart from in exceptional circumstances. Perhaps the practice died out at the time of the 1795 proposals for reform (see below). 104 FR 3 87–88.

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Scots law to their theses; whether any had ever done so is unknown, and certainly no theses that I have seen contain such propositions.) The recent debate on the qualifications to be required of intrants, and the realisation that the orderly assigning in sequence of titles of the Digest for theses was nearing the last title of the last book105 may well have prompted this consideration of the public examination in 1788. Though the Faculty named a committee to consider the matter, it apparently did not report, perhaps because a new crisis over admissions occurred in 1790, again provoking a general review of policy. As with the proposals of 1785, the review resulted from a petition for admission from a man the Faculty considered unsuitable. When in February 1790 Robert Forsyth renewed his petition for admission, he was a law student in Edinburgh University, and held a licence to preach from the Church of Scotland.106 The Faculty was occupied with Forsyth’s case until June 1791, when he was finally remitted to the examiners.107 In the Faculty’s minutes opposition focuses on Forsyth’s position as a probationer of the Church (that is, one who, though licensed to preach, is not yet an ordained minister).108 Forsyth was the son of a shoemaker,109 and Cockburn stated that “the real ground” of opposition was that of ‘“being of high origin”.110 The Faculty’s investigation extended to Dewar Masterton Gibson, the son of a writing-master, who had allegedly married the daughter of Sir John Gibson of Pentland while she had been a pupil on the writing-academy in which Gibson himself taught.111 In the course of these investigations, on 4 December 1790 the Faculty again considered “what steps should be taken for placing on a proper footing the important business of the admission of intrants”, and the Dean and his 105 On 31 May 1796 (ibid 309) the minutes note that the books of the Digest are exhausted for theses. Given the rate of entry to the Faculty, it must have been obvious in 1788 that the time for reconsideration was not far off. 106 FR 3 133–134 (13 February 1790) and 135 (20 February 1790). 107 Ibid 182. 108 Ibid 135 (20 February 1790), 137–138 (6 March 1790), 150–151 (4 December 1790), 161–162 (5 February 1791), 171 (3 June 1791), 173–176 (11 June 1791), and 177–182 (14 June 1791). After Forsyth had renounced his licence, the debate turned on the use he had made of it, and if he had truly informed the Dean about such use. 109 Grant, Faculty of Advocates (n 89) 75. 110 H Cockburn, Journal of Henry Cockburn being a Continuation of the Memorials of his Time, 2 vols (1874) vol ii, 153. Cockburn stated that opposition was also based on Forsyth being a Whig. Given that the conflict of Tories with Whigs in the 1790s is an obsession of Cockburn’s, and that Whigs were regularly admitted to the Faculty, Forsyth’s low origin is a more convincing cause of opposition; indeed Cockburn himself stated, ibid: “The Faculty of Advocates . . . was then a highly aristocratic body, and used to curl up its birse at every plebeian who tried to enter . . .”. 111 Grant, Faculty of Advocates (n 89) 80; FR 3 162 (5 February 1791) and 188–189 (14 November 1791).

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Council were to confer with the court on the topic and report.112 On 21 February 1791 the Faculty resolved not to consider any further petitions for admission until 1 May 1791, in the hope of by then having new regulations authorised by the court.113 Regulations were in fact not laid before Faculty until 21 May 1791.114 These regulations were not enforced, nor do the minutes disclose any detailed discussion of them. The proposals were entirely concerned with providing a mode of regulating the fitness of the character of intrants and a method of rejecting unfit, though academically qualified, candidates. All that the Faculty did at that time was to abolish the system of balloting on intrants, so that now candidates would automatically be remitted for examination unless objection were made to them, in which case an open vote would be taken.115 On 11 July 1794 the question of regulations on admission was reopened, and once more a committee was set up to report.116 The report was finally presented on 13 January 1795.117 Much of the report again was devoted to providing a mechanism for preventing the admission of candidates considered unsuitable for personal reasons. Before a candidate petitioned the Lords for admission he was to present to the Dean certificates testifying to “his having received a regular University education previous to his having studied the Civil Law two years in a University”. (That certificates of studying Scots law were not demanded presumably reflected the already noted practice of attending university courses in it in the year between the Civil Law trial and the Scots law trial.)118 If the Dean was satisfied with these, he was to remit the candidate to a special committee which was to satisfy itself of the candidate’s “integrity, good breeding, and honest deportment”: a test adopted from 112 FR 3 150. 113 Ibid 163–164. 114 Ibid 165–168. On 14 May 1791 the minutes (ibid 165) noted that on Saturday next they would consider the petitions then lodged with the Clericus Intrantium by candidates in Civil Law. 115 FR 3 168. 116 Ibid 263–264. 117 Ibid 274. The committee had been asked on 11 July 1794 (ibid 263–264) to report in November next. There is a gap in the MS of FR 5 between 13 November 1794 and 13 December 1794 and half of p 226 and all of pp 267–268 are blank. Some minutes have obviously been omitted (presumably the spaces were left for copying the minutes into the minute-book). Though it cannot definitely be known that the omitted minutes dealt with proposals on the qualifications of intrants, it is quite likely that they did, as the minute dated 13 November 1794, the last before the blank space, noted, after some discussion on the topic, a decision to delay dealing with it until the next Monday, with circular cards being sent to members to request them to attend. 118 Though it may fairly be pointed out that the timing of the trials would not always work out so neatly. The intrant might well have started attending lectures on Scots Law before his private trial on Civil Law.

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the Act of Sederunt of 25 June 1692. Appeal procedures were provided for dissatisfied candidates. The last proposal in the report replaced the printed theses and formal public disputation with the preparation and reading of a Latin dissertation on “some title or point of the Roman Law” to be assigned to the intrant by the Dean, and on which any member of Faculty could ask questions. The intrant was no longer to read a public lesson in Latin before the Lords.119 The Faculty debated the report on 9 February 1795, and agreed to it by a vote of thirty-seven to eight.120 The resolutions were presented to the court; but the Dean reported to the Faculty on 4 March 1795 and again on 1 June 1795 that there was no sign that the Lords would soon come to any decision, and on 1 June candidates whose remit to the examiners had been delayed, presumably pending an Act of Sederunt, were finally remitted because of their complaints and because the funds of the Faculty were “in danger of suffering” (entrance fees were payable on examination).121 Though these proposals were allowed to fall, the requirement of a general university education, the substitution of a dissertation for theses, and the abolition of the reading of a public lesson before the Lords all point to a growing rationalist emphasis in the qualifications to be required of intrants. (The sequence of assigning titles of the Digest for theses was now almost at the end of the last book.)122 In 1812 the Lords intimated to the Dean that they wished to end the practice of intrants reading a lesson before admission.123 This stimulated the Faculty to a further review of its admission procedures.124 While the committee appointed to consider the matter appears to have required prompting to produce its report,125 when the report appeared in November 1813 it had some novel features.126 Five years’ university attendance was to be required, two of which were to be devoted to Civil Law, and a third, in a Scots University, to Scots law. Attendance was to be established by certificates. The certificate of attendance in Scots law was to be presented to the praeses of the Scots law examiners; the other certificates were to be

119 120 121 122

123 124 125 126

FR 3 274–278. Ibid 279. Ibid 280 and 282. See n 105 above. In May 1796 the Faculty authorised the Dean to settle the subject of theses with intrants until it could consider the matter more fully. It did not do so, perhaps in expectation of ultimate reform: FR 3 309. FR 4 397 (20 June 1812). Ibid 398–399 (1 July 1812). Ibid 436 (1 June 1813). Ibid 442–450 (27 November 1813).

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presented to the Dean. This reflected the practice already alluded to. The conduct of the Faculty’s own private examinations was to be made stricter, and the practice of informing the candidate of the titles on which he would be questioned was to end. A majority on the committee wanted the public defence of theses to be abolished; of that majority, one wanted nothing put in its place, though the others considered that it should be replaced with either a Latin discourse on Civil Law or an English discourse on Scots law, at the option of the candidate. The committee opposed specific regulations to determine the personal suitability of candidates: intrants instead were to intimate in advance their intention to apply for admission to allow competent objections to be brought forward. The committee finally reported that since the Faculty’s regulations did not require the lesson before the Lords, it was for the Court to determine whether or not to preserve it. These proposals indicate how far the Faculty had moved from the Humanism which informed the original admission procedures: in this respect the proposal to substitute not only a dissertation on Civil Law but also the possibility of an English dissertation on Scots law for the Latin theses on Civil Law is particularly striking. A series of motions was put on these proposals, and those which were carried were to approve in principle the regulations on university attendance and not to innovate as regards the other procedures and examinations (though no indulgence was to be given to candidates). The Faculty also unanimously resolved that it was neither expedient nor consistent with the Faculty’s privileges to dispense with the traditional forms by which a candidate was received by the whole Court of Session.127 Between 1814 and 1817, the Faculty received more reports and discussed further these matters, eventually agreeing to dispense with the requirement of university attendance for a literary and philosophical education, though candidates were to produce evidence of a regular and proper education.128 These agreed regulations were not acted on.129 Spurred on by the existence of the Royal Commission then investigating the Scottish universities, in 1828 127 Ibid 451–453. 128 Lorimer, appendix A (n 1) 12–17; and see FR 339r, Box IV (printed) “Report of Committee, Relative to the Admission of Advocates” (1817). 129 In 1826 Professor Irving explained to the Royal Commission that after the court had approved Faculty regulations requiring general university education and university education in law, the Faculty changed its mind and required only attendance at law classes. This seems to refer to these developments from 1813 to 1817. Irving further explained that the then Dean considered that the Faculty had placed itself in such a contradictory position that he refused to present the new regulations to the court: 1837 PP XXXV 180–181. The matter obviously requires further research; but given this paper’s focus on the eighteenth century, it has not seemed necessary to pursue the topic, though I hope to do so elsewhere.

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the Faculty produced further proposals; but these were allowed to drop,130 so that the regulations of 1750 continued to remain in force. C. CONCLUSION The view of the Faculty committee in 1854 that “for nearly two centuries there has been a nearly uniform and consistent course of regulation” on the qualifications demanded of intrants131 is thus misleading, because although there had always been a stress on a general education, where once study of Civil Law alone had been thought sufficient to satisfy this, in the course of the eighteenth century the polite learning of the Enlightenment came to be required. Further, while at the end of the seventeenth and beginning of the eighteenth centuries the examinations for admission in Civil Law were not concerned to test knowledge useful for practice but were designed to uphold the Humanist learning that gave intellectual status to the Faculty, during the eighteenth century the trials came to be seen as a means of testing knowledge for practice in a rational way, and so in 1750 examination in Scots law was introduced. The 1750 reform preserved the existing private and public examinations in Civil Law, with the addition that intrants could annex to their theses propositions of Scots law, though there is no evidence of this having become an established practice. The same rationalist emphasis also resulted in criticisms of the lack of rigour of the private examinations. Between his admission in 1723 and his appointment to the Bench in 1752, Kames had served a number of times as either a private examiner or a public examiner.132 He complained “that a number of ignorant young Men were now admitted Advocates, so that they really could not tell intelligibly at the bar what they wanted”. He claimed when an examiner to have “had a hand in remitting several upon their trials”, and said that “the Examinators should fairly tell young Men who want to come to the bar to get a livelihood whether they are qualified or not, for that is the meaning of the trial”.133 Obviously not all the 130 Lorimer, appendix A (n 1) 17–19. 131 Ibid 19. 132 As private examiner: Minute Book (n 11) vol ii, 84 (5 January 1724), 115 (7 January 1729), 151 (7 January 1735), 162 (4 January 1737), 180 (6 January 1741), 209 (6 January 1747), and 239 (2 January 1750). As public examiner: ibid vol ii, 104 (3 January 1727), 120 (6 January 1730), 133 (4 January 1732), 188 (4 January 1743), 200 (8 January 1745), and 203 (5 June 1746). Shortly before his elevation to the Bench, Kames became an examiner in the new Scots Law trial: FR 2 12. 133 Boswell, Private Papers (n 35) vol xv, 275. True to his age, Kames “allways excepted heirs to estates whose Fathers made them enter Advocate”. Remitting candidates on their trials must refer to Kames’s duties as a private examiner, as the minute-book for the relevant periods does

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examiners adopted Kames’s robust attitude; and furthermore the practice of informing the candidates in advance of the topics on which they would be tested in the private examinations was also subject to criticism.134 When a private examiner in Civil Law, Henry Brougham thought the procedures so ridiculous that as a joke he always prescribed D 25.4 as the title on which he would examine intrants.135 The various attempts to require intrants to produce certificates of attendance at law classes were clearly intended to remedy this by ensuring that intrants had a broad knowledge of law. There was likewise a desire to modernise and make more rigorous the conduct of the private examinations, and in 1813 the Faculty decided not to give any indulgence to candidates, though it had originally been proposed to end the practice of indicating to intrants the topics of their examination. The public examination in Civil Law was considered particularly antiquated: hence the proposals to substitute for the printing and defence of theses a Latin dissertation on Civil Law, and eventually the alternative possibility of an English dissertation on Scots law. The same spirit of rationalisation influenced the Faculty’s desire to require the polite learning stressed by Enlightenment thought, as such studies, together with scientific knowledge, helped to ensure not only that a suitable type of person was admitted, but also that the intrant was properly equipped for practice. In 1807 Tytler wrote: This profession, more than any other, requires an enlarged acquaintance, not only with human nature, in the knowledge of the passions and affections of the mind, (a knowledge not to be gained but by the study of philosophy); but it demands an extensive information of the various arts and sciences which constitute the occupations of mankind, and of course give origin to a very great proportion of those legal questions which occupy the courts of justice.136

not contain an instance of failure at the public examination. The only instance I have noticed of failure at the public examination is that of Gilbert Elliot of Minto on 10 December 1687 (Minute Book (n 11) vol i, 82), who eventually passed on 14 July 1688 (vol i, 85). This was before the introduction of theses. There may be more, as I have not searched specially for them. Certainly, failure at the public examination obviously was virtually unknown. Since Elliot became a baronet in 1700 and a Senator of the College of Justice in 1705, his initial failure obviously did him no harm. Kames’s attitude is interesting, since he confessed to almost failing his own trials (see text at n 70 above). 134 Jardine, Philosophical Education (n 2) 462–463. 135 See J Browne, Remarks on the Study of the Civil Law; occasioned by Mr Brougham’s Late Attack on the Scottish Bar (1827) 18 (henceforth Browne, Study of the Civil Law). D 25.4 is entitled: De inspiciendo ventre custodiendoque partu. For a fascinating glimpse of the law of this title in operation, see J F Gardner, “A family and an inheritance; the problems of the widow Petronilla” (November 1984) 9 Liverpool Classical Monthly 132. 136 A Fraser Tytler, Lord Woodhouselee, Memoirs of the Life and Writings of the Honourable Henry Home of Kames, 2 vols (1807) vol i, 16.

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The requirement of polite and practical learning to be demonstrated by certificates of university attendance is a constant theme in the proposals of 1785, 1787, 1795 and 1813. The substitution of a modern rationalism for the Humanism which had underpinned the original Civil Law trials would seem likely to have been reinforced by the contemporary view that the practical utility of Civil Law had greatly declined in the course of the eighteenth century. The views of Kames in 1780 have already been referred to.137 Professor Irving supported this in 1826 when he said: Those branches of the Civil Law which have been admitted as of authority with us, after they have entered into the works of our Institutional writers, and are confirmed by judgments and decisions of the courts, become part of the Scotch Law, and are studied in the class of Scotch Law, so that the student has less occasion to resort to the Civil Law than originally.138

Professor Cheape spoke in similar terms in his inaugural lecture of 1827.139 The purpose of the Civil Law examinations seems to have been rationalised as now deriving from Scots law’s historical debt to Roman law; and Professor Cheape, after stating that the influence of the Civil Law “has been superseded in many instances by the very precedents which have been founded on it”, asserted that knowledge of it was needed to understand Scots law and Scots cases.140 This obviously lessened the importance of the Civil Law trials, as they no longer had value in themselves, but only insofar as they aided an understanding of Scots law. It also explains the attempts to reform the public examination. Such attitudes in the long run must have led to the neglect of Civil Law noted by Boswell and Kames as early as 1780, and by the early nineteenth century observers considered that knowledge of Civil Law had considerably declined. Irving, for example, thought that many passed advocate “very ill instructed upon the subject of Civil Law”, and he reported that by the end of his lecture-course in Edinburgh the numbers attending had generally dropped to one-half, while not only was attendance at any examinations he held “very bad”, but also the answers given.141 Professor Cheape considered that Civil Law was “one of those sciences which have been more

137 See text at n 87 above. 138 1837 PP XXXV 183. 139 D Cheape, An Introductory Lecture on the Civil Law. Delivered in the University of Edinburgh, on Tuesday, 13th November 1827 (1827) (henceforth Cheape, Introductory Lecture) 30–31. 140 Ibid 30–31 and 33. 141 1837 PP XXXV 183 and 184.

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praised than studied”.142 In the 1820s Brougham provoked a series of newspaper articles by attacking in the House of Commons the appointment of a Scots advocate to the South African Bench by claiming that the Scots Bar was generally ignorant of Civil Law.143 By the 1820s the traditional style of Civil Law teaching then prevalent in Scotland was being rendered obsolete by the new historical scholarship in Germany, and the creative reception of Roman law in Scotland was clearly thought to be over; nonetheless, these utilitarian doubts of the practical usefulness of study of Civil Law, and the opinion (whether correct or not) that knowledge of Civil Law among the Bar was slight, jointly demonstrate the extent to which the advocates’ new rationalist stress in admission procedures – whereby examinations were seen as related to the requirements of professional practice – had replaced their former Humanism, which had considered the trials on Civil Law as a means of upholding and affirming the Faculty’s claim to be a universitas of learned men.

142 Cheape, Introductory Lecture (n 139) 2. 143 Browne, Study of the Civil Law (n 135) contains these articles from the Caledonian Mercury and Carlisle Journal.

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12 Advocates’ Hats, Roman Law, and Admission to the Scots Bar, 1580–1812* The final ceremony for admission as an advocate before the College of Justice in Scotland formerly was the delivery of a speech in Latin on a text of the Corpus iuris civilis from a corner of the bench. The intrant advocate wore a hat for this ceremony. This chapter discusses the procedures for admission as an advocate to argue that the ritual of wearing a hat had a symbolic meaning central to the aspirations of the Faculty of Advocates. Eventually misunderstood, the ceremony was dispensed with in the early nineteenth century.

In Redgauntlet (1824), Walter Scott reveals a considerable amount of information about the ceremonies and exercises for admission as an advocate of the Scots Bar in the period immediately prior to the major reforms in the administration of justice, of which he was a sometimes hostile witness, at the beginning of the nineteenth century.1 Much of the action of Redgauntlet is developed through letters, and Scott makes full use of the epistolary form to reveal the individual natures of the correspondents. The main characters are two young men, just embarking on adult life, both of whom have trained in the law at Edinburgh. At the start of the novel, one, Alan Fairford, is undergoing the final stages of his trials for admission as an advocate. The other, Darsie Latimer, has gone to wild and dangerous Dumfriesshire in * An earlier version of this chapter was delivered to the Legal History Discussion Group of the Faculty of Law, University of Edinburgh, on 8 December 1992. The author is grateful to Mr Angus Stewart, QC, Keeper of the Advocates Library, for permission to cite and quote from the records of the Faculty of Advocates (FR) and the Advocates Manuscripts (Adv MSS), and to the Librarians of Aberdeen and Edinburgh University Libraries, the Trustees  of  the  National  Library of Scotland and the Keeper of the Records of Scotland for a similar permission  to  quote from archival and unpublished material in their care. He is grateful for the comments on earlier drafts of Donald Jardine, Hector MacQueen, Andrea Loux and David Sellar. In all quotations from MS the original spelling is preserved, while contractions are expanded and obsolete characters transliterated into suitable modern equivalents. 1 See [J G Lockhart], Memoirs of the Life of Sir Walter Scott, Bart, 2nd edn, 10 vols (1839) vol ii, 328. Scott’s attitude to Scots law had its ambiguities: see J W Cairns, “The noose hidden under flowers: marriage and law in Saint Ronan’s Well” (1995) 16 JLH 234 at 235–236.

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search of his identity and, in the modern colloquial sense, himself. We learn of Fairford’s passing of his private examination in Scots law. His public examination was based on a thesis on D 18.6, de periculo et commodo rei venditae.2 This concerns the passing of risk in sale. Until 1812, it was the practice of the intrant to the Faculty to read a Latin lesson before the Lords of Session on a “law”, allocated by the Dean of Faculty, taken from the title which had been the subject of the thesis.3 Darsie Latimer refers to this practice in his first letter to Alan Fairford: “the cramp speech has been spoken more solito from the corner of the bench, and with covered head”.4 The speech was “cramp” (difficult to make or understand) because it was in Latin. William Forbes, writing in 1714, confirms this account: “If he [the intrant] be found qualified, the Dean assigns him some Text out of the Civil Law for the Subject of his Speech before the Lords. To which End, he is allowed on a day prefixed, to stand in one of the Lord’s Places covered, when he makes his harangue.”5 In a note in the “Magnum” edition, Scott glossed this procedure thus: Till of late years, every advocate who entered at the Scottish bar made a Latin address to the Court, faculty, and audience, in set terms, and said a few words upon a text of the civil law, to show his Latinity and jurisprudence. He also wore his hat for a minute, in order to vindicate his right of being covered before the court, which is said to have originated from the celebrated lawyer, Sir Thomas 2 W Scott, Redgauntlet, ed G A M Wood with David Hewitt, Edinburgh Edition of the Waverley Novels (1997) (henceforth Scott, Redgauntlet) 74–75 (letter 9, Alexander Fairford to Darsie Latimer). This edition is based on Scott’s first edition. For the text based on the “Magnum” edition, I have relied on W Scott, Redgauntlet, ed K Sutherland (1985). This will be cited as Redgauntlet (Magnum). 3 See J W Cairns, “The Formation of the Scottish Legal Mind in the Eighteenth Century: Themes of Humanism and Enlightenment in the Admission of Advocates”, in N MacCormick and P Birks (eds), The Legal Mind: Essays for Tony Honoré (1986) 253 (henceforth Cairns, “Formation of the Scottish Legal Mind”) at 273. 4 Scott, Redgauntlet (n 2) 4. 5 W Forbes, A Journal of the Session. Containing the Decisions of the Lords of Council and Session, in the Most Important Cases, Heard and Determin’d From February 1705, till November 1713 (1714) (henceforth Forbes, Journal of the Session) viii. Cf J Chamberlayne, Magnae Britanniae Notitia: Or, the Present State of Great Britain (1708) 500: “and if he is found qualify’d, the Dean is desired to assign him a Law, for the Subject of his Speech before the Lords. For which end having a Day allow’d him, he appears in the inner Session-house, and is allowed to stand in one of the Lords Places covered while he makes his Harangue”. This and the passage in Forbes’s Journal of the Session are obviously very closely related. Indeed, much in the preface to the latter work is very close to the relevant sections of Chamberlayne’s Magnae Britanniae Notitia. It is quite possible that Forbes, currently one of the Clerks of the Faculty, provided this section for Chamberlayne. But see H L MacQueen, “Stair’s Later Reputation as a Jurist”, in W M Gordon (ed), Miscellany III, Stair Society vol 39 (1992) 173, demonstrating that Forbes incorporated significant parts of Dalrymple’s Apology in the Preface to the Journal of the Session.

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Hope, having two sons on the Bench while he himself remained at the bar. Of late this ceremony has been dispensed with, as occupying the time of the court unnecessarily.6

Scott’s note provides the contemporary explanation for the symbolic wearing of a hat by an advocate during the ceremony for admission to the Faculty of Advocates. He presents it as a quaint oddity or historic curiosity of little significance. One should be alert, however, to the fact that hats are items of clothing that even now have a significant symbolic value. It is easy to provide examples of this from the history of the law. An obvious instance is the coif worn by the English Serjeants at law. Perhaps more relevant as a comparison for Scotland is the practice of the advocates in continental Europe. One of the most important books of the seventeenth century is the Introduction to the Law of Holland of Hugo Grotius. As a title page its first edition has a reasonably accurate portrayal of the Court of Holland in session in The Hague. The lawyers are clearly distinguished by dress into advocates and procurators: the former wear hats and gowns, the latter do not.7 This was a common distinction found in other countries of the ius commune.8 This suggests a certain caution is necessary before accepting Scott’s explanation of the intrant advocate’s donning of a hat, which in fact seems merely to be a contemporary rationalisation of a ceremony, the original meaning of which had become obscure. The ritual had a richer and more complex meaning. The following assessment of the history and significance of the procedures for admission as an advocate will reveal their symbolic value, showing that the wearing of a hat was an act of central importance and integral to the completion of the examinations in Roman law. Moreover, the donning of a hat had no connection with Sir Thomas Hope and his sons: Hope wore a hat because of his status as Lord Advocate. Investigating the wearing of a hat in the context of the developing ceremonies for admission will demonstrate something important about the ambitions and self-perceptions of the Scots Bench and Bar. To achieve this, it will be necessary, first, to examine the issue of the hat worn by the Lord Advocate, secondly, to reach a full understanding of the admission exercises through a close description

6 Scott, Redgauntlet (Magnum) (n 2) 404. 7 H de Groot, Inleiding tot de Hollandsche Rechts-Geleertheyd (1631), found illustrated in M A Becker-Moelands, “An Introduction to Iconographical Studies of Legal History. II The Netherlands”, in W M Gordon and T D Fergus (eds), Legal History in the Making: Proceedings of the Ninth British Legal History Conference, Glasgow 1989 (1991) (henceforth Gordon and Fergus, Legal History in the Making) 88 at 90–91 and fig 4. 8 See below.

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and discussion of the admission of an advocate in the eighteenth century, and, thirdly, to explore the historical development of the procedures for admission from 1580. A. THE HAT OF THE LORD ADVOCATE It is important to devote some preliminary remarks to the Lord Advocate and his hat. Scott’s story of Sir Thomas Hope vindicating a right to plead covered before his sons was presumably current in Parliament House. Walter Goodall, the antiquarian and Assistant Keeper of the Advocates Library, had mentioned it in a note to his edition of Scotstarvet’s Staggering State in 1754, though he did not link Hope’s practice with the wearing of a hat in the admission of an advocate.9 Goodall’s account had been repeated, the year before the first edition of Redgauntlet was published, in Tait’s Index to the Decisions of the Court of Session.10 It was certainly the case that Lords Advocate had long had the privilege of pleading wearing a hat. Thus, in 1629 an observer noted that the Lord Advocate sat in a corner within the bar and “pleads for the King when anything toucheth him, and also for other persons and still with his hat on if so it please him”.11 In 1714 William Forbes recorded the advocates as pleading from the Bar “uncovered”; in contrast the Lord Advocate pleaded within the Bar “always with his Hat on”.12 Sir John Lauder of Fountainhall recorded the Lords of Session mocking Sir Robert Sinclair by entreating him “to come within the bar and put on his hat, since it was but to make him Advocat with 2 or 3 days antidate”.13 Lauder also referred to Sir George Mackenzie pleading without his hat in 1686 after he had been removed from the office of Lord Advocate.14 Advocates may have worn their hats in Parliament House, but they always removed them to plead before

9 The Staggering State of the Scots Statesmen, For one hundred Years, viz From 1550 to 1650. By Sir John Scot of Scotstarvet, Director of the Chancery. Now first published, from an original manuscript, ed W Goodall (1754) 142 n*. 10 Index to the Decisions of the Court of Session, Contained in all the Original Collections, and in Mr Morison’s Dictionary of Decisions (1823) 500. 11 Our Journall into Scotland Anno Domini 1629, 5th of November From Lowther (1894) (henceforth Journall into Scotland) 29. 12 See Forbes, Journal of the Session (n 5) ii. 13 D Crawford (ed), Journals of Sir John Lauder Lord Fountainhall With his Observations on Public Affairs and Other Memoranda 1665–1676 (1900) 214. 14 Historical Notices of Scotish Affairs, Selected from the Manuscripts of Sir John Lauder of Fountainhall Bart., One of the Senators of the College of Justice, 2 vols (1848) (henceforth Fountainhall, Historical Notices) vol ii, 763.

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the court.15 Through the eighteenth century, the traditional practice of the Lord Advocate pleading wearing his hat had grown both obsolete and mysterious. When Alexander Maconochie as Lord Advocate attempted to claim the privilege of being covered before the General Assembly of the Church of Scotland in 1819 he was merely viewed as ridiculous.16 Such an action now constituted an unacceptable contravention of norms of polite behaviour and Charles Hope, a former Lord Advocate, described his action as on “the ground of the privilege or supposed privilege which the Lord Advocate has of pleading . . . with his hat on”.17 It seems most likely that the story of Hope and his sons is a late rationalisation to explain an obscure practice. As Lord Advocate for seventeen years, with sons on the Bench, Hope provided a useful figure to explain this custom.18 The two sons who became Senators in Hope’s lifetime were Sir John Hope, Lord Craighall, who became a judge in 1632, and Thomas Hope of Kerse, who did not become a judge until 1641.19 The Lord Advocate can be traced pleading covered before those dates. The traditional story is evidently false. In fact, it seems likely that the hat worn by the Lord Advocate when pleading was simply a symbol of his status as advocate for the monarch. Thus, to mark him out from other members of the Bar, he also wore a different gown, one that was elaborately decorated.20 Omond suggested that the 15 16 17 18

Anonymous, “Legal costume” (1884) 28 Journal of Jurisprudence 62 and 124 at 127. See M Fry, The Dundas Despotism (1992) 338–339. Ibid. See W T Omond, The Lord Advocates of Scotland from the Close of the Fifteenth Century to the Passing of the Reform Bill, 2 vols (1883) (henceforth Omond, Lord Advocates of Scotland) vol i, 144. It may also be significant in the development of the rationalisation that there was a well-known portrait of Sir Thomas Hope by Jameson in which he is wearing a hat: A A Grainger Stewart, Portraits in the Hall of the Parliament House in Edinburgh, with Introduction and Biographical Notes (1907) (henceforth Grainger Stewart, Portraits in the Parliament House) plate 21. 19 G Brunton and D Haig, An Historical Account of the Senators of the College of Justice from its Institution in MDXXXII (1832) (henceforth Brunton and Haig, Senators of the College of Justice) 289–290, 306. 20 Fountainhall, Historical Notices (n 14) vol ii, 763 notes Mackenzie putting on the gown of an ordinary advocate as well as pleading without his hat. For a good, if somewhat stylised, illustration of the Lord Advocate’s gown, see A Series of Original Portraits and Caricature Etchings by the Late John Kay, new edn, 2 vols (1877) (henceforth Kay’s Original Portraits) vol ii, plate 317, showing Archibald Colquhoun of Killermont as Lord Advocate in 1813. The portrait of Robert Dundas of Arniston in Parliament House shows him wearing a gown “of black brocade with a flap-collar and false winged sleeves, decorated on the sleeves with tufts”: Grainger Stewart, Portraits in the Parliament House (n 18) plate 23. W N Hargreaves-Mawdsley, A History of Legal Dress in Europe until the End of the Eighteenth Century (1963) (henceforth Hargreaves-Mawdsley, Legal Dress in Europe) 99 (from which the above description is taken) errs in claiming that in the portrait of Dundas the sitter is wearing the “undress gown for all judges”. He is most likely wearing his gown as Lord Advocate. At one stage advocates generally

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Lord Advocate wore a hat because, as an Officer of State, “he sat covered in the Parliament House, and, therefore, claimed the right to appear covered before the judges in the Tolbooth”.21 What may be more germane is that the Lord Advocate through the sixteenth century had also usually been a Lord of Session. In 1626, however, Charles I forbade Officers of State from being Lords of Session.22 Charles mitigated the effects of this on the Lord Advocate in two ways. First, according to Sir James Balfour, Charles wrote to the Lords of Session on 1 July 1626 “that it is his pleasure that his aduocatts plead befor them with couered heads”.23 Secondly, on the command of the king, the Act of Sederunt of 19 November 1628 gave the Lord Advocate the right to a seat within the Bar and to remain with the judges when they deliberated (except in cases where he had been counsel).24 These two privileges

21 22 23

24

seem to have worn a gown that had braiding and tassels and slashed sleeves with frogging and buttons. (It is always possible that the portrait of Dundas shows him wearing such a gown.) This can be clearly seen in the illustration of the funeral procession of the Duke of Rothes: see Hargreaves-Mawdsley, Legal Dress in Europe plate 16A (opposite p 96) and in the print of William Forbes, advocate, Professor of Law in Glasgow by R Cooper based on the portrait by William Robinson. (I found a copy prefixed to a copy his Treatise of Church-lands and Tithes (1705). The print is obviously later than 1705 since he is described as Professor of the Laws in Glasgow.) At some stage in the eighteenth century, advocates gave up this style of gown and started to wear one with a velvet collar and gathered bell sleeves, not dissimilar in general shape to the modern gown worn by junior counsel. See, e.g., the portrait of Andrew Crosbie in Grainger Stewart, Portraits in the Parliament House (n 18) plate 25; see also Kay’s Original Portraits vol i, plates 48, 58, 133. The Solicitor-General also seems to have had a special gown. It can be best seen in the 1770 portrait of Henry Dundas by David Martin in the Scottish National Portrait Gallery (PG 2745). It can also be identified in a number of Kay’s etchings: Original Portraits vol i, plate 127 and vol ii, plate 317. The history of the development of legal dress in Scotland has never been fully discussed or properly investigated. There was already a “lawer goun” by 1577: Brunton and Haig, Senators of the College of Justice (n 19) 198–199, note. The Act 1609, c 15 requested regulation of the dress of, among others, “aduocattis laweris and all other is living by law and practique thereof”: Acts of the Parliaments of Scotland, ed T Thomson and C Innes, 12 vols (1814–1875) (henceforth APS) vol iv, 435. James VI obliged in a letter to Sir John Skene on 16 January 1610: Scottish Record Office (henceforth SRO), Royal Letters, PC.5/3, 262–5. Advocates were to have black gowns lined with a grave kind of lining or furring, while Doctors of the Civil Law and Commissaries were to have black gowns faced on the sleeves and neck with black velvet. The Privy Council issued the necessary Proclamation: SRO, Acta of the Privy Council, PC 1/25 fo 123v (see fo 124r for the provision on advocates and Doctors of the Civil Law). One interesting issue is who were the Doctors of the Civil Law. Further research on all of this is obviously necessary. Omond, Lord Advocates of Scotland (n 18) vol i, 146. Ibid vol i, 85, 89. Nisbet of Dirleton was made both Lord Advocate and a Lord of Session in 1664. He was the last ever to hold both offices simultaneously: ibid vol i, 187. J Balfour, The Annales of Scotland, in The Historical Works of Sir James Balfour of Denmylne and Kinnaird, Knight and Baronet; Lord Lyon King at Arms to Charles the First, and Charles the Second. Published from the Original Manuscripts Preserved in the Library of the Faculty of Advocates, 4 vols (1824–1825) vol ii, 139. Two men held the office at the time of the letter. The Acts of Sederunt of the Lords of Council and Session, from the 15th of January 1553, to the 11th of July 1790 (1790) (henceforth Acts of Sederunt) 39–40.

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probably reflected the Lord Advocate’s former position on the Bench as well as his status as advocate for the king. Indeed, the account of the Session in 1629 still assumes that the Lord Advocate is a member of the court.25 The description of him pleading “also for other persons and still with his hat on” plausibly suggests, though there is no clear evidence, that it was the practice of the judges at this time to sit covered.26 Supporting this is the fact that a probationer Lord of Session while undergoing his trials for admission “delivered his opinion . . . with his hat on, according to ancient custom”.27 Whatever may be the origin of the Lord Advocate’s right to plead wearing his hat, there is no compelling reason to assume that the intrant advocate’s symbolic donning of a hat was derived from this privilege. To find the source of the practice, it therefore becomes necessary to explore the ceremonies and trials for admission as an advocate. It is helpful first to consider this in detail by following the admission of one advocate in the 1750s, before tracing the history of the development of these trials in order to bring out their meaning. When this has been done, it is possible to return to the “cramp speech” and the significance of the wearing of a hat by an intrant advocate. B. ADMISSION AS AN ADVOCATE It is possible to follow closely in the steps of George Wallace as he went through the procedures for admission as an advocate. By a happy coincidence, Wallace in fact composed theses, like Alan Fairford, de periculo et commodo rei venditae. Wallace was the son of a distinguished minister and minor literatus in Edinburgh, the Rev Robert Wallace. Wallace himself was to become an interesting, if relatively unimportant, writer on Scots law. He was appointed a Commissary of Edinburgh in 1792.28 On 15 July 1752 Wallace presented a petition to the Lords of Council and Session to the effect that he had “applied himself to the Study of Law, and is willing to undergo the ordinary Trials, in order to be admitted Advocate”, requesting their “Lordships to remitt to the Dean & Faculty of Advocates to take Trial of [his] Skill in Law in the ordinary Way and to report”. The next day

25 Journall into Scotland (n 11) 26, 29. 26 Ibid 29 (emphasis added). 27 See the report of the admission of David Boyle as an Ordinary Lord in Edinburgh Evening Courant, 2 March 1811. The trials for admission of a Lord Session will be discussed further below. 28 For details, see B Barnett Cochran, “Wallace, Robert (1697–1771)”, Oxford Dictionary of National Biography (2004), available at http://www.oxforddnb.com/view/article/28539, accessed at 24 February 2015.

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Robert Dundas, Lord President, signed the order that “The Lords haveing heard this petition They Remitt to the Dean and faculty of advocates to take tryal of the petitioners qualifications and skill in Law and to report”.29 From the beginning of the College of Justice, it was the Lords of Session who had the authority to admit men to plead before them. During the seventeenth century, the Faculty of Advocates had succeeded in obtaining from the Lords the right to examine on Civil Law all those who sought admission based on their knowledge of that law.30 As the procedures for Wallace’s admission show, it was nonetheless still very clear that it was the Lords who admitted the advocate. On 22 July 1752 Robert Dundas the younger, the Dean of Faculty, further endorsed Wallace’s petition with a remit to the private examinators “to assign him a Day for his private trial on the Civil Law He having promised upon his honour that he shall give no treat or intertainment on account thereof and producing to the Private Examinators before the diet appointed for his trial proper certificates of his being twenty years of age”.31 The private trial or examination was the first step in the trials for admission. Each year the Faculty appointed nine private examinators in Civil Law at its Anniversary Meeting in January. The certificate of proof of age was designed to ensure that on admission the advocate would be at least twenty-one years of age. Proof of being aged at least twenty would suffice, since admission would be more than a year after the private trial in Civil Law.32 Wallace’s promise to give no “treats” was required following a decision made by the Faculty on 7 June 1750.33 Such treats were the providing of drink and food for friends and others – including the examinators – to celebrate the passing of the trials for admission. The giving of treats had been forbidden by an Act of Sederunt of 12 January 1704;34 prohibitions of them can often be found in the Faculty’s records, however, because this traditional practice was difficult 29 For the petition and the order (inscribed and signed on the petition) see Edinburgh University Library (hereafter EUL), MS La.II.694.2.1. 30 See R K Hannay, The College of Justice: Essays on the Institution and Development of the Court of Session, Edinburgh (1933); repr in H L MacQueen (ed), The College of Justice: Essays by R K Hannay, Stair Society Supplementary vol 1 (1990) 153 (henceforth Hannay, College of Justice); J M Pinkerton (ed), The Minute Book of the Faculty of Advocates, Volume 1, 1661–1712, Stair Society vol 29 (1976) (henceforth Minute Book vol i) 8–9, 2 and 9 July 1664, 7 November 1664; Acts of Sederunt (n 24) 181 (Act of Sederunt, 6 July 1688). This is discussed further below. 31 EUL, MSLa.II.694.2.1. 32 Acts of Sederunt (n 24) 450–451 (28 February 1750). 33 J M Pinkerton (ed), The Minute Book of the Faculty of Advocates, Volume 2, 1713–1750, Stair Society vol 32 (1980) (henceforth Minute Book vol ii) 242. 34 Acts of Sederunt (n 24) 222–223 (Act for restraining Expences at the publick and private Examination of Advocates, 15 January 1704).

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to eradicate. The objection to treats was not so much an appearance of impropriety; rather, it was hoped by forbidding them to justify the raising of increased entry money.35 On 28 November 1752, the private examinators assigned the date of 14 December for the private examination on Civil Law.36 The Faculty’s ruling of 1750 also required that the entry money of 40 pounds sterling be paid before this took place.37 Wallace accordingly paid this sum to the Treasurer of the Faculty, James Balfour, on 13 December 1752.38 The authority for the private trial ultimately derived from the Act of Sederunt of 6 July 1688, which ratified and confirmed existing practice.39 This examination was conducted viva voce in Latin. The practice appears to have been for the examinators to divide the Digest between them into nine parts. A few days before the set date, each examinator would assign a title from his part to the intrant on which he would conduct the examination.40 After the candidate had been tried, the examinators would hold a ballot using the Faculty’s ballot box.41 Wallace was successful and on 14 December the private examinators endorsed his petition to the effect that they had found him sufficiently qualified in Civil Law and recommended him to the Dean for “the prosecution of the further parts of his Trial”.42 The Dean on 2 March 1753 remitted Wallace to the private examinators to assign him a date for the private trial on Scots (Municipal) Law “after the lapse of twelve months from the date of his trial on the Civil law”. On 17 January 1754 the private examinators duly assigned him the date of 8 February 1754.43 The private examination in Scots law had been introduced in 1750 on the initiative of the Faculty of Advocates.44 The gap of a year between the two private examinations was probably to allow the intrant to attend the classes on Scots law given at the University of 35 Minute Book vol ii (n 33), 29–30 (5 January 1720): the Faculty proposed the augmentation of dues to £40, but treats were to be forbidden and the intrants had to promise accordingly. 36 EUL, MS La.II.694.2.1. 37 Minute Book vol ii (n 33), 242 (7 June 1750). The sum had been fixed in 1720: see Minute Book vol ii (n 33), 29–30 (5 January 1720). 38 EUL, MS La.II.694.2.2. 39 Acts of Sederunt (n 24) 181. 40 See, e.g., Minute Book vol i (n 30), 164 (15 January 1696): “the whole body of the Scots Law be devided into parts among them and distributed among the examinators in the same way and method as the private examinators in the Civil Law are in use to doe”. 41 Minute Book vol ii (n 33), 85 (5 January 1725) restores the use of the ballot box in private examinations. 42 EUL, MS La.II.694.2.1. 43 Ibid. 44 Minute Book vol ii (n 33), 231–232 (3 January 1749). For further details of the regulations established, see National Library of Scotland (henceforth NLS), “Minutes of the Faculty of Advocates 1751–1783” FR 2, 4 (8 January 1751) and 11 (14 December 1751).

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Edinburgh. It was laid down in the Act of Sederunt issued by the Lords that provided the general scheme and authority for the new examination.45 The conduct of the examination is again to some extent obscure. The first examinators were appointed on 8 January 1751. They were directed to draw up detailed proposals for the examinations to be laid before the Faculty; but the minutes do not disclose that they ever did so.46 The only general direction given by the Faculty was that “they should follow the method laid down in Sir George Mackenzie’s institutions, using the same as a text, yet asking such farther questions as might naturally arise from the matter there delivered”.47 The use of Mackenzie’s Institutions as the basis of the trial can be traced back to the Faculty’s original proposals in 1724 for a compulsory examination in Scots law.48 It appears, however, that the candidate was given advance notice of the titles on which he would be examined, as in the Civil Law trial. The Faculty had decided on 14 December 1751 that there would be seven examinators in municipal law, appointed in the same way as those in Civil Law, namely at the Anniversary Meeting in January.49 They presumably divided the titles of Mackenzie’s Institutions between them. Since there are no lists of law students from the University of Edinburgh at this date, we cannot tell if Wallace attended John Erskine’s classes on Scots law or whether he studied privately for the exam. In any case, he was found “sufficiently qualified” on 8 February 1754 and recommended to the Dean to set a diet for his public examination.50 On 11 February the Dean assigned D 18.6, de periculo et commodo rei venditae to Wallace “as the subject of his Theses”. These were to be distributed on 12 February and the public trial was to take place on Saturday 16 February.51 The theses would already have been prepared: indeed the printed copy bears an “Imprimatur” dated 9 February.52 At this date the 45 46 47 48

49 50 51 52

Acts of Sederunt (n 24) 450–451. FR 2, 4 (8 January 1751). Ibid. Minute Book vol ii (n 33), 72 (7 January 1724), 73–74 (15 February 1724), 74–75 (22 February 1724), 85 (5 January 1725). See also the printed sheet dated 12 January 1725 headed “Proposals Returned by the Committee of the Faculty of Advocates Concerning the Trial of Intrants Upon the Scots Law” in FR 339r, Box IV. FR 2, 11. EUL, MS La.II.694.2.1. Ibid. The title page reads in full: Disputatio juridica, Ad Tit 6. Lib XVIII. Pand. de periculo et commodo rei venditae. Quam, Favente Numine, ex auctoritate clarissimis ac consultissimi Viri, D. Roberti Dundas ab Arniston, inclytae Facultatis Juridicae Decani: nec non ex ejusdem Facultatis consensu & decreto, pro advocati munere consequendo, publicae disquisitioni subjicit Georgius Wallace, auct. & resp. ad diem 16 Februarii 1754. hora 12 meridiana, loc. sol.

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titles for theses were allotted in strict rotation from the Digest.53 A candidate would therefore have been able to some extent to prepare them in advance. Nonetheless, it must have been a busy time for Wallace organising all of this. On 12 February he received from Walter Ruddiman the account for printing 164 copies on common paper and thirty-six on fine paper. This amounted to £2 3s 5d. Wallace settled the bill on 18 February.54 The 164 copies on ordinary paper and thirty-five on fine paper were stuck and gilded by the bookbinder, John Aitken. Only the remaining copy on fine paper seems to have been fully bound. It was presumably a presentation copy. All of this cost £2 0s 7d. Wallace also paid this account on 18 February.55 The theses were dedicated to Robert Dundas, the Dean of Faculty. This is not simply a conventional dedication; it reflects Wallace’s family’s political support for the Squadrone Whigs, of which party the Dundases of Arniston were important members.56 Thus, Wallace’s father, as a minister of Edinburgh, tried to manage the Kirk in the interest of the Squadrone after the fall of Walpole in 1742.57 After the preliminary matter, Wallace’s printed text consists of eight printed pages: the first seven contain an introductory proemium and seven theses on the title; on the last page are set out seven brief annexa that Wallace was willing to debate. The first two directly related to the title on which he had composed the theses; the others did not.58 The public examination by the Faculty was authorised by the Act of Sederunt of 6 July 1688, further confirming a practice that dated from at least 1664.59 On 17 December 1692 the Faculty decided that in future intrants should print theses and corollaries to be impugned by any member of the Faculty. This was embodied in an act of the Faculty on 3 January

53 54 55 56

57 58

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Edinburgi: Apud T & W Ruddimanos MDCCLIV. The title is in standard form. The copy I used is EUL, pressmark P 1021/17. Cairns, “Formation of the Scottish Legal Mind” (n 3) at 257. See further below. EUL, MS La.II.694.2.3. EUL, MS La.II.694.2.5. On the Dundas of Arniston family and the Squadrone, see J S Shaw, The Management of Scottish Society 1707–1764: Power, Nobles, Lawyers, Edinburgh Agents and English Influences (1983) (henceforth Shaw, Management of Scottish Society) 41–57, esp at 48–49 and 51–52. See H Scott, Fasti Ecclesiae Scoticanae: The Succession of Ministers in the Church of Scotland from the Reformation, new edn, 7 vols (1915–1928) vol i, 144. “I. Perfecta emptione venditione, periculum ad emptorem pertinet. II. Perfecta emptione venditione, periculum ad venditorem pertinere potest. III. E duobus, eodem partu natis, unus servus, alter ingenuus nasci potest. IV. Ancilla, cui libertas relinquitur, si tres liberos pepererit, libera esse potest, etiamsi tres liberos non pepererit. V. De his controversiis, quae ex testamento proficiscuntur, aliter transigi non potest, quam inspectis cognitisque verbis testamenti. VI. Consuetudo legem scriptam abrogare potest. VII. Pignus est contractus realis.” Acts of Sederunt 181; Hannay, College of Justice (n 30) at 153; Minute Book vol i (n 30), 8–9 (2, 9 July and 7 November 1664).

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1693. The Dean was to assign a title to the intrant.60 From 1698, the task of approving the theses for printing was to be given to the Curators of the Library, the Clerk and the Library Keeper.61 Initially, titles for disputation – even before the theses came to be printed – can be found allocated from the Institutes, Digest and Codex, although the Digest is by far and away the most popular source. The regulation of 3 January 1693 stated that the theses were to be “on the subject prescrived to them by the Dean of Faculty”.62 It seems, however, that candidates were at least consulted about the choice of title – no doubt reflecting a practice since 1664.63 From the beginning of 1717, however, titles were allocated in strict rotation from first the Institutes and then the Digest.64 If in theory anyone could impugn the theses, initially the Dean was specially to appoint six or seven members of the Faculty to do so.65 In 1707 it was decided that in future fifteen public examinators would be elected at the Faculty’s Anniversary Meeting.66 The decision on whether a candidate had passed was made by ballot.67 The public examination consisted of a formal disputation on the theses and annexa or corollaria. This was a convention and the expectation would have been that every candidate would pass; it was more a display than a test of knowledge or an examination in the modern sense.68 Nonetheless, 60 61 62 63

64

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Minute Book vol i (n 30), 119, 121. Ibid 190 (19 November 1698). Ibid 121. In 1706 Malcolm Gregory (or Macgregory) was publicly tried by the Faculty on D 41.1, de acquirendo rerum dominio: Minute Book vol ii, 263 (6 July 1706). Gregory was a licentiate utriusque iuris of the University of Bourges. For his examination at Bourges for the degree, he had also propounded theses from D 41.1, de acquirendo rerum dominio: Archives Départmentales du Cher, Livre Matricule des Ecoliers, Série D 19, 9 August 1703 (I owe this reference to the kindness of Mme M-C Tucker). This cannot be coincidental. On 26 January 1717, Robert Hume is examined on D 42.8 and Hugh Baillie on J Inst 1.1. On 16 February 1717 George Leslie is examined on J Inst 1.2. On 23 February 1717 Andrew Fletcher is examined on J Inst 1.3: Minute Book vol ii, 13–14. Thereafter the Institutes is worked through until, on 4 January 1729, Alexander Hume Campbell is examined on J Inst 4.18. On 18 January 1729 Hugh Rose is examined on D 1.1. On 1 February 1729 Charles Anstruther and John Michelson are examined on D 1.2 and 1.3 respectively: Minute Book vol ii (n 33), 117. Thereafter the Digest is worked through systematically. Minute Book vol ii (n 33), 121 (3 January 1693). Ibid 268 (22 March 1707). This had first been proposed in 1700: ibid 207–208 (1 February 1700). Ibid 194 (3 January 1698); Minute Book vol ii (n 33), 70 (7 January 1724) (balloting to continue in public trials), 85 (5 January 1725). The only intrant recorded in the minutes as being found “nott [sic] sufficiently qualified” at the public trial was Sir Gilbert Elliot of Minto, who passed the next year after disputing a different title: Minute Book vol i (n 30), 82 (10 December 1687), and 85 (14 July 1688). When Alexander Birnie passed his public examination only by a “pluralitie of voyces . . . he wes recommended to his book, and not to be admitted till November nixt”: ibid 11 (24 June 1665).

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the exercise was taken very seriously. If, by its nature, such an oral exercise produced no detailed record of the disputation, traces can be found. Thus, in a copy of the theses of Alexander Wight, also admitted in 1754, there is a manuscript sheet containing proofs relating to two of the annexa in the form of syllogisms with texts for the premisses.69 Similarly, Alexander Campbell sought the assistance of his teacher John Millar in preparation for his public examination. Millar advised him on further proofs and arguments on the annexa to his theses.70 The Act of Sederunt of 1750 that enforced the compulsory examination in Scots law for all also stated that “in order to his public examination, the candidate shall, and may annex to his theses, such positions from the law of Scotland, in his native idiom to the subject of dispute, upon the trial, as he shall think proper”.71 I have found no evidence that any candidate ever did so, though it is always possible that such propositions could have been announced viva voce. The nature of this disputation by formal mode of proof and disproof is well understood from later criticisms of it as antiquated. Thus, in a meeting of the Faculty in 1788, W MacLeod Ballantyne moved that a committee should be named to reconsider the public trial of intrants. He gave the following reason: [M]any respectable members expressed a dissatisfaction with the manner in which the Public Trial of Intrants was at present conducted, and others seemed to think the form of Trial itself might be altered to advantage by prescribing Discourses or Essays on a different plan from the Thesis now in use, and a mode of Trial of a simpler and more natural form than that of Syllogistical Disputes . . .72

Such “Syllogistical Disputes” originated in the quaestiones disputatae of the mediaeval universities.73 Disputation was once a regular part of instruction in all disciplines. The history is complex, but by the later seventeenth century in the Dutch universities it was common to have two types of disputation: exercitii gratia and pro gradu.74 By its nature, a disputatio was oral. The practice developed, however, of disputing on the basis of printed theses. Sometimes 69 70 71 72 73

A Wight, Disputatio juridica ad tit 7 Lib XVIII Pand (1754) EUL, pressmark P 1021/18. See J Millar to A Campbell, n d, but July 1768, SRO, Barcaldine Muniments, GD 170/1990. Acts of Sederunt (n 24) 451 (28 February 1750). NLS, Minutes of the Faculty of Advocates 1783–98, FR 3, 87 (2 August 1788). B Lawn, The Rise and Decline of the Scholastic “Quaestio Disputata”: With Special Emphasis on its Use in the Teaching of Medicine and Science (1993) (henceforth Lawn, “Quaestio Disputata”) 3–5; H Kantorowicz, “The Quaestiones disputatae of the Glossators” (1939) 16 Tijdschrift voor Rechtsgeschiedenis 1. 74 P Nève, “Disputations of Scots Students Attending Universities in the Netherlands”, in Gordon and Fergus, Legal History in the Making (n 7) 95 (henceforth Nève, “Disputations of Scots”) at 99–101.

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the student was the auctor of the theses; sometimes he was merely the respondens and the professor was the auctor.75 It is notable that when the requirement of printing the theses for disputation in the public examination was introduced in 1693 the Faculty’s minutes recorded that it would “both add to the honor of the society and to the regulation of the candidat if the said publict tryal shall proceid in the same way and method as is practised abroad”.76 The Faculty therefore aspired to the model of a university disputatio pro gradu as it had developed with printed theses, the intrant being both auctor and respondens. Emphasising this aspiration, in 1728 the Faculty considered inviting the students of Civil Law in the University of Edinburgh to participate in the impugning and disputing of theses in order to make “the publick Examinations of Intrants more solemn”.77 Wallace passed his public examination on 16 February and was recommended to the Dean to assign him a law “for the subject of his Discourse to the Lords and Faculty”.78 The development of the giving of such a speech is important and will be discussed in greater detail below. The first time the Dean is mentioned in the Faculty’s minutes as assigning the “law” for the speech is in 1680;79 but this is simply a change of the formula entered in the minutes. The Dean assigned the law for the speech at least from the reforms of 1664.80 Before that, the topic of the oration seems to have been at the discretion of the candidate.81 In 1691 the formula allocating the “law” changed to “a law out of the said title”.82 This became the generally used standard phrase; it denoted no actual change in practice.83 On 18 February the Dean assigned D 18.6.1.3 to Wallace.84 The text of his speech has been 75 Ibid at 100–101. 76 Minute Book vol i (n 30), 121 (3 January 1693). Disputation was of course common in the Scots universities, and Joseph Pillans, one of the regents in Edinburgh, even gave dictates on the art: Lawn, “Quaestio Disputata” (n 73) 138–140. This makes it particularly interesting that the Faculty refers to practice abroad. 77 Minute Book vol ii (n 30), 110 (20 January 1728). 78 EUL, MS La.II.694.2.1. 79 Minute Book vol i (n 30), 51 (11 December 1680). 80 See SRO, Books of Sederunt of the Lords of Council and Session (henceforth BS CS) 1/6/1, 157–158 (13 December 1664). 81 See the oration of James Dalrymple of Stair, admitted 1648, in “Scotstarvet’s ‘Trew Relation’” (1916) 13 Scottish Historical Review 380 (henceforth “Scotstarvet’s ‘Trew Relation’”) at 381, where he discusses the difficulty of fixing on a text and wishes the Lords would allocate topics to candidates. 82 Minute Book vol i (n 30), 101 (6 June 1691). 83 John Mackenzie of Delvine was publicly examined on D 19.2 on 6 December 1681: Minute Book vol i (n 30), 58. The law assigned to him by the Dean for his speech delivered on 20 December 1681 was D 19.2.38.1: NLS, MS 1101 fo 1. 84 EUL, MS La.II.694.2.1.

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lost, although those of some other intrants have survived.85 On the same day he paid the guinea due to the Library Keeper, currently David Hume, on the admission of an advocate.86 Wallace read his speech before the Lords on 19 February 1754 and his admission was duly recorded in the Books of Council and Session: The Lords of Councill & Session having Considered the Literature and Qualifications of Mr George Wallace son of Mr Robert Wallace Minister of the Gospell at Edinburgh and the proof given by him in making a publick Lesson upon a Title of the Civil Law assigned to him by the Dean of ffaculty Together with a Report by the said Dean and Advocates Examinators bearing that after private and publick examination of the said Mr George Wallace they found him Qualified to exerce of [the] office of an advocate and having this day called him in their presence They have admitted and hereby admitt him to the office of an Advocate to be enjoyed by him with all the priviledges and Immunities thereto belonging suchlyke and as freely in all respects as any other Advocate enjoys the same Likeas the said Mr George Wallace did swear the Oaths of Alleadgeance and Abjuration and subscribed the same with the Assurance and gave his oath de fideli administratione and to be obedient to the Lords and in his station to maintain the priviledges of the House.87

No doubt Wallace and his friends then enjoyed the traditional “treats”, which, despite all attempts, the Faculty never succeeded in extirpating.88 C. THE MEANING OF THE ADMISSION CEREMONIES I have argued elsewhere that the examinations for admission as an advocate were not intended to show the possession of knowledge adequate for practice but rather to demonstrate academic scholarship in Roman law.89 The Faculty consciously modelled the procedures for examination 85 See, e.g., NLS, MS 1101; NLS, MS 2228 where John Spotswood wrote his speech on the flyleaves of his printed disputatio. 86 EUL, MS La.II.694.2.4. The sum was initially authorised as a payment to Walter Ruddiman as Underkeeper in 1710. Ruddiman had previously received a small “gratification” from intrants of 12s 6d. The augmentation to a guinea and its regularisation by the Faculty were no doubt part of the financial package arranged to keep him from leaving: Minute Book vol i (n 30), 289 (9 December 1710), 286 (15 July 1710). It must have continued after Ruddiman became Keeper in 1730 and Hume inherited the perquisite. The Assistant Keeper, Walter Goodall, received it on his behalf from Wallace. On Hume as Keeper, see B Hillyard, “The Keepership of David Hume”, in P Cadell and A Matheson (eds), For the Encouragement of Learning: Scotland’s National Library 1689–1989 (1989) 103. 87 SRO, BS CS (n 80) 1/14 fo 11v. 88 Wallace also preserved his Certificate of being Qualified through taking the oaths: EUL, MS La.II.694.2.6. 89 See Cairns, “Formation of the Scottish Legal Mind” (n 3) at 255–263; and “Importing our Lawyers from Holland: Netherlands’ Influences on Scots Law and Lawyers in the Eighteenth

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of intrants on those for a university degree in law.90 In theory it had been possible to be admitted by trial in Scots law. This was stigmatised as less “honourable” and penalised with doubled entry money.91 Moreover, those who were admitted by trial on Scots law did not don a hat and make a “cramp speech” in Latin before the Lords and Faculty. To a society in which status and honour were central, such an admission was a less ritualistic and richly symbolic event; it involved less of an affirmation of status and learning. It was indeed a less honourable admission. In fact, learning in Roman law was central to the Faculty’s collective sense of self.92 As Sir George Mackenzie put it in his inaugural oration for the Advocates Library in 1689: “Of books on Roman law, pride of place must be given to the text itself and its various editions, since on it both our calling and our library are based.”93 In some sense, the Faculty obviously considered itself an universitas jurisconsultorum, so that it was appropriate to model its admission exercises in the later seventeenth century on those for the degree of Doctor of Laws. Thus, when Gerard Noodt was promoted LLD in Franeker, “he first passed an examination and then gave lectures on D 3.3.51 and on Decretum Gratiani C 3 q.  6  c. 18 . . . Finally he defended a disputation without praeses, that is, all by himself”.94 It is this type of procedure that the Faculty consciously copied and adapted. When Lord Kemnay complained about the examination of his son in 1687, he also took issue with the entry money demanded. The Faculty’s response was that the fee was “far short of what is payed in any university in the world in such caises, and the custom of Holland, Germany and France is verie weell knowen”.95 The Faculty was aware that admission as an advocate in most European countries was based on the possession of a degree in law, and once they had gained sufficient control over the exercises for admission they replicated a version  of  the

90

91 92 93 94 95

Century”, in G G Simpson (ed), Scotland and the Low Countries, 1124–1994 (1996) 136 (henceforth Cairns, “Importing our Lawyers from Holland”) at 140–141. On the origins of the doctorate and the development of examinations for its award, see P Weimar, “Zur Doktorwürde der Bologneser Legisten”, in C Bergfeld (ed), Aspekte europäischer Rechtsgeschichte. Festgabe fur Helmut Coing zum 70 Geburstag, Ius Commune, Sonderhefte 17 (1982) 421 (henceforth Weimar, “Zur Doktorwürde”); repr in P Weimar, Zur Renaissance der Rechtswissenschaft im Mittelalter, Bibliotheca Eruditorum 8 (1997) 307. Cairns, “Formation of the Scottish Legal Mind” (n 3) at 256–257. I discuss this further in my forthcoming article “Alfenus Varus and the Faculty of Advocates”. G Mackenzie, Oratio inauguralis in aperienda jurisconsultorum bibliotheca (1989) 65. G C J J van den Bergh, The Life and Work of Gerard Noodt, 1647–1725: Dutch Legal Scholarship between Humanism and Enlightenment (1988) 24. Found quoted in Hannay, College of Justice (n 31) at 159.

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procedures for the award of a doctorate in law.96 Others were willing to recognise the significance of the Faculty’s examinations in this respect. Thus, the King’s College and University of Aberdeen awarded the degree of LLD to Alexander Cuming in  1714 because he had sufficiently documented having passed his private trial in the course of becoming a member of the Faculty of Advocates.97 The proper context of the development of these procedures for admission as an advocate is the Faculty’s search for independence and authority in the Restoration regime.98 This said, since the Lords of Session had to approve the basic scheme for examination and ultimately admitted the intrants as advocates, they also played an important role in the development of these exercises and examinations and must have endorsed the values embodied in them. Moreover, academic learning in Civil Law and Canon Law had been valued for admission as an advocate from the sixteenth century.99 Thus, Hannay has pointed out that between 1575 and 1608 no less than two-thirds of the men admitted as advocates based their claims for admission on possession of university education in law.100 At this period, the advocates had only the most rudimentary form of corporate identity and played no part in the admission of men to plead before the Lords.101 To understand more fully the development of the trials for admission it is accordingly necessary to examine the history of admissions up to the period when the Faculty had gained the right to examine all those who sought to join the group of pleaders before the Lords. This will allow us to grasp the meaning of the ceremonies and the role of the hat in them.

96 Nève, “Disputations of Scots” (n 74) at 108 writes: “The mere handful of graduating law students contrasts sharply with the diligence of their medical colleagues.” For Scots law students there was no advantage in taking a degree in the Netherlands: it was an unnecessary expense. For physicians the possession of a medical degree was a necessity. Nève also points out that the evidence of Scots disputing exercitii gratia is also slight. This is because he has based his study on published disputationes: in fact it was common for Scots to attend a private collegium disputatorium as I shall show elsewhere. 97 Aberdeen University Library (henceforth AUL), King’s College Minutes 1709–1714, MS K 40 fo 26v (2 January 1714). It is commonly said that all law degrees in Scotland at this period are “honorary”. This is a misunderstanding. 98 See, e.g., Cairns, “Importing our Lawyers from Holland” (n 89) at 141–143. 99 See J W Cairns, “The law, the advocates and the universities in late sixteenth-century Scotland” (1994) 73 Scottish Historical Review 171 (henceforth Cairns, “The law, the advocates and the universities”. 100 Hannay, College of Justice (n 31) at 145. 101 See J W Cairns, “History of the Faculty of Advocates to 1900”, in The Laws of Scotland: Stair Memorial Encyclopaedia vol 13 (1987–1996) 499 at 499–501.

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(1) Admissions of advocates, 1580–1650 Admission of advocates was recorded in the Books of Sederunt of the Lords of Council and Session. Study of them confirms the general accuracy of Hannay’s observations about the early history of the pleaders before the Session. In the beginning there seems to have been no special test or trial of men soliciting the Lords for admission. Individuals petitioned the court either claiming academic training with some experience of “practick” or simply claiming long experience of “practick”. A number had also been admitted as “auditors” or “expectants” to learn practice before the Session, while also practising before lower courts.102 He correctly remarks that “after 1575, candidates tend to fall into two classes: those who rely mainly upon their academic preparation, and those whose chief recommendation seems to be practical experience”.103 From 1580, the records start to disclose the practice of those candidates whose claim to admission was an academic education in law giving proof of their educational attainments in the audience of the Lords. John Arthur, who had taught in St Andrews and studied law for seven years in Toulouse and Poitiers in France, as well as having passed two years in the study of the “practick”, was the first to claim to have “gevin pruif” in this way.104 Later that year, John and David McGill, who had studied law in France, recounted in their petition to the Lords that they had given “specimen doctrine”.105 A month later, Alexander King presented a petition for admission as advocate. In it he mentioned that he had studied the law for four years after studying at St Andrews and had been an expectant advocate for two or three years. He had demonstrated his ability “be publict teitching in the tolboith as is accustommat be lauaris befoir thair admissioun in the said office”.106 There is no way of deciding whether or not this practice of men with an academic training giving a proof of their learning by means of a public lesson or giving “specimen doctrine” was an innovation in 1580: the terms of

102 Hannay, College of Justice (n 31) at 139–140. 103 Ibid at 140. 104 SRO, BS CS (n 80) 1/3/1 fos 114v–115r (8 March 1579/80). On Arthur, see J W Cairns, “Academic feud, bloodfeud, and William Welwood: legal education in St Andrews, 1560–1611: Part I” (1998) 2 EdinLR 158 (henceforth Cairns, “Academic feud, bloodfeud, and William Welwood”) at 170–171, and “The law, the advocates and the universities” (n 99) at 183–184. 105 SRO, BS CS (n 80) 1/3/1 fo 137r (25 December 1580). David McGill had studied at Bourges: the diploma for his licentiate, signed by Jacques Cujas, survives: SRO, Stair Muniments, GD 135/2717. 106 SRO, BS CS (n 80) 1/3/1 fo 139 (24 January 1580/81).

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Alexander King’s petition suggest that it was not. It was certainly a practice that had considerable support at this time. Thus, in 1579 a Visitation of the University of St Andrews had provided that the Professor of Law (then William Skene, probably a licentiate of Bourges)107 should give four lessons weekly: [T]o which lessonis in the law sall be ordinar auditors all the aduocattis and scribis in the consistorie, and sic vthers as ar desirous to proceid in the facultie of the law, and that nane be admitt it befoir the Lordis or vther iuges to ordiner procuratioun, Except they sall gif first specimen doctrine in the vniuersitie of Sanctandrois, and report a testimoniall of the said vniuersitie witnessing thair qualificatioun, and howfar they haue proceidit in the studie of the law; and thairwitheall affirming that they diligentlie keipit the lessonis salang as they remaint in the vniuersitie.108

This was ratified by Parliament in November 1579 and in January 1580 the King and Privy Council issued instructions putting the recommendations into effect.109 The relationship of this provision to the changing wording in petitions for admission as an advocate from 1580 onwards is uncertain. Both certainly indicate a contemporary concern that men admitted should have an academic training and be able to demonstrate their skills in academic exercises. Henceforth the differing practices in the admission of men who had academic qualifications and those who did not becomes ever clearer and settles down into a regular pattern. For example, when Lewis Craig, the son of Thomas Craig, was admitted, his petition narrated that after completing his course of philosophy he had passed to France where he had studied the laws for two and a half years at Poitiers, whereof he had given some evidence before the Lords.110 James Skene, the son of Sir John Skene, also narrated his study of law in France and his having “gevin ane pruif” of his learning before the Lords.111 In 1606 Oliver Colt alludes to his study of the laws in France for seven years, of which he had “gevin sum pruif” before the Lords.112 The record of the admission of John Murdeston in 1607 provides a few more details of what was happening. He referred to “the ordinar tryall 107 See, e.g., Cairns, “The law, the advocates and the universities” (n 99) at 179–183; and “Academic feud, bloodfeud, and William Welwood” (n 104) at 168–170. 108 Evidence, Oral and Documentary, Taken and Received by the Commissioners Appointed by His Majesty George IV, July 23rd 1826; and Re-Appointed by His Majesty William IV, October 12th 1830; for Visiting the Universities of Scotland. Volume III. University of St Andrews, Parliamentary Papers XXXVII (1837) 184–185. 109 APS (n 20) vol iii, 178–182, c 62; ibid 189–191. 110 SRO, BS CS (n 80) 1/4/2 fo 289 (11 June 1600). 111 Ibid fo 335 (6 July 1603). 112 Ibid fo 360r. See also, e.g., fos 354v, 363v, 366v.

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appointit for admissioun of thaime quha pretendit to the office of ane advocat hes bene now laitlie perusit, past and provit by me in place ordinar and audience of youre lordshippis selffis”.113 The Book of Sederunt covering 1608 to 1626 is missing, but when the records resume the evidence of the distinction between the men admitted on academic learning and those on long experience of the “practick” continues.114 In 1610, the advocates had even sought to make the distinction more precise by specifying that advocates should be admitted on the basis either of having passed a course of “philosophy” and studied law for two years in a university or have served seven years under an experienced advocate.115 If this remained a proposal, the distinction none the less carries through until the Cromwellian regime brings the record to an end. It now seems to be common for those admitted simply on experience to have to produce a testimonial of fitness from the Lord Advocate and advocates.116 An academic aspirant is generally recorded as giving proof of his literature and qualifications and the Outer House is sometimes specified as where this took place.117 Occasionally more detail is given. Thus, in 1628 the Book of Sederunt records the admission of an advocate after “the Lordis haifing heard Mr John Gilmour sone to John Gilmour Wryter in Edinburgh mak publick explicatione of ane civill law in the utterhouse, wherein he gaif proofs of his Literature qualificatione and abilitie to discharge the place of ane ordinarie advocat before thame”.118 David Nevoy was admitted after the Lords heard him “mak ane publict lesson upon ane titell of the civill Law in their haill audience with which they fand themselfis weill satisfied”.119 The picture in the records is supported and supplemented by the description of how advocates are admitted given by an English visitor in 1629:

113 SRO, BS CS (n 80) 1/4/2 fo 364v (28 February 1607). 114 Admissions for this period are noted in the Pitmedden MS, NLS, Adv MS 25.2.5 vol i. They are generally insufficiently detailed to be helpful here. 115 H Bisset, Rolment of Courtis, ed P J Hamilton-Grierson, 3 vols (1920–1926) (henceforth Bisset, Rolment of Courtis) vol i, 157–159; W Fraser, Memorials of the Earls of Haddington, 2 vols (1889) (henceforth Fraser, Earls of Haddington) vol i, 76. 116 See, e.g., SRO, BS CS (n 80) 1/5 fos lFr (James Gibson, 6 February 1627), 202r (Patrick Fraser, 16 January 1650). 117 SRO, BS CS (n 80) 1/5 fos lGr (Cornelius Ainslie, 28 March 1627), 14r (Michael Barclay, 25 July 1628), 38v (Alexander Belsches, 26 January 1631), 40r (James Nicholson, 2 March 1631), 46r (Thomas Hope, 27 July 1631). 118 SRO, BS CS (n 80) 1/5 fos 17v–18r (11 December 1628). 119 SRO, BS CS (n 80) 1/5 fo 194v (27 November 1649). See also fos 197v–198r (Patrick Oliphant, 26 December 1649).

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They have most of them been traveller and studied in France, but whether they have studied at home or in France they thus proceed, advocates, viz.: – they first get a petition to the Judges that they may not be hindered by the Masers, but have free access to the Courts, [and] hear their manner of pleading, from which time till they be advocates they are called Expectants. Now as soon as they think themselves fit and dare venture to undergo trial, they will further petition to have a lesson, to dispute a question before the Judge, upon which if they be thought sufficient they are admitted and sworn advocates.120

Unfortunately, this is ambiguous. It could be interpreted as suggesting that the trial is by quaestio disputata and by reading a lesson. One record of admission supports the view that there was a difference between the lesson and the trial of the qualifications. In 1644 the Book of Sederunt describes the admission of James Balfour after he had given proof of his “literature and qualifications” in the audience of the Lords “by making ane publick lessoun in the civill law and efter tryall of the supplicantis hab[il]itie to discharg the place and office of ane ordinar advocate”.121 If one could accept at face value the description given in 1629 the trial would have been by disputation. If there is perhaps insufficient evidence to reach a firm conclusion one way or the other, it may be that the English visitor’s evidence should be read with the sense that the “petition to have a lesson” was in order to “dispute a question”. Some support is given to this by the oration that Lord Stair delivered on 15 February 1648. He dealt inter alia with the question in feudal law of “quhither or not it be Lauful to his majestie to interject betwixt him and his vassals another superior”. He stood “for the negative” and endeavoured “to shew that it is not permitted b[y] the common Law the municipall or Law of nations, nor our custome”.122 Thus, he seems to have dealt with a quaestio in his speech, one deriving from a text in the Libri feudorum.123 The admission of James Balfour in 1644 would then have to be understood as misleadingly inserted in the records: the “publick lesson” was the “tryall of the supplicantis habilitie”. Even if the suggestion that the lesson was the trial should be wrong, the emphatic stress on academic exercises for admission, as originally enjoined in 1579, is obvious and is what most matters here. Stair’s admission shows that it was possible to read a lesson on something other than Civil Law. But his description of himself as having “turned over so many vast volums of leaves . . . by an indigested [Digest] & confused Cod and the glosses of 120 121 122 123

Journall into Scotland (n 11) 32. SRO, BS CS (n 80) 1/5 fo 150v (13 February 1644). “Scotstarvet’s ‘Trew Relation’” (n 81) 385. Libri feudorum 1.22.

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commentaries written therupon with there counsells & decisions” so that he was “inhibite to handle any title or chapter of the civil Law” indicates that the norm was to read a lesson on Civil Law.124 Moreover, the delivery of a lesson on Civil Law was sufficiently expected for the entry in the Books of Sederunt to be formulaic: even Stair is recorded as admitted after reading a lesson on the Civil Law.125 It may be that Stair, lacking a formal education in Civil Law, preferred not to discuss it, since he refers to his confusion about the Civil Law as that of one “quho hes stragged in these bywayis without a guide”.126 Stair’s oration is not preserved in Latin and he presumably did not deliver it in the learned language of the law. Whether this is exceptional or not is unknown. It is a plausible suggestion that those who read a lesson on Civil Law did so in Latin, as certainly was the later practice. Stair’s lesson was of some length. It is therefore unsurprising that the Lords found the practice to have its inconveniences. In 1650 they accordingly issued an Act of Sederunt discharging advocates from giving lessons in the last month of the Session because it interfered with regular judicial business.127 (2) Admissions of advocates, 1651–1660 Shortly after issuing the above Act of Sederunt discharging the giving of lessons, the Court of Session stopped meeting as government dissolved in Scotland. The sequence of Books of Sederunt of the Lords of Council and Session does not resume until 1661.128 The English military conquest and associated pacification resulted in a hiatus in the central administration of justice until 1652, when seven Commissioners for the Administration of Justice were appointed, of whom four were Englishmen and three Scots.129 One initial policy behind the creation of this new court had been the 124 “Scotstarvet’s ‘Trew Relation’” (n 81) 381. 125 SRO, BS, CS.1/5 fo 174v (17 February 1648). The copyist of his speech gave the date of delivery as 15 February. If correct, this suggests that the speech was not at this time necessarily made immediately before admission. It may, however, be a simple error. 126 “Scotstarvet’s ‘Trew Relation’” (n 81) 381. 127 Acts of Sederunt (n 24) 69 (21 February 1650). 128 R K Hannay, “Early Records of Council and Session, 1466–1659”, in An Introductory Survey of the Sources and Literature of Scots Law, Stair Society vol i (1936) 16 at 17 inaccurately suggests that the Books of Sederunt continue until 1659. The Guide to the National Archives of Scotland, Stair Society Supplementary vol iii (1996) 103 is similarly uninformative. 129 F D Dow, Cromwellian Scotland 1651–1660 (1979) (henceforth Dow, Cromwellian Scotland) 55–57. A full study of the operation of the courts and the administration of justice in Cromwellian Scotland is wanting. As well as Dow’s study, there are brief discussions in A J G Mackay, Memoir of Sir James Dalrymple First Viscount Stair (1873) 58–67; C H Firth, The Last Years of the Protectorate 1656–1658, 2 vols (1909) vol ii, 106–109; and Brunton and Haig, Senators of the College of Justice (n 19) 345–347.

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eventual assimilation of Scots to English law. At times there were problems with the operation of this new central court, but it lasted until towards the end of the Commonwealth regime in Scotland. Its last recorded sitting was on 23 February 1659.130 There was no operative supreme judicatory after the restoration of the Rump Parliament in 1659, however, and the final set of judges, appointed in March 1660, in July of that year were forbidden to act. Central civil justice was thus again in abeyance from at least the summer of 1659 until Charles II appointed new Lords of Session in 1661.131 The Commissioners appointed in 1652 at first sat together as a Full Bench for civil matters, but in 1655 the institution of the Outer House was restored to speed the operation of justice.132 The new Bench assumed the right to admit advocates to plead before it. Lack of a surviving equivalent to the Books of Sederunt of the Lords of Council and Session can be compensated for through use of the Pitmedden Manuscript.133 This includes abridged extracts from what it describes as “The Sederunt Book of the Judges established by Usurper Cromwell” covering from 1 November 1654 to 23 February 1659.134 The admission of twenty-one advocates is recorded. Most are reported in a highly abbreviated form, but sufficient detail is given in some entries for it to be clear exactly what is happening. The first man admitted as an advocate was Nathaniel Fife on 18 December 1654. The Commissioners are recorded as having heard him “on a title of the Civill Law”.135 The next man is also “heard on a text of the Civill Law”.136 The third recorded was “admitted Advocat on a bill given in be him to the Commissioners, and a recommendation of Sundrie advocats in his favors”.137 He is followed by John Smith, described as “admitted ane Advocat having hade a Lesson on the Civill Law and upon ane Supplication desireing he might be admitted To make the said ordinary proofs, and for that effect to assign him a day That he might affixe his program, In respect he hade been ane good tym abroad studieing the Lawes at the University of Leyden”.138 130 NLS, Adv MS 25.2.5 fo 324r; The Decisions of the English Judges, During the Usurpation, From the Year 1655, to his Majesty’s Restoration, and the sitting down of the Session in June 1661 (1762) 232–233. (This last is printed from NLS, Adv MS 24.3.1.) 131 Dow, Cromwellian Scotland (n 129) 176–178, 221–223, 242–244, 261, 271. 132 Ibid 176–177. 133 NLS, Adv MS 25.2.5. See Hannay, College of Justice (n 30) at 148. 134 NLS, Adv MS 25.2.5 vol i, fos 303–324. 135 Ibid vol i, fo 304r, 18 December 1654. 136 Ibid vol i, fo 304v (Alexander Davidson, 2 January 1655). 137 Ibid vol i, fo 305r (John Hamilton, 2 February 1655). 138 Ibid vol i, fo 305r (20 February 1655).

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This suggests that admission in this period followed the practice already established before 1650. Academic applicants gave proof of their learning by reading a lesson on Civil Law before the judges; others, basing their claim on long experience, had to produce a recommendation from the advocates. The entries made thereafter become very abbreviated and uninformative. Thus, William Pearson is described as admitted “upon ane bill and Lesson”; John Somervell is simply “admitted ane Advocat ut supra”.139 Thomas Hamilton “upon his Supplicatione and Lesson is made ane Advocat”.140 For William Morrison it was noted that he studied the “Lawes in the Universities of France and elsewhere and upon ane Lesson” was admitted.141 On 6 July 1655 the manuscript records: “Mr Arthur Gordone admitted advocate upon a Bill as also the following Bearing They have studied the Lawes both at home and abroad”.142 It is unclear whether we should understand Gordon and the others as having given a lesson on Civil Law: the allusion to studying law abroad suggests that we should. The next ten advocates admitted from 1655 to June 1657 are presumably “the following” to whom the entry refers. It is simply noted of nine of them that they were admitted.143 The entry for Alexander Nairn notes, however, that he was admitted advocate “upon a text ff. de possessionibus”.144 It does not seem conclusive that this means the others did not give a lesson. Of more significance are the last two admissions recorded in the Pitmedden Manuscript for the era of the Interregnum. The first of these, on 23 November 1658, is as follows: Willam Brodie is this day admitted Advocat upon a Supplicatione given in by him to the Commissioners bearing he hade served ane Advocat 10 years, and hade attendit the house otherwise 8 years, and that he hade the subscribed recommendatione of the protector’s Advocate Deane of facultie and other Advocates.145

However we should interpret the previous ten admissions, this is conclusive proof that the procedure for admitting those who sought admission on 139 Ibid vol i, fo 305r (23 and 28 February 1655). 140 Ibid vol i, fo 305r (15 June 1655). 141 Ibid vol i, fo 305r (26 June 1655: it is noted in the margin that this “should have been booked the 12th of June 1655”). 142 Ibid vol i, fo 306r (6 July 1655). 143 Ibid vol i, fos 306r (23 July 1655: George Ramsay), 310r (4 January 1656: John Lockhart; 8 January 1656: George Lockhart; 25 January 1656: John Cunningham; 27 February 1656: Thomas Forbes); 311v (19 November 1656: William Lyall; 2 December 1656: Robert Meldrum), 312r (12 June 1657: Robert Burnet; 18 June 1657: John Greig). 144 Ibid vol i, fo 311v (22 November 1622). The reference is presumably to D 41.2. 145 NLS, Adv MS 25.2.5 vol i, fo 323r.

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long experience survived to the end of the Interregnum in the practice of the Commissioners for the Administration of Justice. The last admission is that of Sir George Mackenzie on 18 January 1659, presumably noted in detail because of the fame he had acquired by the time the abridgement was made: This day Mr George McKenzie student in Law Gave in a Supplicatione To the Commissioners, Mentioning That he has these six years past been endeavoring To qualifie himself For the office of ane Advocate, Both by studieing the Civil Law abroad in the University [sic] of France and holland, and the Municipall Lawes At home, And therefore entreats them They would prefix him ane day for his Lesson, They remitt him to Mr John Eleis Dean of facultie and his Councell Who reporting of his qualificationes They assign him a day For making of his Lessons, Quhilk being perfomred by him he is received To the office of ane Advocat.146

Thus, unless there had been some similar procedure not recorded in the Books of Sederunt before 1650, which seem unlikely, it appears that, in the course of the 1650s, the practice had developed of the Commissioners remitting to the Dean and his Council for examination one who petitioned for admission by making a lesson. The Commonwealth interlude involved no major new departure in the manner of admission of advocates. The distinction remained between those admitted on the basis of their long experience of the practice of the Court and those admitted on the basis of academic learning in Roman law demonstrated by reading a lesson before the Court. The significant innovation, however, was that the academic aspirants were now referred to the Dean and his Council for some kind of trial, just as the others already had to produce certificates from the Lord (or Protector’s) Advocate and the advocates collectively. Should the above analysis be correct, there still was a preference for the admission of men educated in a university in the learned law. Confirming this is the absence of any mention of the academic men having also attended the courts for some time before admission. Mackenzie was admitted in January 1659. It was only at the end of February 1658 that he had graduated utriusque iuris in Bourges.147 He cannot have devoted much time to attending on the court to learn the “practick”. The status of “expectant” was clearly becoming (if it was not already) obsolete.

146 Ibid vol i, fo 324r. 147 See Archives Départmentales du Cher, Livre Matricule des Ecoliers, Série D.9 fo 5v (24 February 1658). I again owe this reference to the kindness of Mme M-C Tucker.

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(3) Admissions of advocates, 1661–1706 The Restoration period apparently took its immediate cues for admission from the practice to 1650 and renewed the Act of Sederunt of 1650 forbidding the giving of lessons in the last month of the Session.148 Between the resumption of the Books of Sederunt in 1661 and the Act of Sederunt of November 1664 regulating admission, twenty-four men were admitted by giving a lesson before the Lords and only nine otherwise. Typical of the latter was William Yeaman, servitor to the advocate Lawrence Oliphant, who was admitted without a lesson on the basis of his experience, with a report from the Lord Advocate.149 Not all appear to have required such a report, should the record be correct in this. Thus, William Purves was admitted on the basis of his long relevant experience and as well known to the Lords, having acted as agent for the king and as an under-clerk of the Session in the Outer House.150 Alexander Munro, the Commissary of Stirling, was admitted without giving a lesson because it was near the end of the Session, but he had been remitted to the Dean and Faculty to report on his admission.151 The procedure on Munro’s admission generally follows that for those who founded their petition on their academic achievements. The first man admitted in 1661 on the basis of his academic qualifications was William Bannatyne on 15 June. He was admitted after the Lords heard him “give proofs of his abilitie and literature by making ane lessone on a title of the Civill law in their whole audience”.152 Four others were admitted on the same basis over the next month, until on 27 July the record discloses that George Nicholson was admitted after the Lords heard him give a public lesson and had been advised of his “habilitie . . . with the Report of dyvers advocattis ffinding him habile to discharge the place of ane ordinar advocatt”.153 This was obviously the same procedure that had been used to admit Mackenzie and that had developed in the Commonwealth period. Eighteen further men were admitted on the grounds of their academic studies before the Act of Sederunt of November 1664. Only for five of them is there no record of a report of some type from the Faculty on whether or

148 149 150 151 152 153

Acts of Sederunt (n 24) 80 (28 November 1661). SRO, BS CS (n 80) 1/6/1, 21 (8 June 1661). Ibid 84–85 (13 November 1662). Ibid 60 (26 February 1662). Ibid 28 (15 June 1661). Ibid 41 (27 July 1661).

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not they were qualified.154 Sometimes this is recorded as a report of “diverse advocats”, sometimes of “severall advocatis” or “the dean of facultie and severall advocatis”, sometimes of the “dean of facultie and his counsill”, sometimes of the Dean and his “brethren”, or sometimes of a “certan number of advocatis”.155 The specific terms used in individual remits by the Dean and Faculty will lie behind this variation in wording. A set formula had not yet been adopted. Whether the distinction between those remitted and those not remitted resulted from different practice or different recording is uncertain; but this development in the Commonwealth era is clearly becoming institutionalised in the Restoration period. One entry in 1662 is more specific and gives us a sense of what was happening when men were remitted for trial. Alexander Oswald had petitioned the Lords who recommended him “to the dean of facultie and his brethern whom he sould apoynt to tak tryall of his qualificatione and to report their opinion” so that he could make his lesson in the Lords’ presence. The Dean had recommended Oswald to Sir John Nisbet, Robert Sinclair, Thomas Wallace, George Mackenzie, and George Norvell or any three of them “to try his qualificatione and to mak report”. The report, subscribed by Nisbet, Sinclair and Wallace, recounted that they had “tryed the supplicant” and found him “qualified having given them abundant satisfactione and that he deserved all dew encouragement”. After the Lords had “heard the suplicant upon a text of the civill law” and considered his literature and qualifications they duly admitted him.156 The nature of the trial is not specified, but it was presumably viva voce on Civil Law. Whether it was by means of disputation or otherwise is unclear; it seems most likely, however, considering subsequent practice, that it was in the style of the later private examination. It was this procedure that provided the foundation for the Act of Sederunt of November 1664 that established the practice that ultimately developed into the type of examination that George Wallace underwent a century later. Reform was first mooted in the Faculty in July on the grounds that the “avocats way of admitting being easie and therby occasions the number to be numerous and burdensome”.157 The Act of Sederunt was based on 154 Ibid 83–4 (13 November 1662: John Wedderburn), 88 (9 December 1662: John Craigie), 93 (22 January 1663: John Ellis), 94–95 (30 January 1663: William Clerk), 100 (22 June 1663: Francis Durham). 155 For respective examples, see SRO, BS CS (n 80) 1/6/1, 48 (10 December 1661: A Seton), 49 (14 December 1661: T Murray), 55 (22 January 1662: W Cunningham), 90 (23 December 1662: J Hamilton), 130–131 (10 June 1664: W Pringle). 156 Ibid 68–69. 157 Minute Book vol i (n 30), 8 (2 July 1688).

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proposals discussed by the Dean and Faculty on 7 November 1664.158 On 12 November Sir George Lockhart, Thomas Wallace, John Cunningham and John Harper were nominated to go with the Dean to inform the Lords of the proposals and nine men were elected examinators for the ensuing year.159 Perhaps because of the authority now given by the Act of Sederunt, a slightly different set of nine men were appointed as examinators on 23 November.160 The Act of Sederunt is not recorded in the Books of Sederunt. It provided that when the aspiring advocate petitioned the Lords for admission, he would be remitted to the Dean and Faculty of Advocates for private and public examination on the Civil Law. The Dean was then to assign him a title of the Civil Law for the public lesson.161 The Act also allowed the Lords to dispense with the examination.162 On 24 November 1664 William Weir became the first candidate admitted after the Act of Sederunt came into force. He based his claim for admission on his attendance on the Session for sixteen years, as servitor first to Archibald Fleming and then to Sir John Fletcher. He craved “their lordships wold be pleased to admitt him to be ane advocate which formerlie their lordships hes been in use to doe to such who were in the petitioners condition”. The Lords remitted him to the Dean, who referred him “to ane quorum of the counsell to be examined and tried”, which found him sufficiently qualified.163 He did not read a public lesson. While this procedure may reflect an uncertainty as to how to proceed under the new Act in the case of someone who petitioned on the grounds of his long service, it is possible that Weir was admitted under the old practice.164 Within a few weeks William Hamilton was recorded as the first admitted under the new form. After his private trial conducted by the new examinators, he had his public trial – “upon the subject of minoritie” – before the Faculty on 3 December.165 He read his lesson in front of the Lords on 13 December.166 The private trial would have been developed on the model of the practice established after the Restoration when the Dean appointed mem-

158 159 160 161 162 163 164

Ibid 9. Ibid. Ibid 10. SRO, BS, CS.1/6/1, 157–158 (13 December 1664: William Hamilton). Ibid 161–162 (14 July 1665: John Preston). Ibid 155. Please note that I have not included him in the statistics for those admitted without a lesson up to November 1664. 165 Minute Book vol i, 10. This perhaps refers to D 4.4, de minoribus vigintiquinque annis. 166 SRO, BS CS (n 80) 1/6/1, 157–158.

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bers of the Faculty, perhaps on an ad hoc basis or from his council, to examine academic aspirants on the Civil Law. The main difference being that there were now examinators elected annually by the Faculty. The Faculty decided that private examinations would be held on the last Saturday of the month, although in 1676 this was changed to be at the discretion of the private examinators.167 The new public examination was based on a disputation on a title of the Civil Law, with the first Saturday of the month assigned.168 The second man admitted this way, William Murray, was examined de fideiussoribus (J Inst 3.20), and the third, William Dundas, de emptione et venditione (J Inst 3.23).169 The whole Faculty voted on whether or not the candidate passed.170 The candidate may have influenced the choice of the title of the Civil Law on which he was publicly examined.171 The Dean now had acquired the duty of assigning the topic for the lesson before the Lords. The practice was for him to assign it from the title on which the public examination had been based.172 Between the Act of Sederunt of November 1664 and that of 6 July 1688 “concerning the Tryall of Advocats, who enter upon a Bill to the Lords”, thirty-two advocates were admitted without undergoing the ordinary trials on Civil Law and 116 according to the procedure established in 1664.173 The preference for admission through trial on Civil Law is evident. It is worth noting, however, that of the thirty-two admitted without the full trial, only twelve were admitted in the fifteen years up until the end of 1679. In the eight and a half years from 1680 to the Act of Sederunt in July 1688 twenty were admitted without undergoing the ordinary trial. The figures are too small to make much of the statistics, but it does suggest that there was an increasing tendency for men to be admitted without the full trials after 1680. Members of the Faculty would certainly have noticed that four men were admitted without the ordinary trials and only two in the regular way in 1680 or that, in 1687, again four were admitted by the Lords without the regular examinations and seven following them. Suffice it to say that in 1681 the Faculty complained about this practice and “recommended to the Dean of Facultie to represent to the Lords that they wold be tender for the future to admitt any persone to be ane Advocatt but in the ordiner way”.174 167 168 169 170 171 172 173 174

Minute Book vol i (n 30), 11 (24 June 1665), 33 (1 February 1676). Ibid 11 (24 June 1665). Ibid 10 (14 and 21 January 1665). Ibid 11 (24 June 1665). See above. See the discussion above at nn 78–85. This counts William Weir, although it is possible he was admitted under the old procedure. Minute Book vol i (n 30), 55 (5 February 1681).

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In the same complaint the Faculty also wished the Dean to request that, should the Lords determine to admit an individual extraordinarily, they resume their former practice of only doing so “upon speciall cognition of ther knowledge, and after acquainting the Dean of Faculty”.175 This former practice was of course that found in the admission of William Weir. It was certainly the case that in the first few years after the Act of 1664 the Dean and Faculty were routinely asked about the admission of those who entered without undergoing the ordinary trials.176 Two men were admitted as advocates on the grounds that they were Commissaries of Edinburgh, with the Faculty recording their lack of objection in the minutes.177 Robert Dickson was admitted on the grounds of his known qualifications having attended the court for a number of years “without all the formalitie used by those who have studied the Civill lawes abroad”.178 The Lords, however, clearly maintained their final authority over admissions. Thus, the Faculty was very unhappy about the admission of John Inglis because of his doubtful financial affairs, his dealings with his business partner who died in prison after Inglis had placed him there, and his admitted misrepresentation of the Dean of Faculty.179 The Lords none the less admitted him after he had given proof of his ability by a public lesson, though he had not undergone the regular trial.180 The advocates’ complaint of 1681, however, reflects an increased willingness on the part of the Lords to admit men as advocates extraordinarily without consultation. One can speculate that this may have been related to the disputes between them and the Faculty in the 1670s.181 It may also be that study of who were admitted in this way in the context of Restoration politics might be revealing, since one can identify among them the sons of Lords Halton and Forret.182 Through the 1680s the Lords continued to admit men extraordinarily, and it appears that in only two cases was the Dean consulted. One was that of Aeneas Macpherson in 1683, the other 175 Ibid. 176 See, e.g., SRO, BS CS (n 80) 1/6/1, 161–62 (14 July 1665: J Preston), 220–221 (13 November 1666: J Wishart and J Aikenhead), 300–301 (30 November 1669: James Ross). 177 SRO, BS CS (n 80) 1/6/1, 220–221 (13 November 1666); Minute Book vol i (n 30), 14 (20 January 1666). 178 SRO, BS CS (n 80) 1/6/1, 188–189 (3 January 1666). 179 Minute Book vol i (n 30), 14–15 (12 November 1666), 16–17 (17 December 1666), and 18–19 (29 July 1667). 180 SRO, BS CS (n 80) 1/6/1, 246 (5 December 1667). 181 See J Simpson, “The Advocates as Scottish Trade Union Pioneers”, in G W S Barrow (ed), The Scottish Tradition: Essays in Honour of Ronald Gordon Cant (1974) 164–177; Minute Book vol i (n 30), xiii–iv. 182 SRO, BS CS (n 80) 1/7 fos 154r (30 July 1680: J Maitland), 161r (14 January 1681: J Balfour).

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that of David Drummond in 1684. Macpherson narrated the tradition of modes of admission, one based on study of Civil and Canon Law abroad, the other on long attendance at the house. His long explanation and the concurrence of the Dean and Lord Advocate (both offices were held by Sir George Mackenzie) probably reflect that his was only the second admission without a full trial after the advocates’ representation of 1681.183 Drummond probably sought the concurrence of Mackenzie because there seems to have been some opposition to him among some members of the Faculty after he had gone through some of the regular examinations. On this ground he sought admission via extraordinaria, as he put it.184 A variety of reasons were given for seeking extraordinary admission. A number of men based their petition on the traditional claims of a long time spent as agents for processes in or attendance on the court together with the Lords’ knowledge of their ability.185 Most interesting are those who claimed to have studied abroad, but who none the less wished to be excused the ordinary trials in the Civil Law. Alexander Higgins thus claimed that after his studies, “by ane Innevitable necessitie”, he had become involved in “Countrie affairs both of his own and of his freinds and relations” whereby “his studies were for some tyme interrupted soe that he scruples to subject himself to the ordinar tryall and examination”.186 After his study at home and abroad, David Douglas had been “diverted from the assiduous prosecuting his studies by being imployed in the militarie service of the King”.187 David Home had for three years studied “the Civill Law at Poitiers and other places in company of the Lord Reidford, Sir Patrick Home and Sir John Lauder who could give testimony of his diligence and proficiency in that study”. He did not consider his studies adequate, however, for him to undergo the ordinary trial.188 The last man to be admitted extraordinarily before the Act of Sederunt of 1688 was William Lockhart. He also claimed to have studied Civil Law abroad, but wished to be admitted without trial, because he had had to pursue other business since coming home.189 George Morison and 183 SRO, BS CS (n 80) 1/8 fo 41v (2 March 1683). The first was that of John Lindsay on 6 July 1681. His petition may well have been presented to the Lords before the complaint: SRO, BS CS (n 80) 1/7 fos 168v–169r. 184 SRO, BS CS (n 80) 1/8 fo 71. 185 Ibid fos 44 (30 March 1683: W Gordon), 47r (6 November 1683: A Higgins), 101v (23 February 1686: J Richardson), 105r (20 March 1686: A Crawford). 186 SRO, BS CS (n 80) 1/8 fo 47r (6 November 1683): he also claimed long attendance at the House. 187 Ibid fo 86 (27 March 1685). 188 Ibid fo 124r (3 June 1687). 189 Ibid fo 148v (28 February 1688).

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John Baird also claimed to have studied law abroad. The first claimed he had intended to undergo the usual trial, but sickness had prevented him.190 The second claimed exemption because the death of his brother and his appointment as tutor to his brother’s children prevented him from attending at the normal times for trial. He now had to go north, so that he had not time to wait for the ordinary diets of examination.191 Indeed the inevitable delay in admission caused by the approach of the end of the Session appears as a factor in a number of petitions for extraordinary admission.192 To the modern eye it seems very odd for a candidate to claim exemption from examinations because his studies had been so inadequate or so long ago that he would be likely to fail. James Scougall, the Commissary of Aberdeen, also put forward a similar ground of exemption. He recounted that he had devoted himself to the study of the municipal law and had also studied the Civil Law, “albeit he may not have used that Close application to that study” that was usual for those admitted in the ordinary way.193 This was despite the fact he had been Professor of Civil Law in King’s College, Aberdeen from 1684 to 1687 and is recorded as lecturing on the topic.194 This does underline, however, what has been pointed out above, that the examinations were not in principle designed to test acquisition of knowledge adequate for practice. Moreover, that these petitioners stressed that they had studied law abroad demonstrates the prestige that attached to such study of the Civil Law in a foreign university. The Faculty’s actions in 1688 probably gained their impetus from the extraordinary admission of so many men in the past few years. The advocates were also concerned about the quality of some of the men the Lords admitted. The objections to the admission of Inglis have been noted. In the matter of admissions the advocates seem to have considered the Lords insufficiently “tender of the Facultie’s reputation, by which most of themselves have risen”.195 The Faculty was also simply concerned about the numbers admitted generally. Alongside the four extraordinary admissions 190 191 192 193 194

Ibid fo 61r (26 March 1684). Ibid fos 86v–87r (28 March 1685). Ibid fos 61r (26 March 1684: G Morison), 71 (16 December 1684: D Drummond). Ibid fo 125v (15 June 1687). AUL, King’s College Minutes 1684–1689, MS K 38, 1–2 (24 October 1684), 19 (1 June 1687). In 1684 and 1685 Scougall is recorded as having begun his lessons on the Civil Law: AUL, MS K 38, 6 (19 November 1684) and 14 (9 December 1685). See J W Cairns, “Lawyers, law professors, and localities: the universities of Aberdeen, 1680–1750” (1995) 46 Northern Ireland Legal Quarterly 304 (henceforth Cairns, “Lawyers, law professors, and localities”) at 309. 195 Fountainhall, Historical Notices (n 14) vol ii, 681. The context of this remark was the readmission of Alexander Munro in 1685.

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in 1687 were seven ordinary. There were five ordinary admissions by the end of June in 1688. The Faculty was anxious about so many men competing for work. There was also a particular problem in collecting entry dues from those admitted extraordinarily upon a bill. In 1678 the Faculty had passed an Act setting entry dues of 500 merks for those admitted ordinarily and 1,000 merks for those admitted extraordinarily by the Lords who “did not undergoe the three ordinarie poynts of tryall”.196 The Faculty could easily demand it from those who entered by examination by requiring payment before certain of the examinations. There was no such leverage over those who entered by bill. Moreover, on 7 February 1679 the Lords declined to enforce this Act, even for those admitted ordinarily.197 On 15 November 1683 the Faculty unsuccessfully approached the Lords with a request that the Act of 1678 should be enforced in an Act of Sederunt.198 According to Fountainhall one reason for the opposition was that the Lord Chancellor, the Earl of Aberdeen, wished to admit his nephew Morison of Pitfour.199 In 1684, however, the Lords issued an Act of Sederunt endorsing the entry dues.200 This was further ratified in 1687, although the Lord President opposed it, wanting the entry money of those who entered by bill to be at the charitable disposal of the Lords, describing those who entered by bill as the Lords’ “Advocats in a more speciall manner”.201 The progressive instability of James VII’s government provided the Faculty with its opportunity. On 5 June 1688 it was resolved to solicit the Lords “anent the way of entring per bill, and the number of intrants for the future”.202 By 30 June the Faculty had decided on its approach.203 On 6 July the Lords issued an Act of Sederunt that ratified and approved ordinary admission of advocates “by private and publick examination, and assigneing them the subject of a publick lesson”. It next provided that those who applied to the Lords to be admitted without undergoing the ordinary trial would be “examined by the Lords in praesentia, concerneing their knowledge of the styles, the forme of process, and of the principles of our

196 197 198 199 200 201 202 203

Minute Book vol i (n 30), 37 (1 January 1678). Acts of Sederunt (n 24) 141–142 (7 February 1679). Fountainhall, Historical Notices (n 14) vol ii, 461. Ibid. Morison was admitted extraordinarily on 26 March 1684: SRO, BS CS (n 80) 1/8 fo 61r. Acts of Sederunt (n 24) 158–159. Fountainhall, Historical Notices (n 14) vol ii, 799 (16 June 1687). Minute Book vol i (n 30), 85 (5 June 1688). Ibid 85.

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law, and that the Lords shall be well informed of their integrity and honest deportment, before they be admitted”.204 Over the next four years until the Act of Sederunt of June 1692 seven men were admitted extraordinarily and twenty-four after undergoing the usual trial in Civil Law. The first of the seven was Matthew McKell.205 Fountainhall is rather dismissive of his examination: “the President asked a few slight questions in presence of the rest of the Lords, bot did not suffer any others to examine him”.206 In 1690 David Fearne petitioned for admission “without necessity of any tryall”, on the ground that he had served the Lord President (Stair) and after 1681 had applied himself to study of the law and “practick” of the kingdom. He was admitted without being questioned.207 This obviously was an exceptional favour for a crony of Lord Stair, as the remaining five were all duly questioned in terms of the Act of 1688. One noted that he had studied Civil Law and municipal law at home and abroad but afterwards been diverted from his studies.208 Another noted that, after attending on the Session, he had decided to study English law. He had enrolled in Lincoln’s Inn, where he had spent seven years and was ready to be called as an utter barrister before he had decided to return to Scotland.209 The Faculty remained suspicious of extraordinary admission on a bill. An Act of Sederunt of 21 November 1691 had forbidden the admission on a bill of those who were related to Ordinary or Extraordinary Lords of Session in the degree of cousin german or closer, whether by affinity or consanguinity. This was stated to be to avoid solicitation of favours and “misconstruction and clamour”.210 This was an evident reaction to admissions in the 1680s such as those of the sons of Lords Forret and Halton and of the nephew of the Chancellor. The admission of a crony of the unpopular Stair family may also have been influential. The Faculty finally succeeded in gaining control over admission on a bill in 1692, when the Lords issued an Act of Sederunt concerning “the Examination of Advocates upon the Law and Practique of this Kingdom”. This narrated that the Lords had “been importuned of late by frequent applications of persons craving to be admitted advocats, without undergoing 204 205 206 207 208 209

Acts of Sederunt (n 24) 181. SRO, BS CS (n 80) 1/8 fo 155v (25 July 1688). Fountainhall, Historical Notices (n 14) vol ii, 871. SRO, BS CS (n 80) 1/9 fo 20 (3 June 1690). Ibid fo 42v (31 July 1691: J Mowat). Ibid fo 44v (4 November 1681: A Rule). For the other admissions, see ibid fos 47r (21 November 1691: A Cuming), 59v (16 June 1692: R Park), 61r (23 June 1692: M Kerr). 210 Acts of Sederunt (n 24) 195 (24 November 1691).

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the ordinar tryall, both in our law and the civill law, observed these many years bygone, and approven by acts of sederunt”.211 It was recognised that “it were not reasonable to exclude persons, who have sufficient skill in the municipall law of the kingdom, because they have not studied the Roman civill law”. The Lords declared: That in time coming they will not dispense with the ordinary way of tryall of advocates, unless first they be well informed of the person’s integrity, good-breeding, honest deportment and fitness for exerceing the office of ane advocate; and that he has attended the House a considerable time for qualifieing himself in order thereto, and thereupon they will remitt him to the Dean and Faculty of Advocates to be tryed concerning his knowledge of the practique of our law, the styles and form of process; and that a report be returned thereof under the hand of the Dean of Faculty, with a certificate of his consignation of the dues, accustomed to be paid at the entry of such advocates, before he be admitted.

The provision forbidding the admission in this way of those who were cousins by affinity or consanguinity was repeated so that “importunity may not prevail, upon pretence of relation to the Lords”.212 The Faculty decided that those admitted under this Act of Sederunt would undergo a public examination (“with open doors”).213 This provision not only made it easier for the Faculty to collect the double entry money, but also made admission on a bill an even less desirable option. From the date of its promulgation until the end of 1696, while there were thirty-four ordinary admissions, there were only two extraordinary ones.214 In 1696 the Faculty also altered the provisions for examination for those who entered by trial on Scots law: from now on they would undergo both a private and public examination. For the private examination the examinators would divide the whole of the Scots law between them, as was the practice with the Civil Law, and for the public trial a title would be assigned for a disputation, as in that in Civil Law, but no theses were to be printed. So that the “private tryall may be performed more solemnly and exactly” two more examinators were to be appointed.215 Before the Faculty issued this Act, James Scott, Sheriff Clerk of Edinburgh, had petitioned to be admitted by trial on Scots law.216 The reform also provided that candidates, whether in Scots law or in 211 This is a reference to the ordinary trial on Civil Law and the trial on Scots law under the Act of Sederunt of 1688. 212 Acts of Sederunt (n 24) 200 (25 June 1692). 213 Minute Book vol i (n 30), 117 (8 July 1692). 214 SRO, BS CS (n 80) 1/9 fos 64v–65r (26 July 1692: W Black), 95r (24 July 1694: John Belsches). 215 Minute Book vol i (n 30), 164–165 (15 January 1696). 216 Ibid 164 (15 January 1696).

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Civil Law, should be examined according to the priority of their remits from the Lords.217 This issue of priority had been causing anxiety, as precedence at the Bar would depend on date of admission.218 Scott stated he was willing to undergo the new mode of examination in Scots law, but that he wished to be exempted from the new rule on priority of remits.219 Scott, however, did not pursue admission by trial on Scots law, and is later admitted by trial on Civil Law. His public examination on D 48.5 took place on 21 November 1696; he read his speech before the Lords on 26 November 1696.220 The Faculty had succeeded in making admission on a bill by trial on Scots law completely unattractive as an option. From January 1697 to July 1706 101 men were admitted as advocates. All underwent private and public examination in Civil Law by the Faculty before reading a lesson on Civil Law on the title assigned by the Dean. The provisions for admission by trial on Scots law had already become so much dead letter. As required by the Act of 1696, the Faculty appointed the two extra examinators for Scots law in 1696, 1697, 1698 and 1699.221 It is telling that in the last of these years the Faculty had forgotten to do so at the Anniversary Meeting. Such extra examinators are never heard of again as the provisions for trial in Scots law fell into disuse. Dr Shaw’s study of the lawyers in Scotland between 1707 and 1750 revealed that 260 advocates were admitted between those dates. Of these, 225 were admitted by examination on Civil Law according to the Books of Sederunt. The records relating to the remaining thirty-five omit details of their admission.222 There can be no doubt but that they also were admitted by trial on Civil Law and that admission by trial on Scots law had become completely obsolete.223 After 1750, all advocates were admitted following the procedures described for George Wallace. Admission to the Faculty was now on an entirely academic model, as the requirement that those admitted on the basis of claims to academic learning should also have attended the Court for some time to acquire knowledge of the practick had been long forgotten. All that was required was to pass the private and public examinations in Civil Law and deliver the “cramp speech”, symbolically donning a hat, before the Lords. 217 218 219 220 221

Ibid. See the mention of the petition of the candidates of the Civil Law: ibid 162 (7 January 1696). Ibid 165–166 (8 February 1696). Ibid 171; SRO, BS CS (n 80) 1/9 fo 133v. Minute Book vol i (n 30), 165 (15 January 1696), 173–174 (5 January 1697), 180–181 (4 January 1698), 196 (14 January 1699). 222 Shaw, Management of Scottish Society (n 56) 27. 223 See AUL, MS M 387/8/2, note of the argument of counsel in Catanach v Gordon). See on the background to this paper Cairns, “Lawyers, law professors, and localities” (n 194) at 321–323.

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D. THE LECTIO AND ADVOCATES’ HATS The delivery of a lesson before the Lords of Session was thus an ancient and traditional part of admission as an advocate in Scotland. It was also a deliberately academic exercise. When in the Restoration period the Faculty of Advocates modelled the trials in Civil Law for admission as an advocate on those for a doctorate or licentiate in law they were following a lead already given by the Lords of Session from the later sixteenth century. We can see that Alan Fairford’s “cramp speech” was a descendant of the traditional formal lectio giving specimen doctrine that went back to the award of a degree in the mediaeval and early modern law schools. There a rigorous “private” examination was generally followed by a more ceremonial “public” examination for promotion to a degree. The latter generally involved public disputation or some form of oration.224 The late Dr Dunlop has described a typical procedure at an inceptio or inauguratio: “the licentiate (or magistrand) ascended the master’s chair, was capped with a birettum, and presented with a ring and an open book to signify that he was wedded to the task of opening up the secrets of the written word.”225 A similar sort of ceremony was evidently adapted in the sixteenth century for the admission of some at least of the advocates. The intrant advocate delivered a lectio, a recitatio inauguralis as John Mackenzie called it226 (later from the symbolic position of the corner of the Bench), demonstrating his learning, while wearing a hat. We can thus understand the wearing of the hat by the intrant advocate. It was a descendant of the traditional Doctor’s cap worn by the graduate in law. The admission of Alexander Seton as an advocate in 1577 is particularly informative in this respect: He made his publick lesson of the law before King James the 6th, the Senators of the College of Justice, and Advocates present in the chapel Royall of Holyroodhouse, in his lawer goun, and foure nooked cape, (as lawers use to pass their tryalls in the universities abroad), to the great applause of the King and all present, after which he was receaved by the Colledge of Justice as ane lawer.227

His “foure nooked cape” is of course the “four cornered cap” of the Doctor of Laws. Pascal refers in his Pensées to “learned doctors [of laws]” wearing 224 See J Verger, “Teachers”, in H de Ridder-Symoens (ed), A History of the University in Europe. Volume 1: Universities in the Middle Ages (1992) (henceforth de Ridder-Symoens, Universities in the Middle Ages) 144 at 145–146. 225 Acta Facultatis Artium Universitatis Sanctiandree 1413–1588, 2 vols (1964) vol i, cxvii–viii. 226 NLS, MS 1101 fo lr. 227 Found quoted in Brunton and Haig, Senators of the College of Justice (n 19) 198–199, note; and in Hannay, College of Justice (n 30) at 142–143.

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“square caps [bonnets carrés] and robes four times too large”.228 There is no need to seek a specific source for the origin of the advocates’ practice of wearing a cap as a mark of academic distinction, although Seton may have been wearing a version of the bonnet carré worn by contemporary French avocats and graduates in law.229 Some type of cap or hat had become a traditional mark of the doctorate (and other degrees) from the Middle Ages, the exact form varying from place to place and time to time.230 It is possible, however, to raise a further issue. This procedure suggests that the members of the College of Justice may initially have considered themselves as members of a corporate body that was in some way analogous to the Colleges of Doctors of Civil Law and Canon Law found in some Italian cities and universities. Such Colleges not only had managed to monopolise control of the award of degrees, but also were solicited for advice and opinions.231 Here the Senators would have been analogous to the Doctors of the College controlling admission to the degree of Doctor. The trials for the admission of a Senator throw further light on this.232 These developed as essentially tests of capacity to act as a judge on the Session. Thus, from 1674, the trial required the probationer Lord to sit three days in the Outer House with the Ordinary and to report in the presence of the Lords in the Inner House. He was then to sit for one day in the Inner House and was to give the first opinion on any concluded dispute. He in fact delivered this opinion wearing his hat, perhaps as a symbol of his learning, but most likely because the Senators had originally sat covered, the two possibilities being in any case perfectly compatible.233 This procedure was in line with a practice dating 228 B Pascal, Pensées, trans by A J Krailsheimer, rev edn (1995) (henceforth Pascal, Pensées) 10–11, II.44. I owe this reference to the kindness of Professor J W G Blackie. 229 See Hargreaves-Mawdesley, Legal Dress in Europe (n 20) 37; and A History of Academical Dress in Europe until the End of the Eighteenth Century (1963) 46–47. There are further relevant remarks on the hats worn by lawyers in Italy and France in E C Clark, “College caps and doctors’ hats” (1904) 61 Archaeological Journal 33 at 37–47 and 49–52. 230 See A Gieysztor, “Management and Resources”, in de Ridder-Symoens, Universities in the Middle Ages (n 224) 108 at 140. 231 See Weimar, “Zur Doktorwürde” (n 90) at 439–443; A García y García, “The Faculties of Law”, in de Ridder-Symoens, Universities in the Middle Age (n 224) 388 at 399–400. Cf Hannay, College of Justice (n 30) at 49–50; P Stein, “The College of Judges of Pavia” (1952) 64 Juridical Review 204. 232 See generally Hannay, College of Justice (n 30) at 99–100, 116–117, 122–123, and 127–128. The discussion in the text draws on Hannay, but he tends to represent matters as a struggle between the Crown and the judges for control over appointments. His account is of the Senators trying ever to ensure the appointment of suitable candidates to the Bench, while the Crown is motivated by other factors. This is unconvincing. 233 SRO, BS CS (n 80) 1/6/1, 448–449, 468 (10 June and 31 July 1674). The description of the trials of Lord Boyle in 1811 explains the procedure: “On Thursday came into the second division of

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back to the sixteenth century.234 What is interesting, however, is a procedure devised by the Lords at the time when it had become routine for academic aspirants to the office of advocate to give a lesson on the Civil Law. In May 1605 James VI required the Lords to devise a mode of trial for candidates for appointment to the Session. Under the regulations drawn up by the Senators, candidates were to be able to give an exact account of and a reasoned opinion on a contraverted action. Notably, however, the probationary Lords were also to give a discourse in Latin on a text of the Civil or Canon Law.235 Thus, had this regulation been given effect, candidates for a place on the Session – who would have included men who were neither advocates nor Clerks of Session – would have had to demonstrate academic learning in the same fashion as the academic aspirants to the office of advocate. Senators and advocates would together have formed an academically learned corporation skilled in the Civil and Canon Laws – an universitas legum doctorum.236 Towards this end, it is worth noting that in 1619 the Lords issued an Act of Sederunt requiring an advocate at his admission to donate a book from “the works of any one of the doctors of Lawes”. Had this taken effect, the College would also have acquired a learned Civilian and Canonist library in advance of the later foundation of the Advocates Library.237 One account of this Act of Sederunt also links it with a project to create a chair in Law, further emphasising a collegiate educational concern.238 While one would not wish to stretch too far this comparison with the Italian Colleges of Doctors, it does suggest a new line of evidence to consider in assessing the nature and self-perception of the College of Justice as it developed in the later sixteenth century. It would also have a bearing on the course of the reception of the learned laws in Scotland.

234 235 236

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the Court, David Boyle Esq. and reported an ordinary action, at the foot of the clerks table. The Court then heard counsel upon another case, after which the Lord Probationer delivered his opinion upon the case, from the foot of the table, with his hat on, according to ancient custom . . .”: Edinburgh Evening Courant, 2 March 1811. See, e.g., the description of the trials of Thomas Hamilton for admission as an Ordinary Lord in 1592: Fraser, Earls of Haddington (n 115) vol ii, 280–281. Hannay, College of Justice (n 30) at 121–123; SRO, BS, CS.1/4/2 fo 347k (31 May 1605); NLS, Adv MS 25.2.5 vol 1, fos 210–212r; Bisset, Rolment of Courtis (n 115) vol i, 109–114. It is worth noting that the Act of Union limited eligibility for appointment as a Senator to those admitted as advocates for five years or who had served as Principal Clerks of Session for five years and Writers to the Signet of ten years’ standing. It had a proviso that before a Writer to the Signet could be admitted as a Lord of Session he had to “undergo a private and publick Tryal on the Civil Law before the Faculty of Advocats and be found by them qualified for the said Office two years before he be named to be a Lord of the Session”: see APS vol xi, 411. This provision will be further discussed in my forthcoming article “Alfenus Varus and the Faculty of Advocates”. NLS, Adv MS 25.2.5 vol i, fo 220r (12 February 1619). Fraser, Earls of Haddington (n 115) vol i, 76.

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Appreciating the meaning of the advocates’ hats as a symbolic demonstration of learning to the level of the doctorate in law further serves to emphasise the link between the profession of advocate in Scotland and other countries of Europe. When Senators and those admitted to plead before them sought for an understanding of the office of advocate they found it in the advocates of the countries of the ius commune, where possession of a degree in law was the typical qualification for admission. The wearing of a hat there also served as a symbol of the advocate’s learning. A hat was a marked feature of the dress of a French avocat. Pascal accordingly remarked that “[w]e have only to see a lawyer in cap [bonnet] and gown to form a favourable opinion of his competence”.239 An elaborate ritual surrounded the use of this hat. Lenard Berlanstein has described it for the avocats pleading before the Parlement of Toulouse. A paraphrase of his account is instructive. An avocat wore a black cloth robe and a square hat and hood. When he went to the Bar to plead his head was bare. After several invitations from the Bench, he would put on his hat and begin his argument. When he read out a document, he would remove his hat – this was “mechanical” work that an attorney could perform; but when citing a law or ordinance he remained covered “for he alone was master of the law”.240 There was a similar ritual of waiting to be asked to put on his hat for the advocate in Holland. The rules of procedure in the Court of Holland stated that “Advocates . . . while pleading will stand up and respectfully uncover their heads until the president of the court allows them to wear their hats”.241 Richard Kagan has noted for the abogados of Castile that they alone “had the right to speak cubierto – with their caps on – when speaking to the magistrate; all other court officials, including the attorneys, had to appear bare-headed”.242 Of course, wearing the hat in this way demonstrated status; but it was a status deriving from learning in the law. In similar vein, we may note that in 1748 the Faculty resolved that “for the future at all Examinations of Intrant Advocates they would sit in their gowns and with their hats on”. The symbolism of the hat as the mark of learning and hence capacity to examine was thus reinforced.243 After success 239 Pascal, Pensées (n 228) 11, II.44. 240 L R Berlanstein, The Barristers of Toulouse in the Eighteenth Century (1740–1793) (1975) 7–8. 241 Found quoted and translated in M A Becker-Moelands, “An Introduction to Iconographical Studies of Legal History. II. The Netherlands”, in Gordon and Fergus, Legal History in the Making (n 7) 88 at 90 (I have amended her term “barristers” to “advocates”). 242 R L Kagan, Lawsuits and Litigants in Castile 1500–1700 (1981) 61. 243 Minute Book vol ii (n 33), 221 (25 June 1748). What inspired the Faculty to decide this in 1748 is not revealed. It is a tempting speculation that it was in reaction to the result in the case of Catanach v Gordon. This was a dispute over who had been properly elected Professor of

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in the private and public lessons before the Faculty, the Dean would assign the text for the public lesson before the Lords in which the intrant now himself symbolically and ceremonially assumed a cap as the outward sign that he himself was doctus and fit to plead in a learned and liberal profession. When in 1812 the Lords of Session dispensed with the public lesson they necessarily abolished the symbolic wearing of a hat by the intrant. This physical sign of the link of the Scottish profession of advocate with that of the countries of continental Europe thus vanished as the Scottish Bar started to refashion itself and be refashioned more on the model of that of England. At the same time, the learning in Roman law that the hat symbolised became less appreciated.244 A new era was beginning.

Civil Law in King’s College. The statutes of King’s College required the professor either to be a Doctor of Laws or a licentiate cum rigore examinis who would be created a Doctor within a year. Catanach was a lawyer in Aberdeen who was promoted LLD by Marischal College shortly before his election as Civilist in King’s College. Gordon was a member of the Faculty of Advocates. Gordon claimed to be better qualified as his admission as an advocate was cum rigore examinis and Catanach’s degree was a sham. Catanach argued that the qualification necessary was the degree of LLD, and this he possessed. The Court of Session found in favour of Gordon in 1744 but was reversed by the House of Lords the next year. See, e.g., Catanach v Gordon Mor Dict 12,253 and 1 Paton’s Appeals 401. See Cairns, “Lawyers, law professors, and localities” (n 194) at 321–323. 244 See Cairns, “Formation of the Scottish Legal Mind” (n 3) at 273, 275–276.

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13 Alfenus Varus and the Faculty of Advocates: Roman Visions and the Manners that were Fit for Admission to the Bar in the Eighteenth Century* [P]ublick Good . . . is the Task of Kings and Princes; whereas private Interest is the Design of Churls and Coblers. Sir George Mackenzie, Moral Gallantry1

A. INTRODUCTION Recent scholarship on the Scottish Enlightenment has tended to view it as a cultural phenomenon that transformed an essentially Humanist focus on

* The author has benefited from the comments on earlier versions of Judge D Edward, Mr  D  Jardine, Professor H L MacQueen, Professor R K Osgood, Dr N T Phillipson and Mr W D H Sellar. He is indebted to Dr M Ahsmann for her guidance on the literature of the Low Countries. He is grateful in particular to Mr A Stewart, QC, Keeper of the Advocates Library, for permission to consult and use the unpublished private records of the Faculty of Advocates (FR) and their manuscripts (Adv MSS) held in the National Library of Scotland, and to the Trustees of the National Library of Scotland, the Keeper of the Records of Scotland, the Librarian of Aberdeen University Library, the Librarian of Edinburgh University Library, and the Archivist of Glasgow University for similar permission regarding MSS and records in their care. Versions of this paper have been presented at seminars in Edinburgh, Dallas, Miami, Philadelphia, Champaign-Urbana, and Athens, Ga and, under the title “Shoemakers, Beasts, and Jurists: Roman Visions in Enlightenment Scotland”, to the 49th Conference of the Société Internationale pour l’histoire des droits de īantiquité, Louisiana, September 1995; much benefit was derived from the discussion on all these occasions. 1 G Mackenzie, Moral Gallantry: A Discourse Wherein the Author endeavours to prove, That Point of Honour, (abstracting from all other Ties) obliges Men to be Virtuous etc., in The Works of that Eminent and Learned Lawyer, Sir George Mackenzie of Rosehaugh, Advocate to King Charles II and King James VII. With Many learned Treatises of His, never before printed (1716–1722) (henceforth Mackenzie, Works) vol i, 99 at 117.

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civic virtue into an Addisonian concern with politeness and manners in a modern, commercial society.2 This view is unsatisfactory as a total explanation: it privileges moral philosophy, interpreted almost exclusively as practical moralising, and certain aspects of politics over other academic disciplines and issues.3 Nonetheless, its focus on the transformation of the language of the civic tradition in eighteenth-century Scotland has proved fruitful and interesting. It was inevitable that this type of thought should have been used to analyse the lawyers of Scotland, many of whom were prominent in the Enlightenment. Dr Phillipson has accordingly claimed that the Faculty of Advocates (the corporate form of the Scottish Bar) made a bid for the civic leadership of Scotland in the mid-eighteenth century; this is an important refinement of an earlier view that, after 1707, the lawyers came to be seen as “the custodians of Scotland’s virtù, the only remaining guardians of those national liberties which were daily threatened by the tightening bonds of the union with England”.4 Phillipson’s argument is interesting, but concedes too much to the overly strong claims formerly made for the Faculty of Advocates as a successor polity to the Scottish Parliament after the Union, found in works such as J G Lockhart’s Peter’s Letters to his Kinsfolk, first published in 1819.5 Phillipson could also be interpreted as suggesting that the members of the Faculty were collectively engaged in politics on a grand scale, which they clearly were not. The significance of Phillipson’s study lies in his stress on three important facts about the Faculty in the eighteenth century. First, the Faculty were indeed concerned about law reform, and many members of the Faculty 2 See, e.g., N T Phillipson, “Adam Smith as Civic Moralist”, in I Hont and M Ignatieff (eds), Wealth and Virtue: The Shaping of Political Economy in the Scottish Enlightenment (1983) (henceforth Hont and Ignatieff, Wealth and Virtue) 179; N T Phillipson, “Propriety, Property and Prudence: David Hume and the Defence of the Revolution”, in N Phillipson and Q Skinner (eds), Political Discourse in Early Modern Britain (1993) 302; R B Sher, “Professors of Virtue: The Social History of the Edinburgh Moral Philosophy Chair in the Eighteenth Century”, in M A Stewart (ed), Studies in the Philosophy of the Scottish Enlightenment, Oxford Studies in the History of Philosophy vol 1 (1990) (henceforth Stewart, Philosophy of the Scottish Enlightenment) 87. 3 See P B Wood, “Science and the Pursuit of Virtue in the Aberdeen Enlightenment”, in Stewart, Philosophy of the Scottish Enlightenment (n 2) 127 at 128–130. 4 N T Phillipson, “Lawyers, landowners, and the civic leadership of post-Union Scotland: an essay on the social role of the Faculty of Advocates 1661–1830 in 18th century Scottish society” (1976) 21 Juridical Review 97 (henceforth Phillipson, “Lawyers, landowners, and civic leadership”) at 97. 5 J G Lockhart, Peter’s Letters to his Kinsfolk, ed W Ruddick (1977) 6567 (letter 28). See further, A Murdoch, “The Advocates, the Law and the Nation in Early Modern Scotland”, in W Prest (ed), Lawyers in Early Modern Europe and America (1981) 147 at 156–159.

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were individually “preoccupied with the role of men of rank and property in regenerating a backward nation”.6 Secondly, the Faculty was profoundly affected by changes in the social background of its members. Thirdly, the members of the Faculty did see themselves as having a “public” role, in so far as the office of advocate was considered a public office, to which the advocate was admitted by the supreme Scottish civil court, the Court of Session. Admission made the advocate a member of the College of Justice, which included, as well as the advocates, the Lords of Council and Session (the judges of the Court of Session) as Senators of the College of Justice and the members of the Society of Writers to the Signet, who had certain privileges arising out of the use of the Signet, a royal seal, and who acted as general law agents.7 These three issues provided the context within which the language of the reformulated civic tradition was deployed by and about the advocates in this period. It is undoubtedly the case that the Faculty enjoyed a near-unrivalled prestige among the Scottish institutions that survived the Union with England in 1707. The profession of advocate in Scotland can be traced back to the later Middle Ages, taking its origins and nature from the academically trained advocate of the ecclesiastical courts.8 The particular foundations for its prestige in the eighteenth century, however, had been laid in the century before, especially during the Restoration period, when the Faculty largely gained independence from the Lords of Session and, for the first time, achieved a considerable measure of control over who was admitted to

6 N T Phillipson, “The Social Structure of the Faculty of Advocates in Scotland, 1660– 1840”, in A Harding (ed), Law-Making and Law-Makers in British History: Papers Presented to the Edinburgh Legal History Conference, 1977, Royal Historical Society Studies in History Series no 22 (1980) 146 (henceforth Phillipson, “Social Structure of the Faculty of Advocates”) at 155. 7 See generally R K Hannay, The College of Justice: Essays on the Institution and Development of the Court of Session (1933); repr in H L MacQueen (ed), The College of Justice: Essays by R K Hannay, Stair Society Supplementary vol 1 (1990) (henceforth Hannay, College of Justice). 8 On the general history of the Faculty of Advocates, see J W Cairns, “A History of the Faculty of Advocates to 1900”, in The Laws of Scotland: Stair Memorial Encyclopaedia vol 13 (1992) 499; J W Cairns, “Historical Introduction”, in K G C Reid and R Zimmermann (eds), A History of Private Law in Scotland: Volume 1: Introduction and Property (2000) 14 at 30–31, 46, 68–71, 86–91, 124–130, 155–159, 181–182. J A Brundage, “The medieval advocate’s profession” (1988) 6 Law and History Review 439 gives a useful background to the thinking that underlay the development of the legal profession in Scotland, although his remarks on Scotland (at 448) would now need some qualification, especially in the light of J Finlay, Men of Law in PreReformation Scotland, Scottish Historical Review Monograph no 9 (2000), now fundamental in the history of the legal profession in Scotland.

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practice as an advocate before the Court of Session.9 Although admission was still granted by the Court itself, regulations had been put in place whereby the Faculty could examine every intrant. At the same time, the Faculty started to create a magnificent library and became artistic and literary patrons and significant charitable donors.10 It is also in the Restoration period that we find a profound change in the social composition of the Faculty that is closely related to these other developments. The late Dr Rae has demonstrated beyond doubt that, in place of the sons of professional and burgess families, in this period those of landed families came to dominate the Faculty.11 Phillipson has explained this “intrusion of a high status elite into the legal system” as the consequence of a boom in litigation, whereby elite families saw a distinct advantage in having sons at the Bar and on the Bench looking after their interests, while Dr Shaw has argued for the early eighteenth century that “[t]he social bias within the Faculty of Advocates in favour of the substantial middle landed classes” resulted from “their need to find good paying careers; poor opportunities in other Scottish professions compared with the special benefits of being an advocate; discrimination . . . in the Faculty against the lesser landed classes; and more desirable alternatives outside Scotland for the top landowners”.12 I do not propose to discuss these explanations for this development; I shall only add, however, that, before we can achieve an understanding of the change in the social structure of the Bar in Scotland, we shall need to pay more attention to the fact that similar changes can be found in 9 J W Cairns, “The Formation of the Scottish Legal Mind in the Eighteenth Century: Themes of Humanism and Enlightenment in the Admission of Advocates”, in N MacCormick and P Birks (eds), The Legal Mind: Essays for Tony Honoré (1986) 253 (henceforth Cairns, “Formation of the Scottish Legal Mind”) at 255–257; J M Simpson, “The Advocates as Scottish Trade Union Pioneers”, in G W S Barrow, The Scottish Tradition: Essays in Honour of Ronald Gordon Cant (1974) 164; Hannay, College of Justice (n 7) 135. 10 See T I Rae, “The Origins of the Advocates Library”, in P Cadell and A Matheson (eds), For the Encouragement of Learning: Scotland’s National Library, 1689–1989 (1989) 1 (henceforth Rae, “Origins of the Advocates Library”); B Hillyard, “The Formation of the Library, 1682–1728”, in the same volume at 23–66; J W Cairns, “Sir George Mackenzie, the Faculty of Advocates, and the Advocates Library”, in G Mackenzie, Oratio inauguralis in aperienda jurisconsultorum bibliotheca, ed J W Cairns and A M Cain (1989) 18 (henceforth Cairns, “Sir George Mackenzie”). On the Faculty’s charity, see J M Pinkerton (ed), The Minute Book of the Faculty of Advocates. Volume 1, 1661–1712, Stair Society vol 29 (1976) (henceforth Advocates’ Minutes. Volume 1) xix–xx. 11 Rae, “Origins of the Advocates Library” (n 10) at 3–5. 12 Phillipson, “Social Structure of the Faculty of Advocates (n 6) at 153–155; Phillipson, “Lawyers, landowners, and civic leadership” (n 4) at 101–107: J S Shaw, The Management of Scottish Society 1707–1764: Power, Nobles, Lawyers, Edinburgh Agents and English Influences (1983) 36 (henceforth Shaw, Management of Scottish Society).

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other European countries at this period.13 The Bar was a socially exclusive institution in most countries, even though it was in theory an open one. For example, in 1772, law students at the University of Besançon refused to attend classes because the son of a master wigmaker had been admitted to study.14 In discussing the advocates of Toulouse in the eighteenth century, Lenard Berlanstein explained: “The dread of being snubbed by their better-born colleagues discouraged young men of the lower strata from entering the bar.” Although the profession of advocate was a “liberal” one, in France, “it was accessible, in practice, chiefly to a narrow stratum of propertied, cultivated families, noble and common alike”.15 Academic studies in Roman law helped develop and reinforce the social exclusiveness of the Scots Bar and its claims for rank. Not only did Roman law and the Civilian tradition of the ius commune provide the advocates with legal arguments that allowed them to assert a high social status, the history of Roman law gave them the Roman jurist and the Roman orator as models for their profession.16 Drawing on the prestige of the classical past, the advocates thus found a means of representing themselves and understanding and interpreting their role. Others had a similar perception of the significance of Roman law for the Scots Bar. Thus, in 1703, James Gatherer described the Faculty of Advocates as an “Honourable Society, which needs not yield to any other in Learning, more especially in knowledge of the Civil Law”. He flattered the Faculty that it “consists very much of Gentlemen of the greatest

13 P Lucas, “A collective biography of students and barristers of Lincoln’s Inn, 1680–1804: a study in the ‘aristocratic resurgence’ of the eighteenth century” (1974) 46 Journal of Modern  History 227 (henceforth Lucas, “Collective biography”); D Bohanan, “The education of nobles in seventeenth-century Aix-en-Provence”(1987) 20 Journal of Social History 757. The importance of the constitution of lawyers as a field of historical research in Europe is properly emphasised in F Ranieri, “From status to profession: the professionalisation of lawyers as a research field in modern European legal history” (1989) 10 JLH 180–190, which also contains useful remarks on the changing nature of the legal profession in the Early Modern period. 14 L R Berlanstein, The Barristers of Toulouse in the Eighteenth Century (1740–1793) (1975) (henceforth Berlanstein, Barristers of Toulouse) 33 n 5. 15 Ibid 33, 34. R L Kagan, “Law students and legal careers in eighteenth-century France” (1975) 68 Past and Present 38 at 50–57 discusses the social origins of law students. He shows the popularity of legal careers for the sons of minor nobility and wealthy merchants. On the Parisian avocats’ conception of their status, see M P Fitzsimmons, The Parisian Order of Barristers and the French Revolution (1987) 9–12. P Dawson, “The Bourgeosie de Robe in 1789” (1965) 4 French Historical Studies 1 at 3–14 contains a straightforward account of the various categories of French legal professionals, with some remarks on social status. 16 Cairns, “Sir George Mackenzie” (n 10) at 25–28. This, of course, was a phenomenon not confined to Scotland. See S Botein, “Cicero as role model for early American lawyers: a case study in classical ‘influence’” (1977–1978) Classical Journal 313.

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birth and the most Liberal Education”, and drew comparisons with the great lawyers of Rome.17 While there is abundant evidence of the advocates’ serious concern with such Roman models, it comes into sharpest focus in two curious episodes towards the end of the eighteenth century, when the Faculty unsuccessfully attempted to exclude two men – John Wright and Robert Forsyth – from membership.18 In the debates within and outwith the Faculty arising from these episodes, we not only find deployment of the language of manners, sentiment, and politeness, but also argument about the traditional Roman models of what it was to be an advocate. To some extent, we can view these debates as helping redefine not only the advocates’ perception of themselves, whereby they moved away from identification with the Roman jurists, but also the role of Roman law in the training of the Bar. At the same time, the social composition of the Faculty was changing. It was once more starting to contain substantial numbers of the sons of professionals and businessmen. But an aristocratic ethos remained, so that Lord Cockburn could still describe the Faculty of the 1790s as a “highly aristocratic body”, which “used to turn up its birse at every plebeian who tried to enter”.19 The resulting stresses led to anxieties over ethics and the suitability of men for admission to the Bar; these were discussed in the language of corruption and virtue deriving from the Scottish reformulation of the civic tradition with its focus on the appropriate manners and habits of life. The endeavours to prevent the admission of Wright and Forsyth came at a moment when there were stirrings of change towards emphasising competence and relevant professional knowledge as defining the qualifications for admission as an advocate.20 They none the less show that to be an advocate was still to enjoy a certain rank and social status combined with a particular public role; it was not yet – if it has ever become – a simple occupational category.

17 T Craig, The Right of Succession to the Kingdom of England, In Two Books; Against the Sophisms of one Parsons a Jesuite, Who assum’d the Counterfeit Name of Doleman; By which he endeavours to overthrow not only the Rights of Succession in Kingdoms, but also the Sacred Authority of Kings themselves‚ trans J Gatherer (1703) dedication, sig a. 18 This has been referred to briefly in Cairns, “Formation of the Scottish Legal Mind” (n 9) 267–271. 19 H Cockburn, Journal of Henry Cockburn being a Continuation of the Memorials of his Time (1874) (henceforth Cockburn, Journal) vol ii, 153. 20 Cairns, “Formation of the Scottish Legal Mind” (n 9) at 264–274.

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B. ADMISSION AS AN ADVOCATE One aspiring to the office of advocate first presented a petition to the Court of Session for admission to the office. The Court would then remit the petitioner (now an intrant) to the Dean and Faculty for examination. In turn, the Dean and Faculty would report to the Court on their trial of the candidate’s suitability. Thereafter, the Court would admit the intrant as an advocate. The role of the Faculty was thus formally limited to trying the candidate’s knowledge of law, and reporting on his suitability for admission on that basis. By 1700, the procedure had developed into two, well-defined, alternative modes of admission to the Faculty of Advocates, with precedents reaching back to the sixteenth century: the first was by trial in Civil Law alone, and the second was by trial in municipal (that is, Scots) law alone. Entry by trial in Civil Law was considered the more “honourable”; entry by trial on Scots law was thereby severely stigmatised in a society that put a premium on status, while it was also penalised by the exaction of doubled entry dues.21 Moreover, study of Civil Law leading to a “tryall” was considered likely to ensure that the “breeding” of an intrant was, in the words of Lord Fountainhall, “oft more liberall and worthy”.22 In stark contrast, the Lords of Session had to be “well informed of the . . . integrity, good-breeding, honest deportment and fitness for exerceing the office of ane advocate” of anyone who entered by trial on Scots law. This could not be assumed as of those admitted by trial on Civil Law.23 It is therefore no surprise that, from the late 1690s, no one was admitted by trial on Scots law, so that this mode of admission fell into desuetude in the early 1700s.24 By 1750, it had been virtually forgotten.25

21 Ibid at 257, 261. 22 J Lauder, Lord Fountainhall, Historical Notices of Scotish Affairs, Selected from the Manuscripts of Sir John Lauder of Fountainhall, Bart (1848) vol ii, 464. 23 The Acts of Sederunt of the Lords of Council and Session, from the 15th of January 1553, to the 11th of July 1790 (1790) 200 (Act of Sederunt of 25 June 1692); see also the Act of Sederunt of 6 July 1688 in the same volume at 181. 24 For the ending of admissions on Scots law in the 1690s, see J W Cairns, “Advocates’ hats, Roman law and admission to the Scots Bar, 1580–1812” (1999) 20, 2 JLH 24 (henceforth Cairns, “Advocates’ hats”) at 47–48. On the position after 1707, see Shaw, Management of Scottish Society (n 12) 27. He points out that, between 1707 and 1750, 260 men were admitted as advocates. There are thirty-five advocates the details of whose admission were omitted from the records; all the rest were admitted by trial on Civil Law. The thirty-five were fairly certainly also admitted by trial on Civil Law: see the notes of Lord Chancellor Hardwicke on the argument of counsel in Catanach v Gordon (1745) in Aberdeen University Library, MS M 387/8/2. 25 When the Faculty reformed their examination requirements in 1750, they never alluded to the fact there was a procedure for admission by trial on Scots law. They merely added a new

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The trials in Civil Law for admission as an advocate, as they developed between 1660 and 1700, were deliberately modelled on those for award of a degree in law in a university26 Intrants were first examined privately in Latin on Civil Law, having to answer questions on titles of the Digest and defend propositions of law by way of disputation. Next, the intrant had to prepare and defend in public theses and corollaries on a specific title of the Corpus iuris civilis. From 1693, such theses and corollaries had to be printed. If successful, the Dean and Faculty would report to the Court in favour of the intrant, who had to prepare a speech in Latin on one of the fragments or “laws” of the title on which he had prepared his theses. The aspirant read this speech before the Lords of Session prior to his formal admission as an advocate.27 We know that, by the nineteenth century, the conduct of these examinations was no longer taken seriously and necessitated reform;28 but, at the end of the seventeenth century and through at least the first half of the eighteenth century, and rather beyond, it was taken very seriously indeed. Intrants would hire tutors to help them prepare.29 Examinators would engage in special programmes of reading Roman law to make themselves ready for the examination.30 Parents and relatives would anxiously watch over their sons’ and nephews’ progress through the stages of the trials.31 Study at a university was generally viewed as necessary to the attainment of the appropriate knowledge of Roman law and usually required about two expensive years abroad.32 Even when academic legal education became

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Scots law examination into their procedures for admission by trial on Civil Law: see Cairns, “Formation of the Scottish Legal Mind” (n 9) at 264–265. See Advocates’ Minutes. Volume 1 (n 10) 121 (3 January 1693). There is a very full discussion of the process of examination and admission with a consideration of the significance of the rituals in Cairns, “Advocates’ hats” (n 24). See further the discussion in J W Cairns, “Importing our Lawyers from Holland: Netherlands’ Influences on Scots Law and Lawyers in the Eighteenth Century”, in G G Simpson (ed), Scotland and the Low Countries, 1124–1994 (1996) 136 (henceforth Cairns, “Importing our Lawyers from Holland”) at 140–141. Cairns, “Formation of the Scottish Legal Mind” (n 9) at 255–257. Ibid at 275. See J W Cairns, “The Origins of the Glasgow Law School: The Professors of Civil Law, 1714–61”, in P. Birks (ed), The Life of the Law: Proceedings of the Tenth British Legal History Conference, Oxford, 1991 (1993) 151 at 185. See National Library of Scotland (henceforth NLS), MS 658 fo 25; discussed in J W Cairns, “John Spotswood, Professor of Law: A Preliminary Sketch”, in W M Gordon (ed), Miscellany III, Stair Society vol 39 (1992) 131 at 139. See, e.g., the correspondence of John Mackenzie of Delvine with his wife Katherine‚ 8, 10, 21 January 1687, in NLS, MS 1101 fos 2, 75, 77; H Fletcher to A Fletcher, 29 January 1717, in NLS, MS 16503 fo 194. K van Strien and M Ahsmann, “Scottish law students at Leiden at the end of the seventeenth century: the correspondence of John Clerk, 1694–1697” (1992) 19 Lias: Sources and Documents Relating to the Early Modern History of Ideas 271 at 283–287.

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available in Scotland, with the development of law faculties in Edinburgh and Glasgow, the practice of foreign legal study continued, only falling out of favour around the middle years of the eighteenth century.33 Study in the Netherlands cost about £100 to £120 sterling a year in the 1690s and early 1700s.34 As an indication of the level of this expenditure, the Barony of Darsie in Fife produced an annual income of £280 sterling around 1710.35 One can see that the examinations thus discriminated against men from relatively impoverished backgrounds.36 Indeed, this may even have been a useful byproduct of the focus on examination in Roman law. It was very difficult to gain a living at the Bar at this period, and the Faculty felt obliged to support indigent advocates and their families, even on occasion rescuing them from the Tolbooth when imprisoned there for debt.37 The main aims of the Faculty in pursuing exclusive admission in Roman law were, however, different. The Faculty’s preference for having its members educated in Roman law can be traced back to the late sixteenth century, reflecting both their collective perception, learned from the legal systems of the ius commune, of what it was to be an advocate and the increasing reception of Roman law after the foundation of the College of Justice in 1532.38 William Forbes, the first Regius Professor of Civil Law in the University of Glasgow, stated in his inaugural lecture: “In most of the supreme courts of Europe, no-one is admitted as a judge or advocate unless he is skilled in Roman law.” He also explained that 33 Cairns, “Importing our Lawyers from Holland” (n 26) at 146–151. On the ending of the practice of studying in the Netherlands, see R Feenstra, “Scottish–Dutch Legal Relations in the Seventeenth and Eighteenth Centuries”, in Academic Relations Between the Low Countries and the British Isles, 1450–1700. Proceedings of the First Conference of Belgian, British and Dutch Historians of Universities held in Ghent, September 30-October 2, 1987, ed H de Ridder-Symoens and J M Fletcher (1989) 273 Studia historica Gandensia 25 at 34–35; repr in: R Feenstra, Legal Scholarship and Doctrines of Private Law, 13th–18th Centuries, Collected Studies Series CS556 (1996) XVI. 34 Shaw, Management of Scottish Society (n 12) 27–28. 35 See J Spotswood to A Spotswood, November 1711, in L J Cappon (ed), “Correspondence of Alexander Spotswood with John Spotswood of Edinburgh” (1952) 60 The Virginia Magazine of History and Biography 211 at 230–231. 36 Shaw, Management of Scottish Society (n 12) 26–29. 37 See, e.g., Advocates’ Minutes. Volume 1 (n 10) 246–247 (11, 15 December 1703), 252 (18 November 1704), 258 (5 July 1705), 306 (18 December 1712); J M Pinkerton (ed), The Minute Book of the Faculty of Advocates. Volume 2, 1713–1750, Stair Society vol 32 (1980) 1 (20 January 1713). 38 J W Cairns, “The law, the advocates and the universities in late sixteenth-century Scotland” (1994) 73 Scottish Historical Review 171; J W Cairns, “The Civil Law Tradition in Scottish Legal Thought”, in D L Carey Miller and R Zimmermann (eds), The Civilian Tradition and Scots Law: Aberdeen Quincentenary Essays (Schriften zur Europäischen Rechts- und Verfassungsgeschichte, Band 20) (1997) 191 at 196–200.

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“Academic degrees are only conferred in civil law”.39 The Faculty copied the procedures for the award of a degree in law under the influence of practice in France and the Low Countries. There, admission to the office of advocate before a court was solely based on the possession of a law degree, which, by definition, was awarded primarily in Roman law.40 For example, in 1606, the Frisian jurist Jacob Bourits published an influential treatise on the office of an advocate, in which he contrasted it with that of a procurator, stating that the former required “Iurަs scientia”, demonstrated by the award of the degree of doctor or licenciate in laws, whereas the latter did not.41 It is perhaps significant that the examination procedure outlined above was adopted as the Faculty grew in authority and independence in the Restoration period. As the notion of what it was to be an advocate was reassessed, it was the models of the advocate in the European ius commune that were drawn upon in order to clarify and specify their functions. Sir George Mackenzie’s works are in obvious point here, as I have discussed elsewhere.42 Moreover, Civilian learning allowed the advocates to see themselves in the distinguished tradition of the Roman jurists inherited from antiquity. Academic training in Roman law also helped the advocates to differentiate themselves from writers, agents and procurators in Scotland, thus setting themselves and their functions apart. This is a topic that obviously needs much further research, but the distinctions in the work of advocate and procurator and writer in Scotland obviously have some basis in the Civilian commentaries on the relevant titles in the second book of Justinian’s Code. The increasing preference in the sixteenth century for the name “advocate” for one admitted to plead before the Court of Session as distinct from the older “procurator” undoubtedly reflects this growing sense of separateness and identity as a profession.

39 W Forbes, Oratio inauguralis de natura, fortuna, dignitate, utilitate, atque auctoritate juris civilis (1714) (henceforth Forbes, Oratio) 10. 40 B H D Hermesdorf, Licht en Schaduw in de Advocatuur der Lage Landen: Historische Studie (1951) (henceforth Hermesdorf, Licht en Schaduw) 43–56; W Th M Frijhof, La Société néerlandaise et ses gradués, 1575–1814 (1981) 246–264; Berlanstein, Barristers of Toulouse (n 14) 5; D A Bell, Lawyers and Citizens: The Making of a Political Elite in Old Regime France (1994) (henceforth Bell, Lawyers and Citizens) 33–34. In France the Bars of the Parlements required a practising advocate to undergo a period of professional training as well as possess a law degree, although the latter was sufficient for admission by the court. R L Kagan, Lawsuits and Litigants in Castile 1500–1700 (henceforth Kagan, Lawsuits and Litigants) (1981) 63 notes that in 1495 the Crown in Castile required that all new advocates should have studied Civil Law and Canon Law for a number of years in a university. 41 J Bourits, Advocatus (1650) 4–5. 42 Cairns, “Sir George Mackenzie” (n 10) at 22–28.

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The triumph of the advocates’ desire to emphasise education in Roman law came in Article 19 of the Act of Union in 1707, which laid down the qualifications for appointment as Senator of the College of Justice: [N]one shall be named by Her Majesty or Her Royal Successors to be Ordinary Lords of Session but such who have served in the Colledge of Justice as Advocats or Principal Clerks of Session for the space of five years, or as Writers to the Signet for the space of ten years.

The article had the following proviso, added during the debates before Parliament: That no Writer to the Signet be capable to be admitted a Lord of the Session unless he undergo a private and publick Tryal on the Civil Law before the Faculty of Advocats and be found by them qualified for the said Office two years before he be named to be a Lord of the Session.43

Given that no one seems to have been admitted as an advocate by trial on Scots law after 1707, the provision ensured that Scotland was one of Forbes’ countries where men were admitted as advocates or judges before the Supreme Court on the basis of skill in Roman law. The effect of this provision was to give the Faculty a near monopoly in appointments to the Bench of the Court of Session, while endorsing the advocates’ emphasis on training in Roman law. C. THE ADMISSION OF WRIGHT AND FORSYTH In 1781, John Wright petitioned for admission as an advocate.44 Wright was the son of an impoverished cottar of the parish of Kilfinan in Argyll. He had trained as a shoemaker and had practised this trade in Greenock.45 While doing so, he had started to educate himself, eventually moving to Glasgow

43 Acts of the Parliaments of Scotland, ed T Thomson and C Innes (1814–1875) vol 11 (henceforth APS) 411. 44 A Stewart (ed), The Minute Book of the Faculty of Advocates. Volume 3, 1751–1783, Stair Society vol 46 (1999) 323–324 (8 December 1781). 45 See, e.g., F J Grant, The Faculty of Advocates in Scotland 1532–1943 with Genealogical Notes (1944) (henceforth Grant, Faculty of Advocates in Scotland) 222; J Kay, A Series of Original Portraits and Caricature Etchings . . . with Biographical Sketches and Illustrative Anecdotes, new edn (1877) (henceforth Kay, Original Portraits) vol i, 268. There seems to be no way to confirm Wright’s initial trade as a shoemaker. It is worth noting, however, that one of his cousins and executors was married to a shoemaker in Greenock, confirming a family link to the trade and the town: National Archives of Scotland (hereafter NAS), Register of Edinburgh Testaments, CC 8/8/140 fo 106r.

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to study, where he matriculated in the university in 1759.46 When there, Wright started to teach to help support himself and, designated “student”, offered classes in mathematics in the Glasgow Journal in 1768.47 Thereafter, he moved to Edinburgh and, in 1769, advertised two classes in mathematics in the Caledonian Mercury and Edinburgh Evening Courant (the main Edinburgh newspapers).48 In 1772, he published a book on trigonometry.49 Wright expanded the scope of his two classes in mathematics in 1773. He emphasised that in the first class the application of the knowledge to surveying would be taught, while in the second there would be “a short explanation of the Principles of Mechanics, Hydrostatics, Pneumatics, Optics, and Astronomy . . . for the benefit of students of Natural Philosophy”.50 He added a third class, in which he gave “a short course of Lectures upon Astronomy and Geography separately, adapted as much as possible to the understanding of such as have not learned Geometry”.51 He announced the repetition of these three classes in April 1774.52 Other ambitions came to Wright and, to his classes in mathematics, he added, in May 1774, a course of lectures on Justinian’s Institutes.53 When he advertised two classes in mathematics (he did not offer that on astronomy and geography) in October 1774, he also gave notice of “Classes of Civil Law: One of the Institutions, and another of the Pandects”.54 In 1778, he introduced a class on Scots law, although he does not seem to have taught this every year.55 Wright’s admission met considerable resistance. According to the Faculty’s minutes, the opposition, seemingly led by John Swinton, the Vice-Dean, was 46 W Innes Addison (ed), The Matriculation Albums of the University of Glasgow from 1728 to 1858 (1913) 60 (henceforth Matriculation Albums of the University of Glasgow). A John Wright, described as a student in divinity, was presented to a bursary in 1772: Glasgow University Archives 26,690, 63 (10 April 1772). This is almost certainly a different man. 47 Glasgow Journal, 27 October–3 November 1768. 48 Caledonian Mercury, 22 November 1769; Edinburgh Evening Courant, 22 November 1769: “MATHEMATICS. John Wright, at Mrs Murray’s, Kennedy’s closs, above the Tron Church, Edinburgh, has just now taken up a Mathematical class, in which will be taught the first six books of Euclid, Plane Trigonometry, Practical Geometry, and the Elements of Algebra. – He will take up a class for Solid and Spherical Geometry, and Conic Sections, so soon as a few scholars shall offer; and his hours of teaching are to be such as may be most convenient for the gentlemen who attend him.” 49 J Wright, Elements of Trigonometry, Plane and Spherical: With the Principles of Perspectives, and Projection of the Sphere (1772). 50 Caledonian Mercury, 9 October 1773. 51 Ibid 18 October 1773. 52 Ibid 9 April 1774. 53 Ibid 2 May 1774. 54 Ibid 29 October 1774. 55 Ibid 10 October 1778.

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based on Wright’s advanced age and a fear that he did not intend to practise law. Swinton expressed the anxiety that Wright wished merely to add the title of advocate to his name, while continuing his current employment as a private teacher of mathematics and law. Wright, however, had assured Henry Erskine, that, if admitted, he would indeed practise and would give over teaching mathematics, continuing only his classes in law. There was evidently a very heated debate in the Faculty, before a decision was finally made not to interfere, on the grounds that the Faculty only had authority to examine the candidates remitted to it by the Court and that remonstrance to the Court against the remitting of Wright was accordingly inappropriate.56 James Boswell attended this meeting of 8 December 1781, recording it briefly in his Journal. He explained that the opposition to Wright was based on his “being of low origin, and gaining his livelihood as a teacher of law and Mathematics”. Boswell set out his own position: “I was keen for him, being of opinion that our society has no dignity, and must receive every man of good character and knowledge. There was a vote, and the party for him carried it by ten.”57 His remark about “dignity” is important, and I shall return to it below. Further on Wright making his living as a teacher, it is worth noting that, in the Wealth of Nations, Adam Smith described “the private teacher of any of the sciences which are commonly taught in the universities” as generally considered to be “in the very lowest order of men of letters. A man of real abilities can scarce find a more humiliating or a more unprofitable employment to turn them to”.58 The Wright affair promoted reflection on the regulations for admission to the Faculty. A committee was duly established, in February 1785, to consider and draft resolutions on the qualifications of intrants.59 It reported on 2 July 1785; the Faculty debated its recommendations on 18 July.60 Much of the report was devoted to proposals requiring attendance at university to study arts and law; but the second draft resolution stated that an advocate 56 Advocates’ Minutes. Vol 3 (n 44) 323–324 (8 December 1781). There is a short discussion of the admission of Wright in A Fergusson, The Honourable Henry Erskine, Lord Advocate for Scotland (1882) 162–165. 57 W Reed and F A Pottle (eds), Boswell Laird of Auchinleck 1778–1782 (1977) 413–414; G Scott and F A Pottle (eds), Private Papers of James Boswell from Malahide Castle (1928–1934) vol xv, 48. 58 A Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, ed R H Campbell and A S Skinner, textual editor W B Todd, Glasgow Edition of the Works and Correspondence of Adam Smith II (1976) (henceforth Smith, Wealth of Nations) vol ii, 780 (V.i.f.45). 59 (MS) Minute Book of the Faculty of Advocates 1783–1798, FR 3, 25 and 26 (26 February and 5 March 1785). 60 FR 3 (n 59) 30, 31 (2 and 18 July 1785).

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was to be under twenty-seven years of age on his admission. This was “as a Security against Persons becoming Members of our Body, after engaging in other Professions, and contracting Habits of life which are improper for it”. The third resolution proposed the establishment of a committee to certify whether or not persons offering themselves for admission should be “taken upon Trial”. These proposals were based on the premise that the office of advocate was a public trust that involved defence of the property, lives and honour of fellow subjects. Such a trust could not “with Safety, be committed, but to Men of that enlightened understanding, and those liberal Sentiments which are acquired, by an early Course of well directed Study, and an early Admission into useful and respectable Society”. The public had “an Interest, and a Right to expect that [members of the Faculty] should be careful to preserve inviolate that Purity and Honour of their Body” by maintaining suitable regulations on admission. The committee further explained that the “Consideration, as Individuals” of members of the Faculty “must always bear a certain Proportion to that Degree of general Respect and Estimation which the whole shall maintain”. The committee stressed the importance “Besides the Study of the Law, in all its Branches” of “a Knowledge of the learned Languages and Philosophy, in a word that liberal Education, which is necessary to form the Scholar and the Gentleman”. They added that “nothing, in their Apprehension, would more materially contribute to prevent any hazard of this Kind”, that is of intrants not possessing suitable “Habits of Life”: [T]han its being necessary for all Persons, offering themselves to Trial, to give the Faculty some proper Evidence of their possessing those most material of all Qualifications, which are not to be acquired by any Course of Education, or judged of from any formal Trial, and on which only the Understanding and feelings of those who have had the Means of becoming acquainted with their Character, Manners & Conversation, can be competent to decide.61 61 (MS) Report of the Committee appointed to prepare Regulations, respecting the Course of Studies, necessary to be followed, and the other Qualifications, which ought to be required, in those who wish to become Members of the Faculty, found in: Miscellaneous Papers of the Faculty of Advocates, FR 339R/23iii. There are two versions of this report, one obviously earlier than the other. See Cairns, “Formation of the Scottish Legal Mind” (n 9) at 267 n 94. In The Court of Session Garland (1871) 74–79 is printed “The Faculty Garland” from a broadside dated 1785. This satirical poem clearly refers to the Faculty’s report of 1785 and the debate within the Faculty on it. At p 74 it is stated that the comic poem was occasioned by the application of John Pattison to be admitted as an advocate. If this is the case, it is worth noting that the objections noted in the squib were also perfectly applicable to the admission of Wright. It is also difficult to see some of the objections attributed in the poem as applicable to Pattison (who was admitted in 1787). Pattison was the son of the minister of the Secession Church at Bristo in Edinburgh: R Small, History of the Congregations of the United Presbyterian Church, from 1733 to 1900 (1904) vol i, 431.

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Although these draft regulations were approved, they were not put into operation.62 In 1787, the Faculty introduced a system of balloting on whether or not candidates should be remitted to the examinators, after they had produced certificates of educational attainment.63 The practice of balloting in this way lasted until 1791, when the Faculty decided to suspend it, resolving instead that candidates should now be automatically remitted for examination, unless objection were taken to them, in which case there would be an open vote.64 Robert Forsyth petitioned for admission as an advocate in February 1790.65 Born in 1766, he was the son of a shoemaker and tailor of Biggar in Lanarkshire. He matriculated in the University of Glasgow in 1780.66 He held a licence to preach from the Church of Scotland, although he was not an ordained minister. Forsyth had sought a call to a parish, but had failed to gain one before, in 1789, becoming a law student in Edinburgh.67 In March and October 1790, no doubt in the hope of increasing his income, he advertised classes on the Institutes of Justinian.68 The Faculty appointed a committee to determine whether Forsyth’s admission was competent, given his position as a probationer in the Church.69 The committee reported in March that this was incompatible with admission as an advocate. The Faculty unanimously endorsed this report.70 Forsyth renewed his petition and, on 27 November, the Faculty remitted to the Dean and his Council consideration of the answer to be made to it.71 They reported their opinion on 4 December that the answers to Forsyth’s petition 62 63 64 65 66

67

68 69

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FR 3 (n 59) 31 (18 July 1785). Ibid 63 (10 December 1787). Ibid 168 (21 May 1791). Ibid 133–134 (13 February 1790). He had apparently presented the petition before, but it had been withdrawn. Matriculation Albums of the University of Glasgow (n 46) 129; “Memoir of the Author” (henceforth cited as “Memoir of Forsyth”) in R Forsyth, Observations on the Books of Genesis and Exodus, and Sermons (1846) vii at viii–xi. Edinburgh University Library (henceforth EUL), (typescript) Matriculation Roll of the University of Edinburgh, transcribed by A Morgan, vol ii, 495; “Memoir of Forsyth” (n 66) xiii–xiv. The class he is registered as taking in Edinburgh was that of Scots law; perhaps he had already studied Civil Law in Glasgow. Caledonian Mercury, 25 and 29 March and 14 October 1790; Edinburgh Evening Courant, 11 and 25 March and 23 October 1790. FR 3 (n 59) 135 (20 February 1790). Although the minutes do not mention this, an issue may have been the interpretation of the Act of 1584 forbidding ministers to be advocates and judges on pain of deprivation of their benefices and livings: the Act 1584, c 6, in: APS (n 43) vol iii, 294. FR 3 (n 59) 138 (6 March 1790). Ibid 149 (27 November 1790). The printed petition of 22 November 1790 can be found in FR 339R/16 (a bundle of papers relating to Forsyth’s admission).

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should be confined to the issue of whether being a probationer in the Church was compatible with admission as an advocate. They added that the Faculty should consider what steps should be taken “for placing on a proper footing the important business of the admission of Intrants and what remedy should be attempted for the many evils likely to accrue from the present State of that Branch of the Faculty’s duty”. The Faculty approved this report.72 By 18 December, the Dean had drawn up his answers to Forsyth’s petition, and the Faculty approved them.73 Forsyth now renounced his licence to preach, but, on 5 February 1791, the Faculty appointed a committee to confer with the Court on Forsyth’s circumstances before he should be the subject of a ballot.74 On 21 February, the Faculty decided that no petition for admission was to be considered until there were new regulations on the admission of advocates, “a matter of the highest importance to the welfare and Honor of the Faculty and to the Interest of the Community at large”.75 The proposed new regulations were laid before the Faculty on 21 May 1791. Their main thrust was the establishment of an elaborate mechanism to determine the suitability of intrants before they were remitted to the Faculty’s examinators. The central provision was the creation of a committee to investigate the “Education, Situation Character and Manners” of the applicant and to report on whether in these respects he was a fit person to be admitted. The Faculty did not immediately consider these proposals, but delayed further the hearing of Forsyth’s petition, although two others were remitted for examination.76 The Faculty next established a committee to investigate the use made by Forsyth of his licence to preach, and various other matters.77 He was able to satisfy the Faculty on all these points, however, and, on 14 June, was finally remitted to the private examinators.78 The Faculty eventually shelved the 1791 proposals, and the issue was dropped for a while.79 It was revived in 1794, and yet another committee

72 FR 3 (n 59) 150 (4 December 1790). The Dean’s answers (dated 15 November 1790) are also in FR 339R/16 (n 71). 73 FR 3 (n 59) 152 (18 December 1790). 74 Ibid 161–162 (5 February 1791). A second committee was appointed to investigate the circumstances of the marriage of Dewar Masterton Gibson who was alleged to have married one of his pupils when he was a writing master in a boarding school. 75 Ibid 163 (21 February 1791). 76 Ibid 165–169 (21 May 1791). That of Gibson was also delayed. 77 Ibid 171 (3 June 1791). 78 Ibid 177–182 (14 June 1791). Gibson was remitted to the examinators on 14 November 1791: ibid 188–189 (14 November 1791). 79 Ibid 203–204 (18 and 25 February 1792).

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was established to report.80 New proposals were tabled at the Faculty’s Anniversary Meeting on 13 January 1795. These again involved an elaborate procedure for appointing a committee to satisfy itself of the candidate’s “Integrity, good Breeding, and honest Deportment”, in words taken from the Act of Sederunt of 1692.81 Again, though approved by the Faculty on 9 February 1795, these new proposals were not put into practice, seemingly because the Faculty could not get the Court to agree to them.82 It is clear that the Faculty considered preaching from the pulpit incompatible with holding the office of advocate, and even having in the past so preached potentially incompatible with the future exercise of the office. It is important to note, however, that Forsyth was the son of a shoemaker, and Henry Cockburn claimed that “the real ground” for opposing the admission of Forsyth was his “not being of high origin”.83 Forsyth himself said of the Faculty that “[t]here existed at that time also a high aristocratical spirit in the body. They were offended that a poor man’s son should presume to intrude into their body. I was therefore opposed”.84 D. ROMAN LAW AND SOCIAL STATUS If we return to Boswell’s comment about the Faculty having no “dignity”, we should note that he is using it in a relatively technical sense relating to the right to bear a title of honour or have a coat of arms. In stating this view, Boswell was going against general opinion. John Spotswood talked around 1690 of the “degree and dignity of an advocate”, in contrast to the work of a writer or procurator.85 The view of the office of advocate as one of “dignity” was well established within the Civilian tradition. Bourits wrote that the title of advocate was one of honour and dignity, while to be a procurator was to exercise a base occupation, so that even base individuals could be procurators, as, unlike advocates, they had no dignitas.86 These views ultimately 80 Ibid 263–264 (11 July 1794). 81 Ibid 274–278 (13 January 1795). The matter appears to have been discussed earlier also: ibid 265 (13 November 1794). 82 Ibid 279, 280, 282 (9 February, 4 March, 1 June 1795). 83 Cockburn, Journal (n 19) vol ii, 153; Grant, Faculty of Advocates in Scotland (n 45) 75. His father’s trade of shoemaker and tailor is confirmed from the matriculation records at Glasgow: Matriculation Albums of the University of Glasgow (n 46) 129. 84 “Memoir of Forsyth” (n 66) xiv. 85 NLS, MS 2934 fo 177r. 86 Bourits (n 41) 2–4. See also Udalrici Zasii iureconsulti clarissimi in titulos aliquot Digesti ȣeteris commentaria, on de iustitia et iure, nos 6 and 7, in U Zasius, Opera Omnia (1550–1551; repr 1964) vol i, col 242.

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derived from interpretation of the title De postulando and others dealing with the offices of advocate and procurator in Justinian’s Code.87 The Accursian gloss on nobilȓssimos on the lex proȣidendum in the title de postulando said “scientia nobilitat”.88 Bartolus repeated this view in his Commentary on the first part of the Code.89 Just as “Iuris scientia” marked by possession of a degree in Roman law distinguished the advocate from the procurator, so Roman legal texts emphasised the status and rank of advocates.90 Azo likewise stressed that to occupy the office of advocate was not to exercise one of the artes mechanicae.91 Sir George Mackenzie wrote in his Science of Heraldry that exercise of “mean Trades” – “viles et mechanicas artes” – deprived one of the right to a coat of arms, “[b]ut the being an Advocate is accounted no such Trade; for an Advocate is noble by his Profession”. For this he cited the Code. He gave the example of the great jurist Julian, “who was twice Consul, and twice Governor of Rome, but was much more noble by being a learned Advocate”.92 French and Castilian advocates made similar claims to noble status relying on the same precedents, and the letters patent creating one French avocat a noble followed the wording of these Roman texts.93 In the northern Netherlands, the high rank accorded to the title of advocate, regarded as a nobile officium, led virtually all men with a Doctor’s degree in law to register as an advocate with one of the six provincial courts of appeal.94 Emphasising this status was the subjection of their services to the contract of mandate, rather than to the mercenary contract of locatio conductio.95 Thus, the French jurist Pothier emphasised that it was only “base trades (services ignobles) that could be assessed in a money price” that were governed by 87 See C 2.6–2.13. 88 C 2.6.7. For the gloss, see Accursius, Glossa in Codicem (Corpus glossatorum iuris civilis X) (1968) 86 (fo 44v). 89 Bartolus, Commentaria in primam Codicis partem (1555) 78 de postulando, gloss providendum; found quoted in Hermesdorf, Licht en Schaduw (n 40) at 44. 90 Bourits, Advocatus (n 41) 4–5. 91 Azo, Lectura supra Codicem (Corpus glossatorum iuris civilis III) (1966) (henceforth Azo, Lectura) 91. 92 G Mackenzie, The Science of Heraldry, Treated as a Part of the Civil Law and Law of Nations: Wherein Reasons are given for its Principles, and Etymologies for its harder Terms in G Mackenzie, Works (n 1) vol ii, 574 at 584. He cited C 2.6.7 and 2.7.14. 93 Bell, Lawyers and Citizens (n 40) 37; Kagan, Lawsuits and Litigants (n 40) 74. Neither Bell nor Kagan has noted the use of Roman legal texts, but the passages quoted are influenced either by the Roman texts or the literature following them. See, for example, C 2.6.7 and C Imperatoriam at the start of Justinian’s Institutes. 94 M Ahsmann, “Teaching the ius hodiernum: legal education of advocates in the northern Netherlands (1575–1800)” (1997) 65 Tijdschrift voor Rechtsgeschiedenis 423 at 428. 95 See, e.g., A McDouall, Lord Bankton, An Institute of the Laws of Scotland in Civil Rights (1751–1753) vol i, 392 (I.xviii.1).

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lease and hire, such as those of “servitors and maids . . . manual workers . . . artisans”. Certain types of service could not be governed by lease and hire because “their distinguished nature (excellence), or the high rank (dignité) of the person performing them, meant they could not be assessed in money”. An example was “the agreement between an advocate and his client”, which was governed by mandate.96 Roman law thus validated and reinforced the Faculty’s claim to aristocratic and noble status. In 1610, in one of the advocates’ earliest attempts to persuade the Lords of Session to admit only properly qualified men as pleaders before them, academic learning in the ius commune was clearly linked to social standing, drawing on the Civilian scholarship and language that contrasted “honourable” vocations with those that were “vile” and “mechanic”. The advocates accordingly lamented “the contempt” into which “thair calling of advocatioun, quhilk wes anis honourabill is brocht”. This was because of the “neglect of ane iust tryall” for admission, which was required even “in the maist mechanik callingis”. This meant that “the Name and estimatioun of ane advocate is becum vyle, and hes lost the formare beutie”. The remedy was to be the admission only of those who, “eftir they have past thair course of philosophie, hes bene brocht up in sum universitie, as studentis to the lawes be the space of twa yeiris or thairby” and who “sail gif ane pruif of thair qualyficatioun”.97 Forbes, in his inaugural lecture, had commented that: Those who profess the ius civile are not only called Magnifici, Illustres, Excelsi, Gloriosissimi, Excellentissimi, Eminentissimi, Clarissimi, Sublimissimi, Nobiles, Celsiores, Amici Principis, Parentes Imperatoris‚ Sacerdotes Justitiae, and are decorated with other splendid titles of that type, but have also been raised to the highest honours and summoned to the highest administrative levels of the state not only among the Romans, either in the free Republic or under the Emperors, but also in the kingdoms and lands of Christian princes.98

The Scots advocates thus liked to consider themselves part of this noble and learned tradition stretching back to republican Rome. The development of effective law schools in Edinburgh and Glasgow had put learning in Roman law, that mark of dignity and nobility, within the reach of men such as Forsyth and Wright. Their admission threatened the advocates’ perception of themselves as an essentially aristocratic body. 96 R J Pothier, Traité du contrat de louage, in Oeuvres de Pothier, ed M Bugnet (1861) vol iv, 1 at 7. 97 Habbakuk Bisset, Rolment of Courtis, ed P J Hamilton Grierson (1920–1926) vol i, 156–157. 98 Forbes, Oratio (n 39) 10.

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Reliance on Roman law in the trials for admission as a badge of status had become untenable and contradictory. E. THE ROMAN LAW, SHOEMAKERS, AND THE LANGUAGE OF VIRTUE AND CORRUPTION Confirmation of the seriousness with which the advocates identified themselves with the Roman jurists and the Civilian tradition perceived as stemming from them is found in the lectures on Roman law of John Wilde, Professor of Civil Law in the University of Edinburgh, 1792–1800.99 An interesting and innovative teacher, Wilde started his course of lectures on  Justinian’s Institutes with an account of the history of Roman law.100 A large part of his discussion, which is largely taken from the works of Gravina and Heineccius, was devoted to “the principal men who adorned” the “second age of the Roman Jurisprudence” that “began . . . a short time before the birth of Cicero”.101 In the course of an account of the jurists of the late Republic, Wilde came to Alfenus Varus, consul in 39 BC. His remarks read thus in a slightly amended, but virtually the earliest, version of his lectures: Another Celebrated Lawyier [sic] in these times was Alphenus [sic] Varus. [H]e was born at Cremona, and owed all his dignity and consequence to his learning in the Law; he was bread [sic] originally in certainly a very inferior line of life, having for some time exercised the trade of a Shoemaker; [i]t is in this way, and in allusion to his trade, that he is mentioned by Horace, Alphenus vafer & c  – leaving his trade, it is not known from what circumstances, or upon what prospects, and abandoning his native town, and shutting his shop, he came to Room [sic]; and entered himself in the number of the Schollers [sic] of Servius Sulpilius [sic] . . .102

99 See J W Cairns, “Rhetoric, language, and Roman law: legal education and improvement in eighteenth-century Scotland” (1991) 9 Law and History Review 31 (henceforth Cairns, “Rhetoric, language, and Roman law”) at 40, 43–49. Wilde had a fascinating and tragic life. I hope to discuss him in greater detail elsewhere. 100 NLS, Adv MSS 81.8.3–81.8.17 contains Wilde’s lectures on Justinian’s Institutes. Adv MSS 18–21 contain his lectures on Justinian’s Digest. Further fragments from his lectures may be found in EUL, MS La.II.475. The history of Roman law is found in Adv MS 81.8.4–81.8.6. 101 Adv MS 81.8.4 fo 316r. The works Wilde mainly relied on were G V Gravina, Origines iuris civilis (1708); J G Heineccius, Antiquitatum Romanarum iurisprudentiam illustrantium syntagma, 6th edn (1745). I have made no attempt to identify which of the numerous editions of these popular works were used by Wilde. 102 Adv MS 81.8.5 fo 5r. The reference is to Horace, serm, I.iii.130–135. See Q Horatii Flacci opera, ed E C Wickham and H W Garrod (1901; repr 1967), where, as in most modern editions, the term “sutor” (“shoemaker”) has been replaced by the alternative reading “tonsor” (“barber”).

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Wilde had originally described Alfenus as “bread originally in the lowest lines”.103 Disturbed that a shoemaker could become a leading Roman jurisconsult, Wilde, in a subsequent year, found some solace in the following, which he added into his notes at “shoemaker”: [A] trade, however, which, I last winter found out, by a law in the Pandects, where it is incidentally mentioned in the statement of a case, was at Rome rather a genteel profession. It is a decision collected in the title “ad legem Aquiliam”; and is the third section of the fifth law. So that Alfenus though a shoemaker might not have been without education or friends, and perhaps money; so as to render less miraculous his subsequent exaltation.104

The text of the Digest to which Wilde alluded contains the well-known case of the apprentice’s eye: it is not at all clear that this demonstrates the gentility of Roman shoemakers. The only relevant matter in it is that the apprentice is freeborn, and the shoemaker free. Wilde has exaggerated in his desire to distinguish Roman from Scottish shoemakers, especially since the contract at issue in the text was one of locatio conductio, which applied to mechanical rather than liberal professions.105 Some time later, Wilde found a new approach that – he argued – demonstrated that the lines of Horace did not refer to Alfenus Varus. His lecture now continued: “Such is the account I had once given of Alfenus Varus. But I have found authority, and reason joined with authority, to alter it wholly. The lines of Horace do not at all apply to him. He was the friend of Virgil.” Wilde goes on to argue at some length that it was Alfenus Varus who saved Virgil’s farm and who was mentioned in his ninth Eclogue. We need not go into these arguments other than to say that, in the course of them, Wilde discussed most persons in the late Republic and early Empire who bore the name Varus.106 Wilde’s distress over the thought that Alfenus Varus may have been a shoemaker can seem absurd; but it undoubtedly reflects the recent problems over the admission of Wright and Forsyth and the growing anxiety of its Faculty of Advocates over mechanisms to ensure the admission to its ranks only of suitable men. Moreover, one suspects that Wilde’s indignation was fuelled by professional concern not to be deprived of income because students attended the classes of Wright and Forsyth instead of his own. Wright can be traced teaching classes on the Institutes and Digest every year during Wilde’s 103 104 105 106

Adv MS 81.8.5 fo 5r. Ibid fo 4v. D 9.2.5.3. Adv MS 81.8.5 fos 5v, 6v, 7v, 8v. For a modern discussion of these identities, see R G M Nisbet and M Hubbard, A Commentary on Horace: Odes Book I (1970) 227–228.

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tenure of the chair.107 Indeed, he continued to advertise his classes until 1807.108 While Forsyth can only be traced offering classes in 1790, before his actual admission, he later claimed to have supported himself after admission by teaching law.109 This would again have been during the period when Wilde became anxious about shoemakers and jurists. Wilde was probably particularly concerned with Wright’s class on the Digest. In 1792, Wilde had returned to the old practice of teaching that course in Latin.110 This may well have made his lectures less attractive to students. Rivalry is suggested by the emphasis in Wright’s advertisement of November 1793 that his “Lectures are delivered in English”, although the “Examinations are in Latin”.111 Competition between Wilde and Wright is further revealed by the latter’s stress in 1794 that he taught the Digest in the order of the Institutions and that his lectures in Civil Law covered “philosophical reasons” and “historical deduction”, while the “conformity and diversity, between the Civil Law and our own, are remarked as they occur”.112 In the same year, Wilde commented adversely that “men very little qualified for the task” discussed the “progress of law” in the course of classes on Roman law (exempting from his criticism those holding university chairs).113 This remark is directly aimed at Wright, who, the next year, 107 See, e.g., Caledonian Mercury, 11 November 1790, 19 November 1791, 29 March 1792, 8 November 1792, 25 March 1793; Edinburgh Evening Courant, 23 March 1793, 16 November 1793, 15 March 1794, 8 November 1794, 4 April 1795, 5 November 1795, 26 March 1796, 10 November 1796, 8 April 1797, 16 November 1797, 19 April 1798, 12 November 1798, 7 November 1799, 19 April 1800, 13 November 1800. 108 Edinburgh Evening Courant, 14 November 1807. 109 See “Memoir of Forsyth” (n 66) xv–xvi. In the later MS petition for admission in FR 339R/16 (n 71), Forsyth designated himself as “Teacher of Civil Law in Edinburgh”. 110 Caledonian Mercury, 1 December 1792. See Cairns, “Rhetoric, language, and Roman law” (n 99) at 40, 44–46. 111 Edinburgh Evening Courant, 16 November 1793. The language of instruction was something he rarely highlighted: he had last done so in 1788: see Edinburgh Evening Courant, 15 March 1788. 112 Edinburgh Evening Courant, 8 November 1794. Wright’s description of his classes on the Digest raises an interesting issue of their relationship to the classes on John Millar in Glasgow: see J W Cairns, “‘Famous as a School for Law, as Edinburgh . . . for Medicine’: Legal Education in Glasgow, 1761–1801”, in A Hook and R B Sher (eds), The Glasgow Enlightenment (1995) 133 at 141–142; Cairns, “Rhetoric, language, and Roman law” (n 99) at 41–43. In 1784, Wright had described his classes on Civil Law as involving “application to modern public and private law” (Edinburgh Evening Courant, 27 March 1784) and in 1792 had stressed that knowledge of Roman law was valuable not only to practitioners, “but also in those parts of our philosophical education termed morality and jurisprudence” (Edinburgh Evening Courant, 24 March 1792). 113 J Wilde, Preliminary Lecture to the Course of Lectures on the Institutes of Justinian. Together with an Introductory Discourse (1794) (henceforth Wilde, Institutes of Justinian) 59–60. The work was published in September 1794: Caledonian Mercury, 13 September 1794.

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defiantly advertised that his “Observations are not confined to mere Civil or Imperial Law, but extend to General Jurisprudence”.114 Snobbery and self-interest, however, were not the only causes of Wilde’s agitation. This may be seen from his account of Massurius Sabinus.115 That Sabinus took fees from his students is well known, as is the statement by Pomponius that he was the first man to receive the ius respondendi from the Emperor Tiberius.116 Gibbon, whom Wilde had read, had seen the ius respondendi as a corrupting factor in Roman law.117 Wilde commented: “Notwithstanding what I have thus mentioned of Masurius [sic], I am far from either saying or thinking that he corrupted the Roman jurisprudence.”118 Wilde had already mentioned that the state of dependence in which Sabinus lived was possibly the reason for his being awarded the ius respondendi.119 If advocates were neither gentlemen nor men of property, they were open to pressure and temptation; their actions could be subject to influences other than their duty as advocates to consider the interest of their clients and the public good. The issue became one of ethics. Since there was no codified set of rules of ethics to govern the behaviour of members of the Faculty, ensuring the proper conduct of advocates required the admission only of suitable men with suitable manners and habits of life. Shoemakers are proverbially meant to stick to their lasts. To the eighteenth-century Scottish mind, the contrast between a shoemaker and an advocate was stark, and the gulf between them almost unbridgeable. When Adam Smith explained the difference in earnings in different employments, relating it to qualifications and probability of success, the examples he gave, to contrast “mechanick trades” with “liberal professions”, were shoemaker and lawyer.120 In explaining that the office of advocate was not a “necessary” one, Azo had differentiated it from various necessary “mechanic arts” such as “sutoria”, shoemaking.121 The contrast between the “mechanic art” of shoemaking and the liberal and scientific profession of advocacy was 114 Edinburgh Evening Courant, 5 November 1795. 115 Adv MS 81.8.5 fos 67–68. 116 D 1.2.48–50. For a modern discussion, see F Schulz, History of Roman Legal Science (1946; repr with corrections 1967) 112–117; H F Jolowicz and B Nicholas, Historical Introduction to the Study of Roman Law, 3rd edn (1972) 359–363. 117 E Gibbon, The History of the Decline and Fall of the Roman Empire, ed J B Bury, 2nd edn (1901) vol iv, 459. Wilde praised the account Gibbon gave of the history of Roman law in his forty-fourth chapter, but was perfectly happy to disagree with him: see Adv MS 81.8.5 fo 12r. 118 Adv MS 81.8.5 fos 67v–68r. 119 Ibid. 120 Smith, Wealth of Nations (n 58) vol i, 122 (I.x.b.22). 121 Azo, Lectura (n 91) 91.

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obviously well grounded in traditional discussion. Moreover, as the quotation from Sir George Mackenzie at the head of this paper shows, shoemakers and cobblers were associated with the opposite of virtuous engagement in public life. Indeed, in royalist discussion in the seventeenth century, cobblers had almost been paradigmatic of the unlettered vulgus, whose focus was on private interest rather than public welfare.122 The problems perceived in such individuals becoming advocates are indicated by the character of Bartoline Saddletree in Walter Scott’s novel The Heart of Midlothian, first published in 1818, but mainly set in 1736. Saddletree is a “mechanic” (a leather worker, if not a shoemaker) fascinated by the law. With a Christian name in obvious diminutive allusion to Bartolus, Saddletree demonstrates, not only a failure to comprehend the law that he loves, but also a fundamental insensitivity to the emotions and concerns of others, though not an unkindly man. He is a strange, late literary projection of the problems faced by Wright. Clearly unsuited by education and station in life for a career at the bar, Saddletree demonstrates Scott’s understanding of the emphasis in the Faculty, of which he was a member, on the admission as advocates only of those with appropriate manners and education, who could overcome private interest to fulfil this public office.123 The language used by Wilde and the Faculty of Advocates in their discussions of these issues is the language of the civic tradition in eighteenthcentury Scotland, with its concern with manners and corruption. Earlier in the century this tradition had focused on the need for a virtuous commonwealth to consist of landed citizens, independent of great men or monarchs with despotic powers, who were devoted to the exercise of civic virtue through engagement in political life.124 Union with England, the disasters of the Jacobite rebellions, and the growing commercialisation of Scottish society had rendered such a view of the Scottish polity untenable. In the course of the century, however, the civic tradition had been transformed, and virtue redefined using the notion of “manners”, a term that occurs regularly in the

122 See A C Houston, Algernon Sidney and the Republican Heritage in England and America (1991) 85, 86. 123 Scott was also well aware of the emphasis on the social rank of the Bar in this respect. When Saddletree expresses to his friend Reuben Butler his regrets that he had not studied law in the Netherlands, Butler comforts him by responding that he “might not have been farther forward than [he was] now . . . for our Scottish advocates are an aristocratic race”: W Scott, The Heart of Midlothian, ed A Lang (1893) vol i, 62–63 (ch 5). 124 See, e.g., J Robertson, “The Scottish Enlightenment at the Limits of the Civic Tradition”, in Hont and Ignatieff, Wealth and Virtue (n 2) 137; J Robertson, The Scottish Enlightenment and the Militia Issue (1985).

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debates within the Faculty over reform of the admission requirements, and in the reports of its committees. What were now seen as important were the appropriate manners to uphold the fabric of social life. The civic tradition became focused on the social rather than the political.125 This focus on the social fabric necessarily emphasised the role of the law, not only in providing basic structures for social life, but also, given the increasing commercialisation of Scottish society, in developing a suitable framework of mercantile instruments and regulation. In the context of a legal system that emphasised reform through the development of the law by the court, this placed especial stress on the education of the advocates, as the nature and training of the Bar became of primary importance.126 It is therefore no wonder that Lord Kames, that energetic promoter of law reform, should have so emphasised the importance of legal education.127 In the published preliminary lecture to his course on the Institutes, Wilde said that the Faculty was “the only body of Gentlemen, practising the law, that exists any where in the world”.128 In a lengthy footnote, he compared the Scots Bar in this respect with the English. In England, there were such opportunities for advancement that a man could become a gentleman, if not already one at his admission. This was not so in Scotland: “He who comes to our bar should, therefore, be a gentleman at the outset, by his birth, or by his education and habits; because he has less means, or may have no means, of becoming such in his progress.” This was because “as a Body, our faculty should be preserved as pure as it has existed hitherto”.129 Wilde’s words here come very close to those of the report of the Faculty’s committee in 1785; he was probably articulating a widely held view.130 Certainly Henry Erskine, as 125 N T Phillipson, “Towards a Definition of the Scottish Enlightenment”, in P Fritz and D  Williams (eds), City and Society in the Eighteenth Century (1973) 125; N T Phillipson, “Culture and Society in the 18th Century Province: The Case of Edinburgh and the Scottish Enlightenment”, in L Stone (ed), The University in Society (1975) vol ii, 407; N Phillipson, “The Scottish Enlightenment”, in R Porter and M Teich (eds), The Enlightenment in National Context (1981) 19. 126 D Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (1989) 144–175; J W Cairns, “Adam Smith and the Role of the Courts in Securing Justice and Liberty”, in R P Malloy and J Evensky (eds), Adam Smith and the Philosophy of Law and Economics (1994) 31; J W Cairns, “Ethics and the science of legislation: legislators, philosophers, and courts in eighteenth-century Scotland” (2000) 8 Jahrbuch fûr Recht und Ethik 159. 127 See Cairns, “Rhetoric, language, and Roman law” (n 99) at 37–38. 128 Wilde, Institutes of Justinian (n 113) lxxxviii–lxxxix. 129 Ibid lxxxix n*. It may be worth noting that Lucas, “Collective biography” (n 13), argued there was an “aristocratic resurgence” in the English Bar in the reign of George III. 130 (MS) Report of the Committee appointed to prepare Regulations, in FR 339R/23iii (n 61) 2: “Purity and Honour of their Body”.

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Dean, used such language in the answers he drew on behalf of the Faculty to one of Forsyth’s petitions.131 This is supported by Adam Smith’s comment that “We trust . . . our fortune and sometimes our life and reputation to the lawyer and attorney. Such confidence could not safely be reposed in people of a very mean or low condition”. He argued that the reward of lawyers “must be such, therefore, as may give them that rank in society which so important a trust requires”.132 In Scotland, however, the rewards for most advocates were not considered to be great, and Smith told his Glasgow class in jurisprudence that: [I]n the study of the law not one out of 20 are ever in a way to get back the money they have laid out. Few have abilities and knowledge sufficient to make themselves any way eminent or distinguished or usefull to the people. . . . The temptation to engage in this or any other of the liberall arts is rather the respect, credit, and eminence it gives one than the profit of it.133

Membership of the Faculty of Advocates was accordingly only suitable for gentlemen of means. The view was common. The Mirror, a periodical published in Edinburgh devoted to promoting politeness and the virtues associated with the landed gentry, regularly attacked the corrupting features of modern life; one such was educating individuals beyond their station in life. The foolishness of educating “as scholars, and men of learned professions” those who “ought to have been bred farmers and manufacturers” was emphasised, since “there is no pursuit which requires a competency, in point of fortune, more than that of a man of learning”.134 Such an education would likely only bring much unhappiness to the possessor of it, as he would be unsuited to a professional career and unlikely to make a success of it. Moreover, his background and habits of life would unfit him for the task of “giving splendor to [his] country, by purifying and improving its laws”.135 Private interest might prevail over public concerns. It is obvious that a number of factors came together to support the attempts to exclude Wright and Forsyth from membership of the Faculty 131 FR 339R/16 (n 71). 132 Smith, Wealth of Nations (n 58) vol i, 122 (I.x.b.19). 133 A Smith, Lectures on Jurisprudence, ed R L Meek, D D Raphael and P G Stein, Glasgow Edition of the Works and Correspondence of Adam Smith V (1978) 354–355 (LJ(A) vi.61–62). 134 The Mirror. A Periodical Paper, Published at Edinburgh in the Years 1779 and 1780, 7th edn (1787) vol iii, 112–113. See J Dwyer and A Murdoch, “Paradigms and Politics: Manners, Morals and the Rise of Henry Dundas, 1770–1784” in J Dwyer, R A Mason, and A Murdoch (eds), New Perspectives on the Politics and Culture of Early Modern Scotland (1982) 210 at 220–230. 135 Henry Home, Lord Kames, Elucidations Respecting the Common and Statute Law of Scotland (1777) xiii.

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of Advocates. Simple snobbery was evidently a large part of it. Given the importance of family and social connections in the acquisition of clients, the instinct to exclude Wright is understandable.136 Forsyth seems eventually to have had an adequate, if not outstanding, career at the Bar; but he initially had to work as a private teacher of law and hack writer in order to secure a sufficient income, although some of his initial difficulty in acquiring a practice at the Bar may have derived from his radical political opinions.137 The economic arguments of Smith have evident force. It was no doubt to these factors that Wilde alluded when he said that Alfenus Varus might have had “friends, and perhaps money”. He also suggested that Alfenus may have had “education”, by which he meant that training in manners and morals which would have made him suited to be a jurist before he embarked on his legal studies.138 As Gibbon used the example of Rome to illustrate a moral relevant for modern society, so the Faculty of Advocates used their vision of the Roman lawyers to interpret and understand their own experience, which they then used to interpret and understand the Roman jurists. Furthermore, their learning in Roman law allowed them to distinguish themselves from other bodies of lawyers and to claim privileges and a high social status. Learning in Roman law ennobled them and ensured only suitable men joined their number. It was a significant mark of the status of an advocate as distinct from that of a procurator or writer. The problem was that, as the eighteenth century progressed, and the Scottish law faculties developed, learning in Roman law was much more easily and cheaply acquired. Shoemakers could become advocates. A similar change and similar anxieties can be seen in other countries. Thus, the Order of Advocates before the Parlement de Bretagne pointed out, in 1753, that the 136 Kay, Original Portraits (n 45) vol i, 271 alleges Wright died dependent on the Faculty’s charity. It is worth noting, however, that, while clearly far from rich, he did build up an estate valued in his executry at £248/10/-, largely consisting of his library: NAS, Register of Edinburgh Testaments, CC 8/8/140 fo 106. The library was auctioned in 1814: Catalogue of a Valuable Collection of Books, Including the Curious Library of the Late John Wright, Esq. Professor of Civil Law; A Considerable Importation of Books from the Continent, and Various Private Collections; Which will be Sold by Auction, without Reserve, By Mr John Ballantyne (1814). I have not yet studied this catalogue sufficiently so as to determine which books were those of Wright. 137 See “Memoir of Forsyth” (n 66) xv–xvi. Cockburn, Journal (n 19) vol ii, 153 suggests that Forsyth’s radical politics was part of the reason for opposition to him. The chronology is difficult to work out, but Forsyth’s own account suggests that he joined the Friends of the People after admission to the Bar. While, of course, this may suggest he was already noted for his radical politics, it is worth recollecting that Forsyth himself did not see the opposition to him as deriving from his politics, but from his social origins. 138 Adv MS 81.8.5 fo 4v.

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transfer of the Faculty of Law to Rennes had allowed people of “a vile and low status” to study law. Mercenary individuals, who lacked a suitable education to develop the capacities and sentiments necessary for an advocate, thus threatened to swamp the profession. The Order accordingly decided to exclude from practice “those who exercised other functions incompatible with the profession, as well as those whose fathers have exercised a mechanical art or who were of some other low degree and reputed as such”.139 The reports of the Faculty of Advocates in 1785 and the 1790s proposed reforms using the languages of manners and sentiment that were designed to achieve the same ends, as an education in Roman law could no longer guarantee that only suitably educated men of integrity were admitted as advocates. It was necessary to develop a new language and new ideas to approach issues of ethics and suitable conduct at the Bar. It is no coincidence that, from this time, the role of Roman law in the admission of an advocate started to be re-evaluated. The image of the Roman jurist and orator had developed contradictory and competing meanings and no longer successfully represented the desired vision of the Scots advocate; new models and new mirrors were required. It was to be some time before the idea of the advocate as a professional man, defined by his technical skills and specialised legal knowledge, replaced the older concept of the advocate as a possessor of a dignified status confirmed by his learning in the ަus civile; these crises, however, played an important part in bringing about such a change.

139 F Saulnier, “Le Barreau du Parlement de Bretagne au XV∏Ie Siècle (1733–1790). Documents Inédits” (1855) 3 Revue des Provinces de l’Ouest (Bretagne et Poitou) 480 at 484–485.

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14 Craig, Cujas, and the Definition of Feudum: Is a Feu a Usufruct?* In an essay on the Roman law of property, David Daube commented that “[t]here is no scholarly effort independent of fashion . . . and idiosyncrasy”.1 Alan Watson has added that “the self-selection of scholars” tends also to make historical objectivity difficult, since those “who choose to specialize in Roman law will tend to admire the Romans and their achievement in law-making”.2 These remarks are as apposite for the sixteenth as the twentieth century. In a century whose scholarly strife equalled (and indeed was related to) its political and religious strife, one strongly contested issue was the origin and nature of the feudal law, on which the Renaissance scholars ranged themselves into “Germanicists” and “Romanists”. Though a fascinating debate, reflecting many of the traits of Humanist study, it has received little attention among modern scholars of the sixteenth century, with the exception of Donald Kelley.3 This paper will be devoted to the disagreement of Thomas Craig of Riccarton with Jacques Cujas’ Romanist view that a feu (feudum or fief) was the grant of a usufruct of property belonging in dominium to the grantor. Kelley has claimed the sixteenth century as that of the beginning of ideology,4 and it is therefore worth noting Craig’s recognition of the significance of the factors which Daube and Watson argue skew scholarship. * An earlier version of this paper was read to the Symposium on the Roman Law of Property, Edinburgh–Amsterdam–Leiden, held under the auspices of the Edinburgh Roman Law Group on 29 October–2 November 1987, and I am grateful for the comments of participants. To my benefit, it has also been read by my friends Hector MacQueen and David Sellar. 1 D Daube, “Fashions and Idiosyncrasies in the Exposition of the Roman Law of Property”, in A Parel and T Flanagan (eds), Theories of Property (1979) 35 at 35. 2 A Watson, “Roman slave law and Romanist ideology” (1983) 37 Phoenix 53. 3 D R Kelley, “De Origine Feudorum: The beginnings of an historical problem” (1964) 39 Speculum 207 (henceforth Kelley, “De Origine Feudorum”); see also his Foundations of Modern Historical Scholarship; Language, Law, and History in the French Renaissance (1970) 183. 4 D R Kelley, The Beginning of Ideology: Consciousness and Society in the French Reformation (1981).

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He commented that “once we dignify this law with the name of the most ancient then, since each man – as tends to happen in all important matters – favours himself and his own people, he attributes its origin to himself and his own nation”.5 He then goes on to refute what he described as Italian opinions that feudal law originated in Roman institutions, French opinions that it originated in Gaulish society, Spanish opinions that it originated in Celtiberian customs, German opinions that it could be discovered in Tacitus’s description of German customs, and Greek opinions that it derived from a constitution of Constantinus Porphyrogenitus.6 In contrast, Craig claimed that feudal law dated from the invasion of the Roman Empire by the northern tribes, and he gave a brief history of its development from then until its maturity in the eleventh century.7 He argued against other views by testing his historical evidence against the definition he stated he had adopted from Ulrich Zäsy of a feu as “A benefice or friendly and free grant of immoveable property, or its equivalent, with transfer of the dominium utile, proprietorship or dominium directum having been reserved, on condition of fealty and performance of honourable services”.8 He noted that Dumoulin, Pierre Rebuffi, and the “more rational part of the writers” followed Zäsy; though it is worth noting that Zäsy, Dumoulin and Rebuffi were expressly adopting the view of Johannes Regnaudus.9 It is this definition which goes to the heart of Craig’s disagreement with Cujas. 5 T Craig, Jus feudale, tribus libris comprehensum: quibus non solum consuetudines feudales, & praediorum jura, quae in Scotia, Anglia, & plerisque Galliae locis obtinent, continentur; sed universum jus Scoticum, & omnes fere materiae juris clare & dilucide exponuntur, & ad fontes juris feudalis & civilis singula reducuntur, 3rd edn (1732) (henceforth Craig, Jus feudale) 31 (1.5.1). I have compared every text cited or quoted with the 1st edn. of 1655: there are no significant differences. 6 Ibid 31–33 (1.5.2–9). This is closely derived from F Hotman, Disputatio de feudis 8–11 (cap 2), in De feudis commentatio tripertita: Hoc est, Disputatio de iure feudali. Commentarius in usus feudorum. Dictionarium verborum feudalium (1573) (henceforth Hotman, Disputatio). 7 Craig, Jus feudale (n 5) 23–30 (1.4). 8 Ibid 56 (1.9.5). See Udalrici Zasii iureconsulti clarissimi in usus feudorum epitome, ordine et utilitate commendabilis, in Opera omnia, 7 vols (1550; repr 1966) vol iv, col 245 (pars prima, No 3) (henceforth Zäsy). On Zäsy, see S Rowan, Ulrich Zasius: A Jurist in the German Renaissance, 1461–1535 (1987). 9 Craig, Jus feudale (n 5) 56 (1.9.5). Zäsy (n 8) vol iv, col 245 (pars prima, No 2), in fact writes: “Since, among the doctors, there is variation as regards the definition of feudum, the definition of loan in Raynal pleases me, which the learned Pierre Rebuffi cites at the start of his short treatise on feudal law.” The reference is to Johannes Raynaudus or Regnaudus, Comprehensorium feudale (not seen). Craig obviously no more had access to a copy of this than did Zäsy. In Feudorum declaratio, in qua multae ponuntur correctiones, quae contraria consuetudine invaluerunt, compilata ac congesta per clarissimum virum I.U.D. D. Petrum Rebuffum De Monte Pessulano, in Petri Rebuffi iuris utriusque doctoris tractatus varii (1581) 449 at 450–451, Rebuffi sets out a number of definitions of feudum, including that of Regnaudus, before remarking that

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This paper will be divided into three sections. In the first I shall briefly discuss Craig and Jus feudale, not only because author and work deserve wider recognition, but also because an understanding of the nature of Jus feudale is important in explaining the disagreement with Cujas. The second section will explore the differences between Cujas and Craig. In the concluding section I shall try to explain the differences between Craig’s and Cujas’ definitions, and place them in a wider context. A. CRAIG AND JUS FEUDALE Craig was born in the 1530s and died early in 1608. He studied arts at the universities of St Andrews and Paris; but where he studied law is unknown, though probably in France. He practised law in Scotland as a successful advocate from 1561 until his death. Though he held a number of official appointments, most notably to the commission in 1604 to discuss a parliamentary union of Scotland and England, he does not appear to have been especially active in politics. His works suggest an essentially scholarly bent.10 Craig’s masterpiece Jus feudale was written between, roughly, 1598 and 1606, though we need not necessarily suppose he worked on it continuously over all these years, but perhaps revised it at least once.11 It is the offspring both of some forty years of professional practice and of an obvious scholarly fascination with law. Craig had a number of purposes in the work: to give a

“[b]ecause all definition is dangerous, D 50.17.202, I turn to other matters”. At 452, however, he clearly states his view that holding a feudum gives a right of dominium utile. Dumoulin writes that “[t]he definition of feudum is made in diverse ways. The more correct and more accepted is that made by Regnaudus”: Commentarii in consuetudines Parisienses, authore d. Carolo Molinaeo I.C. in supremo Parisiensi senatu causarum patrono, accuratius ab eo recogniti, & accessione multa locupletati (1576) fo 19v (1.114). Craig, Jus feudale (n 5) 56 (1.9.5), also points to Curtius the younger, who put forward two definitions of feudum as meeting the formal tests for a good definition: the first described a feu as a usufruct and the second was that of Johannes Regnaudus. Curtius does, however, prefer the view that the granting of a feu gives dominium utile rather than a usufruct. See Francischini Curtii iunioris iureconsulti tractatus feudorum, in F Ziletti (ed), Tractatus universi juris duce et auspice Gregorio XIII in usum congesti, 25 vols (1584) vol x, pars II, fo 43r at fo 46v. 10 On Craig, see P F Tytler, An Account of the Life and Writings of Sir Thomas Craig of Riccarton: Including Biographical Sketches of the Most Eminent Legal Characters, Since the Institution of the Court of Session by James V. Till the Period of the Union of the Crowns (1823); D Baird Smith, “Sir Thomas Craig, feudalist” (1915) 12 Scottish Historical Review 271 (henceforth Baird Smith, “Sir Thomas Craig”). The latter is the best general account of Craig. D M Walker, The Scottish Jurists (1985) 54–66 is eccentric and unreliable. 11 For the outlines of the argument, see J W Cairns, “The Breve testatum and Craig’s Jus feudale” (1988) 56 Tijdschrift voor Rechtsgeschiedenis 311 at 317. I hope to deal elsewhere in detail with the date of composition of Jus feudale.

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structure to Scots law by comparing it with feudal law;12 to prove that Scots land law is feudal in origin;13 and to instruct young lawyers.14 The work was obviously related, at least to some extent, whether from its inception or as the project developed, to the prospect of the union of the Crowns and to the possibilities of a parliamentary union.15 The structure of Jus feudale relates to the first two of these purposes. It is divided into three books. The first deals with the origin and history of law in general, and specifically of the Civil, Canon and feudal laws, the introduction of feudal law into England and Scotland, the etymology, definition and classification of feudum, the capacity to be feudal grantors and grantees, and the classes of property which could be feued. The second book is devoted to the formal constitution of feus and succession to them. The third book concerns extinction of feus and deprivation of the vassal, and concludes with an account of ancient procedure in feudal causes. The structure has an obvious logic, and, though I have not searched for a model, it has some similarity to that of Hotman’s Disputatio de feudis of 1573.16 It is notable that Craig considered the Libri feudorum to be deficient in organisation.17 Craig demonstrates a wide knowledge of classical literature, Roman law and the medieval and Renaissance writers on Roman and feudal law. His work is overtly comparative, shifting back and forward between, especially, Scots law and the general jus feudale, pointing out contrasts and similarities. It contains many inspired examples of historical reconstruction, deriving from its comparative method, such as the recognition that process upon brieves came to Scotland from Normandy by way of England.18 It is worth noting that the authors whom Craig cites by name most often are François Hotman, Baldus and Bartolus. This said, it should be pointed out that Craig, while obviously respecting Hotman, will on occasion expressly disagree with him, and has no sympathy with his political views.19 Baird Smith has stressed Craig’s intellectual background as that of the Humanist scholarship of France, commenting that “Craig’s treatise may be said to represent the most elaborate application of [the Humanists’] method 12 13 14 15 16 17 18 19

Craig, Jus feudale (n 5) viii (dedication). Ibid 24, 52 (1.4.1; 1.8.16). Ibid viii, 49, 65, 310 (dedication; 1.8.6; 1.9.33; 2.13.9). Ibid v–viii (dedication). On law and the union, see now B P Levack, The Formation of the British State: England, Scotland, and the Union, 1603–1707 (1987) 68–101. See n 6 above. On Hotman, see D R Kelley, François Hotman: A Revolutionary’s Ordeal (1973). Craig, Jus feudale (n 5) 36 (1.6.4). Ibid 357–358 (2.17.25). See Baird Smith, “Sir Thomas Craig” (n 10) at 294–295.

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to the exposition of Feudal Law”.20 We accordingly find, for example, that Craig referred to the Florentine text as that to be used to correct doubtful readings in the Digest, and once cited it as evidence for the interchangeability of the letters “b” and “v”.21 The value of Greek is another Humanist topos;22 and, following this tradition, Barry Nicholas has insisted more than once on the value of the Greek Paraphrase of Justinian’s Institutes in illuminating the law of Justinian’s time.23 This is an attitude with which Craig would have sympathised, even if he never said so in the forthright fashion of his later fellow countryman, Sir George Mackenzie.24 Craig was manifestly proud of his knowledge of Greek, discussing the correct spelling and etymology of, for instance, “protimesios”, while explaining the exclusion of some provisions from a medieval constitution as the consequence of a poor knowledge of the language.25 Though in the rest of this paper Cujas will be contrasted with Craig, we must nonetheless always remember that the latter was not at all opposed to elegant scholarship, but in fact drew freely on it. B. CUJAS AND CRAIG Cujas is best known to modern scholars as a leading Renaissance student of, and prolific author on, Roman law.26 He also published in 1566 an important 20 Ibid at 295; see also 272–274. 21 Craig, Jus feudale (n 5) 12 and 105 (1.2.11; 1.12.15). 22 H E Troje, Graeca leguntur: Die Aneignung des byzantinischen Rechts und die Entstehung eines humanistischen Corpus iuris civilis in der Jurisprudenz des 16. Jahrhunderts (1971), hitherto regarded as the leading study of this, has now been the subject of important critique in D Osler, “Feels like heaven: a legal–historical drama in five acts” (1984) 3 Rechtshistorisches Journal 313. 23 B Nicholas, “The form of the stipulation in Roman law” (1953) 69 LQR 233 at 242–243; “Theophilus and Contrectatio” in P G Stein and A D E Lewis (eds), Studies in Justinian’s Institutes in Memory of J A C Thomas (1983) 118. 24 See Oratio inauguralis habita Edenburgi Id. Mar. 1689. a dom. Georgio Mackenzeo, de structura bibliothecae pure juridicae, et hinc de vario in jure scribendi genere (1689) 17; The Laws and Customs of Scotland, in Matters Criminal: Wherein is to be seen how the Civil Law, and the Laws and Customs of other Nations do agree with, and supply ours, in The Works of that Eminent and Learned Lawyer, Sir George Mackenzie of Rosehaugh, Advocate to King Charles II. and King James VII. With Many learned Treatises of his, never before printed, 2 vols (1716, 1722) vol ii, 49–275 at 51: “The reason why I have so oft cited the Basilicks, Theophil, and the Greek Scholiasts, was not only because none before me have used them in criminal Treatises, but because I conclude them the best Interpreters of Justinian’s Text: For these Books having been writ in the same Age, and Place, and some of them by those who compiled the Latin Text, they must understand it best of all others, of which I have given many Instances in this Book . . .”. 25 Craig, Jus feudale (n 5) 479 and 486 (3.4.4; 3.4.21). 26 On Cujas, see P Mesnard, “La place de Cujas dans la querelle de l’humanisme juridique” (1950) 27 Revue historique de droit français et étranger 521; J Berriat-Saint-Prix, Histoire du droit romain, suivie de l’histoire de Cujas (1821) 373–611.

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edition of the Libri feudorum, in which he rearranged the traditional material.27 It was a work with which Craig was evidently familiar.28 Lorenzo Valla had remarked that “when the etymology is false, the definition will be false”.29 Cujas’ and Craig’s differences started with the etymology of feudum. Cujas preferred to derive the term from the Latin for faith, “fidelitas” or “fides”: a common view deriving from the Libri feudorum themselves.30 Craig noted the major controversy among feudists over this and sets out the various opinions,31 before giving his own simple explanation: “I think the word ‘feudum’ not to be truly derivative, but pristine and original, and to have been made use of by the northern races for the price which is given for aliment, and I conjecture it to have been received and retained by the Insubres (Lombards) themselves.”32 His argument was that from its first institution, a feudum was nothing other than a benefit or reward for mainly military service to provide a vassal with support. He gave examples of the use of feuda in this “original” sense to support his contention. This particular opinion may possibly be original to Craig, though other scholars, notably Hotman, had also suggested a non-Roman, Germanic root for the word.33 From the beginning of the process of definition, however, Craig’s view established a difference between him and the communis opinio of most writers on feudal law, including Cujas: Craig did, with rather typical humour, remark: “If anyone shall hold another opinion about the derivation of this word, I shall permit it.”34 Craig’s definition of the feu has already been given. He himself quoted the well-known passage of Javolenus on the danger of definitions in law and added that: Truly, if ever any definition in law is dangerous, in our submission it is to the highest degree this proposition, while some define “feudum” as “dominium utile”, others as a “usufruct”, others as a “benefice”, never did the Trojans at any time

27 I have used De feudis, libri quinque, quorum primus est Gerardi Nigri, secundus & tertius Oberti de Orto, iurisconsultorum Mediolanensium, quartus ex variis & incertis auctoribus antiquis, quintus imperatorum constitutiones, quae ad feuda pertinent, complectitur. Aucti, emendati, atque explicati studio & diligentia Iac. Cuiacii I.C. (1588) (henceforth Cujas, De feudis). 28 Craig, Jus feudale (n 5) 35 (1.6.3). 29 Found translated and quoted in Kelley, “De Origine Feudorum” (n 3) 216. 30 Cujas, De feudis (n 27) 2. He points out that this is the view of Obertus (from whose writings parts of the Libri feudorum are supposedly taken). 31 Craig, Jus feudale (n 5) 54–55 (1.9.2). 32 Ibid 55 (1.9.3). 33 See Hotman, Disputatio de feudis (n 6) 5–8, esp at 7 (cap 1). 34 Craig, Jus feudale (n 5) 55 (1.9.3).

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fight with the Greeks more keenly for the body of Achilles killed by Paris, than do the modern scholars debate with the older ones about the characteristics of this definition.35

Though Craig has adopted, through Zäsy, Regnaudus’s definition of feudum, the division of dominium into dominium directum and dominium utile had an older origin in the glossatorial literature.36 Craig attributed the view that the feudum was a usufruct especially to Cujas, Schöner and the “new interpreters”.37 Schöner initially stated that a feu was “a right of usufruct of feudal property created between a lord and vassal on condition of faith or fidelity”.38 In a later section he added that “the real right which the vassal acquires is a right of usufruct of the feu which is commonly called dominium utile, without, however, the authority of any text”.39 This lack of textual authority was crucial for Schöner, who pointed to two texts of the Libri feudorum, one of which described the vassal’s right as that of possession, and the other of which described it as a usufruct, before commenting, relying on D 50.16.115, that “possession is nothing other than use of a thing which we do not own. Furthermore, usufruct and possession are something other than dominium utile. It is obvious that this distinction between dominium utile and directum has no foundation in law (jus) . . .”. He added that “having been manufactured by scholars (interpretes)”‚ this definition had been rejected by a number of writers, among whom he included Cujas.40 Although Craig 35 Ibid 55–56 (1.9.4); D 50.17.202. 36 R Feenstra, “Les origines du dominium utile chez les glossateurs”, in Fata Iuris Romani (1974) 215; H Coing, “Zur Eigentumslehre des Bartolus” (1953) 70 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Rom Abt) 348. On Zäsy’s view, see P Grossi, “‘Gradus in dominio’ (Zasius e la teorica del domino diviso)” (1985) 14 Quaderni fiorentini per la storia del pensiero giuridico moderno 373 (henceforth Grossi, “‘Gradus’”). 37 Craig, Jus feudale (n 5) 55 (1.9.4). 38 Feudalium disputationum libri duo, Ioannis Schoneri Waltershofensis, 1.U.D. Friderici IV. Electoris Palatini, & c. consiliarii. Quibus universa feudorum materia utilissima & nobilissima, pulcherrima methodo exposita est (1597) 1 (1.1.1). 39 Ibid 249 (1.9.2 and note c). 40 Ibid 4–5 (note c on 1.1.6). As well as citing the Libri feudorum, 2.8.4 and 2.23.1, and Cujas, De feudis (n 27) 5 (quoted in text below at n 44) and 70 (1.5) (quoted below in n 44), Schöner cited Cujas, Observationum et emendationum libri X∏∏ (1574) 584–585 (11.35), where he wrote that “those who make dominium on the one hand directum on the other utile are slipping into great error”. Schöner also cited Castaldus on D 6.3.1 (not identified); and a passage from E Baron, Methodus ad Obertum Ortensium, de beneficiis, in libros quatuor divisa, for which I used his Opera omnia, in tres tomos divisa (1562) iii, 319 at 394–396 (4.7). Baron noted that the interpretes called dominium directum that which the iureconsulti called dominium, and utile dominium that which the latter called quasi dominium. He discussed actiones utiles and actiones directae, before stating that “Dominium directum and dominium utile have been employed by the scholars (interpretes) nearer to our age against the usage of the ancients (veteres) for

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cited Schöner as one of those holding the “modern” view, Craig’s arguments were directed against Cujas, with whom he strongly identified the opinion that a feu was a usufruct.41 Since this is so, and since Schöner drew on Cujas, who, in any case, offered more complex arguments, this paper will focus on Cujas’s reasoning and Craig’s rejection of it. Cujas defined feudum as: “a right in perpetuity of using and taking the fruits from another’s land, which the owner gives as a benefice by this law so that he who receives it offers fealty, and military duty or another service to the owner”.42 He stressed that what is granted “is a right, not the land itself” and this is “a right of usufruct”.43 He had anticipated this definition earlier, when one of his reasons for rejecting the suggestion that feudal relations derived from those in Rome between patron and client was that “clients possessed their estates in full right” while “vassals [possessed] feudal estates to the extent of a perpetual or temporary right of usufruct, proprietorship belonging to the owners from whom they received the estates by right of benefice”. He added that We describe as a usufruct, following Obertus . . .‚ that which the scholars (interpretes) call dominium utile, on account of the fact that the vassal has a utilis not a direct vindicatio of the property given in feu . . .‚ which reasoning does not conclude, however, in dominium utile, and more correct is the opinion of Conrad . . . that there is no such thing as dominium utile.”44

The passage attributed to Obertus concerned the loss of a beneficium, in the course of which he gave, as an example of a benefice, an immovable granted in goodwill in usufruct, with ownership continuing to belong to the giver.45

41 42 43 44 45

no other reason than that the one is sued by a direct actio in rem, the other by an actio utilis.” Finally, Schöner cited F Douaren, Disputationum anniversariarum liber primus, for which I have used the text in Franc. Duareni Iureconsulti opera omnia, quae in hunc usque diem edita extant in iure civili, ab ipso nunc demum auctore recognita atque aucta (1558) 413–504. At 432 (1.17), Douaren commented that “The glossators (Accursiani) commonly divide dominium into directum and utile, which words have been made up by them, and are never read in the ancients (veteres).” Douaren compared the right to a feu to a ius emphyteuticum for which was given an actio utilis in rem, and gave the same explanation of the terms as Baron. Cf the wording used by Schöner at 47 (1.3.6), 391 (2.2.28) and 435 (2.3.70) where he nevertheless draws on the glossatorial terminology. See Craig, Jus feudale (n 5) 57–60 (1.9.10–13). Cujas, De feudis (n 27) 10. Ibid 10–11. Ibid 5; see also ibid 70 (1.5): “There is no such thing as dominium utile, as rightly thought the common interpres, whoever he is, whether Pileus or Conrad . . .”. Libri feudorum 2.23.1 (3.1 in Cujas’s edition). He also in this passage cites Libri feudorum 2.8 pr (2.8.1 in his own edition), and ibid 2.39 (4.45 in his own edition).

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Craig not unfairly represented Cujas and the other modern authors as being of the view that dominium was one and indivisible, and not utile. He argued that they pointed to a text of Paul in the Digest which showed that an emphyteuta was not dominus, relying on which they claimed that if an emphyteuta did not have dominium utile, no one could be described as having one. They argued – he said – that to have two owners of one thing was repugnant both to law (leges) and the nature of the thing itself, so that a feu was defined by them as a usufruct of the property of another, which was transmissible to the usufructuary’s heir. Craig in turn pointed out that, under Justinian’s law, a usufruct could be transmitted only to the usufructuary’s first heir, and no farther. Moreover this was a special exception, and “by its own nature [a usufruct] was not transmissible”.46 Cujas, however, anticipated this type of objection, writing: A usufruct customarily is only constituted in personam. But it can none the less be contracted so that it transmits to the heir of the usufructuary. But indeed this contract is restricted by Justinian to the first heir, lest proprietorship in universum be useless, with usufruct always being withdrawn, C. 3.33.14. Furthermore, it has been received that it can be contracted so that it transfers to a successor indefinitely, if only the law of fealty, homage and service is added, as we have said, which results that proprietorship should not be useless.47

For Cujas, the law had developed beyond Justinian’s legislation, to link fealty, homage and service with a perpetual usufruct of an immoveable to create the legal institution of feudum. Given the wording of some of the texts in the Libri feudorum, it was not an implausible historical reconstruction. Craig noted that, of the recentiores whom he had read, only Hotman approved of the division of dominium into directum and utile.48 He granted that it was unknown to the veteres Jurisconsulti (that is, the Roman jurists), but stressed that it was not inconsistent with Roman custom and distinctions, pointing to the division between actio directa and actio utilis as analogous.49 Having thus stressed that the distinction was not inherently anti-Civilian, Craig presented his positive arguments in favour of divided dominium created by contract. The first was that the vassal was openly granted an actio utilis for the feu itself by the Libri feudorum. Second, the Libri feudorum 46 Craig, Jus feudale (n 5) 57–58 (1.9.10). The text of Paul is D 6.3.1. The Justinianic legislation is C 3.33.14. 47 Cujas, De feudis (n 27) 11. 48 Craig, Jus feudale (n 5) 58 (1.9.11). See Hotman, Disputatio de feudis (n 6) 14–16, esp at 15 (cap 4) where the discussion is careful but clear. See also his De verbis feudalibus commentarius, 18 sv “Dominus” in his De feudis commentatio tripertita (n 6). 49 Craig, Jus feudale (n 5) 58 (1.9.11).

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granted him power to vindicate the feu from possessors and to defend it by the name of the feu itself. His third argument is very important: to understand being invested in a feu as being granted a simple usufruct would be “completely inconsistent with the mode of speaking received among us”. Furthermore, he added: “Our people would be truly enraged if we were to say they were not domini of their lands but only usufructuaries.” This is an important appeal to practice as evidence for the best approach. He also pointed out that usufructuaries could not grant usufructs or transmit them, so that, were a feu a usufruct, not only could it not be transmitted to heirs, it could not be subfeued or be the subject of terce. He listed further analogies in Roman law to the division of dominium and commented: “On the analogy of this, I do not know why we cannot assert a double proprietorship or a double dominium.” His argument was that there was no essential reason why dominium has to be unified. He also pointed to a text in the Code describing an emphyteuta as a dominus, with the necessity that the text recognises two simultaneous domini of the land. He argued against Cujas’ (and, incidentally, Schöner’s) citation of a passage which suggested that to have a beneficium is to have a usufruct, by claiming that it was partly derived from the writings of Seneca in whose days feus were unknown.50 C. CONCLUSION Despite his vigorous argument against Cujas, Craig wrote: “Definitions, whether in law, philosophy or theology are sensibly made in order more easily to subject matters to the intellect and to organize diverse and discordant views.” He stated that, though the competing definitions might differ considerably in wording, in fact they differed little, suggesting that, whether we described a feu as a transfer of dominium utile or as the granting of a perpetual usufruct, there was no difference other than in name.51 This not unnaturally provokes the question: why did Craig then bother to refute Cujas? The answer surely is that, though Craig could recognise the similarity of the definitions, in practice he considered to be better the view that one had dominium utile of a feudum. After suggesting that the alternative definitions of a feudum were essentially similar, he pointed to the Scots terminology of “superior” and “tenant” as avoiding these difficulties,

50 Ibid 58–60 (1.9.11–13). The texts of the Libri feudorum are 2.43 and 2.8.1 respectively and of the Code, 11.62.14. 51 Craig, Jus feudale (n 5) 59–60 (1.9.13).

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and added: “From these it is obvious that the earlier definition, which was expounded by us, and which I have also decided to follow in this treatise, ought to be adhered to, not only because it pleases the more sensible group of legal scholars, but because it agrees more with our customs (mores).” Craig then alluded to his earlier arguments, claiming that “unless we concede the transfer of a dominium utile to the vassal, innumerable difficulties, as I have pointed out, arise in our practice”.52 Craig is thus referring back to his arguments, first, that the notion of a feu as a usufruct does not fit social reality, and second, that the legal qualities of a feu are very different from those of a usufruct, because of inheritance, subinfeudation and widow’s terce.53 For Craig these were vital. One of his aims in Jus feudale was to prove the feudal origin of Scots land law.54 In line with this, in the passages immediately prior to his discussion of the etymology and definition of feu, he argued that if a new point arose which could not be settled by the written or customary law of Scotland, and “a decision of that point is found in the jus feudale, the jus feudale must be preferred to the canon law and the Roman law”. This was because the jus feudale was a part of Scots law, in so far as it was the origin of the law practised in Scotland.55 This is a passage of much greater importance than the well-known one where Craig states that the Scots use the Roman laws in so far as they are congruent with nature and reason.56 Adoption of Cujas’s view that a feu is a usufruct would have opened the way for development of the Scots law on land tenures by using Roman legal concepts, while Craig’s argument was designed to ensure this did not happen. This disagreement among writers on feudal law can be seen, at least for Craig, to have had wider implications. More was at stake than a proper scholarly definition of a feu. Stressing feudum’s Germanic origin and its definition as the granting of a dominium utile was resistance to Romanisation of the law. Furthermore, Cujas was blinkered by his notion of dominium as an absolute right; but Craig saw ownership in a less conceptual way, as existing within the complex nexus of relationships which made up what he still perceived in an idealised way as a feudal society. This is presumably related to the different purposes of the authors. Craig wrote as one with a 52 Ibid 60 (1.9.14); it may be noted that Zäsy also had often preferred to use vernacular words, see Grossi (n 36) 392–399. 53 Craig, Jus feudale (n 5) 58–59 (1.9.11). 54 See text at n 13 above. 55 Craig, Jus feudale (n 5) 52 (1.8.16). 56 Ibid 14 (1.2.14).

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wide experience of practice in Scots law against which he could test scholarly theories, while Cujas was producing a scholarly edition of a specific text, the Libri feudorum, with commentary and analysis. Craig worked within the wider framework, while Cujas drew on a narrower, more purely academic, tradition.

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15 Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State* While on publication in the 1760s Blackstone’s Commentaries1 gained a favourable reception,2 the criticisms made in 1776 by Bentham in the Fragment on Government3 did such serious damage to Blackstone’s reputation that, in the nineteenth century, among many scholars, his standing was low.4 Thus, in Austin’s Lectures the Commentaries are most severely taken to task for what Austin considered to be their deficiencies.5 Austin’s and Bentham’s criticisms of Blackstone’s methodology, structure, philosophising, and lack of a strong critical attitude were so influential that Sir William James in an 1881 case considered it appropriate to describe Blackstone as “the somewhat indiscriminate eulogist of every peculiarity and anomaly in our system of laws”.6 Bentham and other critics had questioned Blackstone’s account of natural law and his definitions of law; but in 1861 Sir Henry Maine went so far as to suggest that Blackstone plagiarised Burlamaqui.7 Since then, critical opinion has swung the other way, with the merits of

* I am grateful to the friends and colleagues who read and commented on this paper. Mr Colin Hunter encouraged and was supportive. In a different form, a short part of this paper was presented at the British Legal History Conference in July 1983, in Norwich. 1 W Blackstone, Commentaries on the Laws of England (1765–1769) 4 vols (henceforth Commentaries). All references here will be to the Chicago (1979) reprint of the first edition. 2 See the quotations in A V Dicey, “Blackstone’s Commentaries” (1930–1932) 4 CambLJ 286 (henceforth Dicey, “Blackstone’s Commentaries”) at 286–287. 3 J Bentham, A Fragment on Government, Collected Works of Jeremy Bentham, ed J H Burns and H L A Hart (1977) 391 (henceforth Bentham, Fragment on Government). Burns and Hart point out (Introduction, xlix n 1) that the editions of F C Montague (1891) and W Harrison (1948) are based on the pirated Dublin (1776) edition. 4 On the criticisms levelled at Blackstone, see generally G Jones, The Sovereignty of the Law (1973) (henceforth Jones, Sovereignty of the Law) xxviii–xlvii. 5 J Austin, Lectures on Jurisprudence or the Philosophy of Positive Law 5th edn (1885) 2 vols (henceforth Austin, Lectures). See, e.g., vol i, 68–69. 6 Re Goodman’s Trusts (1881) 17 Ch D 266, 296 found quoted in Jones, Sovereignty of the Law (n 4) xii n 1. 7 H Maine, Ancient Law, 8th edn (1880) 114.

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the Commentaries being generally recognised.8 Finnis has argued that the definitions given by Blackstone relate to the logical structure of the Commentaries and that there are not the contradictions in his work so often asserted.9 The allegation of plagiarism of Burlamaqui has been refuted.10 Professor Posner has argued that Bentham’s attack on the Commentaries was not only intemperate but fundamentally misconceived, and that Blackstone was the first to describe law “not as a speculative abstraction or a collection of rules but as a functioning social system”, which he did by combining the approach of Montesquieu with that of Bracton “to demonstrate how those laws operated to achieve the economic, political, and other goals of the society”.11 Furthermore, the influence of Blackstone on English law is now stressed, whether that influence be considered good or ill. Thus, while Holdsworth argued that Blackstone was important in giving a complete synthesis of English law,12 Professor Milsom has recently gone beyond this to argue that the Commentaries helped change English common law from a system of

8 Dicey, “Blackstone’s Commentaries” (n 2) recognises Blackstone’s significance, while W S Holdsworth, “Some aspects of Blackstone and his Commentaries” (1930–32) 4 CambLJ 261 (henceforth Holdsworth, “Blackstone and his Commentaries”) and H G Hanbury, “Blackstone in retrospect” (1950) 66 LQR 318 go a long way towards completing Blackstone’s scholarly rehabilitation. (All references hereafter to Hanbury will be to this work; but in The Vinerian Chair and Legal Education (1958) he covers the same material, but without extensive references. Hanbury’s “Blackstone as a judge” (1959) 3 AmJLegalHist 1 is also useful, though not relevant here.) 9 J M Finnis, “Blackstone’s theoretical intentions” (1967) 12 Natural Law Forum 163 (henceforth Finnis, “Blackstone’s theoretical intentions”). See also G Augé, “Aspects de la philosophie juridique de Sir William Blackstone” (1970) 15 Archives de Philosophie du Droit 71 at 96–98. Finnis is concerned to dispute the argument that Blackstone used a definition of the law of nature such that virtually any part of English law could be shown not to be contrary to the law of nature and thus could be legitimated – see Hart, “Blackstone’s use of the law of nature” (1956) 3 Butterworth’s SAfrLRev 169. J W McKnight, “Blackstone, Quasi-Jurisprudent” (1959) 13 Southwestern Law Journal 399 deals with Blackstone’s use of natural law not only in the Commentaries but also as counsel and judge. H-J Rinck, “Blackstone and the law of nature” (1959–1960) 2 Ratio 162 argues that Blackstone’s statements on the law of nature have little connection with the substantive content of his work and that Blackstone’s treatment of the topic helped ultimately to discredit natural law views. In some ways his views of Blackstone’s use of natural law touch on those of Hart. 10 P Lucas, “Ex parte Sir William Blackstone ‘plagiarist’: a note on Blackstone and the natural law” (1963) 7 AmJLegalHist 142; and Finnis, “Blackstone’s theoretical intentions” (n 9) at 170–171. 11 R A Posner, “Blackstone and Bentham” (1976) 19 Journal of Law and Economics 569 (henceforth Posner, “Blackstone and Bentham”) at 571–572. I may add that I am not entirely convinced by all of Professor Posner’s arguments, though the idea of Blackstone as the first sociologist of law is indeed attractive. 12 Holdsworth, “Blackstone and his Commentaries” (n 8) at 284–285.

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actions to a body of substantive law.13 The late Sir Otto Kahn-Freund also considered that Blackstone had influenced the development of substantive English law, and he therefore argued that Blackstone’s treatment of employment as a status retarded the development of contractual treatment of employment law in England.14 It would seem an important development that English lawyers are now giving Blackstone a significance for English law similar to that long given him by lawyers in the United States for US law.15 While this century, especially in recent years, has seen a greater recognition of the importance of Blackstone for English law, many criticisms in respect of the structure of the Commentaries and their coverage of particular topics remain. The argument of this paper is that many of the apparent deficiencies of structure and coverage may be explained by accepting that Blackstone is a writer of an institutional work. It will be argued that institutional writings developed in the seventeenth and eighteenth centuries and constituted a specific genre of legal work identified by a typical structure, subject matter and attitude to law. Mr I G Doolittle has very recently attempted to explain some of the alleged deficiencies in the Commentaries by reference to Blackstone’s purpose in writing them and the time at which they were substantially composed. He points out that Blackstone aimed to expound the law to a “young and largely ignorant audience” which explains some of the gaps in treatment16 and that the content of much of the Commentaries must have been determined by the 1750s, so that, in the late 1760s when the four volumes were published, they would inevitably have been rather old fashioned.17 While Mr Doolittle’s arguments seem correct, they do not

13 S F C Milsom, “The nature of Blackstone’s achievement” (1981) 1 OJLS 1 (henceforth Milsom, “Blackstone’s achievement”) at 9–12. Here Professor Milsom disagrees with the late Sir Rupert Cross, “Blackstone v Bentham” (1976) 92 LQR 516. 14 O Kahn-Freund, “Blackstone’s neglected child: the contract of employment” (1977) 93 LQR 508 (henceforth Kahn-Freund, “Blackstone’s neglected child”). 15 D R Nolan, “Sir William Blackstone and the New American Republic: a study of intellectual impact” (1976) 51 NYULRev 731; A Watson, Legal Transplants: An Approach to Comparative Law (1974) 93–94. Just as Blackstone’s importance in England was in spite of Bentham’s and Austin’s criticisms, so in the United States it was in spite of Jefferson’s criticism of Blackstone’s superficiality and Tory principles: J S Waterman, “Thomas Jefferson and Blackstone’s Commentaries” (1932–1933) 27 IllinoisLRev 629 (henceforth Waterman, “Jefferson and Blackstone’s Commentaries”). On the other hand Blackstone has been claimed as an apostle of the American Revolution by G Stourzh, “William Blackstone: teacher of revolution” (1970) 15 Jahrbuch für Amerikastudien 184. 16 I G Doolittle, “Sir William Blackstone and his Commentaries on the Laws of England (1765– 9): a biographical approach” (1983) 3 OJLS 99 (henceforth Doolittle, “Blackstone”) at 108. 17 Ibid at 109–111.

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explain, for example, the structure of the work. His arguments are, however, compatible with the theory to be put forward here that the Commentaries constitute an institutional work.18 That Blackstone’s book is a member of the class of institutional works explains much that readers have found problematic in the work. This argument will be developed in three parts: first, institutional writings as a genre will briefly be discussed; secondly, the recognition of this genre in England will be described; and thirdly, Blackstone’s status as an institutional writer will be argued for, and the solution this provides to some of the problems related to his Commentaries will be demonstrated. A. INSTITUTIONAL WRITINGS Institutional writings have recently been the focus of some scholarly attention.19 Because I have dealt with the concept of institutional writing elsewhere,20 it is only necessary here to pick out and illustrate some crucial features of the genre. A fundamental work on institutional writings is that of Professor Klaus Luig. Professor Luig relates the appearance of institutional writings in the seventeenth and eighteenth centuries to a general movement in Europe leading to the differentiation of the ius commune and the growth of national laws in the European states of the ancien régime. He argues that this movement resulted from the realisation that the Corpus juris civilis had not been received formally as positive law in Germany and Italy, which led to regional law of mediaeval origin being given prominence and to the foundation of chairs of national law in the various European universities. He claims that the new national laws gave expression to the independence and autonomy of the rising nation states and that legal lit-

18 Thus, institutional works frequently aim at education. 19 K Luig, “The institutes of national law in the seventeenth and eighteenth centuries” (1972) Juridical Review 193 (henceforth Luig, “Institutes of national law”); A Watson, The Making of the Civil Law (1981) 62–82 (henceforth Watson, Making of the Civil Law); F H Lawson, “Institutes”, in R H Graveson, K Kreuzer, A Tunc and K Zweigert (eds), Festschrift für Imre Zajtay (1982) 333. This last work became available to me only late in my revision of this article, so I have not been able to take it fully into account; nothing the late Professor Lawson says, however, would make me change any views expressed here. He seems to use institutional writing in a sense rather different from that in which I use it here, and he does not explore the connection between institutional writings and the development of national laws. 20 The following account draws on J W Cairns, “Institutional Writings in Scotland Reconsidered”, in A Kiralfy and H L MacQueen (eds), New Perspectives in Scottish Legal History (1984) 76 (henceforth Cairns, “Institutional Writings”).

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erature of this movement was based on a concept of “institutes”.21 Luig’s analysis, depending as it does on the differentiation of the ius commune, does not of itself encompass legal literature in England. This might seem to pose problems for the argument here; but I would suggest that Luig’s exclusion of evidence from English legal history has perhaps led him to overemphasise the role of the differentiation in the ius commune in the growth of institutional writings and that more important is the rise of nation states which, with other factors, led, in Europe, to the differentiation of the ius commune. Unless we accept that institutional-style writings in England were solely the result of influence from contemporary continental Europe (and Scotland) it would seem likely that an explanation for them should be found outwith the internal history of those systems traditionally designated civil law systems. Professor Poggi has pointed to factors bringing about the development of nation states in Europe of the seventeenth and eighteenth centuries.22 While his argument refers to the absolutist states, much that he says has a more general relevance. He shows that these centuries saw the growth of territorial rule with smaller and weaker territories being absorbed into large ones which ultimately led to “the formation of a relatively small number of mutually independent states, each defining itself as sovereign and engaged with the others in an inherently open-ended, competitive, and risk-laden power struggle”.23 He states that this new pattern of relationships between states “placed a considerable premium on a state’s ability to tighten its internal political ordering, to structure rule so as to make it more unitary, continuous, calculable and effective”.24 He points out that, following on from this, one centre in the territory would tend to monopolise rule over the whole to make government more efficient.25 With this nationalism based on territorially bounded and defined states came the use of native languages for legislation and the administration of justice.26 France and Spain provide useful illustrations of many of these points.27 Both were states lacking a unified legal system in which the laws varied from region to region. In both, political unity was provided by the rule of 21 Luig, “Institutes of national law” (n 19) passim. 22 G Poggi, The Development of the Modern State (1978) 60–85 (henceforth Poggi, Modern State). 23 Ibid 60. 24 Ibid 60–61. 25 Ibid 61. 26 Ibid 72–74, 77–78. 27 This account is based on that found in Cairns, “Institutional Writings” (n 20) at 81–88.

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an absolute monarch who centred government on himself and who sought to unify his realm. In Spain the monarch tended to assimilate to the laws and institutions of Castile those of the other Spanish kingdoms, while in France the monarch promoted a national law, a droit commun français. In both France and Spain, the monarchy played an important role in creating a national law, first, by fostering a sense of national identity,28 and by centring rule on the king, ignoring local structural political differences, secondly, by providing royal legislation valid for the whole kingdom, and thirdly, by promoting the study of the national law in the universities. While in both France and Spain an important element in the promotion of a national law was unification of law within the kingdom, another significant motivating factor was the differentiation of the national law from the ius commune and from the laws of other nation states. In both France and Spain, the law taught in the universities had been Roman and Canon law.29 In 1679, by the Edict of St Germain, Louis XIV ordered the creation of chairs of French Law in the French Law Faculties. In 1713, in Spain, the Royal Council attempted to ensure that Spanish law was taught in the universities and, though this attempt was not immediately successful, in the last quarter of the eighteenth century, national law gradually came to be taught in the Spanish universities. Though the direct causes of the introduction of the teaching of the various national laws in Europe must have varied from territory to territory, in accordance with the structural differences between countries, it is highly significant that it is only in the seventeenth and eighteenth centuries that national laws started to be taught in the law faculties alongside the Roman and Canon laws.30 Though further study of specific countries would be required, it seems plausible to suggest that new forms of national consciousness, resulting from the rise of emergent nation states, especially in the context of the end of the Thirty Years War in 1648 and the final defeat of the mediaeval ideal of Empire, resulted in the promotion of national laws to the detriment of the ius commune. It is quite possibly also significant that, in the absolutist nation states, lawyers filled many important administrative posts, so that the crown had an interest in legal training for the provision of functionaries

28 Consider Gallicanism in France and Louis XIV’s foreign and expansionist wars. 29 The study of Roman law had been forbidden in Paris, however, in 1219. See W Ullmann, “Honorius III and the prohibition of legal studies” (1948) Juridical Review 177. 30 Watson, Making of the Civil Law (n 19) 28 makes a similar point. In some countries, of course, the national law was not taught until the nineteenth century.

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to operate the royal bureaucracy.31 Further, from the sixteenth century onwards, Humanist historical study of the Corpus juris civilis stressed that Roman law was the law of a specific people and was a law which developed and declined. That the Corpus juris civilis was a Byzantine compilation led to its being disparaged in comparison with the classical Roman law. Because the Corpus juris was so trenchantly criticised by Humanist scholars, notably Hotman, Professor Watson has argued that the Humanist movement in law led to “the intellectual respectability of local law and its study”.32 This intellectual movement stressing local law would reinforce the internal and external political developments promoting the development and study of local territorial laws promoted as national laws in the emerging nation states. It is useful to consider that the era under consideration saw the appearance of Montesquieu’s L’esprit des lois in 1748.33 In a period when jurists were founding natural law theories on an epistemological rather than a historical basis, Montesquieu stands out for stressing the necessity of a close connection between laws and the particular people for whom they were formulated.34 While Montesquieu was not concerned to stress the significance of law as a national phenomenon, it is obvious that his theories gave an explanation for the variation in laws between different nations, and the necessity for this, and thus supported the differentiation of the ius commune. Professor Stein has pointed out that L’esprit des lois was very successful in England, and he suggests that this “may have been due to the fact that . . . it provided a rational theory which explained why English law looked so different from the laws of other countries”.35 It seems fair to generalise this suggestion to all the emergent nation states and to recognise that the factors promoting the breakdown of notions of a ius commune and a universal epistemologically based natural law seem likely to have influenced or supported Montesquieu in his recognition that laws ought to be suited to particular peoples. Whatever may have been the influence of Montesquieu on the jurists of the national laws, it is certain that his work threatened notions of a supranational ius 31 This can be demonstrated for Spain: R L Kagan, Students and Society in Early Modern Spain (1974). 32 Watson, Making of the Civil Law (n 19) 75. 33 C de Secondat, Baron de la Brède et de Montesquieu, De l’esprit des lois (1748). I have used the translation by T Nugent, The Spirit of the Laws (1823) in two volumes. Nugent’s translation appeared originally in 1752. 34 E.g. Montesquieu, Spirit of the Laws vol i, 6 (Book 1, ch 3). See Cairns, “Institutional Writings” (n 20) 105–106. 35 P Stein, “Continental Influences on English Legal Thought, 1600–1900”, in La Formazione Storica del Diritto Moderno in Europa. (1977) 3 Atti del Terzo Congresso Internazionale della Società Italiana di Storia del Diritto 1105 (henceforth Stein, “Continental influences”) at 1114.

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commune and, by stressing the cultural specificity of law, gave an ideological foundation to an emphasis on national laws.36 Linked with the development of the university teaching of national laws was the production of elementary textbooks. Some such texts were produced directly to cater for the needs of students, while others seem to be the result of the same cultural circumstances which produced the university teaching of native law in the first place. Examples of the first type are the Instituciones del derecho civil de Castilla of I J de Asso y del Río and M. de Manuel y Rodríguez,37 the Ilustracion del derecho real de España of Juan Sala,38 Les institutes de l’Empereur Justinien conférées avec le droit françois of F de Boutaric,39 and Les institutions du droit françois suivant l’ordre de celles de Justinien, of Claude Serres.40 A Scottish example would be Erskine’s Principles of the Law of Scotland.41 The second type of elementary book is exemplified by the Institution au droit françois of Gabriel Argou42 and Sir George Mackenzie’s Institutions of the Law of Scotland.43 (It is worth noting that both these latter works were in fact used as university teaching texts.) These books form a distinct genre. They attempt to give a comprehensive but elementary treatment of a whole system of law treated as a national law. For the two Spanish and the three French works, it was accordingly necessary either to attempt a synthesis of the varying regional laws or to treat the law of one area as being predominant. The French works followed the first solution and the Spanish the second. Despite the different jurisdictions and systems of law, both French and Spanish works were attempts to state, in so far as possible, a national law. 36 The influence of Montesquieu on Blackstone has been recognised, Posner, “Blackstone and Bentham” (n 11) 572 and R Willman, “Blackstone and the ‘theoretical perfection’ of English law in the reign of Charles II” (1983) 26 Historical Journal 39 (henceforth Willman, “Blackstone”) at 43. Willman argues that Blackstone draws on Montesquieu to legitimate the “ancient constitution” of England; but neither author makes the point made in the text above. 37 I J de Asso y del Río and M de Manuel y Rodríguez, Instituciones del derecho civil de Castilla (1771) (henceforth Asso and Manuel, Instituciones). I have used the 7th edn by J M Palacios (1806). 38 J Sala, Ilustracion del derecho read de España (1803) (henceforth Sala, Ilustracion). 39 F de Boutaric, Les institutes de l’Empereur Justinien conférées avec le droit françois (1738–1740). 40 C Serres, Les institutions du droit françois suivant l’ordre de celles de Justinien, accommodées à la jurisprudence moderne, & aux nouvelles ordonnances, enrichies d’un grand nombre d’arrêts du Parlement de Toulouse (1753). 41 J Erskine, The Principles of the Law of Scotland (1754). 42 G Argou, Institution au droit françois (1719) 2 vols (henceforth Argou, Institution). 43 G Mackenzie, The Institutions of the Law of Scotland (1684) (henceforth Mackenzie, Institutions). I have used the 1706 edn.

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These writers were concerned to stress that there was a national French or Spanish law, clearly differentiated from the European ius commune rather than to emphasise differences between different jurisdictions and provinces within the one emergent nation state.44 While all these works generally followed the Institutes of Justinian as regards both structure and topics included for discussion, apart from the books of Boutaric and Serres, there was considerable freedom taken in improving (presumably) upon the scheme of Justinian, without it being in doubt from whence the scheme of the works ultimately derived. Sala, for example, states of his work: “y nos ha parecido dividirla en tres libros, segun los tres objetos del derecho, personas, cosas, y acciones, como lo hizo Justiniano en sus Instituciones”.45 This is the traditional Roman division of law.46 Sala’s statement is slightly misleading in that, while Justinian’s Institutes are organised according to this division, they are divided into four books. Sala also departs from Justinian in including, in titles XXIV to XXXI of his second book, that “De las Cosas”, a treatment of substantive criminal law and in ending his third book with a title (XVII) “De la significacion de las palabras” and one (XVIII) “De las reglas del derecho”. These two last titles are copied after the manner of the Digest, and it is easy to appreciate their usefulness in a student text.47 Asso and Manuel also follow this division, and divide their treatise into three books, though they do not refer to Justinian.48 They too have included at the end of their second book “De las Cosas” two titles (XIX and XX) dealing with criminal law. The situation of these treatments of criminal law by Sala and by Asso and Manuel is undoubtedly the result of the placing of titles on delictual liability in Justinian’s Institutes just prior to the start of the discussion of actions. The Roman law of delict covered some matters dealt with by criminal law in modern systems and to these Spanish authors this would suggest that the most suitable position for their treatment of criminal law would be immediately after the titles on delictual liability just prior to actions. Thus, Justinian’s scheme has influenced even this departure from it. It is hardly surprising that these authors of elementary texts for students followed the structure of Justinian’s Institutes, as the Institutes, addressed cupidae legum iuventuti, formed the paradigm of a student text on law. 44 On this, see further Cairns, “Institutional Writings” (n 20) at 81–88. 45 Sala, Ilustracion (n 38) vol i, prefacion, VI. 46 J Inst 1.2.12: “Omme autem ius, quo utimur, vel ad personas pertinet vel ad res vel ad actiones.” Also, D 1.5.1: the division may derive ultimately from Gaius. 47 D 50.16 and 17. 48 Asso and Manuel, Instituciones (n 37) vol i, 1 (Book 1, tit 1, cap 1).

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The problem posed for the Spanish writers by the difficulty of fitting an adequate treatment of criminal law into the scheme of the Institutes highlights the fact that the Institutes were composed for students in the sixth century AD while the later authors were attempting to state their native law in the seventeenth and eighteenth centuries. The societal differences necessitated departures from the Justinianic structure and coverage of topics. Thus, Asso and Manuel in their title V of Book I, “Del estado civil de las personas”, had to discuss not only who were natives of Spain and who foreigners, but also the distinctions between nobles, gentlemen, knights and commoners and between laity and clergy. Similarly, the second chapter of the first book of Argou’s Institution is entitled “De la noblesse”. From the fact that these elementary works based on Justinian’s Institutes were often specifically intended for law students or were aimed at an audience not necessarily familiar with law, several consequences flow. First, the books had to have a simple and reasonably logical structure: and this is indeed why Justinian’s Institutes were followed. The Institutes’ arrangement is hardly perfect but it does provide a readily understood and simple structure for dealing with the law. Its arrangement is easy to grasp. Secondly, the substantive account of the law had to be simple to understand. To this end, these works tend just to expound the law as seen by their authors. The authors do not tend to discuss scholarly disputes at any length, nor are they concerned to provide any kind of critique of the law, supposing that they even felt able to develop one. The tendency to exclude criticism of the law would be reinforced by the necessity some of these authors were under to provide a unified account of a national law by synthesising several different systems: this was in itself a difficult enough task without the further one of providing a critique of the law. It is open to us to class together all these works and call them “institutional” works, as these writers and their contemporaries classed them together and called them such. Thus, in the European languages of the seventeenth and eighteenth centuries, the terms “institutes” and “institutions” and their counterparts referred to works of an elementary nature on a subject, aimed at instruction; and, in law, the term alluded most obviously to the Institutes of Justinian.49 It will have been noted that Sala and Erskine did not use the term “institute” or “institution” in the title of their mentioned works: this does not affect the argument. Sala definitely based his book on the Institutes

49 See Cairns, “Institutional Writings” (n 20) at 79–80.

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of Justinian,50 and Erskine avowedly copied the structure of Sir George Mackenzie’s Institutions.51 Mackenzie said of such works generally: “The Natural way of Learning all Arts and Sciences, is to know first, The Terms used in them, and the Principles upon which they are founded, with the Origins of the one, and the Reasons of the other. A Collection of these Terms and Principles, is in Law called Institutions . . .”52 While Bell commented that, “An institute explains the general outlines of the law, with the connexions and dependencies of its component parts”.53 In the avertissement to the posthumous editions of Argou’s Institution, other works entitled “institutions” or some variation thereof, were criticised as not being “perfect” and as belonging to a different genre by virtue of their not containing a systematic account of the whole droit français.54 The following seem salient features of institutional writings: they are often (though by no means always) in the vernacular; they are frequently linked to the introduction of university education in the national law; they are influenced in organisation by Justinian’s Institutes; they attempt to be comprehensive; they deal with a national law; and they are often fairly elementary in nature. Even where the production of institutional works was not linked directly to the introduction of university teaching of native law, it seems most plausible to suggest a link with the appearance of a new legal national consciousness in the seventeenth and eighteenth centuries. It is obvious that an institutional style of book, deriving from the Institutes of Justinian, by reason of its systematic and comprehensive nature provided an excellent means of expressing a national law viewed as an organised whole. Chancellor Kent recognised the significance of Justinian’s Institutes when in his Commentaries he pointed out that, “It has been a model, by reason of its scientific and orderly arrangement, for every modern digest of municipal law”.55 B. THE ENGLISH BACKGROUND Professor Lawson has speculated that Mansfield may have been influenced by his knowledge of Stair’s Institutions56 when urging Blackstone to deliver 50 See quotation in text above at n 45. 51 Erskine described his Principles as being “In the Order of Sir George Mackenzie’s Institutions . . .”. 52 Mackenzie, Institutions (n 43) unpaginated epistle dedicatory. 53 G J Bell, A Treatise on the Law of Bankruptcy in Scotland (1800–1804) vol i, iii. 54 Argou, Institution (n 42) unpaginated avertissement. 55 J Kent, Commentaries on American Law, 8th edn (1854) vol i, 589 (538 of original edition). 56 J Dalrymple, Viscount Stair, The Institutions of the Law of Scotland (1681).

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the lectures from which the Commentaries eventually resulted.57 The famous account, found in Holliday’s biography of Mansfield, of Mansfield’s urging Blackstone to lecture privately in Oxford after his rejection for political reasons for the Regius Chair in Civil Law, has recently been shown to be inaccurate;58 and that Mansfield made the original suggestion to lecture privately at all, much less to lecture privately on English common law, must now be discounted, as there is no evidence other than Holliday’s erroneous account.59 It is worth noting Lawson’s remark, however, as it shows his belief that doctrinal writing in English law is the result of foreign (including Scottish in the term) influence.60 It is not necessary, however, to suppose foreign influence in order to explain the production of the Commentaries. There were earlier works on English law of a similar nature. Moreover, it would seem likely that many of the trends, which in Continental Europe resulted in the production of institutional works, were also effective in England. While in the countries of seventeenth and eighteenth century continental Europe nation states developed around the persons of absolute monarchs, English political history of the period is dominated by the constitutional struggle between monarch and parliament and the settlement of the succession to the throne on the house of Hanover. It was not necessary for an absolute monarch to create a nation state in England in this period as already there were defined national boundaries, a centralised administration, a dominant national language and a national Church. Furthermore, as Professor Pocock has demonstrated, English nationalism and historical studies in the seventeenth century had come to focus on the Common Law conceived of as protector and guarantor of the traditional 57 F H Lawson, “Stair from an English Standpoint”, in D M Walker (ed), Stair Tercentenary Studies, Stair Society vol 33 (1981) 227 at 236–237 and “Doctrinal Writing: A Foreign Element in English Law?” in Ius Privatum Gentium. Festschrift fĦr Max Rheinstein (1969) 191 (henceforth Lawson, “Doctrinal Writing”) at 195. 58 L Sutherland, “William Blackstone and the Legal Chairs at Oxford”, in R Wellek and A Ribeiro (eds), Evidence in Literary Scholarship. Essays in Memory of James Marshall Osborn (1979) 229 (henceforth Sutherland, “William Blackstone and the Legal Chairs at Oxford”) at 230–236. 59 On the point whether it was Mansfield or Blackstone who originally thought of lecturing in  English law, the dispute between W B Odgers, “Sir William Blackstone” (1917–1918) 27 YaleLJ 599 (henceforth Odgers, “Sir William Blackstone”) at 604–605 and Holdsworth, “Charles Viner and the abridgments of English law” (1923) 39 LQR 17 (henceforth “Charles Viner and the abridgments of English law”) at 23 n 3 is now shown to be irrelevant. The letter from Blackstone to Sir Roger Newdigate quoted by the late Dame Lucy Sutherland (“William Blackstone and the Legal Chairs at Oxford” (n 58) at 234–235), would strongly suggest that to lecture privately, and to lecture on English law, was Blackstone’s own idea. Whether he consulted his friend Murray or not cannot be known. On the relationship between Blackstone and Mansfield, see J S Waterman, “Mansfield and Blackstone’s Commentaries” (1934) 1 UChiLRev 549. 60 Lawson, “Doctrinal Writing” (n 57), passim.

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liberties of the English under the ancient constitution.61 While, by 1700, there was perhaps a more profound understanding of English legal and constitutional history – involving specifically a proper appreciation of the role of feudalism – none the less the tendency remained to focus on the Common Law as an important aspect of the uniqueness of England and English institutions.62 In England, as in Europe generally, the universities taught Roman or Civil Law.63 In the creation or recognition of a national law in England, the problems posed by the variation of the law from area to area and the need to differentiate the law from the ius commune did not exist in the same form as in France or Spain; though it should always be remembered that English law did not exist as a unified system in so far as major distinctions remained between different jurisdictions such as Common Law, Equity and Admiralty. It is, however, possible to identify trends parallel to those in Europe whereby English law was stressed as a national law and attempts were made to introduce the teaching of English law into the universities. These attempts are also linked to the production of institutional-style literature. If we turn first to the stress on English law as a national law, it is useful to consider first of all the language in which the law was expressed. In much of Europe, the seventeenth and eighteenth centuries saw a tendency towards the replacement of Latin by vernacular languages as the language of law.64 English law provides no exception to the trend towards use of the vernacular. In England, however, law had tended to be expressed in law French as well as Latin. The use of a form of French in the courts and as the language of court records and treatises seems likely to date from around 200 years after the Norman Conquest, rather than from the Conquest itself.65 Certainly not until towards the end of the thirteenth century is French used as an alternative to Latin in legal documents.66 There is no proof that French was used in court before the same period and some evidence suggesting the contrary.67 As Dr Baker has pointed out, it is unclear when French fell into

61 J G A Pocock, The Ancient Constitution and the Feudal Law (1957) (henceforth Pocock, Ancient Constitution). 62 Ibid passim. 63 As an aspect of the break with Rome of the English Church, Henry VIII had forbidden the teaching of Canon Law. He also established Regius Chairs in Civil Law in Oxford and Cambridge. 64 See text above at n 26 and Cairns, “Institutional Writings” (n 20) at 77–78. 65 G E Woodbine, “The language of English law” (1943) 18 Speculum 395. 66 Ibid at 416–425. 67 Ibid at 425–433.

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disuse as the language at the Bar; but certainly by the seventeenth century its use in courts was reduced to certain almost ritual forms.68 During the Commonwealth period, Parliament in 1650 provided for the translation into English of reports and other law books and for the future use only of English in the same.69 The Restoration brought a reversion to law French but in 1731 the use of French and Latin in the courts was finally abolished.70 It is interesting in this respect to refer to the production of law books in England. The most significant work of the seventeenth century was undoubtedly Coke’s Institutes, written in the first half of the century in English.71 Another important work was Sir Henry Finch’s Nomotechnia written in law French and published in 1613;72 but it is significant that in 1627 an English version appeared as Law, or a Discourse Thereof and that it was this version which gained popularity and went through several editions.73 Similarly, Sir Mathew Hale’s legal works were written in English.74 Baker knows of no original publication of a law book in law French after 1731.75 That this disuse of law French should be linked to a new growth of national consciousness among lawyers seems plausible. Thus, Peter Ball, Solicitor-General to Queen Henrietta Maria, condemned the language as a “relique of the Norman Tyranny”.76 Coke explained why he chose to write the first part of his Institutes, that on Littleton, in English: This part we have (and not without precedent) published in English, for that they are an introduction to the knowledge of the national law of the realm; a work 68 J H Baker, A Manual of Law French (1977) (henceforth Baker, Law French) 10. 69 C H Firth and R S Rait (eds), Acts and Ordinances of the Interregnum (1911) vol ii, 455–456 (22 November 1650). 70 Stat 4 Geo II, c 26. Baker, Law French (n 68) 13 points out that it was not considered necessary in this Act to make any provision regarding French law books: their production would presumably no longer be viable or feasible. 71 E Coke, Institutes. The first part, Coke on Littleton, was published in 1628. The other three parts were published in 1642–1644 after Coke’s death in 1634. 72 H Finch, Nomotechnia (1613). 73 H Finch, Law, or a Discourse Thereof in Foure Bookes (1627) (henceforth Finch, Law). I have used the London (1759) edition, reprinted New York (1978). It was once commonly supposed that this was a translation of the 1613 work but W Prest, “The dialectical origins of Finch’s Law” (1977) 36 CambLJ 326 shows that the relationship between the two works is considerably more complex. An English version of the French 1613 edition appeared as Description of The Common Laws of England according to the Rules of Art compared with the prerogatives of the King (1759). 74 M Hale, History of the Pleas of the Crown (1736), History of the Common Law (1713), An Analysis of the Civil Part of the Law (1713) (henceforth Hale, Analysis), and several others. These works were all published posthumously, Hale having died in 1676. I shall use the 1820 edition of the Analysis. 75 Baker, Law French (n 68) 13. 76 Quoted ibid 14.

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necessary, and yet heretofore not undertaken by any, albeit in all other professions there are the like. We have left our author to speak his own language, and have translated him into English, to the end that any of the nobility or gentry of this realm, or of any other estate or profession whatsoever, that will be pleased to read him and these Institutes, may understand the language wherein they are written.77

Coke stated that he could not imagine resulting from his writing in English “any inconvenience” but rather “great profit”: and this despite his recognition of the usefulness of law French in providing a technical vocabulary.78 It has been stressed that the English version was for the benefit of the nobility and gentry:79 while that may be so, it seems very significant that Coke emphasises the suitability of English as the medium of expression of English national law. Baker points out that the use of law French was condemned in the seventeenth and eighteenth centuries by many “as a badge of Norman tyranny” and explains that these critics were opponents of legal conservatism.80 This explanation may be correct in part; but it seems more plausible to suggest that condemnation on these grounds reflected a newly developed national consciousness in law. This alternative suggestion explains Blackstone’s own condemnation of the use of the language,81 which Baker finds surprising and difficult to explain, presumably because Blackstone traditionally has been considered an arch conservative.82 This argument holds good, even though the critics of law French were mistaken in their history. The complete success, in the first half of the eighteenth century, of the movement away from law French may be demonstrated by simple reference to the fact that, at the start of the century, Roger North still considered that a knowledge of it was an absolute necessity for a lawyer, as “the Law is scarce expressible properly in English”,83 so that “lawyer and law French are coincident; one will not stand without the other”.84 North may perhaps have been untypically conservative, but in 1759, not long after the statute

77 E Coke, The First Part of the Institutes of the Laws of England; or, a Commentary upon Littleton: Not the Name of the Author only, but of the Law itself 16th edn (1809) Preface, xl. 78 Ibid Preface, xl–xli. 79 Baker, Law French (n 68) 11 n 13. 80 Ibid 9. 81 Blackstone, Commentaries vol iii, 317. 82 Baker, Law French (n 68) 9 n 2. On whether Blackstone was a conservative, see now Doolittle, Blackstone” (n 16) at 103–108. 83 R North, A Discourse on the Study of the Laws (1824) 13 (henceforth North, Discourse). See generally 11–15. (Though not published till 1824, this work seems to have been written at the start of the eighteenth century.) 84 Ibid 12.

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abolishing the use in court of foreign languages, the translator of Finch’s Nomotechnia pointed out that many English law books were written “in dead and foreign languages” and that few treatises were written in “our own native Tongue”; he then commented that he did not know “whether any Law can labour under a much greater Disadvantage than that”. He was glad that the “Disease” was “mending” because it discouraged people from knowing the laws and rendered them unintelligible.85 By this time a view such as North’s would have been quite inconceivable. A trend analogous to that to reject law French was one in the seventeenth and eighteenth centuries to identify Common Law as English law, the national law, to the detriment of other systems of law in England. At the start of the seventeenth century, while English law did not vary from area to area as did French law, it was not a unified system. There was, of course, the distinction between Common Law and Equity, but, more importantly for us here, there, was a division between Common Law and Civil Law. In England, the Admiralty and Ecclesiastical jurisdictions were in the hands of Civilian lawyers, as was the law relating to chivalry.86 The English Civilians were university-trained in Roman law.87 The struggle between the Civilians and the Common Lawyers, focusing on the issue of prohibitions by the Common Law courts to control the Civilian jurisdictions,88 is well known89 and only one aspect of it will be considered here. This is that one of the 85 H Finch, Description of the Common Laws of England, translator’s Preface, i–ii See n 73 above. 86 W Holdsworth, A History of English Law (henceforth HEL) (1924) vol 4, 237–238; G D Squibb, The High Court of Chivalry, A Study of the Civil Law in England (1959); G I O Duncan, The High Court of Delegates (1971); B P Levack, The Civil Lawyers in England 1603–1641, A Political Study (1973) (henceforth Levack, Civil Lawyers in England); D E C Yale, “A View of the Admiral Jurisdiction: Sir Mathew Hale and the Civilians”, in D Jenkins (ed), Legal History Studies 1972 (1975) 87 (henceforth Yale, “Admiral Jurisdiction”); Squibb, Doctors’ Commons, A History of the College of Advocates and Doctors of Law (1977); D R Coquȓllette, “Legal ideology and incorporation I: The English Civilian writers, 1523–1607” (1981) 61 BostonULRev 1. On some leading Civilians, see Holdsworth, HEL (n 86) vol v, 4–25, H F Jolowicz, “Some English Civilians” (1949) 2 Current Legal Problems 139 (henceforth Jolowicz, “Some English Civilians”); and R J Terrill, “The application of the comparative method by English Civilians: the case of William Fulbecke and Thomas Ridley” (1981) 2 JLH 169. 87 Holdsworth, HEL (n 86) vol iv, 228–237. 88 See E Coke, The Fourth Part of the Institutes of the Laws of England: Concerning the Jurisdiction of Courts (1648) 134–147, ch 22, “The Court of Admiralty proceeding according to the Civil Law”; and R Zouche, The Jurisdiction of the Admiralty of England Asserted, Against Sir Edward Coke’s Articuli Admiralitatis in XXII Chapter of his Jurisdiction of Courts (1663). 89 On prohibitions, see W Epstein, “Issues of principle and expediency in the controversy over prohibitions to ecclesiastical courts in England” (1980) 1 JLH 211; Yale, “Admiral Jurisdiction” (n 86) 98–100; Coquillette, “Legal ideology and incorporation II: Sir Thomas Ridley, Charles Molloy, and the literary battle for the law merchant, 1607–1676” (1981) 61 BostonULRev 315 at 323–336.

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charges levelled against the Civil Law in England was that it was “foreign”. In 1648, Duck commented: “Juris consulti nostri Municipales nos insectantur, quod peregrinas leges apud nos inutiles investigemus, et quod Cives simus in aliena Republica, Hospites in nostra, cum meminisse potuissent quid in eos pro nobis exteri retorserint.”90 Another Civilian, Wiseman, noted the same charges and pointed out that the Civil Law was no more foreign to England than the laws of the Danes, Saxons and Normans. He also pointed out that many scholars had recognised that the laws of the English nation derived from a mixture of sources.91 In fact, by 1600, the laws administered by the Civilians were quite anglicised, the most “foreign” aspect of the various Civilian jurisdictions being the procedures used.92 This makes the accusation of the “foreign” nature of the law of the English Civilians very interesting. The Common Law courts in the course of the seventeenth and eighteenth centuries did gain control over a very large part of the business of the Civilian courts: to legitimate this usurpation by appeal to a notion of “foreignness” of the Civil Law indicates that there was a strong sense of a national identity expressed in law by the common law – the indigenous English law. The Common Lawyers were able to represent Common Law as a national law to the detriment of the Civil Law. The common accusations that the Civilians and the Civil Law supported royal absolutism would reinforce the representation of the Common Law as the national law, protecting the liberties of English men and women.93 Coke commented thus on the text of the Statute of Merton: Here our common Laws are aptly and properly called the Laws of England, because they are appropriated to this kingdom of England as most apt and fit for the government thereof, and have no dependency upon any foreine Law whatsoever, no, not upon the Civil or Canon Law other than in cases allowed by the Laws of England . . .94

90 A Duck, De usu et authoritate juris civilis Romanorum per dominia principum Christianorum (1689) 350 (book 2, ch 8, part 3, §32). This may also be found quoted, Holdsworth, HEL (n 86) vol v, 25 n 1, from the 1653 edn. 91 R Wiseman, Law of Laws (1656) 180 (book 2, ch 12), found quoted Jolowicz, “Some English Civilians” (n 86) at 143. 92 Levack, Civil Lawyers in England (n 86) 130, 150–157. 93 Ibid 86–121, 196–202. 94 E Coke, The Second Part of the Institutes of the Laws of England. Containing the Exposition of many ancient and other Statutes, 3rd edn (1669) 98. Levack, “English Law, Scots Law and the Union, 1603–1707”, in A Harding (ed), Law Making and Law Makers in British History (1980) 105 (henceforth Levack, “English Law”) at 114 argues that much opposition to Scottish legal influence in England came from an identification of Scottish law with Civil Law.

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The Common Lawyers’ absorption of the jurisdiction of the Civilians reduced the multiplicity of jurisdictions in England and had, in this sense, an important modernising effect on the law. It is worth noting that many Civilians or adherents of the Civil Law adopted a wider definition of “Common Law” than did the Common Lawyers, arguing that the term “Common Law” encompassed not only the law as practised in the Common Law courts but also the Civil and Canon Laws as applied in England. They did not equate English law solely with the Common Law: “The English Law seems to have been suited Originally for Temporal affairs only, and for times of Peace. But to supply that defect the Civil and Canon Laws have been call’d in to complete it, and have serv’d as Auxiliaries.”95 After describing all the various ecclesiastical and Civilian courts, Wood commented: All this together make up our Common Law; and though it runs down thro’ different channels, yet every part of it (even that in the Spiritual Courts) may claim the name of the Common Law of England. For the whole is a composition of the Feudal, Civil and Canon Laws . . .96

Wood wished to stress that the Civil Law was an integral part of the laws of England and even properly part of the general common law of the land. In this he followed Cowell who had said “legem nostram communem (quam dicimus) nihil aliud esse quam Romani & feudalis mistionem”.97 While the advocates of the Civil Law eventually lost to the expansionism of the Common Lawyers, it is important to note that they defended the Civilian jurisdictions by arguing that the Civil Law was part of the English Common Law. They considered it useful to defend Civil Law as part of an English law deriving from several sources, and thus to refute the myth of the immemorial nature of the Common Law and the ancient constitution by reference to history, so defeating the claim of the Common Lawyers that only the Common Law was the national English law. The English universities at Oxford and Cambridge, in the manner of universities all over Europe, initially confined training in law to the Roman

95 T Wood, A New Institute of the Imperial or Civil Law. With Notes Shewing in some Principal cases, amongst other Observations, How the Common Law, the Laws of England, and the Laws and Customs of other Nations differ from it, 2nd edn (1712) (henceforth Wood, Civil Law) iv. 96 Ibid v. 97 J Cowell, Institutiones juris Anglicani, ad methodum et seriem institutionum imperialium compositae et digestae (1676) unpaginated Epistola Dedicatoria (henceforth Cowell, Institutiones). Wood, Civil Law (n 95) xi, stated: “. . . I follow him [Cowell] when I maintain that the Laws of England are a composition of the Civil, Canon and Feudal Laws . . .”

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and Canon laws.98 In the reign of Henry VIII, the teaching of Canon Law had been forbidden but Regius Chairs of Civil Law were established in both universities.99 From the mediaeval period, however, the legal profession in England had itself undertaken the training of lawyers in the Common Law in the Inns of Court.100 In the seventeenth and eighteenth centuries, this guild system of training, based on lectures, readings and moots, declined and ultimately disappeared,101 so that Holdsworth felt justified in commenting that in the eighteenth century the Inns “ceased to be educational institutions”.102 The problems this presented to the student of Common Law must have been considerable, as Roger North pointed out103 and Blackstone himself later recognised.104 This state of affairs was clearly a matter of concern to some lawyers. At two Inns there were attempts to reintroduce effective law teaching in the eighteenth century.105 Perhaps because government in Britain did not rely upon lawyers to run its bureaucracies there is initially no sign of any attempt by central government to ensure proper training in national law in England: this government attitude would no doubt be reinforced by recognition that the English legal profession, as a corporate body, traditionally regulated the training of its members. Individuals did, however, concern themselves with the provision of a more rational method of instruction in national law. Thus, Thomas Wood argued in 1708 that English Common Law should be taught at the universities because, “It is infinitely of more use amongst us, even than the Civil and Canon Laws; for it is twisted and interwoven almost into all manner of Discourse and Business, comprehending almost all that is valuable with us in those Laws”.106 Another individual concerned with the state of legal studies in England was Charles Viner who originally by a will dated 1 July 1752 – though ultimately the effective will was dated 29 December 1755 – left money to establish at Oxford a Professorship of 98 99 100 101 102

103 104 105 106

Holdsworth, HEL (n 86) vol iv, 229–235. Ibid (1923) vol i, 592 and vol iv, 232–233. Ibid (1923) vol ii, 506–512. Ibid (1924) vol vi, 481–499. Ibid (1938) vol xii, 16. See also 77–101. Blackstone, Commentaries vol i, 25 commented: “in the inns of court all sorts of regimen and academical superintendence, either with regard to morals or studies, are found impracticable and therefore entirely neglected”. North, Discourse (n 83) 1–2. Blackstone, Commentaries vol i, 31. On Blackstone’s own studies, see his letter to Richmond of 28 January 1745: (1919) 32 HarvardLRev 975. Holdsworth, HEL vol xii, 80–82. T Wood, Some Thoughts Concerning the Study of the Laws of England, Particularly in the Two Universities, 2nd edn (1727) (henceforth Wood, Thoughts) 14.

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Common Law.107 Viner hoped that the provision of instruction in Common Law at university would have the result that, when the intending lawyer started to attend the courts at Westminster, he would be better able to profit from the experience.108 Blackstone comments that Viner’s aim was to promote the study of the Common Law, and that he had wished to extend “to the youth of this place those assistances, of which he so well remembered and so heartily regretted the want”.109 Shortly after Viner’s first will was drawn up, Blackstone started to deliver lectures on English law at Oxford. It used to be thought, on the evidence of Holliday’s biography of Lord Mansfield, that Viner had made his bequest because of the success of Blackstone’s lectures; Holdsworth, however, pointed out that Viner’s original will antedated Blackstone’s lectures.110 The late Dame Lucy Sutherland later brought forward evidence to suggest that Blackstone may well have been influenced by knowledge of the impending Vinerian bequest in deciding to lecture on the Common Law, when he determined to lecture privately at Oxford: she indeed has strongly suggested that Blackstone may have been consulted by his friend, and fellow Tory, Dr William King, Principal of St Mary Hall, who advised Viner in 1752 on the framing of the original will.111 If these arguments are correct – and they are convincing – then Blackstone’s personal role in promoting proper systematic and rational instruction in the national law was indeed important. Lucas has argued that Blackstone’s main aim was to ensure that only men of a certain rank entered the legal profession;112 but this claim, as Jones has pointed out, seems exaggerated.113 Professor Willman has very recently argued that Blackstone wrote the Commentaries, and presumably lectured, in order to ensure the preservation of the constitutional function of the aristocracy.114 Blackstone may well have desired this, but it seems wrong to reduce his motives in delivering his lectures (or in writing his Commentaries) to this. Blackstone had a sincere desire to improve education in law. He may have intended his lectures to be useful to gentlemen and nobility attending the university; but he also

107 Holdsworth, HEL (n 86) vol xii, 92–93 and “Charles Viner and the abridgments of English law” (n 59) at 20–28. 108 Holdsworth, HEL (n 86) vol xii, appendix 1, 739–740. 109 Blackstone, Commentaries (n 1) vol i, at 28. 110 Holdsworth, “Charles Viner and the abridgments of English law” (n 59) at 23–24. 111 Sutherland, “William Blackstone and the Legal Chairs at Oxford” (n 58) at 236–239. 112 P Lucas, “Blackstone and the reform of the legal profession” (1962) 77 English Historical Review 456. 113 Jones, Sovereignty of the Law (n 4) xvii. 114 Willman, “Blackstone” (n 36) at 68–70.

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intended them for students whose ultimate aim was the legal profession.115 Blackstone was elected the first Vinerian Professor in 1758, when Viner’s intentions were put into operation.116 In the University of Cambridge, a chair in English Law was not founded until 1800; but in Ireland the government established in 1761 a Regius Professorship of Feudal and English law in the University of Dublin. Little seems to be known about the background to the foundation of this chair, though Professors McDowell and Webb link the Crown’s foundation of the Dublin chair to Blackstone’s success in Oxford.117 The first holder of the Regius Professorship, Francis Sullivan, pointed out that the Inns of Court were no longer fulfilling their educational function and that it was necessary for there to be proper systematic instruction in the English law. He added that Blackstone had proved that “the universities, the seats of all other branches of learning, are the places most fit for this purpose”.118 Thus, while it is not possible to demonstrate the same governmental concern with ensuring proper education in law in the English and Irish (and indeed the Scottish) universities in the seventeenth and eighteenth centuries as is found in France and Spain, even though the Crown did establish a Regius Professorship in Dublin, it is clear none the less that England does not differ from other European countries in the period of establishment of instruction in national law in the universities.119 While one cannot demonstrate that the trend to university teaching of Common Law in England is necessarily linked to an emergent greater national consciousness and the general rationalisation inherent in the development towards a Capitalist society, it would seem insufficient to ascribe the activities of those 115 W Blackstone, Tracts, Chiefly Relating to the Antiquities and Laws of England, 3rd edn (1771) iv – Preface to 6th edition of An Analysis of the Laws of England. If Sutherland was correct that Blackstone lectured knowing of the Vinerian bequest, or had influenced the Vinerian bequest, then, given the terms of the bequest, it is obvious that Blackstone very much had the legal education of prospective lawyers in mind. 116 Holdsworth, HEL (n 86) vol xii, 94–95. 117 R B McDowell and D A Webb, Trinity College Dublin 1592–1952. An Academic History (1982) 65. They give no source for this explanation. Were they relying on Sullivan’s statement quoted in the text here at n 118? 118 F S Sullivan, An Historical Treatise on the Feudal Law, and the Constitution and Laws of England (1772) 9–10. 119 Sullivan, the first Regius Professor of Feudal and English Law in Dublin (ibid) commented erroneously, “that every other nation of Europe hath admitted the profession of their municipal laws into their universities, and that the same hath been the opinion and practice of almost every age and country as far back as the lights of history extend”. Baker, An Introduction to English Legal History, 2nd edn (1979) (henceforth Baker, Introduction to English Legal History) 148 relies on this statement of Sullivan’s. See Watson, Making of the Civil Law (n 19) 28 and Luig, “Institutes of national law” (n 19) passim.

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who sought to establish Common Law in the universities solely to a response to the pragmatic realisation of the deficiencies of contemporary legal education. Certainly Viner sought to benefit his country while Blackstone in his inaugural lecture pointed out the need for knowledge of English law on the part of, amongst others, Members of Parliament who were “guardians of the English constitution; . . . and interpreters of the English laws”.120 In Europe, the production of institutional works in national law is linked to the development of university teaching of municipal law and the emergent national consciousness dependent on the growth of the nation state. There was a similar situation in England, and a recognition of a specific genre of institutional works. Dr Johnson’s Dictionary of 1755 recognised a category of institutional writings, though he did not specifically mention institutional works on law. Johnson lists the word “institutist” as the proper term for a writer of institutes.121 There are a number of works on English common law which use the term “institute” or “institution” in their title. One of the earliest must be the work probably by Richard Taverner entitled Institutions in the Lawes of Englande of around 1530.122 Cowell’s Institutiones juris anglicani ad methodum institutionum imperialium appeared in 1605.123 Coke’s Institutes were published in 1628 and 1642–1644.124 Wood published An Institute of the Laws of England in 1720.125 For English lawyers, the term “institution” or “institute” was obviously linked to notions of instruction and organisation (or method, as the contemporary term was). Coke stated that he intended his volumes to benefit “the young student” and he added: “and therefore I have termed them Institutes, because my desire is, they should institute and instruct the studious, and guide him in a ready way to the knowledge of the national laws of England”.126 Reeves in his History contrasted the historical method of exposition of the law with the institutional, stating that:

120 Blackstone, Commentaries vol i, 9. 121 S Johnson, Dictionary of the English Language (1755); repr 1979, sv “Institute”, “Institution” and “Institutist”. 122 R Taverner, probable author, Institutions in the Lawes of Englande, (1530). My attention was drawn to this work by its mention in Baker (ed), The Reports of Sir John Spelman, vol ii, Introduction, 94 Selden Society (1978) 31. It was apparently devoted to land law: ibid 127. 123 Cowell, Institutiones (n 97). 124 See n 71 above. 125 T Wood, An Institute of the Laws of England; or, the Laws of England in their Natural Order, according to Common Use (1720) (henceforth Wood, Institute of the Laws of England), I have used the 1763 edn. 126 Coke, The First Part, Preface, xxxix–xl. North, Discourse (n 83) 1 uses “institution” in the same sense: “Of all the professions in the world, that pretend to book-learning, none is so destitute of institution as that of the common law”.

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such a history, from the beginning of our earliest memorials down to the present time, would not only convey a just and complete account of our whole law as it stands at this day, but place many parts of it in a new and more advantageous light, than could be derived from any institutional system . . .

He considered historical exposition of the law as suitable to the “nature of the subject” while the institutional method he considered inferior as “merely artificial”.127 Wood obviously used a similar concept of Institutes as being related to both instruction and methodical organisation since he felt able to comment on Coke’s Institutes that they were not really Institutes at all “but more properly Commentaries”.128 Wood intended his own Institute to help students of English law “by supplying them with a Method to help their memories”.129 Wood directly related institutional works to methodical organisation of the law.130 While Cowell’s book was organised directly on the basis of Justinian’s Institutes, it does not seem that in England works considered to be institutional works, or described as such, were necessarily organised on a plan deriving from the Institutes of Justinian. Coke’s Institutes, for example, have a structure not resembling that of those of Justinian.131 The anonymous 1759 translator of Finch’s Nomotechnia considered it an institutional work but stressed the originality of its plan (but see below further on this).132 The structure of Justinian’s Institutes could exert an influence on English law books of this period in an indirect way, being mediated through other books. Bracton’s work, for example, is very obviously organised according to the method of Justinian’s Institutes, even though the whole is dominated by the final part on actions.133 Accordingly, some works have an obviously 127 J Reeves, History of the English Law, from the Time of the Saxons, to the End of the Reign of Philip and Mary, 2nd edn (1787) vol i, Preface, vi. 128 Wood, Institute of the Laws of England (n 125) Preface, iv. 129 Ibid. 130 Ibid i. 131 The First Part of Coke’s Institutes was his commentary on Littleton, the Second, his commentary on the exposition of statutes, the Third, an account of criminal law, and the Fourth dealt with the courts and actions. 132 Finch, Description of the Common Laws of England, Preface, v: “There is a certain Peculiarity of Plan, which is quite original, and distinguishes it from any other Book that is written in the Law . . . Add to this, that he has the Honour of being the first general Institute of the Laws of England, wherein he has not followed others, but has marked out the way for others to follow him.” The use of the term “institute” in the sense of “institutist” or “institutional writer” is interesting. 133 H Bracton, De Legibus. The modern standard edition is by S E Thorne, Bracton on the Laws and Customs of England (1968–1977) 4 vols. On the structure of Bracton, see T F T Plucknett, Early English Legal Literature (1958) 49–52. Bracton was influential in the period under consideration: Yale, “‘Of No Mean Authority’: Some Later Uses of Bracton”, in M S Arnold,

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more “Roman” structure than others. Hence, Wood’s Institute of the Laws of England may be structured after Finch as Blackstone states;134 but it is also influenced by the arrangement of Justinian’s Institutes.135 Earlier it was pointed out that in Continental Europe institutional works were often closely associated with the commencement of instruction in national law in the universities or with the conditions that brought about the commencement of such instruction. The English experience seems likely to have been similar. Whatever may have been Cowell’s ultimate intention in writing his Institutiones,136 he was certainly mindful of the fact that at Cambridge, as at Oxford, students of the Civil Law had to acquire some knowledge of English common law,137 and he intended his Institutes for their use.138 Wood’s Institute of the Laws of England of 1720 seems to derive from his wish that English law should be taught in the English universities. In his 1708 Thoughts Concerning the Study of the Laws of England, Wood had stated that “It is to be much lamented, that we have not any complete System of our Laws” as this, he pointed out, meant that “We are forced to learn it chiefly by Tradition, and Observations upon the Practice of it in the highest Courts”.139 Wood’s own Institute supplied the want of a “complete System” and he stated that he intended it “not only to help the Students in the Inns of Court and Chancery, but moreover to recommend the Study of the English Laws, to our young Nobility and Gentry, and

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T A Green, S A Scully, and S D White (eds), On the Laws and Customs of England. Essays in Honor of Samuel E Thorne (1981) 383–396. Hanbury (n 8) 324 considers that in England the “institutional method” originated with Bracton. Blackstone, Analysis, Preface, v. Whether this influence was direct or not is unimportant, though influence from Hale’s Analysis of 1713 is clear; but given Wood’s civilian training he would have been familiar with the Roman structure. Milsom, “Blackstone’s achievement” (n 13) at 8 states that Wood and Hale were influenced by “the Roman institutional arrangement”. Cowell’s work according to Levack may be related to the proposed union of English and Scots law. See Cowell, Institutiones (n 97) epistola dedicatoria, Levack, “English Law” (n 94) and “The proposed union of English law and Scots law in the seventeenth century” (1975) Juridical Review 97 at 104. Cowell, Institutiones (n 97), Praefatio: “. . . Academiae nostrae statuta, quorum observationi etiam sacramenti religioni astringimur, earum legum, quas habet patria nostra, imperitos nos esse prohibet ut differentias exteri patrique juris sic cognoscamus”; and for Oxford, Blackstone, Commentaries vol i, 15–16. Cowell, Institutiones (n 97) Epistola Dedicatoria. Stein, “Continental influences” (n 35) 1109 states that “Cowell made a serious attempt to introduce the study of English law into his University”. Unfortunately, he gives no references for this statement, so I do not know if there is evidence for this other than certain statements made by Cowell in the Epistola Dedicatoria and Praefatio of his Institutiones, which do not seem necessarily to indicate anything more than an attempt at private, as distinct from public, instruction. Wood, Thoughts (n 106) 43.

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to the Youth in our Universities . . .”.140 Wood obviously considered that institutional works on law to a certain extent obviated the necessity of the guild system of education in English law and permitted and facilitated the development of a more rational system of education in law to be carried out in the universities. It should be noted that, of these two institutional works associated with university teaching, the first directly copied the structure of Justinian’s Institutes, while the second was influenced by it. Furthermore, Wood described Finch’s Discourse as “the most methodical book extant that ever was wrote by one of our Profession; it almost follows the Method of Justinian’s Institutes”.141 For Wood, the obvious and, presumably, best structure or method to be followed by a writer of elementary institutional works intended for instruction in national law was one derived from that of Justinian’s Institutes. In sum, it is possible to identify in England of the seventeenth and eighteenth centuries two trends productive of institutes of national law: first, the tendency to stress that English law was a national law, properly expressed in the vernacular, and to identify the national law with the common law to the detriment of other systems of law in England; and, second, the promotion of the study of English common law in the universities, even though this promotion was not spectacularly successful. Given that there was an obvious desire for elementary works on English common law, viewed as the national law, to provide for the needs of educated non-lawyers and of novice students of Common Law, the production of institutional-type literature in England would seem likely to have been virtually inevitable. Further, given the likelihood of the writing of such works, and the strong university associations of  many likely authors, even though there were many potential schemes of organisation for such works,142 as on Continental Europe, the influence of Justinian’s Institutes was to be expected. It is, therefore, perhaps significant that one of the works translated into English pursuant to Parliament’s 1650 statute requiring the expression of English law in the English language was Cowell’s Institutiones juris anglicani143 as this demonstrates the

140 Wood, Institute of the Laws of England (n 125) Preface, iv. 141 Wood, Thoughts (n 106) 43. 142 E.g. Finch or Coke. B J Shapiro, “Law and science in seventeenth-century England” (1968– 1969) 21 StanLRev 727, esp at 740–749 (henceforth Shapiro, “Law and science”) stresses that the work of Sir Matthew Hale was one aspect of a general seventeenth-century concern with order and method. 143 J Cowell, The Institutes of the Lawes of England Digested into the Method of the Civill or Imperiall Institutions, translated by W G (1651).

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recognition of the usefulness of institutional works in the vernacular on the national law of England.144 C. THE COMMENTARIES It is not necessary or useful to discuss Blackstone’s background or career.145 The Commentaries resulted from the lectures on English law which he delivered at Oxford.146 Blackstone modestly explained that he only published his Commentaries because pirated versions of his lectures were circulating.147 Four volumes of Commentaries appeared over the years 1765–1769. The first volume, as well as containing the first book of the Commentaries, “Of the Rights of Persons”, includes as an introduction the text of Blackstone’s inaugural lecture as Vinerian Professor, “On the Study of the Law”, and three essays: “Of the Nature of Laws in general”, “Of the Laws of England”, and “Of the Countries subject to the Laws of England”. The second volume consists of the second book of the Commentaries entitled “Of the Rights of Things”. The third volume is composed of the third book “Of Private Wrongs” while the fourth volume contains the fourth book, “Of Public Wrongs” (the last chapter of which is entitled “Of the Rise, Progress, and gradual Improvements, of the Laws of England”). Blackstone’s Commentaries were described by his contemporary or near contemporary readers as an institutional work. Bentham so described them148 as did the editor of North’s Discourse who stated: “Until the appearance of Sir W Blackstone’s Commentaries, the English law was, in fact, without any elementary or institutionary work which might facilitate the arduous progress of the student.”149 This usage, like that of Bentham, does not necessarily mean that Blackstone’s work ought to be regarded as an institutional work in the more restricted sense here contemplated. Considering, however, that the Commentaries are closely linked to the development of university teaching of the common law in England, that they contain an

144 See text at n 69 above. 145 On Blackstone’s life, see Doolittle, “Blackstone” (n 16), J Clitherow, Preface to the Reports of Sir William Blackstone, 2nd edn (1828), D A Lockmiller, Sir William Blackstone (1938), L C Warden, The Life of Blackstone (1938) and W B Odgers, “Sir William Blackstone” (1917–1918) 27 YaleLJ 599 and (1918–1919) 28 YaleLJ 542. Jones, Sovereignty of the Law (n 4) xiii n 1 rightly comments of the books of Lockmiller and Warden that “Both are somewhat naïve”. 146 Blackstone, Commentaries vol i, Preface, i–iii. 147 Ibid iii. 148 Bentham, A Fragment on Government (n 3), Preface, 413. 149 North, Discourse (n 83) 71 n 12.

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elementary but comprehensive account of the law, and that they treat the common law as a national law, it seems fair to accept provisionally that they are an institutional work. Moreover, as I shall try to demonstrate below, the organisation of the Commentaries seems likely to have been influenced by the Institutes of Justinian. Jefferson commented of Blackstone’s work that it was “lucid in arrangement, . . . correct in its matter, classical in style, and rightfully taking its place by the side of the Justinian Institutes”.150 (1) Structure In the Commentaries, Blackstone does not discuss the structure (or “method”) of his work: he presumably considered the plan to be self-explanatory. The Commentaries are based, however, on his lectures, and he published an Analysis of his lectures in which he discussed their structure.151 The Analysis was first published in 1756, the edition of 1771 being altered slightly to bring it into conformity with the Commentaries, In the preface to the Analysis, he discussed the structure of various works, finding them all wanting; but he commented of Hale’s Analysis that it was “the most natural and scientifical . . . as well as the most comprehensive” of any of “the schemes hitherto made public for digesting the laws of England”.152 Blackstone stated that he had accordingly “principally followed” the structure of Hale’s Analysis, but that he had not closely adhered to it.153 There is obviously a definite influence from Hale’s Analysis on the structure of the Commentaries; but given that Blackstone pointed out that it was only the scheme which he “principally followed” and that he did not follow it exactly, it is useful to consider further the structure of the Commentaries; more especially as some writers still describe the work as having a “peculiar organization”154 or consider Blackstone to have “made no attempt to construct a coherent system”.155 Such mystification over the structure of the Commentaries arises from failure to place them in their proper historical and European context.156

150 T Jefferson, letter to Cooper, found quoted Waterman, “Jefferson and Blackstone’s Commentaries” (n 15) at 636–637. 151 Blackstone, An Analysis of the Laws of England (see n 115 above) (henceforth Blackstone, Analysis). I shall quote from the 1771 edn. 152 Blackstone, Analysis v. 153 Ibid v–vi. 154 J H Langbein, introduction, Commentaries vol iii, iii. 155 Lawson, “Doctrinal Writing” (n 57) 194. 156 Milsom, “Blackstone’s achievement” (n 13) 2 points out that “legal historians . . . do not actually say they are disappointed, but they seem puzzled, particularly about the arrangement. Perhaps

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Most writers have been content to accept that Blackstone followed Hale’s Analysis, even though he did not claim to have followed it closely and only mentioned it as a principal source. Austin in his Lectures merely stated that “the method observed by Blackstone in his far too celebrated Commentaries, is a slavish and blundering copy of the very imperfect method which Hale delineates roughly in his short and unfinished Analysis”.157 While more modern authors do not share Austin’s vituperation, they also are generally content to point to the influence of Hale’s Analysis.158 Writers also point to the influence of Justinian’s Institutes either directly or mediated through Hale, but without either specifying clearly the nature of that influence or referring to a carefully defined category of institutional writings, only to a rather loosely described one.159 Hale stated that “The laws of this kingdom do respect either, Civil rights; or, Crimes and misdemeanors”, and he accordingly divided the laws into two parts consequent on their matter: “1. The civil part, which concerns civil rights, and their remedies. 2. The criminal part, which concerns crimes and misdemeanors”. It is obvious that Hale intended his Analysis to cover both these parts, though he did not actually cover the criminal part of the laws.160 Blackstone did deal with criminal law in his book “Of Public Wrongs”, but Professor Green has pointed out that it draws heavily on Hale’s Pleas of the Crown161 and Hawkin’s Pleas of the Crown162 and he commented that “In organization and coverage Blackstone’s last volume is the least original of the four”.163 Hale was influential even here. A first point to be made is that Hale’s Analysis obviously derives its divisions of the law from Roman law. It states: The civil part of the law concerns, Civil rights or interests: Wrongs or interests relative to those rights:

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it was just defective; or perhaps some deeper end was being served”. The point of a “deeper end” will be returned to below. Austin, Lectures (n 5) vol i, 69. Jones, Sovereignty of the Law (n 4) xxv; Milsom, “Blackstone’s achievement” (n 13) at 8; Shapiro, “Law and Science (n 142) at 747–748; A W B Simpson, introduction, Commentaries vol ii, iii and “The rise and fall of the legal treatise: legal principles and the forms of legal literature” (1981) 48 UChicagoLRev 632 (henceforth Simpson, “Legal treatise”) at 640–641. Kahn-Freund, “Blackstone’s neglected child (n 14) 509, Milsom, “Blackstone’s achievement” (n 13) 8; Simpson, “Legal treatise” (n 158) 640–641, 652, 655. Hale, Analysis (n 74) preface. See n 74 above. W Hawkins, A Treatise of the Pleas of the Crown (1716–1721). I have used the 1777 edition. T A Green, introduction, Commentaries vol iv, iii.

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Relief, or remedies applicable to those wrongs. Now all civil rights, or interests, are of two sorts;– Jura personarum, rights of persons: or, Jura rerum, rights of things.164

Leaving aside for the moment the distinction between civil rights and wrongs relative to the same, it is clear that Hale has used the Roman conception that “Omne ius quo utimur vel ad personas pertinet vel ad res vel ad actiones”.165 In this, Hale’s Analysis departs from the organisation of, for example, Finch’s Discourse which is much more oriented around the institutions of property derived from the feudal law. Hale treated of wrongs after his analysis of the substantive law relating to persons and property. He thus explained his account: I come now from the consideration of rights or JURA, to consider of wrongs or INJURIAE; wherein I shall take this order, viz. First, I shall pursue the several natures of injuries, as they are severally applicable to those things, which are the subjects whereto the several rights aforesaid are adherent. Secondly, because it will be a shorter and plainer way to mention the several natures of the remedies applicable to the several kinds of injuries, or wrongs, I shall mention THOSE ACTIONS that are applicable to the several injuries, together with the injuries themselves; leaving the farther explication of the manner of application of those remedies unto the third and proper head, concerning RELIEFS OR REMEDIES.166

It will be seen that this category of wrongs is intermediate between substantive law and the law of actions. One or two examples will illustrate its nature. Hale refers to the husband–wife relationship dealt with earlier and then states: “where the wife is taken away from the husband, the law has provided a remedy for him by action of trespass DE UXORE ABDUCTA. So if she be beaten, a special action of trespass (on the case) for beating his wife, PER QUOD CONSORTIUM AMISIT.”167 As regards wrongs done to personal things in action, an example would be: “In persons that undertake a COMMON TRUST, it is implied, THAT THEY PERFORM IT; otherwise an action on the case lies.”168 Hale lists a possible wrong and then gives the appropriate action. To a modern reader this part of his Analysis reads as a very curious mélange of substantive law and the law on actions. It is only in

164 165 166 167 168

Hale, Analysis (n 74) 1 (S I). D 1.5.1 (Gaius libro primo institutionum). Hale, Analysis (n 74) 70 (S XXXIX). Ibid 73 (S XL). Ibid 77 (S XLI).

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the sections on wrongs that Hale dealt with much of the rules on contract or torts. These sections no doubt reflect the origin of much of the common law in the various writs and its development from procedure. Exactly from where Hale derived this is unimportant – it is sufficient to point out that Finch’s Discourse has a similar section (Book Three) on wrongs dealing with actions on the case, trespass and, indeed, unlike Hale, with various criminal wrongs, such as murder, robbery, heresy and sorcery, before his book on actions, pleadings and courts. Wood’s Institute is another work which has influenced Blackstone. Green has pointed out that Blackstone has borrowed from this work for his treatment of non-capital crimes.169 Blackstone in his own Analysis stated that Wood’s Institute was “little more than FINCH’s discourse enlarged”;170 but while Wood may have drawn on the substance of Finch’s work, he does not seem particularly to have structured his work after that of Finch. Wood stated that: The Objects of these Laws [of England] are, 1. The Persons of which England is composed. 2. Their Estates. 3. The Crimes and Misdemeanors that may be committed by them, call’d Pleas of the Crown. 4. The Courts of Justice, or Jurisdiction of Courts, and the Manner of Proceedings therein.171

Wood, like Hale, or probably following Hale (the Institute having been published seven years after the Analysis), has adopted a version of the Roman division of the law into persons, things and actions and he divides his work into four books according to the four objects of law he outlined. Unlike Hale, he dealt with criminal law and procedure; but he fitted the treatment into Hale’s general conceptual scheme. Unlike Hale, Wood did not have a section dealing with “wrongs”: he deals with this subject matter alongside procedure and actions generally. Thus, in his fourth book dealing with courts and procedure, to pick an example, Wood described what was meant by “An Action of Trespass of the Case” and then analyses and discusses the various situations in which it is used.172 Thus, he stated that “This Action of the Case lies for a Nusance” and then he discussed the law on nuisance, giving various examples of when an action would or would not lie, such as: “If a Schoolmaster keeps a School so near the Study of a Lawyer by Profession, 169 Green, introduction, Commentaries vol 4, iii. 170 Blackstone, Analysis (n 151) preface, v. Milsom, “Blackstone’s achievement” (n 13) 8 implies that Wood structured his Institute after Finch’s Discourse: “. . . to the extent that . . . Wood looked to an exemplar other than Finch, it was to the Roman institutional arrangement”. 171 Wood, Institute of the Laws of England (n 125) 10 (introduction). 172 Ibid 554 (book IV, ch 4).

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as to disturb him, an Action will not lie.”173 Wood’s fourth book accordingly covers much of the law of torts and also of the law of contract. His book on Estates, that is on property, also contains parts of the law of contract. Turning to Blackstone, it is obvious that his initial scheme of organisation in outline as exemplified in the titles of the four books is derived from Hale’s Analysis. Unlike Hale, Blackstone included an account of criminal law and procedure and, like Wood, did not separate “wrongs” from the details of procedure. It is clear that the structure of the Commentaries breaks down into three main parts: “Of the Rights of Persons” (Book I); “Of the Rights of Things” (Book II); and “Of Wrongs” (Books III and IV). The last of these parts is further divided into “Of Private Wrongs” and “Of Public Wrongs”. Of the third book, Professor Langbein comments as follows: The peculiar organization of Blackstone’s Commentaries will disconcert the modern reader most when he turns to Book III, Of Private Wrongs. One’s expectation is that such a volume would treat the substantive law of torts; and a few thin chapters do indeed canvass the rudimentary tort law of the mid–eighteenth century, together with some remedies for injury to property that modern lawyers would mostly assimilate to the law of property. Book III is, however, primarily devoted to English civil procedure: the jurisdictional allocations among the courts and the procedures for litigating in them.174

This third book can then be classified as dealing with actions. The “few thin chapters” on torts fit in with this classification, since English tort law had not yet completely freed itself from the law on procedure. His treatment of the substantive criminal law in the fourth book is not procedure-orientated in the same way; but it was no doubt convenient to treat the material in this way and it finds precedent in Justinian’s Institutes where, in the title De publicis Judiciis, there is a treatment of substantive criminal law necessary to found the account of the procedure.175 It is accordingly fair to say that Blackstone has been influenced in the organisation of his Commentaries by the Roman analysis of law into the law relating to persons, things and actions. Thus, while Blackstone does overtly classify English law into the law relating to rights and that relating to wrongs, further subdividing these categories into rights of persons (jura personarum), rights of things (jura rerum), private wrongs and public wrongs,176 overall, his Commentaries do have a structure typical of an institutional work. The only major problem with considering 173 174 175 176

Ibid 557 (book IV, ch 4). Langbein, introduction, Commentaries vol iii, iii. J Inst 4.18. Blackstone, Commentaries vol i, 118.

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his work divisible into persons, things and actions comes from the placing of his treatment of substantive criminal law; but, as we have seen, other institutional writers had similar difficulties in locating their account of criminal law177 – some indeed ignoring that area of law completely.178 Austin seems to recognise that Blackstone has followed this Roman institutional structure, though he considers it illogical from an analytical perspective.179 (In his mistranslation of jura rerum as “rights of things” Blackstone has, of course, followed Hale.) Many of the topics dealt with in the first book of the Commentaries might seem to contradict this claim since they are concerned with matters finding no place in Justinian’s Institutes; thus, chapters II–XIII inclusive deal with what modern lawyers would classify as constitutional law, while chapters XIV–XVIII inclusive deal with the law relating to persons both legal and natural. In examining the first book of the Commentaries, authors generally pay much more attention to the chapters on constitutional law than to those on persons.180 Professor Katz, for example, states that the first book of the Commentaries deals with “what a modern lawyer would call constitutional law, the legal structure of government”181 and in his analysis and account of the book fails to discuss chapters XIV–XVIII at all. Blackstone’s treatment of all these topics in one book is derived from Hale’s Analysis and, though this is often not recognised, from Wood’s Institute, although there are significant differences in details. This organisation of Blackstone’s material is one of which Austin approved, as he considered the public–private law distinction untenable, and he also considered this organisation to be unique to Hale and to Blackstone, stating that he could find no examples of it elsewhere.182 While Austin may be correct in his views of the distinction between private and public law, it does not seem that the reasons he gives were the reasons which persuaded Blackstone and Hale to organise their material in this way. Blackstone explicitly distinguished between public and private law.183 Furthermore, while Austin may be correct that there is no such thoroughgo177 See text at nn 46–48 above. 178 E.g. Stair’s Institutions. 179 Austin, Lectures (n 5) vol ii, 726. At ibid, 694–695, 725 he points out that this distinction between jus personarum and jus rerum is not logically carried through in the arrangement of Roman Institutes, Blackstone’s Commentaries and the French Code civil. 180 Hanbury (n 8) 331–347 discusses Blackstone as a constitutional lawyer, as a real property lawyer, as a torts lawyer, and as a criminal lawyer. He does not mention the law of persons or family law. 181 S N Katz, introduction, Commentaries vol i, v. 182 Austin, Lectures (n 5) vol ii, 750–751. 183 Blackstone, Commentaries vol i, 118, 142.

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ing treatment of constitutional law in an exposition of the law of persons in continental and other British works, it is undoubtedly the case that we can find similar, if not so extensive, treatments in other institutional works. Austin was writing from the viewpoint of an analytical jurist: but to understand this aspect of Blackstone it is necessary to locate his work in its historical context. One important aspect of the development of modern nation states was the separation of state from society, that is, the separation of the system of government or rule from the social system. The seventeenth and eighteenth centuries constituted a critical period in the achievement of this separation of state from civil society which, indeed, was only fulfilled in the constitutionalism of the nineteenth century, supported by an ideology of laissez faire. Nineteenth-century constitutionalism considered members of society to be equal, abstract individuals, considered as citizens in their relationship with the governmental system. We may contrast this with feudalism which was at once both a system of government and a social system. The law of persons, dealing with questions of status, can only be separated from the governmental system in a system of rule where the state is strictly separate from civil society. Roman private law demonstrates this, at least from the classical period to the time of Justinian, as government was distinct from private law.184 Considering the works we have already looked at, Finch’s Law does refer to a class of law seemingly considered the law relating to persons in the first chapter (entitled “Of the common law of England, where of the parts of the realm, and of the persons in it: of custom and prerogative”) of his second book. The category of persons he used, however, relates very much to ständisch society. He described the king and his powers, then the peers of the realm, and stated “All the rest are commons” and that “The particular persons are natural persons, or bodies politick”. His only statement on “natural persons” in this chapter is that “The natural person is every man”,185 while he does devote a great deal of attention to “bodies politick”, that is, corporations.186 Finch does, however, deal with much that would now be classed as the law of persons as aspects of the law on tenures.187 Finch was unable to separate a law of persons from the ständisch organisation of society or from the feudal system of land tenure: for him, the law of persons was still linked to government in the way described. Hale departed from this, and 184 185 186 187

Poggi, Modern State (n 22) passim. Finch, Law (n 73) 87 (book 2, ch 1). Ibid 87–94. E.g. ibid 146–153 on guardianship (book 2, ch 6).

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produced a more “Roman-influenced” category of persons; but it should be noted that he still considered persons to include the matter Finch discussed and that as well as introducing parent and child, husband and wife, guardian and pupil, Hale included lord and tenant, lord and villein and ancestor and heir as aspects of the law on persons. In this respect, Wood’s Institute seems to have followed Hale’s Analysis. The material Blackstone included in his book on persons was not dictated by his consideration of the nature of the distinction between public or private law but rather, reflecting the sources he used, indicates that questions of status were still linked to government of the realm. The separation of state from civil society was not so clear as it was to be in the nineteenth century. Blackstone has gone further than Hale and Wood, in so far as he has excluded lord and tenant, lord and villein and ancestor and heir from his account of the law of persons, and, from what he stated in the Commentaries, it is obvious that he was very aware of the general societal significance of the virtual abolition of feudal tenures in 1660;188 but his society was still one in which the system of rule – king, nobility, Church, commoners – was intimately part of the general societal system affecting not only government but family and other relations between persons. In a sense, the family was an institution of government: and many writers linked the institution of family directly to that of government.189 The whole stress contained in Hale and Blackstone on the rights of persons, whether political or other, reflects the conception of law deriving from the ständestaat.190 In a sense, Professor Katz was correct to state that Blackstone’s first book was on constitutional law, in that the law on husband and wife, master and servant, parent and child, guardian and ward was an aspect of the constitution of the government of society. Similarly, Hanbury points out that “Dicey startles us with the reminder that never once does Blackstone use the phrase ‘constitutional law’”.191 Viewed historically, this seems hardly surprising: whenever the term “constitutional law” may have originated (and 188 Military Tenures Abolition Act, 12 Car II, c 24 (1660). See Blackstone, Commentaries vol 2, 77. 189 “Le gouvernement d’une famille, et celui d’un corps politique doivent rouler sur les mêmes principes; l’une est en petit l’image de l’autre . . .”, J B Denisart, Collections de décisions nouvelles et de notions relatives à la jurisprudence actuelle (1806) vol xiii, 496. To relate family structure to the structure of government was very common. At the Revolution in France, many thought that the subjection of a wife to the authority of her husband was a creation of despotic governments, so that she ought to be freed from such authority, A H Huussen, “Le droit du mariage au cours de la Révolution Française” (1979) 47 Tijdschrift voor Rechtsgeschiedenis 9 at 99, 119. 190 Poggi, Modern State (n 22) 43–44. 191 Hanbury (n 8) 331.

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it surely must be long past the time of Blackstone),192 the comprehensive elaboration of extensive rules of law relating to the system of government of a nation or a state, considered as constituting a separate body of law, on the lines of, for example, commercial law, is not likely to have taken place much prior to the American and French Revolutions. Constitutional law is now conceived of as an aspect of public law and it is worth remembering that for Blackstone the main significance of the public–private law distinction was to separate public wrongs (i.e. crimes) from other wrongs.193 What is important is that, while Blackstone recognised the existence of a constitution in the modern sense, he did not consider there to be a body of constitutional law strictly separated from other law; the law relating to the constitution was part of the general common law of the land, and, since in Blackstone’s time this law was still connected traditionally to status, following Hale, the obvious place to deal with it in an institutional work was in the book on persons.194 Dicey’s comment that the arrangement of the first book “is curious and certainly does not bring into view the true scope or character of constitutional law” in a sense simply misses the point.195 This interpretation of the structure and content of the first book of the Commentaries is supported by reference to other institutional works, where, as a result of the continuation of ständisch conceptions of society, we find a treatment of similar material in books on the law of persons. We have already seen that Argou discussed the nobility in his book on persons.196 In Idea juris Scotici, a work explicitly organised according to the Roman divisions of persons, “rights” (i.e. ius rerum) and actions,197 James Innes, in the section on the law of persons, dealt with king, nobility, constitution

192 “Constitution” with the meaning of “The system or body of fundamental principles according to which a nation, state, or body politic is constituted and governed” is a sense which developed between 1689 and 1789 according to the OED. The earliest instance given by OED of the use of the adjective “constitutional” in the sense of “In harmony with, or authorised by, the political constitution” is 1765 and in the sense of “Of pertaining to, or dealing with the political constitution” 1841, with “constitutional lawyer” appearing first in 1845. 193 Blackstone, Commentaries vol i, 118. 194 The common law was, in a sense, the constitution. In 1791 was published a work entitled, Collectanea Juridica, Consisting of Tracts Relative to the Law and Constitution of England. Despite the apparent anticipation of the title of Dicey’s work in the title of this, the book has nothing to do with “constitutional law”, being a collection of miscellaneous materials: case reports, advice on how to study law, essays on areas of the law, such as conveyancing, and suggestions on how to reduce the cost of court cases. 195 Dicey, Law of the Constitution, 9th edn (1948) 7. 196 See text at nn 48–49 above. 197 J Innes, Idea juris Scotici: Or, A Summary View of the Laws of Scotland (1733) ii. See Cairns, “Institutional Writings” (n 20) 91–92.

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of the state and the Church.198 Asso and Manuel, in their Instituciones, divided humankind in three ways in their title “Del estado civil de las personas”‚ and stated: “Segun el estado civil, se consideran los hombres: I. Como naturales de estos Reynos, y estrangeros. II. Como Nobles, Hidalgos, Caballeros, y Plebeyos. III. Como Legos, y Eclesiasticos”.199 This covers material covered in Blackstone’s chapters II, X, XI and XII. It is worth noting that this one title out of eight occupies a quarter of Asso and Manuel’s book “De las Personas”. It must be admitted that none of these works contains quite the same or as extensive a treatment as Blackstone does of topics such as Parliament, king and the prerogative; but, given the nature of government under the absolute monarchs of Bourbon France and Spain, extensive treatment of “constitutional” topics would not have been possible because of the institutional structure of the government, and, moreover, such a sensitive topic would undoubtedly have fallen foul of royal censorship. These works nonetheless are important in demonstrating that the treatment of such topics in a book of the law of persons was not inconsistent with the conception of the law of persons found in other institutional works more obviously influenced by Roman law. Indeed, given the nature of the societies in which these institutional works were produced, to have discussed these matters was most useful because social status could determine the law applicable to a person as well as being an important aspect of the government of the society, because of the lack of a strong theoretical and practical division between government and social life. Reference to the respective tables of contents showing the outline structure of Blackstone’s Commentaries in comparison with Hale’s Analysis and Wood’s Institute demonstrates the extent to which, with respect to the first book, Blackstone has followed Wood rather than Hale or has been original; there is one point, however, worth considering in detail here. Hale considered there to be three kinds of relations between persons: political, oeconomical and civil.200 Political relations he dealt with in his sections III– XIII. Hale considered the oeconomical relations to be those of husband and wife, parent and child, master and servant.201 Civil relations for Hale were those of ancestor and heir, lord and tenant, guardian and pupil and lord and 198 Innes (n 197), part I. It is interesting to note that Innes considers English law to have four objects, persons, estates, crimes and courts; ibid, preface, viii. This would seem likely to be derived from Wood’s Institute. 199 Asso and Manuel, Instituciones (n 37) vol 1, 34–35 (book 1, tit 5). 200 Hale, Analysis (n 74) 3 (S II). 201 Ibid 29 (S XIV).

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villein.202 Wood did not use these distinctions and divided the law of persons along a distinction between “Natural” and “Relative or Civil” capacities: A Person in its Natural Capacity is every Man or Woman: In which Capacity the Law takes Notice of its Life, Sex, Health, Liberty, Good Name or Reputation.203 A Person in its Relative or Civil Capacity, is either the King, or a Subject: A Subject is either of the Clergy, or Laity, Nobility or Commonalty; and some amongst the Nobility and Commonalty, are of the Military state. And more particularly, a Person in a Civil Capacity is a Master of a Family, Husband or Wife, Parent or Child, Ancestor or Heir, Landlord or Tenant, Guardian or Minor.204

Blackstone described the relations between persons as being either public or private. Public relations are those equivalent to those Hale called political. Blackstone then followed Hale’s Analysis, and classed public relations as those between those whom he described as magistrates on the one hand, and those whom he described as the people on the other.205 He did not follow Hale, however, in making a division between “oeconomical” and “civil” relations. As already noted, he excluded ancestor and heir, lord and tenant, and lord and villein which Hale had considered aspects of civil relations. The only class preserved by Blackstone from Hale’s category of civil relations is guardian and ward; but Blackstone does not consider this relationship as distinct in nature from other oeconomical relationships. Thus Blackstone has one general class of “private oeconomical relations” consisting of master and servant, husband and wife, parent and child, and guardian and ward.206 It is obvious that Hale organised his class of “civil relations” round relationships connected with land holding. Blackstone has completely liberated this aspect of the law of persons from feudal tenures, and it accordingly has a rather more “Roman” and, indeed, modern appearance: thus, he connected guardianship with care for minors and argued that the relationship of guardian and ward was derived from that of parent and child and was analogous to it.207 This gives his class of “private oeconomical relations” the appearance of being organised around a notion similar to that of the Roman potestas. That Blackstone’s scheme of organisation of this part of the first book of his Commentaries (i.e. on “private oeconomical relations”) was perfectly compatible with the Civilian institutional structure is clearly shown by the fact that the Louisiana Civil Code of 1808 – the Digest of the Civil Laws of the Territory of Orleans – was clearly 202 203 204 205 206 207

Ibid 33 (S XVII). Wood, Institute of the Laws of England (n 125) 11 (book 1, ch 1). Ibid 18 (book 1, ch 2). Blackstone, Commentaries vol i, 142. Ibid 410. Ibid 448.

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influenced by the structure of this part of Blackstone’s first book for its own first book “Of Persons”.208 Most institutional works depart in some ways from the structure of Justinian’s Institutes; that Blackstone has done so does not necessarily exclude his work from the institutional category. Like other institutional writers, Blackstone had to cover in his Commentaries the law of a society very  different from that of Justinian. Moreover, the origins of the common law required a treatment of certain topics as aspects of actions rather than  of  persons  or  property. Nonetheless, it is clear that, both through Hale and directly, the Roman classification of the law into that relating to persons, property and actions has influenced the basic structure of the Commentaries, and that departures from that classification resulted from the requirement to give adequate expression to the nature of English law and to take into account the political circumstances of the period. Professor Kennedy has put forward a very sophisticated analysis of the structure of the Commentaries as being related to a deeper purpose served by the work than mere exposition of English law.209 Kennedy points to the basic division in the Commentaries between rights and wrongs and he states that “Blackstone had to construct a substantive law of wrongs because it was his intention to vindicate the common law against the charge that it was inconsistent with the enlightened political thought of his day, and especially with emerging liberalism”.210 Thus, for Kennedy, we can only understand the structure of the Commentaries and its division if we appreciate that Blackstone’s intention was “to legitimate the 18th century English system for the administration of justice”.211 He argues that Blackstone intended to defend English law from attacks on, for example, the writ system. It may be that the Commentaries in fact had a legitimating effect; but there seems to be no evidence of Blackstone having such an aim in writing his 208 See Cairns, “The 1808 Digest of Orleans and 1866 Civil Code of Lower Canada: An Historical Study of Legal Change”, unpublished PhD thesis, Edinburgh (1980) (henceforth Cairns, “The 1808 Digest of Orleans and 1866 Civil Code of Lower Canada”) 559 and n 218 thereon. I would now assert more strongly the fairly tentative statements made there. In one respect, the wheel came full circle. Blackstone’s work has an institutional structure of Roman origin. In 1797, the Professor of Civil Law of the University of Dublin, Arthur Browne, published A Compendious View of the Civil Law. In his preface, Browne regrets that barristers, apart from those who have studied in Scotland, tend to be ignorant of the civil law (i–ii); because of this he decided “that a short work in the method and order adopted by . . . Blackstone, in his Commentaries . . . might by the familiarity of its order, entice the student of the Common Law. . . .” (iii). 209 D Kennedy, “The structure of Blackstone’s Commentaries” (1979) 28 BuffaloLRev 205. 210 Ibid at 234. 211 Ibid at 256.

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Commentaries. Further, Hale too used the right/wrong distinction: did he, too, intend to legitimate the common law? Kennedy remarks of the division between the rights of persons and the rights of things: First, neither the person/thing distinction nor the internal division of the Rights of Things corresponds to any of the ways of subdividing private rights that are familiar to us. Second, both the person/thing distinction and the internal organization of Book II make sense if we see them as designed to show that formally equal rules that generate factual inequality relate persons to objects, rather than carrying out a state policy of helping one group of persons to dominate another.212

Kennedy may be correct; but it seems useful to realise that the distinction between the law of persons and the law of things followed by Blackstone finds precedent in other institutional writings. Kennedy criticises Blackstone’s treatment of contract in a number of ways. One criticism relevant here relates to Blackstone’s dealing with certain contractual relationships in his Book I. Kennedy argues that in Book II Blackstone reifies social relations: that is, turns relationships between individuals into relationships between persons and things in order to legitimate the social inequalities of emerging liberal society.213 Kennedy does admit that many of the categories Blackstone used were derived from Hale; but none the less he considers that Blackstone used the technique of reification to rationalise and to justify the existing organisational scheme.214 Kennedy argues that it was reification of contract law that allowed contract to be dealt with as an aspect of the law of things and that those contracts which Blackstone could not reify he relegated to Book I.215 While Kennedy may be and probably is correct that Blackstone’s treatment of these topics amounted to a legitimation of a certain social structure, it seems fair to point out that Justinian’s Institutes dealt with contracts as an aspect of the law of things, as did many institutional writers, and that marriage, and even master and servant, were also traditionally dealt with as part of the law of persons. The above is undoubtedly an inadequate consideration of Kennedy’s impressive analysis of Blackstone; but it seemed useful to comment on those parts of his analysis which touched on the discussion in this paper. Blackstone’s Commentaries may over all have had the effect of legitimating the common law in the way Kennedy suggests; but it does not seem to me that it necessarily 212 213 214 215

Ibid at 317. See also 287–288 on the placing of the material in Book II. Ibid at 334–350. Ibid at 335. Ibid at 337–342, 350. See also 323.

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follows that Blackstone intended them to have that effect and that he chose his organisational scheme with that end in view. Law by its nature may tend to legitimate existing social relations. Further, aspects of the organisation of the Commentaries which Kennedy attributes to the desire to legitimate may be explained as derived from obvious models and from the typical organisation of institutional works. The problems which Kennedy sees with the structure of the Commentaries, and explains as the result of Blackstone’s intention to justify existing social relations and the common law, may be explained, at least in part, by understanding the Commentaries as an institutional work with a certain typical structure modified to deal with an exposition of English common law. It is only if Blackstone’s book is viewed in isolation from other institutional literature and not related to a wider European context that the structure seems odd or deficient.216 Blackstone gave his Commentaries an institutional structure, derived primarily from Hale, and amended to provide a suitable exposition for university students of English law as a national law. (2) Substance The substance of the Commentaries has been the subject of considerable criticism, often at a trivial level.217 Major criticisms have been directed, however, 216 I would make the same point about Posner’s suggestion (“Blackstone and Bentham” (n 11) at 598) that the structure of the Commentaries derives from Blackstone’s emphasis on “the strengths of the contemporary English system” and counsel of “moderation in the pace of its further improvement” because he admired it excessively and had a vested interest in its continuation. Because of this, Posner argues that, had Blackstone placed his fourth book next to his first, the division of the Commentaries would have been more logical as the work would have been divided into public law and private law (note that Posner is using a modern conception of “public law”, not necessarily at one with Blackstone’s views), but that Blackstone did not do this because “to have juxtaposed the powerful, albeit respectful, criticisms of criminal justice in Book IV with the eulogistic discussion of the British constitution and the role of the judges in Book I would have undermined the impression of the English legal system that Blackstone was trying to convey”. Not only does this seem to be based on a false premise (that Blackstone would have considered the first and fourth books as dealing with essentially similar areas of law) but it seems also an overly complex hypothesis in comparison to the suggestion of an institutional model for the Commentaries. 217 For example, Blackstone’s explanation that the tail part of whales taken on the coast belonged to the queen to furnish her with whalebone for her stays, Commentaries vol i, 216, when in fact whalebone is only in the head of a whale, is ridiculed again and again in critical accounts; yet, it is hardly a typical example of his work. See e.g., A H Chroust, “Blackstone revisited” (1948) 17 UKansasCityLRev 24 (henceforth Chroust, “Blackstone revisited”) at 31; Dicey, “Blackstone’s Commentaries” (n 2) at 292; and Jones, Sovereignty of the Law (n 4) xxxvi. Dicey, “Blackstone’s Commentaries” (n 2) 293 refers to the passage in Commentaries vol i, 433 concerning a husband’s right to chastise his wife where Blackstone stated that a husband may not now beat his wife, but pointed out that “the lower rank of people . . . still claim and exert their ancient privilege” and he explained that this was because they “were always fond of

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at Blackstone’s treatment of the English constitution and of contract and commercial law. Much in these criticisms derives from the uncritical adoption of Bentham’s view of Blackstone as an arch-reactionary. Professor Chroust remarks that, “Taken as a whole, his descriptions of the British Crown, of the two Houses, and of the Cabinet are unrealistic and misleading encomiums cloaked in mealymouthed phrases”.218 Dicey considered that Blackstone’s account of the English constitution was antiquated for the mid-eighteenth century.219 Katz remarks that commercial law and contracts are topics which are “slighted” in the Commentaries,220 while Boorstin considers that Blackstone was “weakest and most fragmentary in treating the law of commerce”.221 Plucknett states that “Blackstone’s treatment of contract does not quite fill one chapter, and even that chapter is hidden away in a volume devoted to property, conveyancing, administration and the like”.222 Holdsworth, on the other hand, generally considered the Commentaries to reflect the law of Blackstone’s day;223 and views such as those described above are no longer in favour. Blackstone is now considered to give a reasonably accurate account of the English constitution in the mid-eighteenth century.224 Professor Atiyah has recently provided a defence for Blackstone’s treatment of the law of contract by arguing that, at the time he wrote, English law lacked a general law of contract, since the notion of contracts being constituted by reciprocal binding promises had not yet developed.225 While Atiyah’s views may not be entirely accepted, since it seems that executory contracts had been regarded as binding considerably before Blackstone’s time,226 it is undoubtedly the case that the modern structure of a general law of contract came later,227 and as Atiyah points out, Blackstone did treat extensively of specific contracts, if

218 219 220 221 222 223 224 225 226 227

the old common law”. Dicey is correct that the explanation verges on the ridiculous (though the distribution between lower and higher ranks in this respect was common enough) but it is surely dangerous to take Blackstone’s explanation here as in some way typifying the whole work. Chroust, “Blackstone revisited” (n 217) at 29. Dicey, Law of the Constitution (n 2) 7–8. See also D P Heatley, “Fox, Montesquieu and Blackstone” (1919) 35 LQR 339 at 341. Katz, introduction, Commentaries vol i, v. D J Boorstin, The Mysterious Science of the Law: an Essay on Blackstone’s Commentaries (1958) (henceforth Boorstin, Mysterious Science) 37. T F T Plucknett, A Concise History of the Common Law, 4th edn (1948) 615. Holdsworth, HEL (n 13) vol 12, 724–725. Jones, Sovereignty of the Law (n 4) xl–xlvi; Hanbury (n 8) 331–335. P S Atiyah, The Rise and Fall of Freedom of Contract (1979) (henceforth Atiyah, Freedom of Contract) 139–216. See, e.g., Baker, review of Atiyah, Freedom of Contract (1980) 43 MLR 467. Simpson, “Innovation in nineteenth century contract law” (1975) 91 LQR 247.

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not stating much about contracts in general.228 The conclusion from this is that Blackstone’s treatment of contract was generally suitable for his period. Most authors would now agree that “the law of his own day Blackstone knew thoroughly”.229 Holdsworth was undoubtedly correct that Blackstone has been criticised not so much for inaccuracy but rather as a result of his praise of the law of his own day.230 It is worth noting that institutional writings in general do not seek to criticise and to suggest reforms in the law they expound. Their significance lies in their expounding a whole system of law as a unified national law. In this Blackstone is no different. Atiyah has pointed out that the kind of rational reforms desired by Bentham were not possible in the eighteenth century as the institutional structures to investigate and suggest reform simply did not exist.231 Further, to my knowledge, institutional works in general did not tend to deal at length, if at all, with commercial law as such, concentrating rather on traditional civil law. In this respect, it is worth considering that the great innovation of Bell in Scotland was to incorporate mercantile law into his general treatments of Scots law.232 Most importantly, Blackstone himself said: The learning relating to marine insurances hath of late years been greatly improved by a series of judicial decisions, which have now established the law in such a variety of cases, that (if well and judiciously collected) they would form a very complete title in a code of commercial jurisprudence. But, being founded on equitable principles, which chiefly result from the special circumstances of the case, it is not easy to reduce them to any general heads in mere elementary institutes.233

228 229 230 231 232

Atiyah, Freedom of Contract (n 225) 102–103 and 215–216. See also Hanbury (n 8) 328–331. Hanbury (n 8) 324. Holdsworth, HEL (n 13) vol xii, 726–727. Atiyah, Freedom of Contract (n 225) 92–93. G J Bell, Principles of the Law of Scotland, For the Use of Students in the University of Edinburgh (1829). I do not consider Bell’s Commentaries on the Laws of Scotland (1810) to be an institutional work in the historical sense: see Cairns, “Institutional Writings” (n 20) at 101–102. In the preface to his Commentaries, Bell remarked that at the time of the Darien scheme in Scotland there was an interest in mercantile law but it declined after the failure of the scheme. He claims that there was more on mercantile law in Stair than in Erskine: this seems highly disputable. 233 Blackstone, Commentaries vol ii, 461. H Grotius, Inleiding tot de Hollandsche Rechtsgeleertheyd (1631) was unusual in dealing with commercial law: see Watson, Making of the Civil Law (n 19) 69. The passage quoted was drawn to my attention by its quotation in Doolittle, “Blackstone” (n 16) 109 where Doolittle uses it to support his argument that recent changes in commercial law could not be accommodated in the Commentaries because it was a student text and because his lectures were prepared in the 1750s. I would accept the first part of this but not the second. The nature of the Commentaries as an institutional text tended to preclude discussion of commercial law.

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That Blackstone obviously considered commercial law generally outside the scope of an institutional work is confirmed by the passage in his Commentaries where he stated that “the affairs of commerce are regulated by a law of their own, called the law merchant” which he regarded as separate from the law of England, and, indeed, almost as a type of international law, the law of England in many cases leaving “the causes of merchants to be tried by their own peculiar customs . . . often even in matters relating to inland trade”.234 Institutional writings were concerned to assert that the law they expounded was a national law. Blackstone’s Commentaries are no different in this respect. The concern of common lawyers to claim the common law as the national law of England has been referred to; Blackstone also emphasised that the common law was the national law superior to all other systems and claimed that the common law was uniquely English. Two linked themes to this effect run through Blackstone’s account of the common law: first, his rejection and criticism of the Civil Law; and secondly, his view that many of the objectionable aspects of the common law were Norman amendments of the old AngloSaxon common law. Blackstone’s determination to attribute good aspects of the common law to the Anglo-Saxons, especially to King Alfred, and its evils to the Normans led him into many absurdities.235 Blackstone in this was merely following a well-known Whig historical tradition;236 but it is useful to consider his account of Civil Law and the Normans in greater detail. Earlier it was noted that one argument made against the Civil Law in England was that it was “foreign”. Some Civilians riposted by pointing out that the common law had many different sources and was no less “foreign” than the Civil Law. In this, the role of the Norman Conquest would seem crucial. As noted by Pocock, the Norman Conquest was a controversial topic in the view of history which saw an English person’s rights and liberties as descending uninterruptedly from time immemorial and deriving from the ancient constitution. The Conquest apparently broke the continuous descent and perhaps justified royal absolutism; but it was argued contrary to this that the old laws were confirmed after the Conquest, and even that, properly speaking, there was no Conquest.237 By Blackstone’s time it was known that 234 Blackstone, Commentaries vol i, 263–264. This was a common view of this period. On the history of the law merchant in England, see Baker, “The law merchant and the Common Law before 1700” (1979) 38 CambLJ 295. 235 See e.g., Hanbury (n 8) 323. 236 C Hill, “The Norman Yoke”, in Puritanism and Revolution (1958) 50. 237 Pocock, Ancient Constitution (n 61) 42–45, 53–55, 105, 112, 149–150.

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feudalism was introduced by the Normans: he could not deny this major alteration in the law. What is significant is that, while Blackstone still denied that William of Normandy gained England by right of conquest,238 he argued that feudalism was introduced by being “nationally and freely adopted by the general assembly of the whole realm” so that it was introduced “by the common consent of the nation”.239 This argument allowed the contention that, though feudalism may have been introduced along with the Normans, it was not imposed but was adopted by the nation so that it was classifiable as English rather than foreign law. Tellingly, Blackstone goes on to contrast feudalism as accepted by the English people with the Norman interpretation of the adoption of feudalism, an interpretation whereby the intention of the English was so construed by those “skilled in all the niceties of the feodal constitutions” that they introduced “not only the rigorous doctrines which prevailed in the Duchy of Normandy, but also such fruits and dependencies, such hardships and services, as were never known to other nations”.240 Thus, in Blackstone’s account of feudalism, we find that he denies generally that it was imposed by the Normans, with the result that it could be regarded as truly English, but that the evils of it were imposed upon the English by the Normans, so that feudal tenures, “with all their oppressive appendages” could be described as “slavish” and “the badge of foreign dominion”.241 The true common law of the English was unexceptionable; it was Norman misinterpretation that brought about evil consequences. Such statements occur throughout the Commentaries, Norman interpretation deprived the English of their ancient constitution.242 The Norman jurists were described as having “extracted the most slavish doctrines, and oppressive consequences, out of what was originally intended as a law of liberty’”243 More generally, the Normans were associated with tyranny244 and the use of their language in court considered to be “as evident a badge of slavery, as ever was 238 239 240 241 242 243

Blackstone, Commentaries vol ii, 48–50. Ibid 50. Ibid 51. Ibid vol iv, 431. Ibid vol ii, 52. Ibid vol iv, 406. This account of Blackstone, feudalism, and the ancient constitution is at variance with that put forward by Willman, “Blackstone” (n 36) 42–46. Professor Willman’s account of Blackstone’s attempt to reconcile feudalism with the ancient constitution by using Montesquieu’s recently published work is very impressive, but I do not entirely accept his reading of the Commentaries. The account above had been drafted before Willman’s article appeared and it did not seem worthwhile or appropriate to attempt to discuss his arguments in the text. I hope to do so elsewhere. 244 Blackstone, Commentaries vol i, 66–67.

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imposed upon a conquered people”.245 (Crucial for Blackstone was that the English were not conquered – this made the use of Norman French even less justifiable.) Administration of law in Norman French was as evil as the supersession of “Saxon” trial by jury with “impious decision by battel”.246 Blackstone’s condemnation of the Normans and praise for the Saxons is explained as being typical of the Whig historians,247 as being absurd,248 or as deriving from an eighteenth-century veneration for man in a state of nature – Saxon man being identified with primitive man.249 It is certainly true that Blackstone was following a Whig tradition and that this led him into absurdities, though that he was influenced by notions of man in a state of nature seems debatable, given that he was following a tradition dating at least from the seventeenth century. What does seem important, however, is that Blackstone, by his stressing of the ancient nature of English common law, and its perversion by the Normans – from which it was now freed250 – appears to have wished to assert the common law as the law of the English nation, as English national law: hence his stressing that feudalism was adopted by the English people acting nationally. This argument opposes the view of those Civilians who argued that the common law was just as foreign as the Civil Law.251 That Blackstone wished to deny the claims of the Civilians and of the Civil Law seems obvious. Thus, he identified the separation of ecclesiastical jurisdiction from the general courts with the Normans and he considered that this had the effect, perhaps intended, first, of discountenancing “the laws of king Edward abounding with the spirit of Saxon liberty” as the “Saxon laws were soon overborne by the Norman justiciaries” and, second, of introducing Canon Law.252 He pointed out that ecclesiastical courts adopted as “their rule of proceeding” the laws of Rome.253 As Blackstone considered Roman laws to be “tyrannous”,254 this stress on the Roman procedures in ecclesiastical courts, when he also 245 246 247 248 249 250

251 252 253 254

Ibid vol iv, 409. Ibid 412. Jones, Sovereignty of the Law (n 4) xxxiv–xxxv. Hanbury (n 8) 323. Boorstin, Mysterious Science (n 221) 67–69. Blackstone, Commentaries vol iv, 413 characterised English legal history as “a gradual restoration of that ancient constitution, whereof our Saxon forefathers had been unjustly deprived, partly by the policy, and partly by the force, of the Norman”. Though Blackstone did suppose that the Saxons introduced their laws to what is now called England; but he identified the Angles and Saxons with the English. Blackstone, Commentaries vol iii, 62–63. Ibid 64. See below.

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argued that the very existence of ecclesiastical courts derived from Norman departure from Saxon procedures and liberties, must constitute an attack on the Civilian jurisdictions. He also pointed out that the admiralty courts followed Roman procedures.255 We find that though Blackstone recognised the applicability in England of Civil and Canon Law in certain courts and circumstances, he emphasised that their authority was “wholly founded upon . . . permission and adoption”, with their introduction deriving from the permission of the common law. He described the civil law as “foreign” and categorised the common law as “Our laws”.256 Thus, Blackstone argued that not only were the proceedings in Civilian courts subject to review, prohibition and annulment by the Common Law courts, but that the Civil Law was applicable only in so far as the common law authorised it.257 “Our municipal laws”, the English national law, was the Common Law: the Civil Law was foreign. Not only was the Civil Law foreign, however, but it was also linked to deprivation of liberty: states where Civil Law was applied had lost, perhaps because of it, their political liberties, the liberties English people enjoyed as a result of the common law and the ancient constitution.258 Civil Law was not only tyrannous and foreign, it also lacked the simplicity of the common law since it had “voluminous and diffuse” texts and a vast apparatus of “idle comments, obscure glosses, and jarring interpretations” all of which were authoritative.259 Supporting the inapplicability of Civil Law in England, Blackstone also pointed out that the king held the realm of England as an empire and that there was no possibility of subordination to the Holy Roman Empire.260 Professor Simpson has commented that a “spirit of nationalistic selfsatisfaction permeates the Commentaries”.261 Blackstone’s account of the effect of the Normans on English law, his stress on the common law as “our law”, his characterisation of the Civil Law as foreign, complicated and tyrannous, and his rejection of law French all point to his concern to expound the common law as the English national law – denying the validity of other systems of law in England – and as asserting English identity and liberties. Blackstone’s depiction and exposition of the common law as the national law

255 256 257 258 259 260 261

Blackstone, Commentaries vol iii, 69. Ibid vol i, 14. Ibid 14–15. Ibid 67. Ibid vol iii, 328. Ibid vol i, 234–235 Simpson, “Legal treatise” (n 158) 658.

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of the English people, clearly differentiated from other “foreign” systems of law, is typical of the institutional genre of legal literature. It is interesting to speculate that Blackstone’s vision of the common law as English national law may have influenced him to adopt in the Commentaries Lord Mansfield’s view of Equity and have led him to attempt his fusion of Equity and Common Law.262 Such a fusion would support the identification of the common law with English law and be in line with general contemporary modernising trends in legal systems whereby the various differing jurisdictions in one state were combined into one general court structure. Blackstone’s and Mansfield’s views on this were rejected; but this does not affect the argument.263 What seems certain is that Blackstone used the institutional genre to provide an exposition of English common law conceived of as a national law. D. CONCLUSION The European institutional writers have been recognised as having had a significant role in the movement from the old traditional forms of law to the modern, looking forward to codification.264 In England, Blackstone is, in a sense, the culmination of one tradition while being also the forerunner of a new. Holdsworth remarks of Blackstone’s book that: It came at the end of a period in which the principles of the law had been continuously and logically developed by the legal profession with but small interference by the Legislature, and just before a period in which the Legislature was to take a decisive part in remodelling those principles; so that, like [Littleton’s] book, it summed up and passed on the law of the earlier period, which was the basis and starting point of the work of the reformers of the later period.265

Blackstone is generally seen as giving a definitive account of the traditional common law just before the massive changes of the next century.266 It may even plausibly be suggested that Blackstone provoked and facilitated reform through his exposition of English law as an ordered whole. The European institutional works influenced the structure of the various civil codes.267 262 Holdsworth, “Blackstone’s Treatment of Equity” (1929) 43 HarvLRev 1. 263 Ibid at 13–24. 264 Luig, “Institutes of national law” (n 19) at 193–195 and Watson, Making of the Civil Law (n 19) 62–82. 265 Holdsworth, HEL (n 13) vol xii, 703. 266 E.g. Baker, Introduction to English Legal History (n 119) 166 states “Blackstone was both a final survey of the old common law and the first textbook of a new legal era”. There are many other such statements. 267 Watson, Making of the Civil Law (n 19) 68.

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English law may not have been codified, though Levy-Ullmann speculates that Blackstone made a codification unnecessary;268 but it is interesting to note that Blackstone not only influenced the structure of the first book of the Digest of the Civil Law of the Territory of Orleans of 1808, but also that a significant number of that code’s provisions were directly culled from Blackstone.269 Professor Lawson noted that Blackstone’s “style and method bear a curious resemblance to those adopted by the compilers of the French Civil code”.270 This is correct: and his work is essentially of the same nature as many works drawn on and known to the French codifiers. In the past, Blackstone has been denied the description of institutional writer.271 This denial seems to have resulted from too great a reliance on the modern Scottish conception of institutional writer as a writer of a particular and special authority.272 Blackstone seems truly to fit into the institutional category by virtue, first, of the structure and content of the Commentaries, and, secondly, of the context in which he wrote. Thus, Blackstone wrote in his national language; his Commentaries were structured after the pattern of Justinian’s Institutes; they were comprehensive; they treated the common law as a national law; they attempted to state English law as a united whole; and, like so many institutional works, they arose out of the university teaching newly introduced of the national law, expressing the new vision of Europe conceived as consisting of separate nation states with distinct laws.273 Professor Simpson has recently recognised that Blackstone’s Commentaries were an institutional work, as distinct from a treatise. He relates institutional works to instruction in law and to the organisation of traditional law.274 I hope I have demonstrated that there are other factors of importance and

268 H Lévy–Ullman, The English Legal Tradition: Its Sources and History (1935) 157. 269 Cairns, “The 1808 Digest of Orleans and 1866 Civil Code of Lower Canada” (n 208) 559–561, 630. 270 Lawson, “Doctrinal Writing” (n 57) 195. 271 Lawson, A Common Lawyer Looks at the Civil Law (1953) 73–74. Before his death, Professor Lawson changed his views on Blackstone. Lawson, “Review of Watson, Civil Law” (1983) 31 AmJCompL 535, 536, and in his “Institutes” of 1982, he put forward a more refined notion of institutes, but he distinguished, 339–340, Stair’s Institutions from other such works, because of the authority given it. 272 Cairns, “Institutional Writings” (n 20) passim, but especially 98–107. 273 Though, of course, institutional works, even of a designedly educative purpose need not be directly connected to university teaching. Thus, Chief Justice Reeve recommended Wood’s Institute to his nephew for preliminary study: Collectanea Juridica, vol i, 79. Francis Bacon, as is well known, considered institutional works to be indispensible to proper legal education: J Spedding (ed), Letters and Life of Francis Bacon (1872) vol vi, 70. See Holdsworth, HEL (n 13) vol v, 486–488. 274 Simpson, “Legal treatise” (n 158) 632 n 2, 633–634, 640–641, 655, 674.

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that institutional writings were not simply a pragmatic response to the need for works of instruction and organisation, and that this explains the time at which they were produced. Professor Simpson also states that “The Commentaries do not arise from the common law. Though the scheme dates back to Hale, nothing remotely resembling them in execution had appeared in the English language before”. He states that “Blackstone . . . was essentially a civilian” as explaining the nature of the Commentaries.275 This seems to me to be exaggerated. At the very least, Wood’s Institute of English Law resembles the Commentaries‚ though the achievement of Blackstone should not be minimised. I would argue, however, that what is important is not the extent to which Blackstone was influenced by Civilian learning, but, rather, that the societal and intellectual trends which in Europe produced an institutional literature were effective also in England and that the Commentaries resulted from and reflected those trends: trends indicated by other works and developments in the period. It is obvious too that these developments relate to the general modernisation of the law and to the search for more rational methods of legal education. Blackstone’s Commentaries, and indeed his career, while dependent obviously on particular English circumstances and influenced by the English legal tradition ought, nonetheless, to be fitted in to the general European institutional trend and thus related to the influence on legal literature of the rise of the nation state and the development of national laws. In some ways developments in the Common Law tradition in the seventeenth and eighteenth centuries paralleled general trends in the Civil Law countries as the social and political conflicts and intellectual developments resulted in the appearance and growth of the modern conception of the state. To approach an understanding of Blackstone in this way is especially fruitful as it helps explain the structure of the Commentaries and the treatment of the various topics, both of which many have found puzzling.

275 Ibid 655.

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16 Eighteenth-Century Professorial Classification of English Common Law Sir Robert Chambers was the successor of William Blackstone in the Vinerian Chair of English Law at Oxford. The reviewer surveys the teaching of English law in universities in the eighteenth century. He compares the analytical structure employed by Chambers with those of other lecturers of the era, particularly Blackstone. He concludes by remarking the importance of classification, especially in English law, in the creation of formally rational law. A Course of Lectures on the Common Law Delivered at the University of Oxford 1767–1773 by Sir Robert Chambers Second Vinerian Professor of English Law and Composed in Association with Samuel Johnson, 2 vols, T M Curley (ed), Madison: University of Wisconsin Press (1986). Pp xix, 483 and xv, 445 [$30.00 + $30.00]. Reviewed by John W Cairns. A. INTRODUCTION Sir Robert Chambers has been virtually forgotten. Yet in his own day he was a well-known man – the friend of the remarkable Scott brothers, of James Boswell, and, most notably, of Samuel Johnson. He served in Bengal, first as a puisné judge, and then as Chief Justice, appointments which involved him in the affairs of Warren Hastings. He was Sir William Blackstone’s successor in the Vinerian Chair of English Law at Oxford, and, on the evidence of his lectures, not an unworthy one.1 Memory of Chambers’ tenure of the Vinerian Chair was to some extent kept alive by his nephew’s publication in 1824 of a part of the lectures as a Treatise on Estates and Tenures.2 Much more recently, Chambers has attracted the attention of scholars because his

1 H G Hanbury, The Vinerian Chair and Legal Education (1958) (henceforth Hanbury, Vinerian Chair) 52–61. 2 R Chambers, A Treatise on Estates and Tenures, ed C H Chambers (1824).

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lectures are supposed to have involved him to some extent in a collaboration with Samuel Johnson. Interest in this led to the rediscovery in the British Library of the manuscript of the lectures now published. This is not the text which Chambers read, but a copy made for George III sometime before Chambers left for Bengal in 1774.3 That there was a measure of collaboration between Chambers and Johnson in writing the lectures seems clear, and comparison of the texts supposedly produced by their joint efforts with known examples of their respective styles is certainly a possible method of differentiating their contributions. A note of caution must nonetheless be sounded. Recent invigorating debates in the discipline of Roman law have shown stylistic analysis to be a far from simple method to employ in attributing authorship. In the absence of other evidence, it may well remain uncertain whether certain passages should be attributed to Johnson or to Chambers.4 This is unimportant. If Johnson suggested, or even himself wrote, particular passages in the lectures, Chambers nonetheless must always have agreed with the opinions expressed. We thus can fairly represent the entire course of lectures as containing Chambers’ views on English law, even if some of them were originally generated by Johnson. Furthermore, should Johnson have been indeed a close collaborator on the lectures, it may also be the case that as a whole they generally represent his views, though this is not a point we shall consider further here. 3 See E L McAdam, “Dr Johnson’s law lectures for Chambers: an addition to the canon” (1939) 15 Review of English Studies 385; E L McAdam, “Dr Johnson’s lectures for Chambers, II” (1940) 16 Review of English Studies 159; S Krishnamurti, “Dr Johnson and the law lectures of Sir Robert Chambers” (1949) 44 Modern Language Review 236; A McNair, Dr Johnson and the Law (1948) 76–79; E L McAdam, Dr Johnson and the English Law (1951) 65–122 (henceforth McAdam, Dr Johnson and the English Law); Hanbury, Vinerian Chair (n 1) at 56; J E Reibman, “Dr  Johnson and the Law” (unpublished doctoral dissertation in law, University of Edinburgh, 1979) 188–309 (henceforth Reibman, “Dr Johnson and the Law”); T M Curley, “Johnson’s Secret Collaboration”, in J J Burke and D Kay (eds), The Unknown Samuel Johnson (1983) 91. 4 On the question of “style” as a means of attributing authorship, see B W Frier, “Law on the installment plan” (1984) 82 MichLRev 856 at 858–863. Frier shows that what is impórtant are quantifiable indicators of style such as mean length of sentence, word order and the like, rather than the more obvious, showy words and expressions which are more readily imitated by one writer under the influence of another. One could disentangle specific contributions of Johnson to the lectures only with difficulty: more is required than a supposedly Johnsonian “ring” to a sentence, or than the observation that a passage contains views known to have been held by Johnson. But compare McAdam, Dr Johnson and the English Law (n 3) 81–120 and Reibman, “Dr Johnson and the Law” (n 3) 310–317 (Appendix I). Curley is commendably cautious in his Introduction to the work under review here: R Chambers, A Course of Lectures on the English Law Delivered at the University of Oxford 1767–1773 . . . And Composed in Association with Samuel Johnson, ed T M Curley, 2 vols (1986) (henceforth Chambers) vol i, 4–11 and 68–79; but compare J M Lindsey, “Book review” (1987) 60 TempleLQ 117 at 119.

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Of much greater interest, however, is the place of these lectures in the history of the development in the eighteenth century of university education in law. In this review I propose to assess the work of Chambers by comparing it with that of other professors of English law. The late Sir Rupert Cross has already contributed a comparison of the treatment by Blackstone and Chambers of some substantive legal topics.5 Here, therefore, I shall focus on the analytical structure Chambers gave to English law. The first part of the review will briefly discuss the early history of university lectures and, in particular, the adoption of the structure of Justinian’s Institutes. This will be followed by an account of the problems encountered by professors of English law in setting forth their subject, and of the solutions they adopted. The third section of the review will be a detailed analysis of the structure Chambers used for his lectures in comparison with that used by Blackstone. This will be followed by some general conclusions and observations. B. UNIVERSITY LECTURES AND THE INSTITUTIONAL PATTERN While lectures on Civil (or Roman) and Canon Law had been traditional in  most of the European universities since their inception,6 lectures on national or local laws were a relatively novel phenomenon when the Vinerian Chair was founded. In France and the Netherlands, such lectures dated from the later seventeenth century, and in Scotland from the early eighteenth century. In Spain and Portugal, lectures on national law only started two decades after the foundation of the Vinerian professorship.7 The pattern was common throughout Europe. The traditional method of

5 R Cross, “The first two Vinerian Professors: Blackstone and Chambers” (1979) 20 Wm&Mary LRev 602 (henceforth Cross, “Vinerian Professors”); see also Reibman, “Dr Johnson and the Law” (n 3) 188–309 for a sustained analysis of aspects of the lectures. 6 H Rashdall, The Universities of Europe in the Middle Ages, ed F M Powicke and A B Emden (1936) vol i, 87–125 (Civil Law) and 125–141 (Canon Law) and passim. On law teaching in early Oxford, see J L Barton, “The Study of Civil Law before 1380” in The History of the University of Oxford, general ed T H Aston, vol i The Early Oxford Schools, ed J I Catto (1984) (henceforth Catto, Early Oxford Schools) 519; and L E Boyle, “Canon Law before 1380” in Catto, Early Oxford Schools 531. 7 See, generally, C Chêne, L’enseignement du droit français en pays de droit écrit (1679– 1793) (1982) (henceforth Chêne, L’enseignement) 3–4. See on the Netherlands: R Feenstra and C J D Waal, Seventeenth-Century Leyden Law Professors and their Influence on the Development of the Civil Law (1975) (henceforth Feenstra and Waal, Leyden Law Professors) 38; on Scotland: J W Cairns, “Institutional writings in Scotland Reconsidered” in A Kiralfy and

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exposition of Roman law was to lecture, in two separate courses, on the Institutes and the Digest, though from the late seventeenth century it had become the practice to use, as the basis of the course, rather than the originals, textbooks which followed the sequence of the Institutes or Digest.8 For those teaching national or municipal laws there was not this obvious expedient recourse. In the emergent states of early modern Europe, the laws were typically administered in a complex system of overlapping jurisdictions, and were derived from a variety of different sources, such as Civil Law, Canon Law, feudal law, and local customs. Applicable rules were to be found not only in costumals, the Corpus juris civilis, and the formal decrees of the Church, but also in local practice, statutes, and the decisions of courts. To expound a legal system as a whole, it was necessary to synthesise this range of material into a systematic, coherent form. By the late seventeenth and early eighteenth centuries, in many countries this had been achieved in part through the development of institutional literature.9 Writers, such as Mackenzie in Scotland, had adopted from Justinian’s Institutes the ultimately Gaian tripartite division of law: that relating to persons, that to things, and that to actions.10 Though not always ideal, the structure of the Institutes provided a general framework within which national laws could be discussed, and professors used institutional texts, or the institutional structure, as the basis of their lectures, and sometimes, like Serres and Erskine, wrote their own.11 It is worth stressing that, while an author, such as Serres, might follow exactly the Justinianic structure, others, influenced by theories of natural law, could adopt differing schemes, suitable to their subject matter, roughly within the Justinianic framework.12 In some, the interaction of the institutional structure with natural law theories could result in philosophically sophisticated

8 9

10

11

12

H L MacQueen (eds), New Perspectives in Scottish Legal History (1984) (henceforth Cairns, “Institutional Writings”) at 94–98; on Spain: M Peset Reig, “Derecho romano y derecho en las universidades del siglo XVIII” (1975) 45 Anuario de historia del derecho español 273. See Feenstra and Waal, Leyden Law Professors (n 7) at 36. See K Luig, “The institutes of national law in the seventeenth and eighteenth centuries” (1972) 17 Juridical Review 193; A Watson, The Making of the Civil Law (1981) (henceforth Watson, Making of the Civil Law) 62–82; and Cairns, “Institutional Writings” (n 7) at 76–88 and passim. G Mackenzie, The Institutions of the Law of Scotland, 2nd edn (1688) 9–10. See J Inst 1.2.12; D 1.5.1; and D R Kelley, “Gaius Noster: substructures of Western social thought” (1979) 84 American Historical Review 619 at 621. C Serres, Les institutions du droit français, suivant I’ordre de celles de Justinien, accommodées à la jurisprudence moderne, & aux nouvelles ordonnances, enrichies d’un grand nombre d’arrêts du Parlement de Toulouse (1753); J Erskine, The Principles of the Law of Scotland: In the Order of Sir George Mackenzie’s Institutions of that Law (1754) 2 vols. See Chêne, L’enseignement (n 7) 290–307; Watson, Making of the Civil Law (n 9) 67–82.

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expositions of the law. The prime example of this is John Millar in Glasgow, who expounded Scots law in a structure derived from Adam Smith’s natural jurisprudence.13 C. UNIVERSITY LECTURES IN ENGLISH LAW: THE PROBLEM OF STRUCTURE In the second half of the seventeenth century, Roger North regretted that “[o]f all the professions in the world, that pretend to book-learning, none is so destitute of institution [i.e. formal instruction] as that of the common law”.14 In 1708, Thomas Wood called for the establishment of lectures on English law in the universities.15 With the initiative coming primarily from private individuals, England followed the general European trend, with the establishment of university teaching of national law in the middle of the eighteenth century.16 Perhaps aware of the impending Vinerian bequest, Blackstone started to teach privately in 1752, being elected to the Vinerian professorship in 1758, when Viner’s will was made effective.17 Less well known is the establishment in 1761 in the University of Dublin of a Regius Chair of Feudal and English Law to which F S Sullivan was elected.18 Furthermore, John Millar, Regius Professor of Civil Law in the University of Glasgow from 1761 to 1801, in the late 1790s delivered lectures on English law.19 Millar arguably was the outstanding law teacher of his day, 13 Compare John Millar, Heads of the Lectures on the Law of Scotland, in the University of Glasgow (1789; found bound in Glasgow University Library, MS Murray 83 and MS General 181/1) with the structure of A Smith, Lectures on Jurisprudence, ed R L Meek, D D Raphael and P G Stein (1978) (henceforth Smith, Lectures on Jurisprudence). On Millar as the heir of Smith’s science of legislation, see K Haakonssen, “John Millar and the science of a legislator” (1985) Juridical Review 41. 14 R North, A Discourse on the Study of the Laws (1824) 1. 15 T Wood, Some Thoughts Concerning the Study of the Laws of England. Particularly in the Two Universities, 2nd edn (1727) (henceforth Wood, Study of the Laws of England). 16 See J W Cairns, “Blackstone: an English Institutist: legal literature and the rise of the nation state” (1984) 4 OJLS 318 (henceforth Cairns, “Blackstone: an English Institutist”). 17 See L S Sutherland, “William Blackstone and the Legal Chairs at Oxford”, in R Wellek and A Ribeiro (eds), Evidence in Literary Scholarship: Essays in Memory of James Marshall Osborn (1979) 229. 18 R B McDowell and D A Webb, Trinity College Dublin 1592–1952. An Academic History (1982) 65. 19 See J Craig, “Account of the Life and Writings of John Millar, Esq”, in J Millar, The Origin of the Distinction of Ranks: Or, An Inquiry into the Circumstances which give rise to Influence and Authority, in the Different Members of Society, 4th edn (1806) (henceforth Craig, “John Millar”) xxi–xxii; W C Lehmann, “Some observations on the law lectures of Professor Millar at the University of Glasgow (1761–1801)” (1970) 15 Juridical Review 56 (henceforth Lehmann, “Professor Millar”) at 73–77.

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to whose classes pupils came from throughout the British Isles, and of whom Arthur Browne, Professor of Civil Law in Dublin, wrote in 1797 that, “above all, the learned Professor of Glasgow . . . has acquired most deserved celebrity, and has attracted many of the youth of this country, as well as of England within the sphere of his instruction”.20 Millar was an enthusiastic and energetic teacher, lecturing already on the Digest, the Institutes, Government, and Scots law.21 His aim, according to a letter of 1798, was to “facilitate the study of the law of England to those who, by an academic education, have become acquainted with the civil law and with the views and ways of speaking adopted by the writers on jurisprudence”.22 Wood wrote, in 1708, that “[i]t is to be much lamented, that we have not any complete System of our Laws. We are forced to learn it chiefly by Tradition, and Observations upon the Practice of it in the highest Courts”.23 This was particularly perceived as a problem for English law. In his lectures in Dublin Sullivan said: Another great difficulty the study of the law of England labours under, peculiar to itself, is that want of method, so obvious to be observed, and so often complained of in its writers of authority, insomuch, that almost all of them . . . are too apt to puzzle and bewilder young beginners; whereas other laws, the civil, the canon, the feudal, have books of approved authority, . . . calculated purposely for the instruction of novices; wherein the general outlines of the whole law are laid down, the several parts of it properly distributed, its terms explained, and the most common of its rules and maxims, with the reasons of them, delivered and inculcated.24

In 1605 John Cowell had already published Institutiones juris Anglicani, ad methodem et seriem institutionum imperialium compositae & digestae, which was translated into English in 1651.25 This indicated one method of solving the problems pointed out by Wood and Sullivan. Cowell’s treatise,

20 A Browne, A Compendious View of the Civil Law, Being the Substance of a Course of Lectures Read in the University of Dublin, vol i (1797) 17. 21 See Lehmann, “Professor Millar” (n 19). 22 Ibid at 74. 23 Wood, Study of the Laws of England (n 15) 43. 24 F S Sullivan, An Historical Treatise on the Feudal Law, and the Constitution and Laws of England; With a Commentary on Magna Charta, and Necessary Illustrations of Many of the English Statutes. In a Course of Lectures read in the University of Dublin (1772) (henceforth Sullivan, Historical Treatise) 16. 25 J Cowell, Institutiones iuris Anglicani ad methodum el seriem institutionum imperialium compositae & digestae (1605); J Cowell, The Institutes of the Lawes of England, digested into the Method of the Civill or Imperiall Institutions . . . Written in Latine by John Cowel . . . And translated into English according to Act of Parliament, for the benefit of all. By WG Esquire (1651).

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which had several editions, followed Justinian’s Institutes exactly, title for title. The course of the seventeenth century saw, in England as elsewhere, the growth of an ever-increasing taxonomical interest in legal classification, under the related influences of Grotian natural law and the new science.26 Outstanding in this respect was the work of Sir Matthew Hale, especially his Analysis of the Law.27 The adoption of the institutional method of exposition of English law was strongly influenced by these developments. Thus, Wood attempted to meet the need he himself had pointed out by publishing An Institute of the Laws of England: Or, The Laws of England in their Natural Order, according to Common Use.28 This work, which went through several editions, was influenced not only by Justinian’s Institutes, but also by Hale’s Analysis (which was itself influenced to a certain extent by the Institutes). It is against this background that we must place the subsequent work of the law professors of the eighteenth century in order to appreciate the significance of Chambers’ lectures. The elegant and complex analytical table of the divisions of English law in Blackstone’s Analysis demonstrates his strong taxonomic interests.29 As I have argued elsewhere, in the Vinerian lectures and the Commentaries, Blackstone adopted a structure for his exposition derived both from Hale and Justinian, with appropriate changes to make it suitable for the English law of his day.30 He stated that “the primary and principal objects of the law are RIGHTS, and WRONGS”. Rights are divisible into “jura personarum” and “jura rerum”. Wrongs are divisible into “private wrongs” and “public wrongs”.31 The class of “private wrongs” is not essentially a category of torts, though they are included, but rather an account of the procedures and actions whereby rights are protected and asserted. The class of “public wrongs” deals with criminal law and procedure. The institutional pattern can be detected. Within these four divisions, there is necessarily departure from Justinian; 26 See B J Shapiro, “Law and science in seventeenth-century England” (1969) 21 StanLRev 727 (henceforth Shapiro, “Law and science); M H Hoeflich, “Law and geometry: legal science from Leibniz to Langdell” (1986) 30 AmJLegHist 95. 27 The Analysis of the Law: Being a Scheme, or Abstract, or the Several Titles and Partitions of the Laws of England, Digested into Method (1713). I have used M Hale, The History of the Common Law of England, and An Analysis of the Civil Part of the Law, 6th edn (1820) (henceforth Hale, History of the Common Law of England). See, above all, Shapiro, “Law and science” (n 26) at 740–749. 28 (1720) 2 vols. 29 W Blackstone, An Analysis of the Laws of England (1756). 30 Cairns, “Blackstone: an English Institutist” (n 16) at 340–352. 31 W Blackstone, Commentaries on the Laws of England, 4 vols (1765–1769) (henceforth Blackstone, Commentaries) vol i, 118.

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but this is typical of the works of all institutists. Thus, in the class of persons, Blackstone dealt with natural persons and corporations. He discussed the relative rights of natural persons as they stood in public relations with one another, where essentially he dealt with status relationships in connection with the English constitution, and as they stood in private relations as master and servant, husband and wife, parent and child, guardian and ward. In the treatment jura rerum, he discussed the classification of, and modes of losing and gaining title to, “things real” and “things personal”. Richard Wooddeson, Vinerian Professor from 1777 to 1793,32 published in 1783 Elements of Jurisprudence Treated of in the Preliminary Part of a Course of Lectures on the Laws of England.33 This contained his six introductory lectures. He wrote: I shall adopt the same threefold division which the Institutes of Justinian have taught us, and which appears to me the most clear, and analytically just; considering our laws, first, as referred to Persons, or the several capacities of men in civil life; secondly, as referred to Things or Property; and, thirdly, treating of Actions.34

In this work, he also provided an analytical table of his lectures.35 Given his approach, this table is simpler than that of Blackstone. Thus, he divided persons into magistrates and subjects. Magistracy he divided into legislative, executive and judicial.36 His lectures on persons accordingly discussed, first, the Parliament, then the king’s executive power, and then judges and courts.37 He wrote that: Having thus spoken of the several kinds of dominion . . . we must contemplate the body of the people governed. This will lead us first to consider the clergy . . . This . . . will introduce a detail of the legal establishment of the national religion. I shall afterwards discourse of the state of persons (a phrase taken from the Roman civil law) under which I shall include the legal effects of certain distinctions, consisting chiefly in disabilities, as of infants and others. I shall then consider persons in their private, domestic relations; and shall conclude this first general division, concerning the laws as referred to Persons, with an account of corporations, to which an artificial personality is ascribed.38

32 See Hanbury, Vinerian Chair (n 1) at 61–78. 33 R Wooddeson, Elements of Jurisprudence Treated of in the Preliminary Part of a Course of Lectures on the Laws of England (1783) (henceforth Wooddeson, Elements of Jurisprudence). 34 Ibid 111. 35 Ibid 115–118. 36 Ibid 111. 37 R Wooddeson, A Systematical View of the Laws of England; As Treated of in a Course of Vinerian Lectures, Read at Oxford, During a Series of Years, Commencing in Michaelmas Term, 1777, 3 vols (1792) (henceforth Wooddeson, Systematical View) vol i, 1–288. 38 Wooddeson, Elements of Jurisprudence (n 33) 112.

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This plan is followed. In “private, domestic relations” he discussed, in this order: husband and wife; parent and child; guardian and ward; and master and servant.39 With some variation, here Wooddeson essentially has followed Blackstone. Perhaps the most notable difference is that Wooddeson here has discussed the English courts, which Blackstone postponed to “Of Private Wrongs”. Wooddeson’s second division, “Of the Laws as Referred to Things or Property”, is divided into two parts, “Of Real Estates”, and “Of Personal Property”.40 It is closely related to, though by no means identical with, Blackstone’s account of jura rerum. The third division, “Of Actions”, has three subdivisions: first, “Of Criminal Prosecutions”, in which Wooddeson set out the classes of criminal offences as well as discussing procedure; second, “Of Private Civil Actions”; and third, “Of Suits in Courts of Equity”.41 It may be noted that, of Wooddeson’s sixty lectures, no less than twenty-five were devoted to actions. Wooddeson published the entire set of his Vinerian lectures in three volumes over the years 1792–1793.42 In recent years, they have been generally ignored, except for a discussion by Professor Hanbury,43 and they are scarcely mentioned in the chapter on legal studies in the recent volume of the history of Oxford University devoted to the eighteenth century.44 Wooddeson apparently revised his lectures after the publication in 1783 of Elements of Jurisprudence; but the consciously institutional structure remained.45 In Glasgow, John Millar covered English law in forty-eight lectures.46 The first was devoted to its history. Millar described English law thus: Though considered as a practical system of laws, the English is perhaps as compleat as any system can be; yet it has in it this peculiarity, that is has not like all other systems, been introduced by the speculations of philosophers and legislators; but has arisen to its present state of perfection, slowly and gradually, assisted in its progress by certain accidents, and completed by long experience and observation.47 39 40 41 42 43 44

Wooddeson, Systematical View (n 37) vol i, 416–470. Wooddeson, Elements of Jurisprudence (n 33) 112–113, 117. Ibid 113–114, 118. Wooddeson, Systematical View (n 37). Hanbury, Vinerian Chair (n 1) 61–78. See J L Barton, “Legal Studies” in The History of the University of Oxford, general ed T H Aston, vol 5, The Eighteenth Century, ed L S Sutherland and L G Mitchell, Systematical View (1986) 594 at 605. 45 See Wooddeson, Systematical View (n 37) vol i, 1–2. 46 See “Notes from Profr: Millar’s Lectures upon the Law of England Glasgow College. Session 1800/1801”, Glasgow University Library, MS General 243. 47 Ibid 1.

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The second lecture dealt with the “peculiarities” of English law, one of which was its lack of systematic arrangement. Millar commented that “Blackstone has done a great deal in this respect, yet much remains yet to be done”.48 The third lecture was devoted to the sources of English law, and in the fourth Millar explained his proposed method of exposition. He commented that it was difficult to find “a sort of method corresponding with the divisions observed by the English Lawyers” which would “enable us to form a distinct idea of the whole system”, because of “the want of method in the writings of the English Lawyers”. He decided that “the method followed by the Roman Civilians, and in imitation of them, by the later writers upon Roman jurisprudence, is the radical [i.e. basic] method we wish to follow”. He stated that the Civilians divided law into “two great classes, the doctrine of rights and the doctrine of actions”.49 Millar considered that only three writers had “attempted an arrangement of the English law”: Hale, Wood and Blackstone. Hale’s Analysis was, however, both “very imperfect” and “only a sketch”, while Wood was also criticised.50 Millar told his class that “Blackstone, in his well known Commentaries, has certainly improved upon Wood’s method, though his arrangement is still liable to faults”.51 After an exposition and criticism of Blackstone’s structure, Millar said that he would “adopt a method somewhat different, and . . . deviate a little from Blackstone”. He continued: We shall consider, first, Rights, and then Actions. We shall consider rights as arising from the condition of persons, and things. Rights arising from the condition of persons shall be treated of pretty much in the order of Blackstone: and as to rights arising from the distinction of things, these shall be divided into two great Classes; rights real and personal, or choses in possession and in action, as they are called by the English Lawyers. . . . Then, as to actions, having already considered rights independent of actions, the doctrine of actions will be much shorter. Our attention shall upon this head be principally directed to the different Courts of Justice, and their forms of procedure.52

This basic division is derived by Millar from Adam Smith’s lectures on jurisprudence.53 It is evidently institutional, as Millar noted, both in these 48 Ibid 17. 49 Ibid 27. 50 Ibid 30; see ibid at 29: “[The English writers’] first view seems to have been, to consider the different subjects of law, under the forms of action.” 51 Ibid 30. 52 Ibid 32. 53 See Smith, Lectures on Jurisprudence (n 13) 7–14, 399–401; see also K Haakonssen, The Science of a Legislator; The Natural Jurisprudence of David Hume and Adam Smith (1981) 99–134.

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lectures, and in his lectures on Scots law.54 By using this scheme, Millar deliberately gave English law a Civilian structure, no doubt to facilitate its being learned by those familiar with Roman law, as he had hoped in his letter of 1798.55 One of the most obvious differences from the institutional schemes of Blackstone and Wooddeson is the exclusion of public law from the discussion of persons. In his fourth lecture, Millar said that “[i]n the systems of the Civilians, the rights of a public nature are passed over; and in this we shall probably follow their example”.56 In any case, Millar gave a separate course of lectures on public law or government.57 Millar’s biographer, John Craig, described as follows the course on English law: In this course it could not be expected that he should convey more information than is contained in the best authors; but he greatly simplified and improved the arrangement, and accounted for the various rules and even fictions of English Law, in a manner more satisfactory, than by vague analogies, or that last resource of ignorance, and unmeaning reference to the pretended wisdom of our ancestors.58

This meeting of Adam Smith’s science of legislation with English common law deserves further study. Francis Sullivan regretted that the books of authority in England were unsystematic; yet in his own forty-three lectures on English law he dealt with his material in historical, rather than formally structured fashion. This was because his lectures only aimed to show the origins in feudal law of English law and the English constitution. He did not expound the modern law. Sullivan’s purposes were, first, to demonstrate that monarchy in England had always been limited, and second, by focusing on the early land law, to allow students to understand Littleton.59 Rejecting the institutional structure, Sullivan considered students of the Common Law should start with the land law.60

54 See text accompanying n 49; and, e.g., Glasgow University Library, MS General 1078, at fo 4 on Scots law for an explicit statement that this scheme is that of the Institutes. On the lectures on Scots law, see J W Cairns, “John Millar’s lectures on Scots criminal law” (1988) 8 OJLS 364. 55 See text accompanying n 22. 56 See MS General 243 (n 46) at 28. 57 See, e.g., Glasgow University Library, MS General 289–291; see also W C Lehmann, John Millar of Glasgow (1960) 57–58; H Medick, Naturzustand und Naturgeschichte der börgerllchen Gesellschaft (1973) 186–189. 58 Craig, “John Millar” (n 19) at xxi–xxii. 59 Sullivan, Historical Treatise (n 24) 18–22. 60 Ibid 17.

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D. CHAMBERS’ APPROACH: THE DEPARTURE FROM BLACKSTONE AND THE INSTITUTES It is now possible to assess Chambers’ approach. His course commenced with four introductory lectures on: first, the law of nature, the revealed law, and the law of nations and the primary sources of the law of England; second, the origin of feudal government and of Anglo-Saxon government and laws; third, feudal law and its effects on the English constitution and government; and fourth, the general division of the laws of England.61 In the first introductory lecture, he explained the general divisions he imposed upon English law. He noted the necessity in society “of some governing power, by which those who are inclined to be happy at the cost of others may be compelled to their part of the general task, – and of a public wisdom, by which private judgement shall be directed and controlled”. He accordingly deduced that “the first care . . . of every new society” was “to select and establish governors” and that “its first law must constitute the power by which future laws are to be made”. This was described by the English as “the constitution”: “And the modes and forms of its operations may properly be termed the politic law.” On this basis, he told his class that: The legislative power . . . is . . . to be exerted in the security of its constituents from all those evils which men bring upon one another, or which the care and labour of men, whencesoever they proceed, can divert or remove. We never hurt each other but by error or by malice. To the errors of individuals legislative wisdom is opposed, and to their malice legislative power. From our endeavours to secure happiness against error, arise all the forms of conveying and securing property . . . To defend us against the malice or wickedness of each other, is the general end of those laws which are enforced by penal sanctions. . .

He thus claimed that “the positive institutions of any state” could be divided into three: “public, criminal and private law”.62 This is rather neat. He explained further: [Public law] is . . . that law of government by which the supreme power in a state regulates its own conduct and that of its subordinate officers, which constitutes the existence, and modifies the operations of the supreme legislative magistrates, which directs and limits (where it is limited) the agency of the supreme executive, which prescribes the mode of delegation and the authority delegated to all inferior public officers, and consequently comprises all the rules relating to the public property and revenue, to councils of state and commerce, to public messengers, courts of justice, inferior territorial magistrates, the civil 61 Chambers (n 4) vol i, 83–123. 62 Ibid 89; see also ibid 122.

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state of men with their various ranks and privileges, the different rights of aliens and native subjects, the territory whose inhabitants constitute the state, and such subordinate governments and societies as are either contained in the state or dependent upon it.63

This accordingly was the first division of his lectures. It encompasses what is dealt with in the first book of Blackstone’s Commentaries with some exceptions. It omits, for instance, the latter’s class of relative private rights of natural persons (that is, as master and servant, husband and wife, parent and child, and guardian and ward), and in its ninth and tenth lectures includes the type of material on courts which Blackstone substantially, and deliberately, postponed to this third book.64 Chambers here departed from Blackstone’s (and Hale’s) concept of “persons” as a means of organising this type of material, and relied on the idea of public law. It should be noted, however, that he included corporations as an aspect of public law. In his sixteenth lecture on public law he said: In the subordinate parts of our political constitution it is necessary to make particular mention of corporations; which have been scattered by our ancestors over the whole kingdom by the natural tendency of the feudal polity to divide itself into separate jurisdictions, and to make large grants of privileges and immunities.65

Under corporations he discussed: corporations sole (the king, every bishop, many of the deans, all rectors and vicars); and aggregate corporations, both ecclesiastical and lay (the chapters of cathedrals and collegiate churches, and the governing bodies of cities and boroughs, seminaries of learning, charities and the management of trade and commerce). Given that, for Chambers, legal personality was not a major organising category, this classification of corporations makes sense. It is of particular interest in Quebec, where the Code of 1866, following the Louisiana Code of 1825, has included corporations in its first book, “Of Persons”.66 The Louisiana Code has here undoubtedly been influenced by Blackstone.67 The codification commission noted in its

63 64 65 66

Ibid 90. Compare Chambers (n 4) at 217–234 with Blackstone, Commentaries (n 31) vol i, 327. Chambers (n 4) vol i, 293. Compare arts 352–373 CCLC with arts 418–438 CCLa (1825). See Report of the Commissioners Appointed to Codify the Laws of Lower Canada in Civil Matters (Second Report) vol i (1865) at 231 (henceforth Second Report): “[Title 11 is] in imitation of that to be found in the code of Louisiana, from which, however, [the commissioners] have obtained but little aid.” 67 See J W Cairns, “The 1808 Digest of Orleans and 1866 Civil Code of Lower Canada: An Historical Study of Legal Change”, (doctoral thesis in law, University of Edinburgh, 1980) vol ii, 559 n 218.

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report that, in Civilian systems, corporations had been traditionally regarded as an aspect of public law.68 Chambers shows that this was also a viable classification for the Common Law. More work could usefully be needed on the development of the notions of corporations and legal personality in the context of the growth of legal taxonomy. Chambers’ second division is criminal law, the aim of which he regarded as the prevention of “those mischiefs which the depravity of the human heart unawed and unrestrained would frequently occasion”. He said that “[i]ts subjects therefore must be the general and special nature of crimes whether against the laws of God, the law of nations, or the municipal laws of the state, the different degrees of guilt, the means of prevention and the degrees as well as mode of punishment”. He noted that Civil lawyers classed criminal law as “a species of private law”; but he disagreed, arguing that in feudal governments (of which the English constitution was one) crimes were properly considered as public offences. He told his class that he had accordingly chosen in his “general distribution of law, to consider this as a  distinct part both from the public law of government, and that private law by which the particular rights of subjects are protected”. This was because crimes were both “very great injuries to him whose natural and  civil rights [were] . . . invaded” and also “very atrocious offences against the peace and good order of the commonwealth”.69 He structured his lectures on criminal law as follows: the general nature and history of punishment and exemptions from it; offences against the government (high treason, felonies and inferior offences against the Crown); offences against the general duties of citizens (against subjects of other states, the persons and property of fellow subjects, and the commonwealth – established religion, public justice, public tranquility and public order); and agents and accomplices.70 This classification of criminal law as partaking of the nature of both public and private law is perfectly sensible. Though different, his account is quite compatible with that of Blackstone. The most obvious feature is the departure from the institutional structure.

68 Second Report (n 66) 229. The commission specifically disagreed with A de Saint-Joseph, Concordance entre les codes civils étrangers et le Code Napoléon, 2nd edn (1856) vol ii, 477, who described the relevant arts of the Louisiana Civil Code as “n’ayant aucun trait au droit civil proprement dit”. 69 Chambers (n 4) vol i, 90–91. 70 Ibid 305–461; at 304, a printed syllabus for Part II of the Lectures is reproduced which helps explain the structure. See W Blackstone, Commentaries (n 31) vol iv: “Of Public Wrongs”.

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In his introductory lecture, Chambers said little specifically about the protection of the rights of citizens by the private law, other than to note that it was “chiefly about those rights that fellow citizens contend”.71 At the start of this third part of his lectures, he described English private law as “that which with respect to private rights, suum cuique tribuit, examines every man’s pretensions, and distributes to every man his own”.72 This appears to be an allusion to one element of Ulpian’s famous statement that “[t]he precepts of law are as follows: to live honourably, not to harm another, to give each man his due”.73 The other two parts of Ulpian’s tripartite division are never quoted by Chambers; and one should not see it as relating to Chambers’ threefold division of English law. He concisely described the scheme of his lectures: First I shall treat of the personal rights of men and of the injuries by which those rights are violated, whether man be considered simply as an individual subsisting merely for himself unconnected and independent, or as head or member of that small society supposed to be contained in a single house, and supported by a due reciprocation of domestic offices, or as extending his connection wider through other modes of dependence, and systems of relation. The next great subject of discussion will be the law by which possession is distinguished and secured, by which every man is taught to know his property with certainty, and enabled to use it without molestation. Property is called by the law either personal or real. In treating of the several species of real or immovable property, I shall for the most part follow the order observed by Littleton, and endeavour to make my lectures a continued commentary upon his first book of Tenures. But when we have followed him through the several species of real property, it will be necessary to depart from him in the explication of the conditions upon which estates are held, whether legal tenures, or arbitrary stipulations. I shall then treat of the various kinds of joint interest as legally distinguished into the rights of parceners, jointtenants and tenants in common. I shall show how real property is acquired, lost or transferred, to what injuries it is liable and how those injuries are redressed. I shall afterwards treat more shortly of personal or movable property, of which there are many species acquired and lost by different means, and injured or diminished by different actions, which species it will be proper to enumerate and to show in what manner they are protected by the law. And lastly I shall consider that mode of justice and those kinds of remedies which are administered in courts of equity.74

Following this plan, Chambers started with the personal rights of men and the injuries affecting them absolutely as individuals in domestic relations and in particular civil relations. Following Hale, he described the natural 71 72 73 74

Chambers (n 4) vol i, 91. Ibid vol ii, 3; see also vol i, 122. D 1.1.10.1. Chambers (n 4) vol ii, 3–4.

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rights of men as those of safety, liberty, and name and reputation. The right of safety was that of being protected from violence, and Chambers enumerated various specific offences of violence which could be pursued criminally or made an action for damages before a jury. Under the right of liberty he discussed habeas corpus. Injuries to name and reputation he considered to be malicious prosecution and defamation.75 Chambers has here discussed what Blackstone dealt with in the first chapter, “Of the absolute Rights of Individuals”, of the first book of the Commentaries; but Blackstone also included the right of property as an absolute right, and grouped together the rights of safety and reputation as the right of personal security.76 It does not seem, however, that Chambers excluded the right of property because he denied it the status of an absolute right, but rather that he accepted Hale’s preference of postponing discussion of it to jura rerum.77 After considering the absolute rights of men, Chambers turned in the second lecture on private law to what he described as “mingled rights”, which might in many instances be infringed without violence to the person, and diminution of property, but which were “necessary to be vindicated for the peace and prosperity of society and the happiness and quiet of domestic life”. These were, first, the rights of men in “economical or domestic relations”, which were those of husband and wife, parent and child, and master and servant, and second, “particular civil relations”, which were those of guardian and ward, and landlord and tenant.78 The terminology and content of these two classes is derived from Hale’s Analysis.79 Blackstone, for instance, had here only one class, that of “private oeconomical relations”, encompassing master and servant, husband and wife, and parent and child, as the “three great relations in private life”, to which he added a fourth, guardian and ward, as “a kind of artificial parentage”.80 Chambers differed from Hale in excluding from “civil relations” ancestor and heir, and lord and villein. For Chambers, the distinction between economical or domestic relations and civil relations was that the former were natural and preceded civil society and positive law, societies being assemblages of families, while the latter were creations of positive law.81 Here there is an important

75 76 77 78 79 80 81

Ibid 4–17. Blackstone, Commentaries (n 31) vol i, 119–136. Chambers (n 4) vol ii, 4. Ibid 18. Hale, History of the Common Law of England (n 27) 29–37. Blackstone, Commentaries (n 31) vol i, 410. See Chambers (n 4) vol ii, 19, 26 and 27.

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conceptual difference between Blackstone and Chambers, where Chambers has stayed closer to Hale’s Analysis. Furthermore, while Blackstone postponed discussion of the injuries that could be done to the rights of persons to the eighth chapter, “Of Wrongs, and their Remedies, respecting the Rights of Persons” of his third book, “Of Private Wrongs”,82 Chambers has integrated this type of matter into his general discussion of the rights of persons. Turning to property, Chambers remarked that the feudal law “is wholly conversant about land and such kind of property as is equally permanent with land”. He rated that the nations which overran the Roman empire established laws relating to land, succession, and crimes, but frequently used the laws “they found already prevalent” in “respect to movable property and personal injuries not amounting to crimes”. He concluded: Hence the great weight which the civil law has retained in most of the countries of Europe; and hence arises the difference which is so remarkable between personal and real property in England. Our rules respecting real property are almost all feudal, those which concern personal estates are derived (as we shall see hereafter) either from the law of nature or the civil law.83

Like Blackstone, Chambers divided his account of property into two main divisions: real (the third through the fourteenth lectures) and personal (the fifteenth through the eighteenth). The first five lectures on real property are a commentary on the first book of Littleton’s Tenures. He explained that to this treatise “the students of the common law are no less beholden than the civilians to Justinian’s Institutes”, and that he could not “by any method” give “more easily and efficaciously a general idea of the nature of estates” than by commenting on Littleton.84 The lectures on real property generally cover the matters Blackstone dealt with in the first twenty-three chapters of the second book of the Commentaries,85 with the differences that Chambers dealt with the history of the feudal system in his introductory lectures, and also included two lectures on the injuries to real property and their remedies, which Blackstone dealt with in the third book of the Commentaries, in chapters ten through sixteen.86 The first three of Chambers’ four lectures on personal property are equivalent to chapters twenty-four through thirty-two

82 83 84 85 86

Blackstone, Commentaries (n 31) vol iii, 115–143. Chambers (n 4) vol ii, 37. Ibid 38–39. Blackstone, Commentaries (n 31) vol ii, 1–383. Ibid vol iii, 167–253.

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of the second book of Blackstone’s Commentaries87 The fourth lecture, “Of the Injuries Affecting Personal Property and Their Respective Remedies”, is equivalent to the ninth chapter of the third book of the Commentaries.88 Chambers’ comment that English law has followed Civil Law as regards personal property seems at first rather remarkable; but, though Blackstone did not make a similarly bald statement, his chapters on personal property occasionally noted the correspondence with, or derivation from, Civil Law of some English doctrine. Blackstone, for example wrote that the English courts considered personal property in a way “frequently drawn from the rules which they found already established by the Roman law”,89 and that Bracton adopted into English law the Roman rules on accession.90 It does seem, however, that Chambers saw more correspondence with Roman law, and in his account of transferring personal property by contract he made many more allusions to the Roman law of contracts.91 Chambers concludes his lectures on private law with four lectures (nineteen through twenty-two) on private rights as protected by courts of equity, concluding with a few remarks on the study of law.92 Blackstone nowhere offers such a full and specific account of the equity jurisdiction, the final chapter of his third book being both procedural in orientation and slight in comparison.93 It is fair to point out, however, that neither Sir Rupert Cross nor Professor Hanbury were particularly impressed with Chambers’ account of equity.94 In obvious contrast to Blackstone’s Commentaries, Chambers’ lectures lack any specific account of procedure and actions. Both Wooddeson and Millar dealt with actions in their much more institutional schemes. Why Chambers should have neglected this aspect is unclear. Partly, of course, he has fitted some of the material from Blackstone’s third book into his account of private law; but his accounts of injuries to persons, real property, and personal property, and their remedies do not really amount to an adequate treatment, when compared with Blackstone or Wooddeson. Similarly, in

87 Compare Chambers (n 4) vol ii, 189–218 with Blackstone, Commentaries (n 31) vol ii, 384–520. 88 Compare Chambers (n 4) vol ii, 219–227 with Blackstone, Commentaries (n 31) vol ii, 144–166. 89 Blackstone, Commentaries (n 31) vol ii, 385. 90 Ibid at 404; see also ibid at 390. 91 Compare Chambers (n 4) vol ii, 209–217 with Blackstone, Commentaries (n 31) vol ii, 442–470. 92 Chambers (n 4) vol ii, 261–263. 93 Compare Chambers (n 4) vol ii, 228–261 with Blackstone (n 31) vol iii, 426–455. 94 See Cross, “Vinerian Professors” (n 5) at 621; Hanbury, Vinerian Chair (n 1) 60.

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his second part, on criminal law, his discussion lacks the treatment of the criminal process, as distinct from substantive law, found in Blackstone’s fourth book and Wooddeson’s account of criminal prosecutions. Chambers’ tripartite division of English law did not really permit a comprehensive treatment of actions. In this respect, it was inferior to the more institutional schemes of Millar and Wooddeson, and to Blackstone’s overarching division of English law into rights and wrongs. Reibman has suggested that “[t]he basic structure of [Chambers’] lectures . . . closely parallels that of Blackstone’s [C]ommentaries as well as following the scheme of issues and topics covered by Justinian’s Corpus Juris Civi[li]s”.95 These claims are both exaggerated and somewhat misleading, as well as vague. Chambers is more original than this. Similarly, McAdam rather misses the point in suggesting that, when Chambers excludes, from his first book, Blackstone’s class of “private oeconomical relations”, this is somehow merely an improvement on Blackstone.96 Blackstone’s book on persons is not just an account of public law, with a few chapters on persons eccentrically inserted. Chambers’ stronger use of the division between public and private law ultimately gives his lectures, in some respects, a more “modern” structure; but, of other professors of English law in the eighteenth century, only John Millar also made this distinction, while, in contrast, Sullivan discussed the history of English land law to explain the country’s free constitution. E. CONCLUSION The eighteenth century’s concern with classifying law was of great importance. In all legal systems, but perhaps especially in English law, it was a significant step in the creation of formally rational law. The effects of the categorising activity on the substantive law are hard to specify, but Professor Milsom has argued that Blackstone was important in the emergence of English law as a system of substantive law.97 In this respect, it is significant that Chambers sought to expound English law without an account of actions. He treated it, insofar as he could, as a system of purely substantive law, in the categories of public law, criminal law, and private law. But it should be noted that Wooddeson, Chambers’ successsor, and sometime deputy, reverted to a much more institutional structure, with an essentially Blackstonian 95 Reibman, “Dr Johnson and the Law” (n 3) 190; see also Curley’s introduction to Chambers (n 4) vol i at 39: “The basic structure of the course adheres closely to that of the Commentaries.” 96 McAdam, Dr Johnson and the English Law (n 3) 75. 97 S F C Milsom, “The nature of Blackstone’s achievement” (1981) 1 OJLS 1.

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conception of “persons”, which did not favour Chambers’ strict separation of public from private law. This suggests that Chambers’ scheme was not considered particularly suitable, especially, perhaps, because of its exclusion of actions. The institutional structure continued to dominate thinking about legal categories, as is shown by Millar’s institutional approach to English law in the 1790s. The publication of Chambers’ lectures is an important event for legal historians. Though one cannot say, as one can for Blackstone, that the lectures had a shaping effect on the development of the common law in England and elsewhere, they demonstrate how an intelligent lawyer could conceive of English law in the later eighteenth century. That he could discuss it as a system of organised legal principles suggests the extent of the development of a view of English law which would facilitate, as Professor Simpson has pointed out, the rise of the legal treatise in the nineteenth century.98 This review has focused on only one aspect of the lectures; but it is not – I hope – an unimportant one. They are, of course, of interest in many other ways. A few examples may be selected. They could be discussed in the context of the eighteenth-century historiography of feudalism and Gothic liberty.99 Study of Chambers’ sources would prove very interesting: for instance, the use he made of Thomas Craig’s Jus feudale as a source for the history of feudal law.100 To examine his attitude to Roman law would also be worthwhile. The lectures will also contribute to our understanding of the science of legislation in the eighteenth century. It would also be interesting to compare Chambers’ legal philosophy with the views of other eighteenthcentury writers. The University of Wisconsin Press has produced two handsome volumes, and the editor, Professor Curley, has provided, as well as sensitive editing, a useful introduction. This is an excellent addition to the canon of works produced in the eighteenth century by the new university discipline of national law. An edition of the student notes of Millar’s lectures on English law would now be a further useful enrichment of the printed literature. Finally, were it possible for a publisher to reprint Wooddeson’s lectures, then the works of the first three Vinerian professors would be readily available. Further scholarly advances in the field would thereby become easier to make. 98 A W B Simpson, “The rise and fall of the legal treatise: legal principles and the forms of legal literatures” (1981) 48 UChiLRev 632. 99 See now R J Smith, The Gothic Bequest: Medieval Institutions in British Thought, 1688–1863 (1987). 100 T Craig, Jus feudale, 3rd edn (1732).

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17 Blackstone, Kahn-Freund, and the Contract of Employment* In 1977 the late Sir Otto Kahn-Freund published the text of his important 1977 Blackstone Lecture delivered in the University of Oxford with the title: “Blackstone’s neglected child: the contract of employment”.1 In it, Kahn-Freund writes that “[a]nyone handling Blackstone’s great work for the first time and looking for what he has to say about employment, would, I think, do what I did . . . and turn to his chapter on Contracts”. KahnFreund notes that, though there is mention of a “contract of service or employment . . . we are told next to nothing about the mutual obligations to which it gives rise”.2 He comments that there are allusions to public offices in the third book on the Law of Private Wrongs, before stating: And now, somewhat incredulously at first, we detect in the First Book, in the Law of Persons, wedged between chapters on the Army and Navy and Husband and Wife, one which bears the title “Of Master and Servant.” However did this get into the Law of Persons, and this at the critical point where the public law, that is the constitutional law, discussion ends, and the private law, that is the family law, discussion begins?3

He then points out that, at the beginning of the chapter (XIV) on Master and Servant, Blackstone explains that he is moving from rights and duties arising from public relations to those of persons in “private œconomical relations”.4 The relation of master and servant is described by Blackstone as “founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labour will not be sufficient to answer the cares * I have benefited from the comments (on an earlier draft) of Beverley Brown, Mike Hoeflich, Bob McCreadie, Hector MacQueen, David Sellar and Alan Watson. 1 O Kahn-Freund, “Blackstone’s neglected child: the contract of employment” (1977) 93 LQR 508 (henceforth Kahn-Freund, “Blackstone’s neglected child”). 2 Ibid at 509–510. 3 Ibid at 510. 4 Ibid at 510–511.

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incumbent upon him”.5 The two other “great relations in private life” are those of husband and wife “founded in nature, but modified by civil society”, and of parent and child “consequential to that of marriage, being it’s [sic] principal end and design”. Blackstone adds that “the law” provided a fourth relation “of guardian and ward, which is a kind of artificial parentage, in order to supply the deficiency, whenever it happens, of the natural”.6 KahnFreund focuses on the phrase “to call in the assistance” and asks “[w]hy, on what basis, is a person liable to answer this call, to enter into the service of another?”. He points to the fact that “a labourer’s duty to serve may be based on legal compulsion” under the Statute of Artificers and Apprentices of 1562 and that under the Poor Law a parish apprentice could be compelled to serve a master with whom he had not entered into contractual relations, before commenting that “the duty to work for another is the essence of the relationship”.7 He argues that “in the Master and Servant chapter the contract is only an accidentale, not an essentiale of the relation. The foundation of the servant’s claim to wages is the service”.8 He next comments that “in connection with Blackstone, we are entitled to say that the master–servant relation is based on status, and not on contract”.9 The main concern of Kahn-Freund’s lecture was to argue that Blackstone’s classification of master and servant impeded the development in England of a contractual approach to employment. In this short article, I shall not address myself directly to this argument. What does seem important, however, to consider in Kahn-Freund’s discussion is the following opinion on why Blackstone deals where he does with employment: The reason was not, or at least not principally, that in the social conditions of his day, the servant was often part of the familia. The reason was that, owing to the more than 400-year-old tradition of the Statutes of Labourers and Statutes of Artificers, and the more than 150-year-old tradition of the Poor Law, the law of master and servant was largely – in theory, though to a rapidly decreasing extent in practice – the law of the status of those liable to be directed to work at wages fixed without their concurrence and liable to be punished for not accepting work on demand and for not doing it in accordance with direction.10

5 W Blackstone, Commentaries on the Laws of England, 4 vols, 1st edn (1765–1769) (henceforth Blackstone, Commentaries) vol i, 410. 6 Ibid; Kahn-Freund, “Blackstone’s neglected child” (n 1) at 511. 7 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 511. 8 Ibid at 512. 9 Ibid. For Kahn-Freund’s views on the terms “status” and “contract”, see “A note on status and contract in British Labour Law”, in his Selected Writings (1978) at 78 (henceforth, KahnFreund, “British Labour Law”). 10 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 512–513.

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On the basis of this, Kahn-Freund argues: first, that “we have here . . . a specimen case to demonstrate the contrast between English legal thinking and the legal thinking of the continental nations of Western Europe traceable directly to the non-reception of Roman Law in this country”;11 and secondly, “that Blackstone’s legal analysis . . . was developed in the light of an image of economic and social conditions [which] was completely out of date in 1765”.12 I shall argue here that both of these are unfounded. I shall do this by showing: first, that to treat the relationship of a servant with a master in the law of persons was found in countries which had received Roman law; and secondly, that the most advanced social thought of Blackstone’s day was in favour of such a classification. I shall then explain the basis of Blackstone’s classification, suggesting that Kahn-Freund is mistaken in applying his special notion of “status” to it, before providing a brief concluding assessment. A. AN INSTITUTIONAL APPROACH Kahn-Freund bases his discussion of Civilian treatments of master and servant in the eighteenth century solely on Pothier’s Traité du contrat de louage.13 This is understandable. Pothier in retrospect has turned out to be probably the most influential of the French jurists of the period.14 Yet, to compare the discussion in Blackstone’s Commentaries with that in this treatise is not to compare like with like: rather, it is to prejudge the issue and assume that in France the relation of master to servant was dealt with contractually. A more suitable comparison would have been with one of the general accounts, written in the eighteenth century, of French law, especially one written by the holder of one of the university chairs in that subject.15 Kahn-Freund describes Pothier’s analysis as “equally defective” with Blackstone’s, because the former has “overplayed” the contractual element, so that “[t]he employment relation appears in Pothier as completely based

11 Ibid at 514. 12 Ibid at 523. 13 R-J Pothier, “Traité du contrat de louage”, in Oeuvres de Pothier, 10 vols, 2nd edn, ed M Bugnet (1861) (henceforth Pothier, “Traité du contrat de louage”) vol iv, 1–170. 14 Certainly in England: A W B Simpson, “Innovation in nineteenth century contract law” (1975) 91 LQR 247. 15 See generally C Chêne, L’enseignement du droit français en pays de droit écrit (1679–1793) (1982).

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on the contract of hiring, the locatio conductio”.16 Kahn-Freund accuses Pothier of ignoring “the guild rules, the strict regulation of the employment of apprentices and journeymen . . ., and the less strict rules imposed by the metiers libres, and – one significant exception apart – . . . the police regulations”.17 This seems rather beside the point. Pothier’s Traité is devoted to lease and hire. He accordingly fits mention of master and servant into his general scheme. The work is not specifically intended to be on master and servant. Kahn-Freund notes that Pothier divides lease and hire into lease and hire of things and lease and hire of work, including contracts of personal service in the discussion of lease and hire of things. He points to the view that, in Roman law, locatio conductio operarum originally related to the lease of the labour of slaves, and was later extended to the hiring out of his labour by a free man, before commenting that “Pothier’s treatment of the subject reflects that situation far more truthfully than the condition of France 20 years before the Revolution”.18 While it is undoubtedly correct that the Roman tradition influenced Pothier here, it is worth noting that, in both lease of things and lease of personal service, he who paid was the conductor, whereas, in lease of work and labour, he who paid was the locator. Analytically, Pothier was correct in his classification.19 Finally, does not the fact that Pothier says so little on lease of personal service perhaps reflect the very existence of the guild and police regulations which Kahn-Freund accuses him of ignoring, and an account of which would not fit easily into the section on lease of things in his treatise? There is no way of knowing for certain; but this is a plausible suggestion which would mean that Pothier’s discussion is relevant to the social conditions of his day.20 Kahn-Freund’s claim that Blackstone’s “treatment of the employment relationship . . . [is] a specimen case to demonstrate the contrast between English legal thinking and the legal thinking of the continental nations of Western Europe traceable directly to the non-reception of Roman Law” is easily contradicted. First, he himself mentions that the French jurist Etienne Pasquier classed the authority of the master with that of the father 16 17 18 19 20

Kahn-Freund, “Blackstone’s neglected child” (n 1) at 514. Ibid. Ibid at 515–516. Pothier, “Traité du contrat de louage” (n 13) 2 no 1; 133 no 392. See J W Cairns, “Employment in the Civil Code of Lower Canada: tradition and political economy in legal classification and reform” (1987) 32 McGillLJ 673 at 685–691.

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and husband.21 Does the fact that this was in the sixteenth century make it less Civilian? Second, Gabriel Pocquet de Livonnière, Professor of French Law in the University of Angers in the first half of the eighteenth century, published, in 1730, his Règles du droit françois, a work which went through several editions. The second title of the first book is headed: “Of the persons who are under the power of another.” Its first provision is as follows: “We recognise in our law four types of powers: the paternal, the marital, that of tutors and curators over their pupils and others confided to their care, and that of masters over their servants.”22 The basis of a master’s authority is contractual; but the contract creates a familial type of relationship. After discussing the position of black slaves in France and serfdom under some of the coutumes, Pocquet writes: That aside, all men are free in France; servants owe to their masters respect, obedience in reasonable things; they are obliged to take care for the preservation of their masters’ lives, honour, and property; they are subject to moderate chastisement: for the rest, they are free both in person and property.23

This approach seems very similar to that of Blackstone. Kahn-Freund is not the first to think that the Civilian approach to employment must be contractual: a view ultimately deriving (one may suspect) from considering the French code and German Pandektenrecht of the nineteenth century as the paradigms of Civilianism. T W Tucker, for example, has commented that “[t]he whole notion of a relationship between a master and a free servant as two classes of persons is foreign to the civil law”.24 I would suspect that, on the contrary, any legal system which emphasises the study of Justinian’s Institutes might well discuss the relationship between masters and servants as that between different classes of persons. Professor Luig has shown that, in the development of institutes of national law, it was quite common to produce commentaries on Justinian’s Institutes with notes on the local or national law.25 In commenting on the third to seventh titles of the first book, it was obvious to refer to the modern law, stating that slavery was generally forbidden by the laws

21 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 514 and 509; E Pasquier, L’interprétation des Institutes de Justinien (1847) (henceforth Pasquier, Institutes de Justinien) 64–66. 22 G Pocquet de Livonnière, Règles du droit françois, 3rd edn (1737) 35 (1.2.1) (my translation). 23 Ibid 55–56 (1.2.40). 24 T W Tucker, “Sources of Lousiana’s law of persons: Blackstone, Domat, and the French Codes” (1970) 44 TulLR 264 at 275. 25 K Luig, “The institutes of national law in the seventeenth and eighteenth centuries” (1972) Juridical Review 193 at 196–197.

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of Christianity, commenting on the position of black slaves in the colonies when brought to Europe, while also making some remarks on the position of serfs and those of apprentices and servants. This may be illustrated by Harris’s English translation of the Institutes. In his note on Institutes 1.3.pr, Harris describes villenage, and slavery in the colonies, while in those on 1.3.4 he writes: Altho’ absolute slavery is now disused in Europe . . . yet a species of servitude is allowed among us, which is justifiable: thus an apprentice is bound for a certain time, and for particular purposes; and men of full age may also, by contract, bind themselves for a maintenance either for years, or for life.26

Pasquier’s work is, it may be noted, a comparison of Justinian’s Institutes with French law.27 If Scotland can be taken as a country more strongly influenced than England by Roman law, it is instructive to examine the history of a developed institutional work, Sir George Mackenzie’s Institutions of the Law of Scotland.28 At the end of the final title of the first book, that on persons, Mackenzie wrote that “[w]e have little use in Scotland, of what the Institutions of the Roman Law teach, concerning slavarie [sic] . . . for we as Christians allow no Men to be made Slaves, that being contrare to the Christian liberty”.29 For the first half of the eighteenth century, Mackenzie’s Institutions was the most important book for teaching Scots law.30 In the edition he published in 1723, John Spottiswoode commented on this passage: We have Houses of Correction . . . We have quasi Slaves, called among the Romans, Ascriptitii Glebae, viz. Coalliers and Salters . . . We have hired Servants, who are under a Kind of Compulsion . . . We have Apprentices subject to the Laws of the Burgh, and their respective Corporations, who, during the Time specified in their Indentures, are under the Lash of their Masters and Mistresses, and sometime in a Condition worse than that of an Hireling, and little better than that of a Slave.31

26 The Four Books of Justinian’s Institutions, Translated into English, With Notes, by G Harris, LLD (1756) 12 and 13. See also R Eden, Jurisprudentia philologica, sive elementa juris civilis, secundum methodum et seriem Institutionum Justiniani (1744) 26; S Hallifax, An analysis of the Civil Law, new edn by J Geldart (1836) 8–10. 27 Pasquier, Institutes de Justinien (n 21). 28 2nd edn (1688). 29 Ibid 76. 30 See J W Cairns, “Mackenzie’s Institutions and law teaching in eighteenth century Scotland”, unpublished paper delivered to the Scottish Legal History Group, 13 October 1984, abstract in (1986) 7 JLH 86. 31 6th edn (1723) 69.

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The work which succeeded Mackenzie’s Institutions as the main student text on Scots law was Erskine’s Principles. While Erskine purported to follow the order of Mackenzie, he in fact analysed persons thus: Persons, when considered in a private capacity, are chiefly distinguished by their mutual relations; as husband and wife, tutor and minor, father and child, master and servant.32

He included two paragraphs on master and servant at the end of his title on minors and their tutors and curators.33 The descent of Erskine’s passages on master and servant can be traced through student notes of lectures on Mackenzie’s Institutions.34 Alan Watson has shown that the structure of Blackstone’s Commentaries is directly and powerfully influenced by Denis de Godefroy’s analysis of that of the Institutes.35 While Kahn-Freund was aware of some influence from the Institutes, he had not considered it deeply or thought it through.36 In fact, the Commentaries belong to the genre of institutional writings found in both the Civil and Common Law traditions.37 As we have seen, an institutional approach might well lead to a discussion of master and servant in the treatment of persons. In this respect Blackstone was also influenced by the earlier English writers Hale and Wood; but they too were influenced by the institutional scheme, which, in any case, is strongly reinforced by Blackstone in the Commentaries.38 The place where Blackstone locates his discussion of master and servant is not “traceable directly to the non-reception of Roman Law” in England – if anything, rather the reverse; especially since he, in this differing from Hale, placed master and servant before husband and wife, where Justinian placed slavery, the first division of the law of persons in Roman law.39

32 [J Erskine], The Principles of the Law of Scotland: In the Order of Sir George Mackenzie’s Institutions of that Law, 1st edn, 2 vols, continuously paginated (1754) vol i, 61 (1.6.1). 33 Ibid vol i, 102–103 (1.7.38–39). 34 See, e.g., National Library of Scotland MS 3412 132–133; MS 3862 68; Signet Library MS: 7 (Law), vol i, 179–183; Edinburgh University Library MS Do.8.131 133–138 (second sequence of pagination). 35 A Watson, “The structure of Blackstone’s commentaries” (1988) 97 YaleLJ 795 (henceforth Watson, “Blackstone’s commentaries”). 36 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 509. 37 J W Cairns, “Blackstone, an English Institutist: legal literature and the rise of the nation state” (1984) 4 OJLS 318 (henceforth Cairns, “Blackstone, an English Institutist”); on Blackstone’s methodology, see also M Lobban, “Blackstone and the science of law” (1987) 30 Historical Journal 311. 38 Cairns, “Blackstone, an English Institutist” (n 37) at 348–350. 39 Watson, “Blackstone’s commentaries” (n 35) at 803.

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B. ECONOMIC REALITIES AND CLASSIFICATION Kahn-Freund suggests that Blackstone’s treatment of master and servant would have had a different “emphasis”, “if his image of the working population had been more realistic, if his horizon had encompassed a larger segment of the economic landscape”, before posing the rhetorical question: “[w]as Blackstone’s idea of employment perhaps inspired by the conditions of the mid-fourteenth rather than by those of the mid-eighteenth century?”.40 Kahn-Freund here is writing specifically in the context of the compulsion to work and the fixing of wages; but he intends these remarks to have a wider significance, since he has just said that “[w]hat was or was rapidly becoming the most important industrial and commercial community in the world appears in Blackstone as consisting of farmers, artisans, and householders employing domestics, and the servants of these persons”.41 Moreover, since it is the compulsion to work which he claims as the reason for Blackstone’s classification of master and servant in the law of persons, we are justified in confronting these statements as broad generalisations about Blackstone’s view of master and servant. The first point I would make is that in 1765 England overwhelmingly did in fact consist of “farmers, artisans, and householders employing domestics, and the servants of these persons”. There was no large group of urban wage-labourers. England was not an industrial country. As late as 1860 the population was still predominantly agricultural, even though by then England could be described as industrial. As J C D Clark puts it, “[n]ot until the 1830s and 40s, when the railway and the steamship arrived, did the output of iron and coal surge ahead. Not until then did mass-production and powered machine tools spread to many industries . . . In 1832 Britain was still essentially horse-drawn and sail-driven”.42 Talking of much later in the eighteenth century than 1765, Clark points out that “[f]or most workers, the unit of production was the workshop”, and that “[b]efore joint-stock companies, the normal units of economic as well as political continuity were families”.43 If we compare Clark’s views with those of J F C Harrison, we find that though they differ on much, and Harrison thinks the period from

40 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 521. 41 Ibid at 520. 42 J C D Clark, English Society 1688–1832: Ideology, Social Structure and Political Practice during the Ancien Regime (1985) (henceforth Clark, Ancien Regime) 65. The remarks in this paragraph are drawn generally from this work at 64–71. 43 Ibid 67.

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1760 to 1830 to be more significant than does Clark, it is obvious that, for Harrison too, the emergence of anything resembling modern wage labour long post-dates Blackstone’s writing.44 To represent the relations of master and servant as essentially familial was for Blackstone totally realistic, and encompassed virtually the entire economic landscape. Kahn-Freund has projected an industrial England too far into the past.45 This is confirmed if we look beyond Blackstone at some of the foremost writers of his day. Adam Smith was Professor, first of Logic and then of Moral Philosophy, in the University of Glasgow from 1751 to 1764. We possess student reports of his lectures on Jurisprudence dated 1762–1763 and 1766 (though this last was probably of the academic session 1763–1764).46 These lectures are thus contemporary with Blackstone’s lectures and with publication of the first volume of the Commentaries. Smith tells his students: The end of justice is to secure from injury. A man may be injured in several respects. 1st, as a man 2ndly, as a member of a family 3dly, as a member of a state. As a man, he may be injured in his body, reputation, or estate. As a member of a family, he may be injured as a father, as a son, as a husband or wife, as a master or servant, as a guardian or pupil. For the two last are to be considered in a family relation, till such time as the pupil can take care of himself. As a member of a state, a magistrate may be injured by dissobedience [sic] or a subject by oppression, etc.47

His overall classification of a servant as in a familial relationship with his master corresponds to that of Blackstone. In his lecture on master and servant, Smith treats the topic historically. He discusses the circumstances which gave rise to the institution of slavery, its abolition in Europe, and servants and apprentices.48 In the Wealth of Nations, Smith does seem to treat servants, journeymen, labourers, and “manufacturers” more as a cost to be considered in rational calculation in his chapter “Of the Wages of Labour”.49 This is, however, generally compatible with his discussion in the

44 J F C Harrison, The Common People: A History from the Norman Conquest to the Present (1984) (henceforth Harrison, Common People) 211–242. 45 For a lawyer’s view of these developments, see P S Atiyah, The Rise and Fall of Freedom of Contract (1979) (henceforth Atiyah, Contract) 24–35. Atiyah points out at 34 that in 1770 there was little industrialisation. 46 A Smith, Lectures on Jurisprudence, ed R L Meek, D D Raphael, and P G Stein (1978). On the dating of the reports, see Introduction to this work at 5. 47 Ibid 399. 48 Ibid 450–456, esp at 455–456. 49 A Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, ed R H Campbell, A S Skinner and W B Todd, 2 vols (1976) vol i, 82–104.

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lectures on jurisprudence, and he notes, in a telling phrase, that “[m]asters of all sorts . . . frequently make better bargains with their servants in dear than in cheap years, and find the more humble and dependent in the former than in the latter”.50 The legal basis of the relationship might have been contractual, but socially the context was more complicated. John Millar, Professor of Law in the University of Glasgow 1761–1801, is a much less familiar figure than his teacher Adam Smith, but he undoubtedly was the outstanding law teacher of his day, and an influential social thinker.51 In the 1790s, Millar was regarded as such a dangerous radical that Francis Jeffrey was not permitted by his father to attend his lectures.52 In both his lectures on Scots law and on English law, he discusses master and servant as part of the law of persons.53 It is in this respect particularly significant that Millar first taught English law in the late 1790s.54 In 1771, he published Observations Concerning the Distinction of Ranks in Society. This reached its third edition in 1779 under the revised title of The Origin of the Distinction of Ranks: or, An Enquiry into the Circumstances which Give Rise to Influence and Authority in the Different Members of Society. Its sixth chapter is entitled “The authority of a Master over his Servants”. The opening paragraph states: In the foregoing chapters we have surveyed the principal distinctions of rank which occur among the free inhabitants of a country, and have endeavoured to mark the progress of society, with regard to the power of the husband, the father, and the civil magistrate. It may now be proper to consider the state of servants, and to observe the degrees of authority which the laws and customs of different nations have bestowed upon the master.55 50 Ibid vol i, 101. 51 See W C Lehmann, John Millar of Glasgow 1735–1801: His Life and Thought and his Contributions to Sociological Analysis (1960) (henceforth Lehmann, John Millar of Glasgow); K Haakonssen, “John Millar and the science of a legislator” (1985) Juridical Review 41. 52 H Cockburn, Life of Lord Jeffrey, 2 vols (1852) vol i, 12. 53 See, on Scots law, Glasgow University Library, MS Gen 347, MS Gen 178, MS Gen 181 (1–3), MS Murray 83–87, MS Gen 1078. Millar dealt with master and servant in his seventh lecture, described thus in J Millar, Heads of the Lectures on the Law of Scotland, in the University of Glasgow, MDCCLXXVII (1777) 5–6: “View of the circumstances which have contributed to limit or abolish domestic slavery in Europe. – Condition of negro-slaves imported into Scotland. – Of coaliers [sic] and salters. – Of ordinary domestic servants. – Of apprentices.” See also pamphlet of same title dated 1789 (bound in Glasgow University Library, MS Gen 181(1) and MS Murray 83) at 6. See, on English law, Glasgow University Library, MS Gen 243, lecture 8 on poor law and master and servant. On all these lectures, see J W Cairns, “John Millar’s lectures on Scots criminal law” (1988) 8 OJLS 364; and “Eighteenth century professorial classification of English common law” (1987) 33 McGillLJ 225 (henceforth Cairns, “English common law”) at 233–235. 54 W C Lehmann, “Some observations on the law lectures of Professor Millar at the University of Glasgow (1761–1801)” (1970) Juridical Review 56 at 73–76. 55 J Millar, Origin of the Distinction of Ranks (1779) reprinted in full in Lehmann, John Millar of Glasgow (n 51) 175 at 296.

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The sequence of chapters is obviously influenced by Smith’s lectures on jurisprudence, and by Millar’s own lectures; but the way this paragraph is phrased, and Millar’s focus on the authority “bestowed upon the master” suggests he does not conceive of the relationship between master and servant in purely contractual terms. Given the economic evidence marshalled by Clark, and the views of Smith and Millar, it is difficult to escape the conclusion that it would have been wrong for Blackstone to discuss master and servant otherwise than as one of the great relations of private economical (that is, household) life.56 The relationship between master and servant was not purely contractual, but was socially complex in a way best represented in law by a classification of it as familial or domestic. C. COMPULSION OR FAMILY It is still necessary for me to deal with Kahn-Freund’s argument that Blackstone classified the relationship of master and servant as essentially one of status, based on the latter’s duty to work for the former, possibly because of contract, but, more importantly for Kahn-Freund, also because of statutory compulsion. For Kahn-Freund, “[i]t is this which explains the at first sight incomprehensible arrangement of [Blackstone’s] work, and it is this which explains the juxtaposition of family relations and labour relations”.57 This arrangement came about “not, or at least not principally [because] . . . the servant was often part of the familia”. Rather, it was because “the law of master and servant was largely . . . the law of the status of those liable to be directed to work at wages fixed without their concurrence and liable to be punished for not accepting work on demand and for not doing it in accordance with the direction”.58 Kahn-Freund must argue this, because he adopts a meaning for “status” such that it cannot be a relationship which can be created voluntarily: it must come into being by operation of law alone.59 I shall argue against this view of Kahn-Freund’s in two stages. First, I shall argue that statutory compulsion is not so central to Blackstone’s conception

56 Clark, Ancien Regime (n 42) 64–73; see also the map of society in P Colquhoun, A Treatise on the Wealth, Power, and Resources of the British Empire (1814), found quoted in Harrison, Common People (n 44) at 232–234. 57 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 512. 58 Ibid at 512–513. 59 Kahn-Freund, “British Labour Law” (n 9); cf the interpretation of Kahn-Freund in Atiyah, Contract (n 45) 141–142. At 523–544 Atiyah discusses the contract of employment.

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of the relationship between master and servant as Kahn-Freund claims. I shall then demonstrate that Blackstone’s classification of the law on master and servant reflects a common familial notion of the relationship. Chapter XIV of Blackstone’s first book, after introductory matter, has three major divisions. The first of these deals with “the several sorts of servants”; the second with “[t]he manner in which this relation, of service, affects either the master or servant”; and the third with “how strangers may be affected by this relation of master and servant”.60 The first division starts with an account of slavery, and its rejection in England, before subdividing servants, first, into menial or domestic servants, “[t]he contract between [whom] and their masters arises upon the hiring”.61 This subdivision is generally concerned with hired servants, except for a bald statement that justices can compel those of no visible livelihood in certain circumstances “to go out to service”.62 The second subdivision deals with apprentices. It gives as the norm the creation of apprenticeship “by deed indented or indentures”, though adding that the children of poor persons “may be apprenticed out by the overseers, with consent of two justices”.63 The third subdivision deals with labourers: and the paragraph is in fact primarily concerned with compulsion.64 The fourth subdivision concerns only superior types of servants.65 Since these statutes existed, Blackstone obviously has to discuss them, and I should not be understood as minimising their general significance; but it seems exaggerated to describe them as “occupy[ing] a central place”, and mistaken to interpret the words “call in the assistance of others” as more likely importing compulsion than consent.66 That Blackstone considers the relationship of master and servant to be essentially familial is shown in his own explanation of his classification, when he describes it as one of “[t]he three great relations in private life”. These are “private œconomical relations”, and Blackstone is using “oeconomical” in its root sense of “household”.67 It does seem somewhat perverse of Kahn-Freund to minimise this. That this, rather than compulsory labour under law, is the essence of the relationship for Blackstone is further 60 61 62 63 64 65 66

Blackstone, Commentaries (n 5) vol i, 411, 415 and 416. Ibid vol i, 413. Ibid. Ibid vol i, 414. Ibid. Ibid vol i, 415. Kahn-Freund, “Blackstone’s neglected child” (n 1) at 511, 521; Blackstone, Commentaries (n 5) vol i, 410. 67 Blackstone, Commentaries (n 5) vol i, 410.

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suggested and confirmed by the lecture courses of his two immediate successors, Sir Robert Chambers and Richard Wooddeson, Vinerian Professors respectively from 1767 to 1773 and from 1777 to 1793.68 It is important to note that Chambers’ lectures have an overall structure rather different from those of Blackstone. He divides his account of English law into three parts: public law; criminal law; and private law.69 He divides his account of private law into its two subjects of persons and property. He describes thus his treatment of the first of these: I shall treat of the personal rights of men and of the injuries by which those rights are violated, whether man be considered simply as an individual subsisting merely for himself unconnected and independent, or as head or member of that small society supposed to be contained in a single house, and supported by a due reciprocation of domestic offices, or as extending his connection wider through other modes of dependence, and systems of relation.70

His second lecture on private law is entitled “Of Economical Relations, and Private Civil Relations”. The first of these, “economical or domestic relations”, were those of husband and wife, parent and child, and master and servant; the second, “particular” or “private” civil relations, were those of guardian and ward and landlord and tenant.71 This owes something to Hale.72 When Chambers discusses servants, he says: Servants with us are either first apprentices who are bound for a term of years in order to learn some art or trade – second domestic servants or thirdly labourers. I shall consider shortly those particulars which relate equally to them all under the following heads. 1. The authority of the master over his servant. 2. What they may do in defence of each other. And 3. What injuries a man may suffer in this relation and the remedies.73

68 See H G Hanbury, The Vinerian Chair and Legal Education (1958) 52–78; Cairns, “English common law” (n 53) at 232–233 and 236–243. 69 A Course of Lectures on the English Law Delivered at the University of Oxford 1767–1773 by Sir Robert Chambers Second Vinerian Professor of Law And Composed in Association with Samuel Johnson, 2 vols, ed T M Curley (1986) (henceforth Chambers, Lectures) vol i, 89 and 122. 70 Ibid vol ii, 3. 71 Ibid vol ii, 18. 72 See Cairns, “English common law” (n 53) at 240. 73 Chambers, Lectures (n 69) vol ii, 27.

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There is not a single mention in his discussion of the compulsory service on which Kahn-Freund places such stress.74 Servants are discussed here because they are members of the household. Wooddeson adopts a consciously institutional structure for his lectures, dividing them into the laws on persons, property, and actions.75 His division of persons consists of material very similar to what is covered in the first book of Blackstone’s Commentaries.76 In the class of persons are “persons in their private, domestic relations”.77 These consist of: husband and wife; parent and child; guardian and ward; and finally master and servant.78 Wooddeson states: The last domestic relation, which I am to speak of, is that of master and servant. – The laws of England, with wise beneficence, extend their common protection to the wealthy and the indigent. No private subject, as such, exercises any kind of dominion, except what arises from the relations before spoken of [i.e. the other three domestic relations], or what is submitted to by voluntary compact and agreement. It will not however be thought an unreasonable abridgement of natural liberty, that by the st. 5 El. c.4.§ 7 [Statute of Artificers and Apprentices 1562], persons of the description therein contained should be compellable to be retained by the year in husbandry, for the necessary purposes of agriculture, and for avoiding the evil consequences of idle vagrancy.79

Wooddeson next has a general discussion of the nature of the contract, mentioning that while “this engagement subsists”, applicable to the master is “what has been said of a father’s legal power of correction, of maintaining and abetting suits and actions, and of seeking reparation in a judicial mode for any injury, whereby the plaintiff lost the services, servitium amisit, of the person in question”. Wooddeson also discusses the master’s liability for the action of his servant. He next mentions “a sort of menial or domestic servants, called apprentices” and discusses the law relating to them including the “compulsory powers of the statute”. Lastly he deals very briefly with superior types of servants such as clerks, stewards, attorneys, factors and the like.80 Though Wooddeson mentions the possibility of compulsory labour and apprenticeship, it is obvious that, as with Chambers, his inclusion of 74 Ibid vol ii, 27–28. 75 R Wooddeson, Elements of Jurisprudence Treated of in the Preliminary Part of a Course of Lectures on the Laws of England (1783) (henceforth Wooddeson, Elements of Jurisprudence) 111. 76 Cairns, “English common law” (n 53) at 232–233. 77 Wooddeson, Elements of Jurisprudence (n 75) 112. 78 R Wooddeson, A Systematical View of the Laws of England; As Treated of in a Course of Vinerian Lectures, Read at Oxford, During a Series of Years, Commencing in Michaelmas Term, 1777, 3 vols, 1st edn (1792–1793) vol i, 416. 79 Ibid vol i, 464. 80 Ibid vol i, 464–469.

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servants in domestic relations has nothing to do with compulsory service. They are dealt with where they are because they are considered members of the household. In 1795, in A Description of the Country from Thirty to Forty Miles around Manchester, John Aiken considered an admirable feature of that area’s textile industries the fact that masters had few journeymen and worked alongside them, because this was “highly favourable to the paternal, filial, and fraternal happiness”.81 This merely serves to confirm that, well beyond 1765, it was common to conceive of servants as members of the family of their masters. Blackstone’s classification of the relationship has nothing to do with compulsory service creating a “status”: it reflects the notion, and – as we have seen  – the reality, that servants were members of the family household. Kahn-Freund has been misled by his over-rigid typology of “status” relationships and “contract” relationships, linked with his preconception that contractual relations could not be classified in such a way as to be relations between persons. This is, however, to ignore the complexity of affairs. After all, are not the relations between husband and wife created by a contract, even if of a very special kind? Kahn-Freund’s difficulty in understanding Blackstone’s classification simply disappears. The practical realities of social life, legal tradition, and contemporary social theory all stressed the familial nature of the relationship between master and servant: whether it was created voluntarily (like that of husband and wife) or based on operation of the law (like that of parent and child) was ultimately unimportant. Blackstone simply is not thinking in the discrete categories of “status” and “contract” which Kahn-Freund attempts to impose on him, and has placed master and servant before husband and wife under the influence of the Institutes. D. CONCLUSION In conclusion, we may note that Kahn-Freund’s claim that Blackstone’s analysis of master and servant “was completely out of date in 1765” is quite unfounded.82 Whenever it did become obsolete, it was certainly well after 1765. It may have hindered the development of a contractual approach to employment in nineteenth-century England, but that can scarcely be attributed to Blackstone. What hindered such development can only have 81 Found quoted in Clark, Ancien Regime (n 42) at 67. 82 Kahn-Freund, “Blackstone’s neglected child” (n 1) at 523.

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been the inability or disinclination of later scholars to overthrow Blackstone’s classification. We cannot expect writers to foresee social and economic developments of which they can have had no inkling. Blackstone’s depiction of England “as consisting of farmers, artisans, and householders employing domestics, and the servants of these persons” was well suited to his day.

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18 The Moveable Text of Mackenzie: Bibliographical Problems for the Scottish Concept of Institutional Writing* A. INTRODUCTION Alan Watson has shown that there can be found in England the genre of legal literature, known as institutional writings, that, in a seminal article, Klaus Luig had already described for the lands of the ius commune.1 At much the same time as Watson published his piece, I completed an article on Blackstone’s Commentaries in which I demonstrated that it should be classed as an institutional work.2 It therefore seemed appropriate in this chapter honouring my Doktorvater, and now good friend, to return to this topic that once interested us both very strongly, and which still produces a certain amount of secondary literature.3

*

I am indebted to the Trustees of the National Library of Scotland for permission to cite and quote from an unpublished MS in their care and to Mr Angus Stewart QC, Keeper of the Advocates Library, for permission to cite an unpublished Advocates’ MS, to consult a printed work in his care, and to cite from the records of the Faculty of Advocates (hereafter cited as FR). I greatly benefited from the comments of Donald Jardine, Hector MacQueen and W David H Sellar on an earlier draft, and from those of the participants in the Legal History Discussion Group of the Faculty of Law of the University of Edinburgh to whom a version of this chapter was presented on 17 May 1989. 1 A Watson, “Justinian’s Institutes and Some English Counterparts”, in P G Stein and A D E Lewis (eds), Studies in Justinian’s Institutes in Memory of J A C Thomas (1983) 181; K Luig, “The institutes of national law in the seventeenth and eighteenth centuries” (1972) Juridical Review 193. 2 J W Cairns, “Blackstone, an English Institutist: legal literature and the rise of the nation state” (1984) 4 OJLS 318. 3 A Watson, “The structure of Blackstone’s Commentaries” (1988) 97 YaleLJ 795; J W Cairns, “Eighteenth century professorial classification of English common law” (1987) 33 McGillLJ 225 and “Blackstone, Kahn-Freund and the contract of employment” (1989) 105 LQR 300. See also J H Langbein, “Chancellor Kent and the history of legal literature” (1993) 93 ColumLR 547; R B Robinson, “The two Institutes of Thomas Wood: a study in eighteenth century legal scholarship” (1991) 35 AmJLegHist 432.

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Shortly after leaving the immediate supervision of Alan Watson, I wrote my first major article on the issue of the relationship between the concept of institutional writing as a particular class of legal writing, and the concept, current in Scotland, of an institutional writing as a formal source of law. There I argued that the concept of an institutional writing as an authoritative source of Scots law – whether or not equivalent in weight to a decision of the Inner House of the Court of Session – was both vague and incoherent. I pointed out that there was no general agreement on the canon of institutional works, and no proper way of identifying an institutional work, in this specialised Scottish sense, other than received (and inconsistent) tradition.4 In this chapter I shall return to and develop this theme, bringing forward another reason to doubt the viability of the idea of an institutional writing or, indeed, that of an institutional writer, as a work, or author, of particular authority. I shall do this through an examination of the textual tradition of the Institutions of the Law of Scotland by Sir George Mackenzie first published in 1684. Given Alan Watson’s own special interest in this book, it seems particularly appropriate to study it.5 Mackenzie’s Institutions has been of immense importance in Scottish legal history. It is therefore important to locate the work within Mackenzie’s general oeuvre and intellectual concerns. As his role in the establishment of the Advocates Library demonstrates, he was deeply concerned with legal education, and, as Dean of the Faculty of Advocates, he was associated with policies to improve it.6 The Institutions was intended to fill a gap by providing the neophyte with an introduction to Scots law. In fact, the work served as the main textbook for teaching Scots law in the universities until the 1750s. Thus, the compulsory examination in Scots law introduced in 1750 for all entrants to the Faculty of Advocates was founded on the titles of the Institutions.7 4 J W Cairns, “Institutional Writings in Scotland Reconsidered”, in A Kiralfy and H L MacQueen (eds), New Perspectives in Scottish Legal History (1984) 76 (= (1983) 4 JLH 76) (henceforth Cairns, “Institutional Writings”). 5 A Watson, “Some notes on Mackenzie’s Institutions and the European legal tradition” (1989) 16 lus Commune 303. 6 See J W Cairns, “Sir George Mackenzie, the Faculty of Advocates, and the Advocates’ Library”, in G Mackenzie, Oratio inauguralis in aperienda jurisconsultorum bibliotheca, ed J W Cairns and A M Cain (1989) 18 (henceforth Mackenzie, Oratio inauguralis) at 23 and 33 n 43. 7 See Minutes of the Faculty of Advocates 1751–1783, FR 2, 4. On the background to this provision, see J W Cairns, “The Formation of the Scottish Legal Mind in the Eighteenth Century: Themes of Humanism and Enlightenment in the Admission of Advocates”, in N MacCormick and P Birks (eds), The Legal Mind: Essays for Tony Honoré (1986) 253 at 263–265. The proposals for an examination in Scots law put forward in 1725 also based the examination on Mackenzie’s

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This was why John Erskine followed the structure of the Institutions in his Principles of 1754.8 Mackenzie also used the work to propound the political theory that was more extensively set out in his Jus Regium also published in 1684.9 To give one example, his support for royal supremacy led him to emphasise the role of statutes, which he argued were made by the king, as the primary source of Scots law.10 In line with this, the Institutions cites Scottish statutory material as authority. These citations appear in the margin and are keyed to the text using various symbols. They must have been intended to allow cross-reference to Mackenzie’s Observations on the Acts of Parliament of 1686,11 his most important work after his treatise on criminal law.12 In a sense, the Institutions can only be fully understood along with the Observations. Both works stand together at the heart of Mackenzie’s intellectual and political enterprise. B. THE EDITIONS A full technical description of the editions of the Institutions may be found in  F S Ferguson’s excellent bibliography.13 Mackenzie prepared the first edition of 1684 and the second of 1688.14 The next edition was published

8 9

10

11

12

13

14

Institutions: see the printed sheet dated 12 January 1725 in FR 339r (Miscellaneous Papers of the Faculty of Advocates) Box IV. J Erskine, The Principles of the Law of Scotland: In the Order of Sir George Mackenzie’s Institutions of that Law (1754). G Mackenzie, Jus Regium: Or, The Just and Solid Foundations of Monarchy in General; and more especially Of the Monarchy of Scotland: Maintain’d against Buchanan, Naphtali, Dolman, Milton, & c (1684). See J W Cairns, “Scottish Law, Scottish Lawyers and the Status of the Union”, in J Robertson (ed), A Union for Empire: Political Thought and the British Union of 1707 (1995) 243 at 257–258; also “The Civil Law Tradition in Scottish Legal Thought”, in D L Carey Miller and R Zimmermann (eds), A Celebration of the European Legal Tradition (1997) 191 (henceforth Cairns, “Scottish Legal Thought”) at 207–211. G Mackenzie, Observations on the Acts of Parliament . . . Wherein 1. It is Observ’d, if they be in Desuetude, Abrogated, Limited, or Enlarged. 2. The Decisions relating to these Acts are mention’d. 3. Some new Doubts not yet decided, are hinted at. 4. Parallel Citations from the Civil, Canon, Feudal and Municipal Laws, and the Laws of other Nations are adduc’d for clearing these Statutes (1686). G Mackenzie, The Laws and Customes of Scotland, In Matters Criminal. Wherein is to be seen how the Civil Law, and the Laws and Customs of other Nations do agree with, and supply ours (1678). See F S Ferguson, “A bibliography of the works of Sir George Mackenzie Lord Advocate founder of the Advocates’ Library” (1935–1938) 1 Edinburgh Bibliographical Society Transactions 1 at 30–34. The copies I consulted for this chapter are all located in the National Library of Scotland, and the pressmarks are as follows: Ry.III.g.35 (1684); LC.464 (1688); LC.465 (1688); Ferg.33 (1688).

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in London in 1694.15 It contains both minor revisions of spelling to make the  work accessible to an English audience, and “An Explanation of the most difficult Scots Words”. A few random samples indicate the nature of these changes: “Dictates” for “Dictats” (p 2); “property” for “propertie” (p 53); “it is necessary” for “it is necessar” (p 58). The sheets of this edition appear with the title page cancelled and a new title page and some prefatory matter affixed as the third edition of Edinburgh, 1699.16 The edition of 1706 was published with the addition of endnotes expanding on, explaining and correcting the text. These were compiled by William Forbes (the future Professor of Civil Law in Glasgow) drawing on some notes of Lord Whitelaw.17 The “fifth” edition of 1719 is a reissue of that of 1706 with a cancel title page and ten additional leaves containing an alphabetical index.18 The editions of 1723 and 1730 contain extensive footnotes and introduce numbering of the paragraphs. The edition of 1723 was by John Spotswood who had used the Institutions as the textbook for his private class on Scots law.19 That of 1730 was by Alexander Bayne, the first Professor of Scots Law in the University of Edinburgh, who had been Spotswood’s pupil. He likewise used the Institutions as his textbook.20 He largely adopted Spotswood’s notes and text, though with some revisions. The final edition of 1758 reverts to the plain text without notes though retaining the numbering of the paragraphs.21 An edition of the text is also found in the second volume of Mackenzie’s Opera omnia, published in 1722.22 The editions of 1706, 1723, 1730 and 1758 as well as that in the

15 See J W Cairns “Andrew Bell, Jonas Luntley and the London edition of Mackenzie’s Institutions” (1996) 21 The Bibliotheck 7. Copy consulted: National Library of Scotland, LC.505. 16 Copy consulted: National Library of Scotland, NF.1183.c 3. 17 Copy consulted: National Library of Scotland, Hall.293.f.12. 18 Copy consulted: National Library of Scotland, Adv MS 23.1.21. (This copy is interleaved with extensive MS annotations.) 19 Copy consulted: National Library of Scotland, Jolly 468. J W Cairns, “John Spotswood, Professor of Law: A Preliminary Sketch”, in W M Gordon (ed), Miscellany III, Stair Society vol 39 (1992) 131 (henceforth Cairns, “Spotswood”) at 143. 20 Copy consulted: National Library of Scotland, Hall.195.e. See Cairns, “Spotswood” (n 19) at 157; J W Cairns, “Importing our Lawyers from Holland: Netherlands’ Influences on Scots Law and Lawyers in the Eighteenth Century”, in G G Simpson (ed), Scotland and the Low Countries 1124–1994 (1996) 136 at 150–152; W Menzies, “Alexander Bayne of Rires, Advocate” (1924) 36 Juridical Review 60. 21 Copy consulted: Advocates Library, pressmark C.33.4. 22 The Works of that Eminent and Learned Lawyer, Sir George Mackenzie of Rosehaugh, Advocate to King Charles II. and King James VII. With Many learned Treatises of His, never before printed, 2 vols (1716, 1722) vol ii, 277–340. Copy consulted: Edinburgh University Law Library, fo KK Mack.

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Opera omnia all contain editorial rewriting either for improved expression or for the correction of a mistake by Mackenzie. Such editorial rewriting is never acknowledged in the editions of 1758 or 1706, but sometimes is in those of 1723 and 1730. A few examples will demonstrate this. In the title “Of the Constitution of Heritable Rights, by Charters and Seasins”, the edition of 1688 states as follows: “The charter is in effect the disposition of the Few made by the Superiour to the Vassal, and when it is first granted Charter, it is called an Original charter or Right” (pp 96–97). In 1706 (p 56) and 1758 (p 71) the end is silently corrected to “and when it is first granted, it is called an Original Charter or Right”. The editions of 1722 (p 286) and 1758 (p 38) silently correct “Jus Relicti” as found in the title “Of Marriage” (1688, p 51) to “jus relictae”. In the title “Of the Supream Judges, and Courts of Scotland” in the edition of 1688, a discussion of the jurisdiction of the Admiral includes the remark that the Lord of Session “can reduce his Decreets” (p 26). The editions of 1723 (p 26) and 1730 (p 26) silently amend this to “they can suspend and reduce his Decreets”. The edition of 1688 states in the title “Of Marriage” that “The Husband is Tutor, and Curator to his Wife, and therefore, if she had Tutors, or Curators, formerly” (p 54); that of 1730 (pp 50–51) omits “Tutor, and” and “Tutors, or”. In the same title the second edition comments that “During the Marriage, all donations made betwixt Husband and Wife are Revockable, at any time in their life” (p 55). Those of 1723 (p 52) and 1730 (p 52) alter the final clause to “at any Time in the Donor’s Life”, which is what Mackenzie meant, pointing out in a footnote (“f”, a mistake for “g”): “The Expression in the Text, At Any Time of their Life, I have changed into, At any Time in the Donor’s Life”. The Editions of 1723 (p 88) and 1730 (p 88) also add “unregistered” after “Right” in the phrase “But the Right will still be good against the Granter and his Heirs” (1688, p 104) in the title “Of the Constitution of Heritable Rights, by Charters and Seasins”, commenting (note c) “I have added Unregistred”. From some of the examples given, it will already be obvious that later editions would sometimes build on earlier ones. The text developed in an organic fashion. Thus, in the edition of 1688 Mackenzie wrote of alluvio in the title “Of the Division of Rights, and the several ways by which a Right may be acquired” that “ground that grows to our ground becomes insensibly ours” (p 81). The endnote in 1706 comments: “Ground growing insensibly to our Ground, becomes ours” (p 234). In 1723 and 1730 a footnote (p 73, note b) glosses the text: “Ground that grows insensibly to our Land”. The edition of 1758 (p 60) silently amends the text to “and ground that grows to our ground insensibly, becomes ours”. The same process of growth can be

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seen in a problematic paragraph in the title “Of Jurisdiction, and Judges in General”. The text of 1688 reads (pp 15–16): No inferior Judge can judge in the causes of such as are Cusin-germans to him, or of a nearer Degree, either of Affinity or Consanguinity; But there is so much trust reposed in the Lords of Session, that by a special Statute, they can only be declined in cases relating to their Fathers, Brothers, Sons, Nephews, or Uncles; which by a late Statute is likewise extended to the Degrees of Affinity, and to the Lords of Privy Council, and Exchequer, and the Commissioners of Justitiary, and to all other Judges within the Kingdom”.

The “special statute” is the Declinature Act 1594 and the “late statute” the Declinature Act 1681.23 The endnote in 1706 reads (p 229): By a special statute (Ja: 6. Parl: 14. Act 212.) can only he Declined in Cases relating to their Fathers, Brothers, Sons, Nephews or Uncles, which by a late statute (Ch: 2. Par: 3. Act 13.) is likewise extended to the Degrees of Affinity. The Act 212 allows the Lords of Session, to be declined only in Cases relating to their Fathers, Brothers or Sons; for the Extension to Uncles and Nephews, was only made by the said Act 13.

The edition of 1723 (p 16) tidies up Mackenzie’s messy paragraph (and is followed in this by that of 1730 (p 16)): No inferior Judge [1730: Judges] can judge in the Causes of such as are Cousin-germans to him, or of a nearer Degree, either of Affinity or Consanguinity. But the Lords of Session, Lords of Privy Council, Lords of Exchequer, and the Lords Commissioners of Justiciary, can be declined in no Causes, other than these belonging to their Father or Mother, Brother or Sister, Son or Daughter, Nephew or Neice [(sic); 1730: nice], Uncle or Aunt, whether they stand in the line of † Affinity, or of Consanguinity.

The symbols indicate citations to the two Declinature Acts. In an attempt to clarify the matter further, Bayne also added a footnote in the edition of 1730, keyed in by an asterisk (p 16): 11. No Inferior Judge can give Judgment in the Causes of such as are related to him by Affinity or Consanguinity in a nearer Degree than that of Cousin German: But so much Trust was reposed in the Lords of Session, that they could only be declined in the Causes of their Father, Brother and Son; which by a late Statute is extended to the like Degrees of Affinity, and to the Relation of 23 The Acts of the Parliaments of Scotland, 12 vols, ed T Thomson and C Innes (1814–1875) vol iv, 67, c 22; vol viii, 350, c 79. Mackenzie here, of course, cited to the Acts as printed in the duodecimo edition by Sir Thomas Murray of Glendook and its continuation: The Laws and Acts of Parliament Made by King James the First, and his Royal Successors, Kings and Queen of Scotland in Two Parts (1682, 1683). Murray also printed a folio edition in Edinburgh in 1681. There are some differences between the two. On Mackenzie’s practice in referring to Acts of Parliament, see Observations on the Acts of Parliament (n 11) sig A4r (he sometimes cites Glendook and sometimes the 1597 edition of Skene).

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Uncle and Nephew in Consanguinity. Which Reasons of Declinature, are thereby also extended to the Lords of Privy Council and Exchequer, Commissioners of Justiciary, and to all other Judges within the Kingdom.

The edition of 1758 then adopted a version of Bayne’s rewording in the text, combining it with Mackenzie’s words (p 12): No inferior judge can judge in the causes of such as are cousin-germans to him, or of a nearer degree either of affinity or consanguinity; but there is so much trust reposed in the lords of session, that, by a special statute, they can only be declined in cases relating to their fathers, brothers, or sons, which, by a late statute, is likewise extended to the degrees of affinity, and the cases of uncles and nephews, by consanguinity; and to the lords of privy council and exchequer, and the commissioners of justiciary, and to all other judges within the kingdom.

As well as this type of development of the text, where subsequent editions take over improvements and innovations in earlier editions, editions to some extent engage in a debate with one another. The notes on the text of the Institutions in the editions of 1723 and 1730 often challenge and criticise those in that of 1706 (and 1719). Thus on the remark “Tho the [Privy] Council cannot make laws, yet they may Revive them” the edition of 1706 (p 228) remarks “De hoc dubitatur”. The editions of 1723 and 1730 comment in a note (p 6 note d): The Author of the Notes subjoin’d to some former Editions of this Book, doubts, if the King’s Privy Council had the Power given to them by our Author, i.e. to revive Statutes running into Desuetude. In Vindication of that Position, it is to be noticed, That the so doing is a Branch of the gubernative Power of the Sovereign, which he did exerce, with Advice of his Council, and whatever they thought proper for the Welfare of the Subject, was by them enacted in virtue of their Commission, and was issued out or published in Name of the Sovereign.

The editions of 1723 and 1730 contain other remarks disputing the opinions expressed in the notes of 1706, such as the following found in the title “Of Jurisdiction, and Judges in General”: “The Remark, which the Author of the Notes makes upon this Section, is out of the Way” (p 10 note a); “The Author of the Notes goes further in his Remark, than our Author intended in the Section it self” (p 12 note b); “Our Author’s Expression must be taken in its proper Meaning . . . so that the Censure on this § is not to the Purpose” (p 13 note d). Later editorial revision of a text is scarcely an unexpected phenomenon. It has been noted for Stair’s Institutions.24 Mackenzie himself, in his oration 24 See A Rodger, “Molina, Stair and the jus quaesitum Tertio” (1969) Juridical Review 34 and 128 (henceforth Rodger, “Molina, Stair and the jus quaesitum tertio”) at 39–41.

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on the opening of the Advocates Library, argued that first editions should generally be acquired as that would ensure that the Library had the proper words of the authors.25 We may not always wish to follow Mackenzie in privileging the views of the original author; but what can be said is that there are many different texts of Mackenzie’s Institutions, each important for different purposes. It is also important to note that, just as the text of Mackenzie’s Institutions needs to be read with his Observations on the Acts for a full understanding of the law with which it deals, a body of related texts accumulated similarly to help in the exegesis of subsequent editions of the Institutions. If the most obvious work here is Bayne’s Notes, based on his lectures to the Scots Law class in Edinburgh,26 Spotswood’s Form of Process and Stile of Writs should be viewed in a similar light.27 C. THE SECOND EDITION Most scholars consider that the edition of most value of a learned work is the last one prepared by the author because it contains his final and most considered opinions. On such a view, the preferred text of Mackenzie’s Institutions is that of the second edition (though always remembering that other editions may be valuable for other purposes).28 But such an approach is here problematic, as the second edition exists in at least three variants: it is possible that there are more. For convenience I shall label these variants: 1688a, 1688b and 1688c.29 The differences between 1688a and 1688b are 25 Mackenzie, Oratio inauguralis (n 6) 60, 74–75. 26 A Bayne, Notes for the Use of the Students of the Municipal Law in the University of Edinburgh: Being a Supplement to Sir George Mackenzie’s Institutions (1731). Another edition was published in Edinburgh, 1749. Bayne also published Institutions of the Criminal Law of Scotland For the Use of the Students who attend the Lectures of Alexander Bayne, J P (1730). Another edition appeared in Edinburgh, 1748. This work arose from the insufficiency of Mackenzie’s treatment of criminal law in the Institutions. See J W Cairns, “John Millar’s lectures on Scots criminal law” (1988) 8 OJLS 364 at 383–386. 27 J Spotswood, The Form of Process, Before the Lords of Council and Session . . . Written for the Use of the Students in Spotswood’s College of Law (1711); also An Introduction to the Knowledge of the Stile of Writs . . . Written for Use of Students in Spotiswood’s Colledge of Law (1708). Spotswood in Institutions (1723) 23 note g cites the first of these referring to the “Last Edit, in 1715”. This should be to 1718, which is the date of the second edition of the Form of Process. 1715 is the date of the second edition of the Stile of Writs. He cites his Form of Process a number of times in relevant titles, e.g.: 14 note f; 16 note h; 269 note h. 28 See, e.g., Rodger, “Molina, Stair and the jus quaesitum tertio” (n 24) at 39–41; W W McBryde, “The intention to create legal relations” (1992) Juridical Review 274 n 2. 29 All three variants may be found in the National Library of Scotland. For 1688a, see the copy with the pressmark Ferg 33; for 1688b, see that with the pressmark LC.465; for 1688c, see that with

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essentially in the setting of the pages, while the differences between 1688b and 1688c are substantive with alteration of the text. Some examples will demonstrate this. A clear example of resetting of the type without alteration of the wording occurs in the title “Of the Supream Judges and Courts of Scotland”. There we find the sentence: “Of old it consisted of seven Ecclesiasticks, and seven Laicks, and the President was a Church-man” (p 24). There are line breaks after “Laicks” and “Church-”. In 1688b “Laicks” is printed as “Laieks” and the next line ends “Church=”. In 1688c “Laieks” has been corrected to “Laicks”, but the double hyphen remains. In the same title 1688a has “and makes Statutes for uplifting those particular Taxations” (p 21), while 1688b and 1688c have altered this to “make Statutes”. Finally on resetting, we may note that correction of very minor errors in typesetting during the course of printing was common.30 Thus, we find “possossors” in 1688a corrected to “possessors” in 1688b and 1688c (p 147), or “Accountted” (p 158) corrected to “Accounted” in 1688b and 1688c, or “Assegneys” in 1688a corrected to “Assigneys” in 1688b and 1688c (p 166). On the same and the next page the marginal heading has been corrected from “Tit. 5” to “Tit. 8”. It is also possible to find a sidenote where, without changing the meaning, the abbreviations have been expended in 1688b and 1688c from 1688a (p 154). An example of resetting where there is also a substantive addition to the text occurs at the end of the title “Of Jurisdiction, and Judges in General”. It reads as follows in 1688a (p 16): “The Members of the Colledge of Justice, have this Priviledge, that they cannot be pursued before any inferior Judge; and if they be, the Lords will Advocate the cause to themselves.” In 1688b, the last two lines of this title have been reset. Moreover, the rubric of the next title has been changed from “Of the Supream Judges, and Courts in SCOTLAND” to “Of the Supream Judges, and Courts of SCOTLAND”. 1688c follows the resetting of the end of the title in 1688b, but inserts a new sentence in the space at the end: “No cause within 200. marks is to be Advocate to the Lords, from the Judge competent.” The text without the additional sentence is that of the first edition (pp 16–17). In the first edition is found the following passage (p 4): “And by the common Law in our Acts of Parliament is meant the Civil Law.” 1688a the pressmark LC.464. These are the ones on which I have relied for this study. Comparison suggests that the copy with pressmark PCL 66 is of variant 1688c. 30 The compositor in a number of instances can be shown to have set a “u” or an “n” upside down, the error only being corrected after the sheets found in 1688a had been printed: see, e.g., 151 line 11, “aud”; 155 line 23 “coustru- ”.

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and 1688b follow this wording (p 4). In 1688c, however, the words “of the Romans” have been added at the end of the sentence in a space left in the setting of the page. The first edition of 1684 describes Canon Law thus (p 4): “The Popes of Rome, in Imitation of the Civil Law, made a body of Law, of their own; which, because it was compiled by Church men, it was called, The Cannon Law.” 1688a and 1688b follow this wording (p 4); but in 1688c, the words “which, because it was compiled by Church men” have been replaced by the following: “which, because Ecclesiastick Laws are called Canons”. The first edition continues: “And though it has here no positive Authoritie, as being compiled by private Persons, at the desire of the Popes, especially since the Reformation; yet our Ecclesiastick Rights, were settled thereby before the Reformation” (p 4). These words are followed in 1688a and 1688b, but in 1688c the passage now reads: “And though it has here no positive Authoritie, especially since the Reformation; as being compiled by private Persons, at the desire of the Popes, yet our Ecclesiastick Rights, were settled thereby before the Reformation” (p 4). A final example may be given where the text of 1688a and 1688b follows that of 1684, while that of 1688c develops it. In 1684 (p 21) the following is found: “We have another meeting of the three Estates, called the Convention of Estates, which is now called upon twenty days.” This wording is followed in 1688a and 1688b (p 21). In 1688c the words “indicted on” are substituted for “called upon”. Finally, in 1688a and 1688b the text notes the process of choosing the Lords of the Articles by the Estates, remarking “And then the Commissioner adds to them The whole Officers of State” (p 21). In 1688c, this is altered to “The Officers of State being still supernumerarie”. From the above, it should be clear that 1688a and 1688b are earlier versions of the second edition and that 1688c, which generally improves upon them, is a later version. It is easy to realise how these changes come about if we consider the technology of printing in the era of the hand press. By definition, moveable type is moveable. Pages set up in formes could easily be altered during the print run for a variety of reasons: a forme could have met with an accident and the type had become jumbled into “pie”; minor type-setting errors could require correction; loose type could have been pulled out during the process of inking and require replacement; later authorial corrections could be incorporated. The changes between 1688b and 1688c noted above conform to the last. It must always be remembered that paper was an expensive commodity. The printing of sheets was a major

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investment. Printers would not destroy earlier printed sheets simply because an author had changed his mind or errors had been discovered on proof reading. A number of important consequences flow from this. First, when we hold any copy of the second edition of the Institutions in our hands, we can never be certain if that copy is the final recension as overseen and desired by the author. Secondly, just as the second edition was based on the first, all subsequent editions are based on one of the variant recensions of the second edition. This means that even without editorial revision, subsequent editions will differ textually from one another (for convenience I am here ignoring whether copies will vary within an edition). In fact, the editions of 1694, 1722, 1723 and 1730 are primarily based on the text of 1688a and 1688b, while the editions of 1706 and 1758 follow that of 1688c. It is worth pointing out, however, that the edition of 1706 can be identified as occasionally preferring the text of 1688a and 1688b. This suggests that there is perhaps another variant of the edition of 1688 that was used in preparing the 1706 text, or that the edition of 1694 was also consulted in producing the text, or both. (The first of these possibilities is the more probable since what it adopts from 1688a and 1688b is in one instance less preferable.) It is worth pointing out that the only edition that seems to have a carefully prepared text is that of 1758. In preparing this edition there seems to have been a careful collation of the texts, a correction of errors in the text, and a checking and correction of the citations (which otherwise contain many errors). Thirdly, different editions may be of great interest for different purposes, but no edition can be picked at random as containing the words and final views of Mackenzie, should this be what the reader wants. Lastly, should the reader want the last opinion of Mackenzie, it will be necessary to collate all the copies of the second edition to try to establish what it was. This is necessary because my identification of 1688c as the last text is misleading in two respects. First, there may be a later state of the text in another unexamined copy. Secondly, it is perfectly possible, given the mechanics and procedures of printing and subsequent binding, that the copy that I used for 1688c has, in parts, sheets on at least one side of which there is an earlier impression than that found in, say, the copies I have here identified as 1688a and 1688b. And in one instance, we indeed find that the texts, here designated 1688a and 1688c have the reading “extraordinarum” while 1688b has “extraordinarium” (p 225). The unit we have to consider in searching for variants is neither the individual copy nor even the sheet, but the forme. It should be remembered that the likely print run for the

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second edition was about 500 copies: the scope for surviving variant copies is clearly large.31 These types of issues in the texts of early modern books have not attracted much attention from legal historians. I first encountered such problems when, in the 1980s, I embarked on an attempt to produce an edition of Mackenzie’s Institutions, before giving up in perplexity because of the difficulty of the task. Before I gave up, however, I had encountered on the shelves of the South Reading Room of the National Library of Scotland Philip Gaskell’s New Introduction to Bibliography.32 I read it avidly, as it explained what had been puzzling me: I felt sufficiently indebted to the author to write thanking him for the book that had provided me with a lifeline as I threatened to drown in a sea of textual variants. Of course, the problems I encountered with the text of the Institutions are very familiar to bibliographers. Ronald McKerrow, for example, in a book first published in 1927, but based on notes dating from 1913, discussed correction while at the press. He commented that “we may say that in any early book the probability of finding such variants is very great and cannot be neglected by any careful editor”.33 McKerrow devotes ten pages to the issue of variations in different copies of the same edition.34 As far as I am aware, the only legal scholar who has paid much attention to the importance of bibliography for the legal historian is Douglas Osler in a series of important articles and reviews that I have found both valuable, illuminating and convincing.35 The realisation of just how moveable text may be, not only between editions, but also within an edition, is of immense importance for any legal historian working with printed texts. It is important to establish which editions the legal historian needs for which purpose. Furthermore, to know any scholar’s developed views, it is insufficient to 31 I deduce this from the evidence provided by John Spotswood that when he sorted out the sheets of one of his works there were enough for 436 full copies, and many sheets from “K to the end, that make incompleat books” as the earlier sheets had been dispersed: National Library of Scotland, MS 2937 fo 14r. This would suggest a print run of around 500. We can assume a similar print run for the Institutions. 32 P Gaskell, A New Introduction to Bibliography (1972; repr 1985) (henceforth Gaskell, New Introduction to Bibliography). 33 R B McKerrow, An Introduction to Bibliography for Literary Students (1927; 13th impression 1977) (henceforth McKerrow, Introduction to Bibliography) 209. 34 Ibid 204–213. 35 D J Osler, “Turning the title-page” (1987) 6 Rechtshistorisches Journal 173; also, “Towards a legal–historical bibliography: a census of 16th century legal imprints” (1988) 15 Ius Commune 231 (henceforth Osler, “Towards a legal–historical bibliography”); “Dies diem nocet” (1991) 18 Ius Commune 207; and “Developments in the text of Alciatus’ Dispunctiones” (1992) 19 Ius Commune 219 (henceforth Osler, “Alciatus’ Dispunctiones”).

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consult only his Opera omnia. Certainly, consultations of Mackenzie’s complete Works would not give access to the final views he expressed in the Institutions. As Osler has stressed, while manuscript works tend to involve one text from which individual copies derogate to some extent, with the advent of printing comes the moving text which is constantly changing through authorial or editorial revision.36 D. INSTITUTIONAL WRITINGS The issues raised by the moveable text of Mackenzie create further problems for the Scottish concept of an institutional writing as a formal source of Scots law, coming next in authority after legislation and precedent, perhaps with a weight equal to that of a decision of the Inner House.37 According to David Walker, Mackenzie’s Institutions is sometimes regarded as having “the privileged status” of an institutional writing.38 Campbell Paton certainly considered it to be one.39 Whether it is its position as a writing of Mackenzie or its text alone that is to decide whether or not it has this status, the obvious questions must be: Which edition? Which copy? Mackenzie’s Institutions is a minor work in the Scottish category of “institutional writings”. That to which most attention is paid is The Institutions of the Law of Scotland by James Dalrymple, Viscount Stair, first published in Edinburgh in 1681. A considerably revised second edition was printed in 1693. We know that later editors revised the text of Stair’s Institutions: it too became a moving text. We know that it moved between the first and second editions, though this has never been systematically and carefully studied. We know that the printed texts have an unclear relationship with two different sets of manuscripts (which may constitute two separate stems). Since there has never been a collation of the first edition with the second, nor of copies of the second with each other, nor of the printed texts with the manuscripts, we cannot be certain that we have a definitive text of Stair’s Institutions (if we regard as definitive a recension containing Stair’s final views). This has 36 Osler, “Towards a legal–historical bibliography” (n 35) 231. 37 See, e.g., T B Smith, A Short Commentary on the Law of Scotland (1962) 32–33; and “Sources of Law (Formal): Legal Literature”, in The Laws of Scotland: Stair Memorial Encyclopaedia vol xxii (1987) 212–219. 38 D M Walker, The Scottish Legal System: An Introduction to the Study of Scots Law, 6th edn (1992) 453. 39 G C H Paton, “Comparison between the Institutions and other Institutional Writings”, in D M Walker (ed), Stair Tercentenary Studies, Stair Society vol 33 (1981) 201 at 203–204.

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been clearly demonstrated by Alan Rodger in his study of the ius quaesitum tertio.40 Rodger has shown that the courts can have misplaced confidence in a text treated uncritically: both he and Geoffrey MacCormack, in a discussion of pollicitatio, have put considerable emphasis on the presence or absence of a comma.41 The emphasis they place on this may be correct, but it should be recalled that the extent to which one can rely on punctuation in early modern books as representing the author’s intention is strictly limited. It was the practice of the compositor to adjust punctuation as he set the lines of type, just he would frequently alter spelling, not only to modernise it, but also to fit words into lines to perfect the margins.42 MacCormack also notes that Stair claims in the second edition to have carefully revised the text because of printing errors in the first, and therefore suggests that we can rely on what is printed there.43 The extent to which we can do so is unclear. Mackenzie likewise claims in his second edition to have had to revise the first because it was printed from a “blotted copie in write”.44 It is in fact a traditional, almost proverbial, apologia for a new edition or for poor quality of printing.45 Moreover, we cannot tell how closely Stair would have followed the printing and how carefully he would have corrected proofs. It should always be recalled that the quality of print work in seventeenth-century Scotland was very poor. The very content of Mackenzie’s “Advertisement” to the second edition reveals how little we should trust claims to careful revision and checking at this period. Proof correction by the printers in any case emphasised “substantives” – the words of the copy – rather than such “accidentals” as spelling, capitalisation and punctuation.46 We must conclude, therefore, that we cannot be certain of obtaining from the surviving copies of the second edition of Stair’s Institutions a simple and accurate knowledge of the author’s final wishes for his text: achieving such certainty will require further work to establish the text. It is, of course, possible that we in fact do have a good text of Stair’s Institutions in this sense, or that the only variations are trivial; but it is important to realise that we do not know this. 40 Rodger, “Molina, Stair and the jus quaesitum tertio” (n 24) at 39–41, 131–134. 41 Ibid at 131–132; G MacCormack, “A note on Stair’s use of the term pollicitatio” (1976) Juridical Review 121 (henceforth MacCormack, “Pollicitatio”). 42 McKerrow, Introduction to Bibliography (n 33) 246–251. 43 MacCormack, “Pollicitatio” (n 41) at 122. 44 Mackenzie, Institutions (1688), “Advertisement” (sig 6v of the preliminary leaves). 45 Gaskell, New Introduction to Bibliography (n 32) 40. 46 Ibid 110–111.

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Furthermore, if we cannot be certain as to the final text of Stair’s Institutions, we need also to consider the related issue of the exact value to be given to any opinions expressed in the text. If what is valuable is the view of Stair himself, it is also necessary to reflect on the extent to which he simply adopted views he read elsewhere. He clearly drew heavily on the writings of Thomas Craig, Hugo Grotius and others.47 Can we assume he did so on the basis of careful critical consideration? In one instance, he can be shown to have adopted the opinion of Craig in a careless fashion, mistranslating the earlier author’s words.48 This is not to denigrate Stair; rather, we must be aware of the extent to which the text of his Institutions can only be understood alongside related texts: those of the Corpus iuris civilis and its commentators of the ius commune. As Rodger and MacCormack have shown, to treat the text of the Institutions in isolation is to misrepresent it.49 Turning to another “institutional writer”, we must likewise be aware of the complex relationship between the text of Erskine’s Institute and that of his Principles. The text of the Principles through its various editions also interacts with the text of Mackenzie’s Institutions in its various editions, and the lectures for students given thereon.50 E. CONCLUSION These bibliographical considerations add further weight to the argument I have put forward elsewhere that the concept of “institutional writing” (understood as a formal source of Scots law) is untenable.51 They also show, of course, that legal historians, as well as practising lawyers, must be much more sophisticated in their use of early printed texts than they sometimes have been in the past. Variations in the text may often be juridically insignificant, but there can be no certainty of this. This may make scholarly work more difficult in some respects; but it also opens up new, interesting and exciting areas of investigation. Douglas Osler has pointed out in a study of Alciatus that “we can observe [the jurist] at his desk, pen in hand, indicating for us the questions discussed 47 See W M Gordon, “Stair, Grotius and the Sources of Stair’s Institutions”, in J A Ankum, J E Spruit and F B J Wubbe (eds), Satura Roberto Feenstra sexagesimum quintum annum aetatis complenti ab alumnis collegis amicis oblata (1985) 571. 48 J W Cairns, “Scottish Legal Thought” (n 10) at 204–205. 49 Rodger, “Molina, Stair and the jus quaesitum tertio” (n 24) at 131–139; MacCormack, “Pollicitatio” (n 41) at 123–125. 50 See Cairns, “John Millar’s Lectures” (n 26) at 382–389. 51 See Cairns, “Institutional Writings” (n 4) at 98–104.

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in the Dispunctiones which remained of particular concern to him years after the initial composition of the work”.52 We can likewise see Mackenzie, “pen in hand”, revising the first edition to produce the second, raising queries on the law with his brother advocates in Parliament House, and turning up at the printing house to revise the second edition as its sheets were being printed.53 We can investigate what he changed, and deduce why. We gain a clearer knowledge of his interests and concerns. Furthermore, we can see what concerned subsequent printers and editors as they revised, as the text accumulated an apparatus of notes and glossaries, and as related works were produced to accompany it. Alan Watson first demonstrated his multi-faceted talents in the field of Roman law. This chapter in his honour indicates that the skills routinely exercised in the study of the ius civile (careful collation of texts and awareness of their development) are relevant for that of early modern law. We neglect them at our peril.

52 Osler, “Alciatus’ Dispunctiones” (n 35) at 234. 53 On his raising queries on the law as regards the new edition, see the entry by Lord Fountainhall on 16 November 1687: Historical Notices of Scotish Affairs Selected from the Manuscripts of Sir John Lauder of Fountainhall, Bart., one of the Senators of the College of Justice, 2 vols (1848) vol ii, 828.

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Index Abercromby, G, 177–8 Aberdeen Elphinstone, Bishop W, xii, 31, 42 King’s College see King’s College Marischal College see Marischal College role of suitors, 8 University see University of Aberdeen Accursius, 388 Act before Answer, 201 Act of Litiscontestation, 201 Act of Sederunt 1596, 44, 46, 148, 150 Act of Sederunt 1612, 59 Act of Sederunt 1628, 335 Act of Sederunt 1650, 351, 355 Act of Sederunt 1664, 305, 355, 356–7, 358 Act of Sederunt 1684, 362 Act of Sederunt 1688, 308, 338, 340, 358, 360, 362–3 Act of Sederunt 1691, 308, 363, 364 Act of Sederunt 1692, 229, 308, 324, 364 Act of Sederunt 1704, 337 Act of Sederunt 1750, 316, 321, 342 Act of Supply, 119 Act of Union 1707, 117 Article 18, 121 Article 19, 381 Articles of Union, 167–8, 219 provisions, 95–8, 121–6 see also Union of 1707 actio depositi, 29 Adamson, P Archbishop of St Andrews, 80 admiralty, 122 Admiralty Court, 97, 168 admission as advocate, 336–44, 377–81 1580–1650, 347–51 1651–1660, 351–4 1661–1706, 355–65 1700s, 303–29 academic model, 365 academic or practical experience, 347, 348, 349 Act of Sederunt of 1664, 305 advocates’ hat, 331–2, 336 allocation of titles for theses, 338, 339, 340, 341 alteration of exam provisions (1696), 364–5 attendance at classes, 316–17, 321, 324, 327, 328 authorisation of public examination, 340 balloting, 321, 323, 358 beginning of eighteenth century, 305 certificate of proof of age, 337 certificate of attendance, 321, 324, 327, 328 certificate of education attainment, 385 changes, 303–5

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character, 315, 318, 320 Civil Law, 305–6, 307, 308–12, 318, 328–9 committee to consider qualification, 303 cost, 379 cramp speech, 331, 336, 365, 366 criticisms of qualifications, 303–4 debates, 314–15 development of procedures, 346 Digest, 339–40, 341 donning a hat, 356 draft regulations (1785), 318–20 educational prerequisites (1748), 314–15 eighteenth century, 303–29 entry by bill, 307–8 entry fees, 324, 338, 345, 362, 364 examination, 377 examination in Scots law (1750), 326 examinations in Civil Law and Scots Law, 303, 315–16 extraordinary admittance, 359–63, 364 fitness requirements, 308 forbidden relationships, 363, 364 foreign legal study, 378 Forsyth, R, 322, 385–7, 389, 391 Latin, 303, 317, 324, 378, 397–8 law of nature and nations, requirement, 276 lectio and advocates’ hats, 366–70 lesson delivered before the Lords of Session, 365, 366, 370 Lords of Session, 337, 346 Mackenzie’s Institutes, 339, 341 meaning, 344–6 not sufficiently qualified, 341n ordinary admission, 362–3 ordinary intrants, 308 petition, 336–7, 377 polite learning, 315, 316, 317, 319, 320, 326, 327, 328 printed theses, 306, 342–3, 378 private examinations, 305–6, 307, 326–7 private trial or examination as first step, 337 proposals (1724), 314, 317 proposals (1785), 318–20, 322, 328 proposals (1787), 320–1, 328 proposals (1795), 323–4, 328 proposals (1812–1813), 324–6, 328 public examination, 305–6, 307, 321, 322, 327n, 328, 339–43, 364 reform (1750), 317, 326 reform (1787), 320–1 regulation, 355, 356 requirements, xxii, 101, 102, 229–31, 276, 296–7

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law, lawyers, and humanism

admission as advocate (cont.) resolutions to compel attendance at classes, 316–17 review of procedures, 314–26 Roman law, 379–81, 387–90, 397–8 routes to admission, 86–7 Scots Law, 306–7, 312 specimen doctrine, 347 speech, 343–4, 378 Stair, Lord, 350–1 syllogistical disputes, 342 testimonial of fitness, 349 theses, 306, 317, 321, 342–3, 378 three years study of law, 320 treats, 337–8, 344 trial in municipal law, 377 trial on Civil Law, 305–6, 307, 310, 311, 312, 358, 377, 378 trial on Scots Law, 306–7, 312, 338–9, 342, 377 two modes of entry, 305–6, 377 university education, 346, 354, 378 unsuitable applications, 318, 319, 322, 323 Wallace, G, 179, 336–44 Wright, J, 318, 319, 381–5, 389, 391 advocate admission see admission as advocate early teachers of law, 235–7 importance of English law, 91 Netherlands, study of law, 226 office of procurator contrasted with, 380, 387–8 opposition to chair of Law in Edinburgh, 67–9, 82–3, 84–5 practick, 229, 230 procurator or writer, contrasted with, 397 qualifications, 303–4 Roman and Canon law studies, 229 status versus professional, 398 study abroad, 86, 87, 101, 171–2, 226; see also study abroad understanding of term, 380 viable legal study, 85 advocates’ hat symbolically donning, 365 link with continental Europe, 369 the lectio and, 366–70 Advocates Library, 26, 101, 368 English law books, 89–90 Hume, D, 293 inauguration, 310 Keeper, 293, 306, 317 Mackenzie, G, 345, 499, 505 manuscript catalogue (1683), 104 origins, 374 theses, 306, 317 Advocates’ Protest, 81 Advocates’ Resolution, 185 Ahsmann, M, xxi, 224, 226 Netherlands, 263, 264n Aiken, J, 340, 496 Alexander, Earl of Buchan, 40 Alexander III, Pope, 40 Alfenus Varus, 390–8 Allan, D, 252

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“allowed customes and consuetudes”, 148 Anacreon, 289, 290 Ancher, P K, 142 Anderson, J, 250, 255 Andreae, J, 40 antiquities, 242–52 Areskine, C, 236, 237, 239, 240 Argou, G, 420, 422, 423, 447 Argyll, Archibald Campbell, third Duke of, 225–6, 342 “aristocratic resurgence”, 375n, 376, 395n Arnot, H, 110, 113 Arthur, J, 16, 347 advocate, 80 commissary of Edinburgh, 80 Professor of Law, University of St Andrews, 79–80, 81, 82, 83 study abroad, 80 Arthur of Cairnis, W, 79 Article of Greivance, Scottish settlement of 1689, 125 Articles of Union, 167–8, 219; see also Act of Union Asso y del Rio, I J de & Manuel y Rodríguez, M de Instituciones, 420, 421, 422, 448 Associated Critics, 249, 250 Atiyah, P S, 453–4 Auchinleck, Lord, 289, 290 Austin, J category of wrongs, 441 criticisms on Commentaries, 413 Lectures, 413, 440, 444 Azo, 393 Baird, J, 361 Baker, J H, 425–6, 427 Baldus, xiii, 31, 38, 42, 48, 54, 60, 78, 404 Balfour, J, 31, 193, 335, 350 Practicks, 56, 151–2 Ball, P, 426 Ballantyne, W MacL, 342 Ballenden v Mackmath, 63 Bankruptcy Act 1772, 130 Bankton, A MacDouall, Lord, Institute of the Laws of Scotland Civilian framework, 137 English and Scots law comparison, 91–2 Bannatyne, W, 355 Barbeyrac, J, 104, 105, 177, 185, 233–4, 280, 281 Bartolus, xiii, 24, 25, 27, 30, 31, 32, 42, 48, 55, 60, 68, 78, 241, 259, 388, 404 Batavian Republic 1795, 299 Baxter, A, 285 Bayne, A, 91 Notes, 501, 503, 504, 505 Scots Law, University of Edinburgh, 238, 239 connections and interests, 240 Beattie, J, 256–7 beer tax, 237, 238 Bell, G J, 423, 454 Bell, R, 197, 207 Bentham, J, 413, 453 Berlanstein, L R, 369, 375

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index Berwick tollbooth, 7 Birkhead v Nairn, 63 Birtwhistle v Vardill, 214 Bishop’s Officials, 52 Blackstone Analysis, 439, 468 Chambers compared with, 474, 477, 478–9, 480 employment, 483 English law lectures at Oxford, 432–3 husband and wife, 483 institutional writer, as, 460–1 knowledge of English law, 434 master and servant, 482–3, 484, 485, 488, 489, 490, 492–3 master and servant classification, 482–3, 492–3 parent and child, 483 personal property, 479 persons, 480 use of language, 427 Vinerian Professor, 433, 466 Viner’s bequest, 431–2, 433, 434, 466 Blackstone’s Commentaries, 413–16 actions, 443 admiralty courts, 458 commercial law, 454–5 common law as national law, 439, 455 Common Law over Civil Law, 455–9 common law, traditional, 459 constitutional law, 444–5, 446–7 contract, 451, 453–4 criminal law and procedure, 443 criticism, 452–4, 471 developed from lectures, 423–4 ecclesiastical courts, 457–8 feudalism, 456, 457 Hale’s Analysis influence, 440–2, 443, 444, 448, 449, 452 historical context, 445, 461 influences on, 440–2, 443, 444, 448, 449, 452, 460, 488 institutional work, as, 438–9, 460–1 Justinian’s Institutes, influence, 440, 460 Kennedy’s analysis of structure, 450–2 lectures, based on, 438, 439 non-capital crimes, 442 Normans, the, 456–7 persons and things distinction, 451 persons, 446, 448–50, 469, 472 public law, 472 rights and wrongs, 450–1, 468 structure, 439–52, 460, 461, 468 substance, 452–9 Wood’s Institute, 461 Blantyre, Lord, 285 blench tenure, 128 Blondeel, J V, 280 Böckelmann, J F, 236, 274 Boece, A Commissary of Aberdeen, 15 Boerhaave, 226, 233 Books of Sederunt of the Lords of Council and Session, 11 record of admission of advocates, 347–51

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resumption in 1661, 355 sequence interrupted, 351–2 Boorstin, D J, 453 Boswell, J, 257, 383 Civil Law, 318 dignity, 383, 387 Hailes, correspondence with, 264–5, 268–9 Justinian’s Digest, 282 natural law, 275 public law, 281 Smith, A, 299 theses, 317 university education, 294, 299 Utrecht, 262, 275, 281, 294–5 Zélide, 269 Bourges, 232 Bourits, J, 86, 380, 387 Boutaric, F de, 420 Bracton, H, 435, 479 brieve, 5, 20 British Library, 67, 463 Brodie, W, 353 Brougham, H, 215, 327, 329 Browne, A Professor of Civil Law, Dublin, 467 Bruce of Kennet, R, 178, 181, 193 Buchanan, G, xxi, 36, 72, 144, 249, 250 burghs of regality or barony, 119 Burlamaqui, 413, 414 Burman, P antiquitates in Scotland, 246–50 Antiquitatum Romanarum brevis description, xxi, 242–52 edition 1759, 247 life and work, 243, 244 Mackie, C, xxi, 247, 248–50 Roman antiquities course, 245, 246, 248 Ruddiman imprints, 247–50 universal history, 244 Bute Manuscript, 78–9 Caledonian Mercury, 105 Callander, J, 289 Cambuskenneth Abbey, xii, 27, 32 Cambuskenneth books Bible of 1532, 24, 25, 26 Codex, 24, 25 College of Justice and, 27–32 Edinburgh location, xii, 26–7 Infortiatum, 24, 25 inscriptions, 24–5 list, 24 looted, 23, 26–7 Mylne, A, xii Norris, Sir W, 23, 24–5, 33 Panter, P, xii, 25–6, 27 provenance, 24–6 Campbell, A Argyll, third Duke of, 225–6, 342 Hay, first Earl of, 225–6, 342 Utrecht, 225

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law, lawyers, and humanism

Canon Law, 37, 38 central to ius commune, 43 changing attitude to, 48–50 Court of Session, before the, 39–44 Skene, 55 use of, 37–8 Cape Colony, 215 Carmichael, G, 174, 175–7 case-law growing significance, 209 Catanach v Gordon (1745), 230–1 certificates of attendance, 321, 324, 327, 328 cess, 119 Chalmers, G, 247 Chamberlayne, J Magnae Britanniae Notitia, 227 Chambers, Sir R background, 462–3 Blackstone comparison, 474, 477, 478–9 corporations, 474 criminal law, 475, 480 Curley, editor, 481 English private law, 476 equity, 479 feudal law, 478, 481 Hale’s Analysis, 477, 478 introductory lectures, 473 Johnson, Samuel, 463 lectures, 463–4, 476 mingled rights, 477 natural rights of men, 476–7 organised legal principles, 473–80, 481 personal property, 478–9 persons, 474 politic law, 473 property, 477, 478 public law, 473–4 scheme of lectures, 476 tripartite division of English law, 473, 480 Vinerian Chair of English Law, Oxford University, 462, 494 Charles I, 335 Charles II, 352 Cheape, D, 328–9 Cheyne, A, 74 Christynen, P van, 159 Chroust, A H, 453 Church of England, 140 Church of Scotland imposition of legislation after 1707, 129–30 Cicero, De legibus, 78 Claim of Right, 173 Clan Act, 128 Clark, J C D, 489–90, 492 claves curiae, 4 Clementinae, 30, 31, 32 Clerk of Penicuik, Sir J, xxi, 223–5, 226 Clive, R, 140 Cockburn, H, 322, 376 Codex, 30, 31 codification anxieties over, 208–20 Continental Europe, 210

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English debates, 216–20 legislation and, 194–9 precedent and individual rights, 196–7 proposals (fifteenth to seventeenth centuries), 153–5 transformations in eighteenth century, 208–10 Wolff, C, 195–6 see also science of legislation Coke, E common law, 148, 208 Institutes, 426–7, 429, 434, 435 “the artificial reason”, 208 College of Justice, 146, 229, 368, 373 academic education, 16, 19 Act of Union 1707, 97 admission of advocates, 11, 18, 20 admission regulations (1532), 15–16 Cambuskenneth books, 27–32 changing procedures, 19–20 colleges of doctors, 18–19 ecclesiastics, xiii, 14–15 Extraordinary Lord of Session, 19 falsed dooms, 12 financing, 13 formal records, 29 foundation, xi, 13–14 gown, cap, and lesson, 16–18 Henryson, E, 19 ius commune, xiii, 14–15, 20 jurisdiction as central civil court, 12–13 King’s Council, 28 libraries owned by lawyers, examples, 31–2 Lords of Session, 13 Mylne, A, President, xii, xiii procedure, xiii, 28 public lesson, 16 reformed from Session, 120 Reid, R, President, xiii, 15, 19, 44 Romano-Canonical procedure, 28, 260 Scottish Church revenues, 13 Senators, 14–15, 16, 19, 20, 31, 32, 37, 44, 373 Sessions, establishment, 13 Seton, A, 10–12, 14, 16 Sinclair, J, President, 41 “specimen doctrine”, 17 structure, 199 stylus curiae, 15 utrumque ius, 16, 19, 20 Cologne, 231 Colt, O, 348 Commissary Courts, xiii, 120 Commission of 1823, 211 Commissioners for the Administration of Justice, 123–4, 351–2 Commissioners for Union, 122 Commissioners of Admiralty of Great Britain, 122 commissioners of supply, 119 common law court decisions and, 158–60 meaning up to eighteenth century, 209 Connanus, F, 59 Conte, A le, 59

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index Continental Europe institutional works, 424, 436 Convention of the Estates, 172–3 Convention of Royal Burghs, 119, 127 Cooper, Lord, 93, 94 Copyright Act 1709, 89, 90 Cottonian manuscripts, 34 Council of Merton, 213 Court of Exchequer, 95–6, 122, 125–6 members, 125 procedure, 126 court of first instance, 204 Court of Justiciary Act of Union 1707, 97 court of second instance, 204 Court of Session, 146 see also College of Justice Act of Union 1707, 97 Canon law before the, 39–44 closed record, 205 constitution, 105–6 decisions, 261; conditions for authority, 158–60 development from King’s Council, 39 Directions, 45 Divisions, 204 Informations, 180 Inner House, 106, 107–8 interlocutors reviewed, 106, 107 ius commune and practice before, 44–7 judicial opinions, 207–8 law reports, 207–8 libel or summons, 106 Lord Ordinary, 200–1 number of judges, 203 Outer House, 106 papers, 202 pleadings, 107 practice and problems, 110–13 precedent, 202–3, 205–7, 261 Presidents, 47 procedure, 106–8 proof, 106 reclaiming motions, 107 reforms, 199–208 regulation of Bench appointments, 125 reporting of cases, 206 restructuring in nineteenth century, 206 Romano-Canonical procedure, 146, 199–202 Spottiswoode, R, 47 statutes and customs, 110 structure, 199–200 written argument, 45, 180–1; old style, 298n see also Session courts symbolic communication, Middle Ages, 4 Cowell, J, 59, 430 Institutiones, 434, 435, 436, 437–8, 467–8 Justinian’s Institutes, 468 Cowper v Meldrum, 29 Craig, J, 472 Professor of Civil Law, University of Edinburgh, 237 Craig, L, 348

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Craig of Riccarton, T, xvi, xix, 38, 348 advocate, 403 background, 403 education, 46, 403 Greek, 405 Craig, T, Jus feudale, xiii, xiv, 37 Baillie, J, edition by, 136 Canon law writers, use of, 48–50 Chambers, use by, 481 Cujas contrasted with, 405–12 custom, 51–2, 53, 98 definitions, 406–12 English law, xxiii, 89, 92 feu, 49, 50, 406–7 feudal law, 99 feudum, definition, 401–12 foreign peoples, custom and law, 99 hierarchy of law, 50–1 Humanist authors, reference to, 47–8, 404–5 ius, three types, 133–4 ius and leges difference, 50–1 ius commune concept, 50–4 ius Pontificium, 52, 53 ius proprium scriptum, 51–2, 53, 152 legal relationship concerns, 103 natural law, 64, 65–6, 100, 133–4, 172 nature of Scots law, 133–4, 142 public professors of Civil Law, 83 Roman law, 53–4, 99–100, 165 sources, 47–50, 65–6, 98–100, 404–5 Spottiswoode, use by, 56, 60 structure, 404 union of the laws, 145 written law, lack of, 152 Craigie, Lord President, 320 Craigie, R, 239 cramp speech, 331, 336, 365, 366 Crichton, A, 15 Crichton, G, Bishop of Dunkeld, 23 Cromwell, O, xvi, 123–5 Cross, R, 464, 479 Cujas, J, 59 Bourges, 76 Craig, cited by, 48 Craig, contrasted with, 405–12 feu as usufruct, 407–8 feudum, definition, 401–12 Libri feudorum, 404, 406, 407, 409, 412 Cullen, Lord see Grant of Cullen, Sir F Cumberland, R, 104 Cuming, A, 346 Cuninghame, J, 235, 236, 237 Cunningham, A, 235, 288 Cunningham, J, 357 curia affirmata, 6 Curley, 481 Dallas, G, 102 Dalrymple, Sir David (c 1660–1721) Newhailes library, 258, 259–61; see also Newhailes library public career, 258

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law, lawyers, and humanism

Dalrymple, Sir David, Lord Hailes (1726–1792) see Hailes, Sir D Dalrymple, Lord Dalrymple, H, 91 Dalrymple, J, Viscount Stair see Stair, J Dalrymple, Viscount Dalrymple v Dalrymple, 214 Darien scheme, 173, 176 Daube, D, 38, 401 Declinature Act 1594, 503 Declinature Act 1681, 503 Decretals of Gregory IX, 30 dempster, 5, 8, 12 Denmark, 142 boundary stone, 115 Christian V, 117 Danish Code, 1683, 117 identity and national consciousness, 116 Nordic roots, 116 Roman law, 142 Royal Law of 1665, 116 Dicey, 447, 453 Dick, R, 295 Dick, T, 272 Dickinson, W C, 34, 67 Dickson, R, 359 Digest, 30 dignity, 383, 387, 388 divorce conflicts, Scots and English law, 212–16 Dolezalek, G, xiii, 41n dominium, 402, 407, 408, 409, 410, 411 Donaldson, R, 27–8 Doneau, H, 75, 76, 78 Doolittle, I G, 415–16 “Douglas Cause”, 285 Douglas, A, 32 Douglas, D, 360 Douglas, Lady J, 284–5 Drummond, A, 235, 236–7 Drummond, D, 360 Duarenus, F, 59 Duck, A, 429 Dumoulin, 402 Duncan, D, 247 Dundas of Arniston, R, 340 gown, 334n Lord Advocate, 314 Lord President, 314–15, 318, 337 Dundas, T, 272 Dundas, W, 358 Dunlop, Dr., 366 Durandus, 31 Speculum Judiciale, 28, 39 Durkan, J, 27, 75, 100 Dutch Elegant school, 287, 288 Dutch humanism declining influence, 261–4 Edict of Nantes, 262 Edinburgh Castle, 143 Edinburgh Review, 304 education natural law and, 174

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Education Act 1496, 71 Election Act 1743, 130 Ellesmere, T Lord Chancellor of England, 34, 148 Elliot of Minto, Sir G, 341n Elphinstone, W, Bishop of Aberdeen, xii, 31, 42 English law Blackstone’s Commentaries, departure from, 473–80 Chambers, Sir R see Chambers, Sir R Civil Law, 425, 428–30 classification, eighteenth century, 480–1 Common Law, 425, 428–30, 437 constitutional struggle, 424 Continental Europe, 424 eighteenth century, 424–5, 430–3, 480–1 foreign influence, 424 French, use of, 425–7 institutional works, 434–5, 437–8 national law, 425, 437–8, 466 political history, 424 Roman or Civil Law, 425 Scots law comparison, 89–92 seventeenth century, 424–5, 430–3 sources, 429 structure, 466–72 taxonomical interests, 468 teaching, seventeenth & eighteenth centuries, 430–3 university lectures and institutional pattern, 464–6 universities, teaching in, 425 English legal profession regulation of training, 431 Entail Act 1770, 130 equity, 459 Erskine, H, 383, 395–6 Erskine, J, 178, 465 Institute, 182, 512 master and servant, 488 Principles, xxiv–xxv, 420, 422–3, 488, 500, 512 study abroad, 232 Utrecht, 226 Erskine v Pitcairn, 57 Europe replacement of Latin by vernacular languages, 425 Exchequer Court, 168, 223 English procedure, 140, 141 extraordinary admittance, 359–63 Faculty of Advocates academic entry, 365 admission see admission as advocate Anniversary Meeting, 337, 339, 341, 365 “aristocratic resurgence”, 375n, 376 Civil Law education, 101, 311 colonial judicial appointments, 215 control over admittance, 373–4 creation of chairs of Law, 234–5, 310–11 economic arguments, 396–7 Edinburgh chair establishment, 310–11 education, 171–2, 229

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index eighteenth century, in, 227, 372–6 examiners, 326–7, 357, 358, 365, 378 foreign study of law, 146–7 judicial opinions, 207 law reform concern, 372–3 Mackenzie’s Institutions, 499 manners, 394–5 nineteenth century reforms, 211–12 private examiners, appointment, 337, 341 proposed reforms (1785), 398 proposed reforms (1790s), 398 public role, 373 qualification proposals (1785), 383–5 qualification proposals (1791), 386 qualification proposals (1795), 387 Restoration period, 100–2, 373–4 right of audience monopoly, 105 Roman law, 375–6, 379–81, 387–90 social composition, 100–2, 230, 373–6, 381–7, 395 study abroad see study abroad three main concerns, 372–3 Union of 1707, immediate impact of, 171–2 universitas jurisconsultorum, 345 university education, 101 Fairford, A, 336, 366 Favre, A, 61 Fearne, D, 363 Felinus Sandeus, 30 Felix, M M, 291–2 fencing the court, 4–10 brieve, 5, 9, 20 calling of the suits, 6, 9 claves curiae, 4, 5–6, 19 defining the space, 6–8 delegated royal authority, 9 dempster, 5, 8, 12 keys of the court, xi, 4, 5–6, 19 King’s girth, 6–7 mair, 5 “Maner to hauld courtis”, 4–5, 7, 19 meaning, 6–7 peace of the court, physical space, 6 royal brieves, 9 serjeant, 5, 8 suitors, 5–6, 9 tolbooths, 7–8 Fenton, T, 240 Ferguson, F S, 500 Ferrariis, J de Practical libellorum papiensis, 40, 42 feudal law origin and nature, 401 feudal tenure, 128 feudum definition, 401–12 etymology, 406 Fife, N, 352 Finch, H Discourse, 437, 442 law of persons, 445 Nomotechnia, 426, 428, 435 Finlay, J, xii, xxii, xxiii

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Finnis, J M, 414 Fleming, A, 357 Fletcher, Sir J, 357 Forbes, W advocate, 88–9, 90, 305, 307, 333 bills of exchange, 89 court procedure, 107 English law, 89, 90, 92, 94 inaugural lecture, 379–80, 389 Latin, 331 Mackenzie’s Institutions, endnotes, 501 Professor of Civil Law, Glasgow University, 88, 237, 379–80, 389 Forbes of Culloden, D, 285, 315 Forsyth, R, 322 admission as advocate, 376, 385–7, 389, 391, 396–7 background, 385, 387 licence to preach, 385–6 teaching, 392, 397 Forte, A, 112 Foulis Press, Glasgow, 289 Fountainhall, J Lauder, Lord, 312, 362, 377 France, 141, 147, 425, 448 advocate, 380 Civil Code, 460 codification of customs, 153 Edict of St Germain, 418 Humanism, xiv legal education, 229, 231, 261–2, 433 national law, 417–18, 464 Order of Advocates, 397–8 Franchtti, M, xxii freeholders, 119 Fulbeck, W, 58 Gaskell, P, 509 Gatherer, J, 375–6 Gay, P, 292 General Assembly, 119 Gennaro, G, 309–10 German College, 11 German Historical School, 219 Germany, 141, 417 Gibbon, E, 393, 397 Decline and Fall of the Roman Empire, 291–2 Gibson of Pentland, Sir J, 322 Gibson, D M, 322 Gilmour, J, 349 girth, 6–7 Gledstanes, J, 15 “Glorious Revolution”, 173 Gloss, the, 311 Gloss of Accursius, 259 Godefroy, D de, 488 Godfrey, M, xi good faith, 40 Goodall, W, 333 Goodare, J, 34–5 Gordone, A, 353 Graevius, J G, 245 Grand Conseil de Malines, 14

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law, lawyers, and humanism

Grant of Cullen, Sir F, xviii, 173 common law, 131, 135 education, 131 judicial law-making, 135 municipal law, 131–2, 141, 156 nature of Scots law, 131–2, 134, 135 Roman law, 131, 132, 156, 160, 166–7 Grant of Prestongrange, W, 91, 257 Gration’s Decretum, 30, 33 Gravina, 390 Green, T, xiii Green, T A, 440 Greenshields, J Episcopalian minister, 129–30 Groningen, 234 Gronovius, J, 224–5, 243, 296 Grotius, H Barbeyrac’s edition, 104, 177 Bruce of Kennet’s compendium, 178 De jure belli ac pacis, 104, 176, 178, 276, 277, 278, 279, 280 influence on Stair, 103, 161–2 Introduction to the Law of Holland, 332 just war, 173 natural law, xix, 134, 234, 236, 276, 277 Scott’s compendium on De jure belli, 176 Grotius erotematicus, 265, 276, 277, 278, 279, 280, 284 Haakonssen, K, 138, 178, 182 Hailes, Sir D Dalrymple, Lord advocate depute, 257 antiquarian tradition, 293 assistance to others, 256–7 Boswell, advice to, 270 Christian beliefs, 289, 291–2, 299 classics, 289–90, 299 conclusions on studies, 284–5 education, 253, 257, 258, 262 education in Utrecht, 267–85 English procedure in cases, 108 Faculty of Advocates, 253–4 Greek criticism, 289–90 Greek poetry, 289, 299 historian, 254, 255–6 Hume, D, 293–4 impact of Utrecht on Hailes, 267–9, 285–94 Justinian’s Digest, 282–4 Justinian’s Institutes, 270–5 law professors in Utrecht, 269–70 legal humanism, 286–8 life in Utrecht, 267–9 natural law, 275–81 notebooks, 264–6, 268 portrait of Wieling, 285, 299 public law, 281–2, 284 studies, 267–85 Utrecht, 253, 262, 264, 265, 267–9, 294 Wesseling, 285–6, 288–94 Wieling, 266, 285, 286–8, 299 zealotry, 294

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Hale, M, 426 Analysis of the Law, 439, 440–2, 443, 444, 448, 449, 451, 452, 468, 471 Historia placitorum coronae, 112 influence on Blackstone, 488 law of persons, 446 , 448–9 Pleas of the Crown, 440 right/wrong distinction, 451 hamesucken, 257 Hamilton, Balfour and Neill Edinburgh University printers, 247, 248 Hamilton, R, 76–7 Hamilton, T, Earl of Melrose, 34 advocate, 353 Hamilton, W, 357–8 Hanbury, H G, 446, 470, 479 Hannay, R K, xi, 68, 83–6, 100, 307, 346 admission of advocates, 347 precedent as source of law, 207–8, 209 Hardwicke, Lord, 128, 140 Harper, J, 357 Harris, B, 127, 130 Harris, G Justinian’s Institutes, translator, 487 Harrison, J F C, 489–90 hat, symbolically donning, 365 Hawkins, W Pleas of the Crown, 440 Hay of Carriber, James, WS, 228 Hay, John, 285 Hay, N, 74 Hay, Archibald Campbell, first Earl of, 225–6, 342 Hay, Lord, 127 Heineccius, J G axiomatic method, 179 Elementa juris naturae et gentium, 179, 180, 265, 272–3, 275, 278 influence in Scotland, 178–80, 181 Millar, J, 297 natural law theory, 179 Newhailes Library, 265, 266 Praelectiones, 278 Wilde, J, 390 Hemsterhuis, T, 288 Henniges H, 104 Henry VIII, 22, 431 Henryson, E advocatus pauperum, 19 Bourges, xiv, 19 College of Justice, 19 Hepburn, J, xxii heritable jurisdictions abolition, 128–9, 315–16 Hewett, M, 257 hierarchy of authority early 17th century, 64 hierarchy of law Craig’s Jus feudale, 50–1 hierarchy of sources, 66 Higgins, A, 360 Higgitt, J, 27 High Court of Admiralty, 8

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index High Court of Justiciary constitution, 108 libel by indictment or criminal letters, 108–9 Minute Book, 109 practice and problems, 110–13 procedure, 108–10 statutes and customs, 110 syllogism, 109 Highlanders administration and regulation of, 128 Holdsworth, W S, 414, 432, 453, 454, 459 Inns of Court, 431 Holliday, 424, 432 Holy Roman Empire, 115 Home, D, 360 Home, Sir P, 360 “homosocial university club”, 285n Honoré, 307 Honours of Scotland, 117–18, 143 Hope, C, 334 Hope, Sir J, Lord Craighall, 334 Hope, Sir T, 64–5, 157 Lord Advocate’s hat, 332, 333, 334 Horborch, G, 42 Hostiensis, 48, 49, 57 Hotman, F, 47, 48, 59, 404, 406, 409, 419 Houck, F G, 270 Justinian’s Digest, 283, 284 Professor of ius civile, Utrecht, 270, 283, 286 House of Commons Scottish members, 117 House of Hanover Church of Scotland and, 129, 130 House of Lords, 97 appeals, 112–13, 126, 141, 169 role after Union of 1707, 169, 170–1 Scots appeals after 1707, 126 Scottish peers, 117 Union of 1707, immediate impact of, 170–1 Huber, U, 233, 234, 286 Hugo, G, 217, 219 Humanism Roman law, approach to, 65 Humanist authors reference in Craig’s Jus feudale, 47–8 Hume, D, 179, 252 alterations in law, 210, 211 Hailes, 256 historian, 254, 255 History of Great Britain, 254 justice as artificial virtue, 184 Keeper, Advocates Library, 293 legislation, attack on, 198 Scots Law professor, 198, 296 social contract, 185 Treatise of Human Nature, 184 Humphreys, J, 216, 217 Hutcheson, moral sense theory, 182–3 Informations, 259n, 260 Inglis, J, 359, 361 Innes, C, 293

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Innes, J, 90, 127, 447 Inns of Court Common Law training, 431 educational function, 433 institutional works Continental Europe, 436 genre, 434–5 institutional writings, xxiv, 416–23, 510–12 concept, 498–9, 512–13 features, 423 Humanist movement, 419 nation states, development, 417–19 university teaching of national laws, 418–20 Interregnum, 353, 354 Ireland patronage for Englishmen, 140 Scotland comparison, 140 irregular marriage, 215 Irving, Professor (1826), 328 Italian Colleges of Doctors, 19, 368 Italy, 141, 417 ius commune 16th-century Scotland, 260 after Craig, 54–63 application in formal records, 29 Craig’s concept of, 47–54 ius proprium and, 147–51 main source texts, 23, 24 move away from, 63–6 practice before the court of session, 44–7 Sinclair’s Practicks, 30 Stair Society, xii written law and, 151–3 ius naturale and ius gentium role, 172–81 Carmichael, Pufendorf, and Grotius, 175–7 natural law and education, 174 natural law and Scots law, 177–81 Revolution of 1688–1689, 172–4 ius proprium, ius commune and, 147–52 Jacobite Rebellions, xviii, 140 Jacobitism, xxii, 97, 128 James III, 115 James IV, 28 James V, 13 James VI & I, xv–xvi, 20, 34, 63, 117, 167, 368 education, 144 hereditary succession, 172 unification of laws, 144–7, 219 James VII, 362 James, Sir W, 413 Jansen, C J H, 276–7 Jardine, G Professor of Logic and Rhetoric, University of Glasgow, 303–4 Jason de Mayno, 30, 31, 42, 60, 68, 78, 259 Javolenus, 406 Jeffrey, F, 211, 304, 491 Jewell, B F, 128 Johnson, S, 257, 317, 463 Dictionary, 434 Jones, G, 432 judicial law development, 136–9

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judicial opinions, 207–8, 209 Julian, 388 Jury Court, 204, 205 jury trial introduction, 210, 211 Justices of the peace, 119 Justiciary Court, 204 reformed 1671, 120 Justiciary Records, 110 Justinian’s Code, 380, 388 Justinian’s Digest Hailes in Utrecht, 282–4 Justinian’s Institutes, 49, 155, 156 contracts, 451 elementary textbooks based on, 421 Hailes in Utrecht, 270–5 influence of, 468 influence of structure, 435–6, 437 master and servant, 486–487 structure, 421, 422, 423, 435–6, 437, 465 usufruct, 409 Wilde’s lectures, 390 Kagan, R, 369 Kahn-Freund, O, 415 Blackstone Lecture (1977), 482 Blackstone’s master and servant criticism, xxiv, 482–97 Kames, H Home, Lord, 95 advocate, 229 Civil Law, 318, 328 court structure, 139 English and Scots law, 92–3 examiner, as, 326–7 four-stage theory of development, 137, 187 justice, 138 natural jurisprudence, 137 law reports, 207, 208 legal education, 189, 296, 314, 395 Scottish Enlightenment, 223 Katz, S N, 444, 446, 453 Kelley, D R, 311, 401 Kemney, Lord, 345 Kennedy, D Blackstone’s Commentaries, analysis of structure, 450–2 Kent, J, 423 keys of the court, xi, 4, 5–6, 19; see also fencing the court Kidd, C, 251-2 King, A, 16, 347, 348 King, W, 432 King’s Council, 98, 120, 146 Court of Session development, 39 Romano-Canonical procedure, 39 King’s College, 69, 231 Cuming, A, 346 foundation charter, 71 Reid, T, 184 Scougall, J, Civil Law, 361 see also Marischal College; University of Aberdeen Kingston, A, Viscount, 10, 11 Klippel, D, 196

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Lactantius, 292 Langbein, 443 Lauder of Fountainhall, Sir J, 232, 333, 360 law reports and common law, 207–8 Lawrence, R, 140 Lawson, 423, 424, 460 Lee of Sopwell, Sir R, 23 legal development conjectural history, 185–7 four-stage theory, 137, 187, 188–9 legal dress advocates’ hats, 333–6, 366–70 gown, 334 links with continental Europe 369 Lord Advocate’s hat, 333–6 symbolic value, 332–6 legal education advantages of study abroad, 295, 297 advocates versus writers, 228 classical scholarship, 296 collegia private, 237, 238, 239 developments in Scotland, 295, 296–8 Dutch model, 236–9 Dutch textbooks, 239 establishment of chairs, 237–9 foreign see study abroad Humanist study of Roman law, 295–6 Kames, 189 landowners and noblemen, 126 law reform, 189–94 legislative science, 194 Maconochie, A, 193–4 Millar, J, 190–3 Netherlands, 223-41, 294–9; see also Netherlands Scotland, developments in, 295, 296–8 study abroad see study abroad Wright, J, 194 legal humanism, xiv, 286–8 legislation attack on, 197–9 codification and, 194–9 legislative science see science of legislation legitimacy Birtwhistle v Vardill, 214 conflicts, Scots and English law, 212–16 Rose v Ross, 213, 214 Leibniz, G W, 175 Leslie, A, 248 Leslie, J, Bishop of Ross Court of Session judge, 148 Senator, College of Justice, 37–8 Leuven, 231 Levack, B P survey of projects for unification, 93 Lévy-Ullmann, H, 460 Liber Sextus, 30, 31, 57 Lieberman, D, 95 Lindesay, H, 190, 231 Professor of Civil Law, University of Glasgow, 295 Lipsius, J, 243, 245 Littleton’s Tenures, 472, 478

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index Liverpool Athenaeum, 23 locatio conductio, 485 Locke, J, 176, 182 Lockhart, Sir G, 357 Lockhart, J G, 372 Lockhart, W, 360 Lord Advocate’s hat, 333–6 Lord Ordinary of the Week, 200, 201 Lords of Council, 12–13, 19, 39–40 Lords of Council and Session, x, xiii, xv, 8, 28, 29, 41, 43, 67, 74, 227, 229, 336, 344, 347, 351, 352, 373; see also College of Justice Lords of Session, 158–9, 164–5 Louisiana Civil Code 1808, 449–50 Louisiana Code 1825, 474 Louisiana Code 1866, 474 Low Countries, 380 Lucas, P, 432 Luig, K, 416–17, 486, 498 McAdam, E L, 480 McCalzeane, T, 31, 32 McCormack, G, 511, 512 McDowell, R B, 433 McGill, D 16, 347 Bourges, 17 McGill, J, 16, 347 Mckechnie, H, 55–6 McKell, M, 363 Mackenzie of Dolphinton, K, 271–2 Mackenzie of Rosehaugh, Sir G admission as advocate, 354, 355 correctory law, 157 court decisions, 158–60 generally, 35, 118, 125, 132–3, 135–6, 309, 310, 333, 380, 405 historical validity, 104 inaugural oration, Advocates Library, 345 judicial law-making, 135–6 Jus Regium, 500 Matters Criminal, 111–12 nobility of an advocate, 388 Observations on the Acts of Parliament, 155, 500, 505 Opera omnia, 501, 502 study abroad, 232 treatises on law, 102, 103 Mackenzie, Sir G, Institutions of the Law of Scotland, 155–7, 313, 420, 423 alluvio, 502 basis of Scots law trial, 339 Dean, Faculty of Advocates, 499 Declinature Acts, 503 editions, changes to the, 500–5, 513 editorial rewriting, 502 institutional writings, 510–12 master and servant, 487 printing press, effect of, 508–10, 511 resetting of type, 506–7 second edition, 505–10 textual tradition, 499 tripartite division of law, 465

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variations between versions of second edition, 507–8 Mackenzie, James S Netherlands, 226 Mackenzie, John, 366 McKerrow, R, 509 Mackie, C description of classes, 251 Roman antiquities, 246, 247, 248, 250–2 Universal History, University of Edinburgh, xxi, 238, 246, 250–2 Mackie, J D, 34 MacLean, J, 97 Maconochie, A, 139, 334 lectures, descriptions, 193–4 legal education and law reform, 193–4 Macpherson, A, 359, 360 Maine, Sir H, 413 mair, 5 Maitland Practicks of 1550–1577, 152 mandatum morte solvitur, 29 Maner to hauld courtis, The, 4–5, 7, 19 Mansfield, 423, 424, 459 Manuel y Rodríguez, M de, 420, 421, 422 Marischal College Turnbull, G, Regent, 179 see also King’s College; University of Aberdeen marriage conflicts, Scots and English law, 212–16 Dalrymple v Dalrymple, 214 elopement to Scotland, 214–15 irregular, 214–15 Wakefield trial at Lancaster, 215 Mary of Guise, xiv, 19 Mary Queen of Scots, 4, 22 master and servant Aiken, J, 496 Blackstone, 482–3, 484, 485, 488, 489, 490, 492–3 Chambers, Sir R, 494 Erskine, J, 488 Justinian’s Institutes, 486 Mackenzie, Sir G, 487, 488 Millar, J, 491–2 Pasquier, E, 485, 487 Pocquet de Livonnière, P, 486 Pothier, R-J, 484–5 Smith, A, 490–1 Tucker, T W, 486 Wooddeson, R, 495–6 Matthaeus II, A De criminibus, 112, 257 Matthaeus III, A, 233 Mayno, J de, 60 medical studies, 232–3 Melville, A, 80 Melville, J, 81 on Skene, W, 77, 78, 79 Menzies, W, 215 mercat cross, 7 Millar, J, 139, 219, 223, 239, 299, 342 actions, 479 arrangement of English law, 471

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Millar, J (cont.) Chambers comparison, 479, 480 Civil Law, Regius Professor, University of Glasgow, 255, 297, 466 English law lectures, 466–7, 470–2 Heineccius, 297 lectures, 190–3 legal education and law reform, 190–3 master and servant, 491–2 public law, 472 Smith, Adam, 466, 471–2 structure, 466 lecturing in English, 317 Millar v Robertson, 108 Milsom, S F C, 414–15, 480 Mirror, the social fabric, 396 Monboddo, Lord, 223 Montesquieu, C de Secondat, Baron de, 137–8, 313 L’Esprit des Lois, 186–7, 419 Moor, Professor J, 289 Moore, J and Silverthorne, M, 176 moral philosophy, eighteenth century, 182–4 morals and law, 182–9 conjectural history, 185–7 natural law, 182–3 science of legislation, 187–9 Morison, G, 360–1 Morison of Pitfour, 362 Morrison, W, 353 municipal law, 35–6, 45 codification proposals, fifteenth to seventeenth centuries, 153–5 custom, 152, 155–8, 162–5 decisions of Session, 158–60 human law, custom, and Scots law, 162–5 identified with statutes, 148 natural law, 160–2 practick contrasted with, 149 Roman law as common law, 159–60 Scots law, 162–7 Stair, 160–2 statute law prior to 1707, 151–67 unwritten law, 152 use of term, xix usus modernus Pandectarum, 166–7 written law and ius commune, 151–3 Munro, A, 355 Murdeston, J, 348 Murray of Glendook, Sir T publisher, Scottish statutes, 102, 154–5 Murray, A, 41n Murray, W, 358 Mylne, A, 15 Cambuskenneth books, 26, 27 Infortiatum, 26 Official of Dunkeld, 26 Mynsinger von Frundeck, J, 59 Nairn, A, 353 Nassau, Count, 269 nation states, 417–419

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national laws development of national states, 417–19 elementary textbooks, 420 university teaching, 418–20 National Library of Scotland, 264, 509 Cambuskenneth books, 23 national records, 123 natural law development of study, 103–5 education and, 174 Revolution of 1688–89, 172–3 Scots law and, 177–81 see also Grotius; Pufendorf Netherlands, 101 advocate, high rank of, 388 collegia Grotiana, 236 decline of Scots studying in, 137, 294–9 eighteenth century influence, 223–41 Faculty of Advocates, 171–2 influence on Scotland, 223–41, 250–2 legal education, 126, 262–4 medical studies, 232–3 national law lectures, 464 natural law study, 298 trading links with Scotland, 232 Nevoy, D, 349 Newhailes Library Dutch scholars, 260 Greek poetry, 289–90 Heineccius, 278 Houck, F G, 283 Informations, 259n interpretations of Roman texts, 259 legal humanism, 287–8 Roman law collection, 259–61 Session Papers, 259n teachers of Hailes, 286 Utrecht textbooks, 265–6 Vitriarius, Ph R, 277 Wesseling, 286, 288–9 Wieling, 280, 286 Newhailes Papers, 264, 265 Nicholas, B, 405 Nicholson, G, 355 Nicolai, J B, 59 Nisbet, Sir J, 356 Noodt, G, 224, 233, 234, 345 Norman Conquest, 455–6 Norris of Speke, Sir W, 23, 24–5, 26, 29, 32–3 North, R, 427, 431, 466 O’Brien, K, 252 Oliphant, L, 355 Omond, W T, 334–5 Orangist Revolution, 298 Orléans, 232 Osler, D, 509, 510, 512–13 Oswald, A, 356 Otto, E Notitae rerempublicarum, 265, 284 public law, 279, 281, 282, 284 Outer House permanent, 204, 205, 206

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index Panormitanus continuous possession, 40 Craig, cited by, 48, 49 Decretals, 260 Decretals commentaries, 31, 40, 41, 42, 43 Elphinstone, W, 31 generally, 24, 27, 29, 57, 78 Lectura, 32 Liber Extra, 30, 40, 41, 42 Panter, P, 25–6, 27, 33 Papal Bulls (1531, 1535), xi, 13, 14 Papon, J, 37 Paris, 231 Pasquier, E, 485, 487 Paton, C, 510 Paton, J, publisher, 247 Patriot Revolution of 1780s, 298 Patronage Act 1712, 130 patronage system eighteenth century Scotland, 169n peace of the court, 6 Pearson, W, 353 peregrinatio academica, 85, 239 Perizonius, J, 224–5, 243, 244, 245, 288, 296 Phillipson, N T, 105–7, 372–3, 374 Pitcairne, A, 309 Pitmedden Manuscript, 352 Interregnum era, 353–4 Plucknett, 453 Pocock, J G A, xxiii, 293, 424–5 Norman Conquest, 455 Pocquet de Livonnière, P, 486 Poggi, G, 417 polite learning, 315, 316, 317, 320, 326, 327, 328 Pomponius, 393 Poor Law, 483 Portugal national law lectures, 464 Posner, R A, 414 Pothier, R J advocate, high rank of, 388–9 Traité, 484–5 practick, 347, 348 case-law described as, 147 precedent clarity, 205–7 Court of Session, 202–3, 205–7 procedure and, 202–3 source of law, 207–8, 209, 219–20 Presbyterian Church established national church after 1690, 119–20 livings, 140 prescription, 40–1 Priory of Pluscarden, 10, 11 Privy Council after 1707, 117 before 1707, 118 procedure and precedent, 202–3 property, codification, 216–18 Pufendorf, S von Carmichael, G, 104, 175–6 De officio hominis et civis, 178, 265, 276, 278–9, 280, 281

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Erskine, J, 178 Kennet’s translation, 105 Leibniz, G W, 175 natural law, 117, 174, 194, 234, 236, 276 social contract, 185 Purves, W, 355 Queen Anne, 167 Rachel, S, 104 Rae, Dr I, 230 Rae, T I, 100, 374 Ragay, P, 274 Ramsay, A, 240 Ramsay of Ochtertyre, J, 315, 320 Rebellion of 1715, 128 Rebellion of 1745, 93, 128, 170 Rebuffi, P, 402 Reddie, J codification, 217–19 Reeves, J, 434–5 Reformation, 65 effect on universities, 71–2 The First Book of Discipline, 71, 72 reforms 1807–1825, 203–5 Regality Court of Musselburgh and Dunfermline, 8 Regality Court of Spynie, 8 Regiam Majestatem, 36, 37, 42, 55, 79, 98–9, 148, 152, 156, 165, 313; see also Skene, Sir J Regnaudus, J, 402, 407 Reibman, J E, 480 Reid, R, Bishop, Abbot of Kinloss Senator, College of Justice, 15, 19 President, College of Justice, 44 Reid, T moral philosophy, 184 Reidford, Lord, 360 Relation of the Manner of Judicatores of Scotland, 34–38 Civil Law, 45–6 period of writing 63–4 Respublica Jurisconsultorum, 310 Restoration period admission to Faculty, 355, 357, 359, 366 advocates, social composition change, 100–2 Faculty of Advocates, 100–2, 380 Mackenzie, Sir G, 132 reversion to law French, 426 Scottish legal culture, 100–4 revolution of 1688–89, 172–4 Revolution Settlement, 249 Robertson, J, xvii, 28 Robertson, W, 251, 252, 254–5, 256 Robertus, A, 62 Rodger, A, 511, 512 Roelevink, J, 287 Wesseling, view of, 292–3 Roman antiquities, 242–52 Roman College, 11 Roman law academic training, 379–81 Act of Union 1707, Article 19, 381

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Roman law (cont.) Alfenus Varus, 390–8 common law identified with, 156–8 Continental Europe and, 209–10 Newhailes library, 259–61 re-evaluation in admission of advocates, 397–8 shoemakers, 390–8 social status and, 387–90, 391–8 Roman Rota, 28 Romano-canonical procedure, xi, 39, 199–202 Rose v Ross, 213, 214 Rough Wooing, 22–3 royal burghs, 119 Royal Commission of Inquiry into the Universities of Scotland, 304, 325 Royal Lectureships, Edinburgh, xiv, 19 establishment in 1550s, 44 Royal Library, Edinburgh, 26, 27 Ruddiman, T Keeper and Clerk Depute, 317 Latinity of, 290, 317 Scottish Humanism, 309 theses, 317 Ruddiman, T printer, 247–8 Ruddiman, W printer, 340 Rump Parliament, 352 Sabinus, Massurius, 393 St Andrews Formulare, 70 St Mary’s College, St Andrews, 15 Sala, J, 420, 421, 422–3 Sandaeus, F, 42 Savigny, F C von, 217, 219 Scaliger, J J, 243 Schöner, 407, 408 Schulting, A, 233, 234 science of legislation, xx, 139, 187–9, 190, 194, 196–7, 481 Millar, J, 466 Smith, A, 466, 472 see also codification Scots law adapted Roman law approach, 131–2 Civilian aspect, 116 codification debates in England, 216–20 codification proposals, 153–5 conflicts of law, nineteenth century, 212–16 custom, 98 development, 146–7 development of thinking, 141–2 English law comparison, 89–92 feudal law, 99 foreign peoples, custom and law, 99 historical origins, 99 interpretations c 1600, 144–51 national identity, 141, 142, 143 natural law approach, 133–4 nature of, 131–6 reactions against reform, 210–12 Roman law, 99–100 sources of authority, 98–100

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two main strands, 131–6 use of English law after 1707, 112–13 Scott, J Sheriff Clerk of Edinburgh, 364–5 Scott, Sir W, 173, 176 admission of advocates, 330–2 Bartoline Saddletree, 394 codification, 216 Guy Mannering, 241 Heart of Midlothian, The, 241, 394 judicial precedent, 219–20 law reform, 210–11, 219–20 Redgauntlet, 330–2 Scottish Commissioners for the Union, 150, 258 Scottish Enlightenment, 223, 241, 252, 254–6, 312–13, 320, 371–2 Scottish Humanism, 309, 312 Scottish legal culture, 100–5 Restoration period, 100–4 statutory reform, 102–4 early sixteenth century, 27–33 Scottish legal system before Act of Union, 120–1 common or Roman law, 121 landowners with rights of regality, 120–1 lords of regality and barony, 121 municipal law, 121 sheriff, 119, 120–1 Scottish Parliament after 1707, 117 before 1707, 118 Estates, 118 Scottish Privy Council, 168 Scougall, J, 361 Select Society of Edinburgh, 294 Sellar, D, 165 Senators of College of Justice, 146 qualifications for appointment, 381 serjeant, 5, 8 Serres, C, 420, 465 Session, the, 13, 260 Session decisions, 158–60; see also Court of Session Session Papers, 180–1, 207, 259n, 286 Seton of Pitmedden, A, 102 Seton, A admission as “ane lawer”, 10–11, 14, 18, 20 admission as advocate, 86 description of admission (1577), 366–7 Sharp v Sharp, 62–3 Sharp, Dr L W, 246–7, 248 Shaw, Dr J, 230 Shaw, J S, 312, 365, 374 sheriff before 1707, 119, 120–1 Sheriff Court of Fife, 8 shoemakers, 390–8 Sibbald, Sir R, 309 Silverthorne, M, 176 Simpson, A W B, 458, 460, 461, 481 Sinclair, H, 19 Sinclair, J, 15, 41 Sinclair, J, Practicks, xii, xiii, 29–31, 41 Canon law, use of, 52, 58

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index citations, 47, 48, 56 ecclesiatic courts, 61 ius commune, 42–3, 52 municipal law, 152 shift from Canon Law, 64 Spottiswoode’s Practicks comparison, 60–3 Sinclair, Sir R, 333, 356 Skene, Sir J, 47, 79, 231, 348 Ane Short Forme of Proces, 35 custom, 98 De verborum significatione, 55 edition of statutes (1597), 154 education, 55 foreign peoples, custom and law, 99 Regiam Majestatem, 36, 37, 42, 55, 79, 98–9, 148, 152, 156, 165, 313 Scottish commissioner for Union, 34 Skene, W, xiv–xv, 17, 348 Bourges, 17, 75, 83 Bute Manuscript, 78–9 Canon law, 65 commissary of St Andrews, 76 Dean of Faculty of Arts, 76, 77 education, 75–6, 81, 83 library, 78, 81 Professor of Law, St Andrews, 75–9 study abroad, 75–6 teaching, 77–9, 81 Smith, A, 113, 254 Boswell and, 299 economic arguments, 393, 396, 397 employment and earnings, 393 four-stage theory, 137–8 Hailes, 254, 256 justice, 138–9 lectures on jurisprudence, 471 master and servant, 490–1 Millar, 297, 466 science of legislation, 187–9, 196–7 Wealth of Nations, 383, 490–1 Smith, B, 404–5 Smith, J, 352 Smith, Professor Sir T B, 93, 94 Smith, Sheriff I, 94 social contract, 185–7 Society of Writers to the Signet, 373 Somervell, J, 353 Spain, 425, 448 law education, 433 national law, 417, 418, 464 Royal Council, 418 Spanhemius, F, 225 specimen doctrine, 74, 83, 84, 85, 86, 87, 347 Speke Hall, 23, 27 Spens, J, 31, 32 Spotswood, J, 501, 505 advocate, 235 Canon Law citations, 56–9 chemistry and mathematics, 239 Civil Law citations, 58–60 common law, 63 dignity, 387 ecclesiastic courts, 61

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Form of Process, 305, 307, 308, 505 Humanists, 60 Leiden, 235, 236 Netherlands, 226, 235, 236 private teacher of law, 228, 235–6, 501 study versus styles, 228 Spottiswoode, J see Spotswood, J Spottiswoode, Sir R education and career, 47 ius commune after Craig, 55–63 Practicks of the Law of Scotland, xiii, xiv, 37, 46–7, 55–63 Romano-Canonical procedure, 60, 64 Scottish material, 61, 62 Sinclair’s Practicks comparison, 60–3 spuilzie, 42, 43, 57, 58 Squadrone Whigs, 340 Stair, J Dalrymple, Viscount, Institutions of the Law of Scotland custom and natural law, 160–2 custom and practice, 103, 135 development of law by courts, 136 editorial revision, 504 English law, 89 generally, xviii–xix, 56, 66, 102, 285, 313 Grotius influence, 134, 173 human law, 162–3 influences, 423, 512 law of nature and nations, 113 Mansfield, 423 natural law theory, 103, 105, 134–5, 160–2 oration 15 February 1648, 350–1 practice of the courts, 111–12 printed texts, 510–11 Regiam Majestatem, 165 revolution of 1688–1689, 172–3 Roman law, 134–5 Scots law, 94, 163–5, 258 second edition revisions, 510–12 Statement of the Cause, 201 Statute of Artificers and Apprentices 1562, 483 statutes, as source of municipal law, 209 Stein, P, 419 Steuart, Sir J, 251 Stevenson, D, 74–5 Stevenson, J, 32, 178 Stewart, A, Lord of Badenoch, 6 Stewart, M, 299 Strahan W publisher, 252, 254 Strik, L publisher, 244 Stryke, S, 66 Stuart, G, 255, 257 study abroad, 81, 83, 146–7 advantages, 295, 297 advocates, 86, 87, 101, 171–2, 266 Arthur, J, 80 ending of practice, 137, 209–10 Erskine, J, 232 influence of politics, 231–2 Mackenzie, Sir G, 232 Netherlands, 126, 171–2

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study abroad (cont.) Skene, W, 75–6 see also legal education; Netherlands stylistic analysis, 463 suitors duty, 5–6, 8 role, 8–9 Sullivan, F S Feudal and English Law, Regius Chair, Dublin, 433, 466 Historical Treatise lectures, 467, 472 land law, 480 Surdus, I P, 59 Sutherland, Dame L, 432 Swinburne, H, 58 Swinton, J, 382–3 Sym, Alexander, xiv Tamm, D, 115 Taverner, R, 434 Tenures Abolition Act, 128 theology, 311 Thevenot, E, 215 Thibaut, A F J, 217 Thirty Years War, 418 Thomasius, C, 178, 194–5 Thomson, T, 304, 321 Three Estates, 133, 152, 157 Times, The, 214 Titius, G G, 185 Tolbooth of Edinburgh, 8, 18 tolbooths, 7–8 Toleration Act 1712, 130 Torsellino, O, 244 Toulouse advocates: social composition, 375 treason, 97–8 Treaties of Greenwich, 22 treats, 337–8, 344 Treaty of Union Scots law provisions, 93 Tucker, T W, 486 Tudeschis, N de see Panormitanus Turnbull, G, 179, 180, 181, 183, 296 Turnbull, P, 90–1, 92, 136–7 Tursellinus Epitome, 244, 245, 250 Tytler, A F, Lord Woodhouselee, 327 Union of 1707, xvi–xviii admiralty, 122 Church, 122 Court of Exchequer, 95–6, 122, 125–6 Court of Judiciary, 121–2 Court of Session, 121–2 Cromwell comparison, 123–5 ecclesiastical polity, 122 economic concerns after, 127 Faculty of Advocates, 171–2 House of Hanover after, 129, 130 House of Lords role, 170–1 immediate impact, 167–72 inferior courts, 122

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judicial law-making after, 136–9 legal system before, 120–1, 151–67 legislation after, 126–31 legislative neglect, 170 municipal law prior to, 151–67 national interests, 127–31 national laws with Great Britain, 140–3 national records, 123 Privy Council, 117, 118, 122 property rights, 122 Scots law, effect on, 88–95 Scots law preservation, 96–7, 140–3, 167–9 Scots Parliament prior to, xvii–xix, 117 Senator’s eligibility, 368n, 381 sheriff’s role before, 119, 120–1 statute law prior to, 151–67 structures of government before, 118–20 universities, 122 Writer to the Signet, 368n see also Act of Union 1707 United Provinces, 147, 299; see also Netherlands universitas legume doctorum, 368 university lectures eighteenth century, 464–72 institutional literature, 465–6 institutional pattern, 464–6 Justinian’s Institutes as framework, 465 traditional method, 464–5 University of Aberdeen Arthur Boece, Canonist, 15 Bishop W Elphinstone, 70–1 chair in Law, xv, 69 Cuming, A, 346 Elphinstone, W, 31 Sinclair, J, Canonist, 15 legal education in 16th century, 70–1, 74, 84 Leslie, J, 37 Professor of Canon Law, 30, 65 Reformation, effect of the, 71–2 Reid, T, 184 Sinclair, J, 41 see also King’s College; Marischal College University of Angers, 486 University of Besançon social composition, 375 University of Bourges Cujas, J, 76 Henryson, E, xiv, 18 McGill, D, 16, 105 Mackenzie, Sir G, 232, 354 Skene, W, 17, 75, 83, 348 University of Cambridge Civil Law, Regius Chair, 431 English Law chair, 433 Roman and Canon laws, 430–1 University of Dublin Feudal and English Law, Regius Chair, 433, 466 Sullivan, F S, 433, 466, 467, 472 University of Edinburgh, xix Advocates’ opposition to chair in Law, 67–9, 82–3, 84–5 Bayne, A, 501, 503, 504, 505 beer tax, 237, 238

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index Bruce, R, 193 Craig, J, 237 Dick, R, 295 endowment of chairs, 234–5 foundation of chair in Law, xv Hume, D, 198 legal education development, 237–9 Mackie, C, 246, 247, 248, 250–2 Maconochie, A, 193–4 Public Law and the Law of Nature and Nations, 104, 177, 193, 236 Robertson, W, Principal, 255 Scots Law chair, xv, 238 Scott, W, 173 Sharp, Dr L W, Librarian, 246–7, 248 Stevenson, J, 178 university printers, 247, 248 Wallace, W, 295 Wilde, J, 390–8 Wright, J, 194 University of Glasgow Carmichael, G, Regent and Professor, 174 Chambers, Sir R, Vinerian Professor, 494 Civil Law chair establishment, 237 Forbes, W, 88, 379–80, 501 legal education development, 237–9 Millar, J, 190–3, 491–2 Novo Erectio of 1577, 69 Reformation, effect of the, 71 Reid, T, 184 Smith, A, 490–1 Wooddeson, R, Vinerian Professor, 494, 495–6 University of Groningen Mackie, C, 238 University of Leiden, 231 Bayne, A, 238 Böckelmann, J F, 236 Burman, P, xxi, 244 Bute, Earl of, 171 Clerk of Penicuik, Sir J, 223–5 Cuninghame, J, 235 foundation, 243 Grant, F, 131 Greek poets, manuscripts of, 290 Hailes, 262, 265, 290 “homosocial university club”, 285n Mackenzie of Dolphinton, K, 271 Mackie, C, xvi, 238, 248 Matthaeus III, A, 233 medical studies, 233 Noodt, G, 233 Professors of Law, 233 publications, 224 Spotswood, J, 235, 236 Vitriarius, Ph R, 233, 287 Voet, J, 233 University of Orléans Lauder of Fountainhall, Sir J, 232 University of Oxford Blackstone Lecture 1977, 482 Chambers, R, 462–4, 473–81 Civil Law, Regius Chair, 431 Common Law professorship, 431–2

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Roman and Canon laws, 430–1 Vinerian Chair of English Law, 462 University of Poitiers Arthur, J, 80, 83 Lauder of Fountainhall, Sir J, 232 University of St Andrews Act of 1563, 72 Act of 1579, 83–5, 86, 87 advocates, 81, 82 alumni, 81, 85 Arthur, J, 16, 79–80, 81, 82, 83 chair in Law, xv, 69, 82 examination for doctorate, 18 legal education in 16th century, 69–70, 75, 84 Morton visitation, 72–4, 79, 83, 87 papal Bull, 69 public lessons, 17 Reformation, effect of the, 71–2 Skene, W, 17, 75–9, 81, 83, 84 specimen doctrine, 74, 83, 84, 85, 86, 87 study abroad, 83 visitations, 17, 72–4, 79, 82, 83, 87 Welwood, W, 77, 82, 83, 84 University of Toulouse Arthur, J, 80, 83 University of Utrecht Boswell, J, 262, 265 Burman, P, 244 Campbell, A, 225 Dalrymple, Sir D, 253, 262 decline of Scots studying in, 294–9 Douglas, Lady Jane, 284–5 Hailes, 262, 264, 265, 267–70, 294 “homosocial university club”, 285n law professors during Hailes’ time, 269–70 legal education, 225, 226 natural law, 275–81 Otto, E, 279, 281, 282, 284 Professors of Law, 233, 269–70 University of Wisconsin Press, 481 usus modernus pandectarum, xviii, 66, 132, 166–7, 208, 261 utrumque ius, 16, 19, 33, 45, 54, 55 Valla, L, 406 van Bijnkershoek, C, 269 van de Poll, L, 233 van de Water, J, 287 van de Water, W, 244, 245 Van der Horst, K, 274 van der Keesel, D G, 298, 299 van Eck, C, 233, 234, 237, 265 Principia juris digestorum, 273, 282, 283, 284 van Marck, J, 225 van Mieris, F, 225 van Muyden, J, 233, 234 van Strien, K & Ahsmann, M, xxi, 224, 226 Van Tuyll van Serooskerken, 269 van Voorst, E L, 268 Viner, C bequest, 431–2, 433, 434, 466 Common Law study, promotion of, 431–2 Vitriarius, J J, 287

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532

law, lawyers, and humanism

Vitriarius, Ph R, 223–4, 225, 233, 236, 277, 282 Voet, J, 223, 224, 233, 234, 239, 288, 296 Voltaire, 293 Voorda, J, 269, 270, 273 Justinian’s Digest, 282 natural law, 276, 277, 281 Utrecht, 286, 287 Wakefield, E G, 214–15 Wakefield, F, 214–15 Walker, D, 510 Wallace, G, 356, 365 admission as advocate, 179, 336–44 social contract, 185–7 System, 170, 182, 185–7 Wallace, Reverend R, 336 Wallace, T, 356, 357 Wallace, W, Professor, University of Edinburgh, 295 ward holding, abolition, 128 Watson A, 401, 419, 488, 498, 499, 513 Webb, D A, 433 Weddell, J, 15 Weir, W, 357, 359 Welwood, W, xv, 77, 82, 83, 84 Wesenbeck, M, 55 Wesseling, P, 270 author and editor, 288–9 Boswell, described to, 285–6 Hailes, influence on, 286, 288–93 natural law, 276–7, 278, 281 public law, 281, 282, 284 Roelevink’s view of, 292–3 Westenberg, J O, 233, 282–3 Westminster Parliament Scots lobbying and petitioning, 127, 129, 130 White, H Rector of Fynevin, 15 Whitelaw of Cauldside, D library, 31–2 Wieling, A, 266, 269, 270, 273–4 Hailes, influence on, 286 Hailes, works owned by, 286–8 Justinian’s Digest, 283 legal humanism, 286–8 natural law, 276, 277, 279, 280, 281 portrait or engraving, 274, 275, 285 public law, 282, 284 Repetitio institutionum, 274–5, 279, 284

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Wight, A, 317, 342 Wilde, J Alfenus Varus, 390–8 Justinian’s Institutes, 390 manners, 394–5 Professor of Civil Law, University of Edinburgh, 390–8 Wright rivalry, 391–3 William and Mary, 172 William of Orange, 232, 262 Willman, R, 432 Wilson, A, xviii Winch, D, 197 Wiseman, R, 429 Wittenberg, 231 Wolff, C, 195–6, 298 Wood, T, 430, 431 Blackstone influenced by, 442, 444, 448, 488 English law, 466, 468, 471 establishment of English law lectures, 466 Institute of the Laws of England, 434, 435, 436–7, 442–3, 444, 448 law of persons, 448, 449 Wooddeson, R actions, 479 analytical table of lectures, 469 Chambers comparison, 479, 480 Elements of Jurisprudence, 469–70 lectures, 469–70, 472 Vinerian Professor, 469, 494 Wood’s Institute, 461 Wright, J, 318, 319 admission as advocate, 376, 381–5, 389, 391–3, 396–7 background, 381–2 Digest, 391, 392 Justinian’s Institutes, 391–2 legal education and law reform, 194 opposition to admission, 382–3, 392–3 written argument, old style, 298n written law and ius commune, 151–3 Yeaman, W, 355 Yule girth, 7 Zäsy, U definition of feu, 402, 407

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