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gress of learning and refinement brought additions from other sources, the chief of which were, the civil law-whether as contained in the old Roman sources, or amalgamated with the canon law, and the feudal practices of continental Europe. In England, the system of law supposed to be of peculiarly national growth, was distinguished from that supposed to be imported from the Roman and canon laws, by being called " the Common law." We sometimes use this term in Scotland as a convenient expression applicable to our whole unwritten law, but it does not possess with us the same technical meaning which it has long enjoyed in England, as expressive of a system which had peculiar courts to enforce its principles, while other and distinct tribunals, using the civil and canon law, gave relief from their strictness, or adjudicated in those matters to which they were too broad and inflexible to accommodate themselves. Though the supporters of the common law long boasted of its purity from what they considered the contaminating principles of the jurisprudence of Rome, there is no doubt that their system insensibly adopted many of its principles from the Civil law. The distinction thus kept up, however, has given a peculiar aspect to the administration of justice in England, and to the tone of the professional mind. The English lawyer is tempted to look on a uniform system, administered by one set of courts, as an anomaly, and hence professional writers, describing the Court of Session, denominate it " a court both of law and equity," a division which in this country, in common with the rest of Europe, appears to be a distinction without a difference.
There is no doubt that the extent to which the Roman or Civil law has been incorporated with the law of Scotland, has given it a greater resemblance to the codes of the majority of European states than it has to the Common law of England. Down to a comparatively late period, it has been usual to say that the Civil law is part of the law of Scotland, but this can only be true of those portions which have from time to time been incorporated with it. When a principle has been avowedly derived from the civil law,-in the case of a question occurring regarding its minute application, it is competent to search the fountains and the interpreters of the Roman law for dicta applicable to the case, and if there be nothing in our own law to the contrary, to give effect to them. Thus, in a late question as to the evidence of filiation, the civil law was referred to as fortifying a general rule, which was accordingly confirmed. In another case, elaborate references were made to the civilians, for the purpose of
Kirkpatrick v. Donaldson, 2d June 1843.
fixing to the particular circumstances, the application of the doctrine of legitimation by subsequent marriage, which had long been admitted into the law of Scotland.
Among the early collections of Scottish law above alluded to, are the “ Leges quatuor Burgorum," or Laws of the four Burghs; the “ Statuta Gildæ,” likewise a collection of burgal institutions; the more comprehensive collection called the “ Regiam Majestatem;" and the “ Quoniam Attachiamenta," a collection relating to forms of process, receiving its name like the Regiam Majestatem from the words with which it commences. In the very oldest statements of the actual, existing law, which may be carried back to the reign of David I. (1125-1153) there are references to still older systems, under such titles as “ Assisa Terræ," “ Lex Scotia," &c., the origin and progress of which cannot be traced. It is worthy of observation, however, that many of the terms occurring in our older law, are identical with those made use of in the earlier law of England, and are still in some shape employed south of the Tweed, while with us they have, along with the practices they embodied, been long disused guch for instance are the terms Alderman, Borough-reeve, Coroner, &c. To explain this circumstance, we have only to remember that national jealousies and enmities between England and Scotland were the fruit of the attempt of Edward I. to subjugate this country, and of the subsequent war of independence. Anterior to these events, the lowland population of Scotland at large were no more severed from the people of England by customs, institutions, language, or intfrests than those of Lothian from those of Fife, or the inhabitants of Northumberland from the people of Lancashire. In both countries the common people the tillers of the ground and the inhabitants of the cities—were of the same Teutonic race, and spoke a language which the literature of the day leads us to believe was more nearly a common tongiie than it is at present. In both, the courtiers consisted of the descendants of the Norman adventurers who had entered England with King William ; and it may readily be believed that the gradual influx of these aggrandizing soldiers into Scotland, where they obtained additions to their English fiefs, if it tended to keep up the amalgamation of the aristocratic population of the two countries, gave the Scottish Saxons who were depressed by their predominating in
? Kerr v. Martin, 6th March 1840. Riddell's Inquiry into the Law and Practice in Scottish Peerages, p. 524.
3 Innes's Preface, p. 30.
Auence, a bond of sympathy with those English neighbours who were still more severe sufferers from the same cause.
Of the Leges Burgorum, Mr Innes says: “ Although David has been usually called the creator of the privileges of the Scotch burghs, it is impossible to consider this code as arising from a single act of legislative policy. It evidently contains the result of much experience of the objects and the difficulties of burgal administration; and while some of the fundamental principles, especially regarding the election of magistrates, may be traced through the constitution of the free towns of the continent, back even to those cities which enjoyed their own privileges under the despotism of the Roman empire, and preserved them after its downfall; the collection is perhaps rather to be viewed as part of a great Saxon movement which was taking place simultaneously over all Britain. It is hardly necessary to observe, that no feeling of hostility yet interfered between the two countries to prevent the inhabitants of lowland Scotland and of England, kindred in blood, language, and manners, from adopting together the steps of a system which opposed to the oppressive power of the Norman nobles the union of numbers in each town, and the combination and mutual support of the trading communities of the whole island." 1
The Regiam Majestatem, the earliest work professing to give a comprehensive digest of Scots law, was long believed to be an authentic code coeval with David I., but it has been proved to be very nearly a copy of the “ De Legibus et Consuetudinibus Angliæ," a work on English law attributed to Ranalph de Glanvil, justiciar of England during the reign of Henry II. The Scottish version appears to have been prepared with the view of supplying the deficiency in the records of the law, caused by the destruction or removal of documents during the wars with England; and that a work, nearly a transcript of an English law-book, should have been considered suitable for such a purpose, shows how little of marked national distinction had existed between the institutions of the two countries.
The later Institutes and Treatises.-After the Regiam Majestatem, no general compilation of Scots law appears to have been made, until in the latter half of the fifteenth century Sir James Balfour collected his “Practicks," which remained in manuscript until 1754. They consist of a series of pro
positions, or announcements of the law, collected fromthe older compilations which have just been alluded to, from the acts of parliament, and from the decisions of the courts. The work is very seldom referred to at the present day for practical purposes.
The “ Jus Feudale" of Sir Thomas Craig was published in 1655, several years after its author's death. It is the earliest Scottish law-book which is still occasionally referred to in practice, as containing the definition, of such of the principles of our law recognised at the time when it was written, as have survived to the present day. Craig in some measure stands on higher ground than that of an arranger and promulgator of the mere contemporary law of the land, and is the highest authority, which this country at least has produced, on the original fundamental principles of the Feudal system. He was brought up in a foreign school of jurists, who had learned to overlook the peculiar laws and customs of individual countries, and to draw their wisdom from the two great fountains of European jurisprudence—the Roman law and the Feudal customs. While his work has thus an air of scholarship and wide reading, it contains less information regarding the peculiar laws and institutions of Scotland, than a writer of more contracted genius might have afforded.
In 1681, James Dalrymple, Lord Stair, published his “ Institutions of the Law of Scotland," a work still of daily reference in practice, and which should be carefully examined and digested by every student. Its practical value to the lawyer of the present day is evinced by two editions of it having appeared within the past few years, with such notes and additions as are necessary for exhibiting the alterations made by a century and a half on our laws. The appearance of this work marks an epoch in Scottish legal literature, and no other book contains so much that, though still held as law, is there announced for the first time. The power of generalizing principles from individual facts, is a quality that to the legal commentator should be always present, while it should never be conspicuous. It should exercise itself in seeing the prominent and ruling features of the law-in separating what is permanent and important from what is secondary—and in putting everything in its right place not in disquisition and theoretical deduction. Hence the weight and value of this great work. Its author was a philosopher and scholar, and had worked largely in the more theoretic departments of mental science; but he knew that the business of the law lay with practical details, and his
philosophical acquirements only enabled him with more distinctness to keep in view the reference of legal principles to the actual affairs of life.
The concluding years of the seventeenth and the commencement of the eighteenth century produced several minor legal works, among which Sir George Mackenzie's “ Institutions of the Law of Scotland,” published in 1984, may be ranked. It is too meagre for a practical law-book, and contains too much that is obsolete to give the student a profitable initial view of the outline of the law. In 1751 and 1753, Macdouall, Lord Bankton, published his “ Institute of the Law of Scotland," in three volumes folio. This work is discursive and speculative- entering into many comparisons between the law of Scotland and that of England. It is seldom referred to at the present day, and never took rank as a high legal authority. Professor Erskine's “Principles of the Law of Scotland” were published in 1754. This work is remarkable for its terseness and clearness—the absence of all lengthy disquisition, and the lucid order in which the several principles of law are presented. The well known larger “ Institute of the Law of Scotland,” published in 1773, was the posthumous work of the same author, and not having received his latest revisal, does not exhibit the same symmetry and finish as its predecessor. Although it has, however, probably not reached that perfection to which its author might have brought it, it is undoubtedly the law-book which is most read and most referred to. It has passed through many editions, and received the additions necessary to complete it as a modern law-book from an eminent lawyer now on the bench. There is no intention, on the present occasion, of proceeding to an analysis of contemporary law-books, but in a sketch of the phases through which our juridical literature has passed, it would be unjust to leave unnoticed the labours of the late Professor Bell. With the commercial, manufacturing, and agricultural progress of the country, new classes of transactions had risen up, new applications of legal principle were necessary; and the public as well as the profession of the law felt the want of some leading mind to arrange and digest these fresh juridical materials, which were gradually assuming a wide importance, and leaving in comparative insignificance some of the more prominent portions of the old law authorities. The success with which the task was accoinplished is attested by the respect with which Professor Bell's Commentaries have been treated by his own profession, as this extensive work was presented to them in