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

A collection of the most influential essays on Legal History from the career of John W. Cairns The first volume of two,

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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 an