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 cer