Law and Opinion in Scotland During the Seventeenth Century

(A) Ford Prelims 30/10/07 15:29 Page i LAW AND OPINION IN SCOTLAND DURING THE SEVENTEENTH CENTURY In Britain at leas...

Author: J. D. Ford

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LAW AND OPINION IN SCOTLAND DURING THE SEVENTEENTH CENTURY In Britain at least, changes in the law are expected to be made by the enactment of statutes or the decision of cases by senior judges. Lawyers express opinions about the law but do not expect their opinions to form part of the law. It was not always so. This book explores the relationship between the opinions expressed by lawyers and the development of the law of Scotland in the century preceding the parliamentary union with England in 1707, when it was decided that the private law of Scotland was sufficiently distinctive and coherent to be worthy of preservation. Credit for this surprising decision, which has resulted in the survival of two separate legal systems in Britain, has often been given to the first Viscount Stair, whose Institutions of the Law of Scotland had appeared in a revised edition in 1693. The present book places Stair’s treatise in historical context and asks whether it could have been his intention in writing to express the type of authoritative opinions that could have been used to consolidate the emerging law, and whether he could have been motivated in writing by a desire to clarify the relationship between the laws of Scotland and England. In doing so the book provides a fresh account of the literature and practice of Scots law in its formative period and at the same time sheds light on the background to the 1707 union. It will be of interest to legal historians and Scots lawyers, but it should also be accessible to lay readers who wish to know more about the law and legal history of Scotland.

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Law and Opinion in Scotland during the Seventeenth Century

JD Ford

OXFORD AND PORTLAND, OREGON 2007

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Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213–3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: www.isbs.com © JD Ford 2007 J D Ford has asserted his right under the Copyright, Designs and Patents Act 1988, to be identified as the author of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing at the address below. Hart Publishing, 16C Worcester Place, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN-13: 978–1-84113–789–6 (hardback) Typeset by Hope Services, Abingdon Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall

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Contents Preface

ix

1 THE COLLEGE OF JUSTICE The Admission of an Advocate The Literature of the Law The Writing of Stair’s Institutions

1 2 29 59

2 THE INTERREGNUM COURT The Appointment of the English Judges The Response of the Advocates The Reform of the Common Law

91 92 123 151

3 THE COURT OF LAW The Transfer of Learned Authority The Appropriation of the Common Law The Reform of the Proper Law

181 182 215 247

4 THE RESTORATION COURT The Proof of Customary Law The Sovereignty of the Session The Disputes of the Lawyers

281 282 312 342

5 THE REVOLUTION COURT The Printing of Stair’s Institutions The Sources of Scots Law The Fundamental Laws of Scotland

373 373 407 439

6 THE COURT OF EQUITY The Noble Office of the Lords The Style Books of the Writers The Formative Period of Legal History

473 474 507 539

Bibliography Index

573 639

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Preface ‘Opinion rules everything’, or so Napoleon is supposed to have maintained. Albert Venn Dicey quoted these words at the start of his famous book on Law and Public Opinion in England during the Nineteenth Century (London, 1905), in which he tried to trace the relations between public opinion and parliamentary legislation in the century that had just ended. As he was quick to point out, public opinion is not something that has always existed in all societies, and still less has it invariably influenced the making of law. Whether it had the influence in nineteenth-century England that Dicey claimed, and whether he had an adequate understanding of the concept of public opinion, are questions that have prompted sceptical answers, but it is obviously not the purpose of this book to examine them further. Nor, less obviously, is it the purpose of this book to examine the influence of public opinion on the law making process in seventeenth-century Scotland. Whether anything that may be regarded as a form of public opinion existed in seventeenthcentury Scotland, and whether it could have had anything to do with the development of the law, are questions that do begin to emerge here, and they will be addressed more fully in two books that are intended to follow this one. For the moment, however, attention focuses on the significance in early modern Scotland of a different form of opinion. Dicey himself recognised that legal development could be directed less by public opinion than by the opinion of influential individuals, and one criticism of his book has been that he failed to recognise the extent to which lawyers continued to direct the development of the law in England during the nineteenth century. A central aim of this book is to explore the relationship between the expert opinion of lawyers and the development of Scots law in the century preceding the union of the parliaments of Scotland and England in 1707. That union—about which Dicey wrote at length in another book—complicated the relationship between Scottish opinion in any form and the law making process. Three hundred years later the Scots again have a parliament of their own, which has already introduced legislation that could not have been passed in a parliament more responsive to English public opinion. Curiously enough, lawyers are at the same time being encouraged to engage in an exchange of opinions that will help to promote the harmonisation of European private law. As this encouragement sometimes takes the form of a call to revive the legal culture of early modern Europe, it may be instructive to examine the significance of expert opinion in the development of the law before the Scots lost their last parliament. The notion that early modern lawyers may have played an important role in shaping the law of Scotland is not one that seems likely to cause surprise among their present successors, for law students are taught that the Scottish legal system avoided eclipse in the parliamentary union largely because of the endeavours of

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x Preface jurists whose writings continue to rank among the formal sources of their law. They are taught, in other words, that they may look for binding pronouncements of their law not only in acts of parliament and in reports of judicial decisions but also in treatises composed by a group of jurists known as the ‘institutional writers’. They are taught in particular to revere the memory and respect the authority of Viscount Stair, whose Institutions of the Law of Scotland is believed to have laid the foundations of the modern system of private (as opposed to public) law in Scotland. By presenting in his treatise a detailed and coherent restatement of the law regulating relations between private individuals, Stair is believed to have made it possible for Scots to maintain in 1707 that they had a distinctive and sophisticated body of law which was worthy of preservation. Again, it is not the aim of this book to examine the use that was actually made of his treatise at the start of the eighteenth century, or to examine its impact on the development of the law in the next three hundred years. But it is another central aim of this book, indeed it is the central aim of this series of books, to discover what Stair himself was trying to do in writing his Institutions. Of course, this is not to suggest that his motives for writing can be laid bare, as if his mental state lies open in some way to investigation. Rather, it is to suggest that his intentions in writing may perhaps be identified, on the assumption that he sought to communicate with contemporary readers in language they would have understood. During the past forty years a great deal has been done, particularly by historians of political thought, to explain how historically reliable readings can be extracted from texts by locating them in suitable contexts. It is a version of this methodology—reviewed, for instance, in J Tully and Q Skinner, Meaning and Context (Cambridge, 1988)—that is employed here. Stair’s treatise is read against the background of the concerns, presuppositions and linguistic conventions that he appears to have shared with his most likely readers. It is assumed that he was engaged in discussion with his readers and that what he was trying to do may therefore be illuminated by consideration of what else was being written and read in Scotland, or perhaps further afield, at about the same time. One consequence of adopting this approach is that the books in this series deal with more than the text of Stair’s Institutions. In this first volume more space is devoted to reconstructing some of the contexts in which Stair worked than to interpreting what he said in those contexts, which is why it seems appropriate to declare in the title that the book is about the general theme of law and opinion in seventeenth-century Scotland. If contexts are being reconstructed as a means of illuminating the text, there is also a sense in which the text is being used to gain leverage on contexts that are not always accessible to the modern lawyer. A further consequence of the approach adopted is that what is said in these books may be of interest to lay readers who know little about the law or the legal history of Scotland. Conversely, what is said may be of interest to lawyers who know less than they should about other things. As little prior knowledge as possible is therefore taken for granted, which no doubt means that some passages will seem irritatingly elementary or misleadingly simplistic to some readers while still remaining on the

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Preface xi difficult side for others. Some passages are bound to be difficult, for another consequence of the approach adopted is that the language used by seventeenthcentury writers must often be quoted, so far as possible in precisely the way in which it was used. A few concessions are made. Texts written in languages other than Scots or English are quoted in translation, from reliable editions wherever available (except that sometimes the wording is altered to bring out the linguistic continuity with texts cited in the vernacular). In excerpts from vernacular texts, outmoded suspensions and contractions are expanded, the use of certain letters is standardised, obvious misprints are corrected, and modifications are inserted in square brackets where the sense would otherwise be unduly obscure. Liberty is taken with the punctuation and capitalisation of passages quoted from manuscript sources, or from later editions of sources left in manuscript, but apart from this the original punctuation, capitalisation and spelling of vernacular sources is preserved. Although this means that the passages quoted in the vernacular may be less easy to read than those quoted in translation, and although the quotations in translation may give a false impression of how the texts they come from were read by early modern lawyers, this need not create too serious a problem since Stair wrote his treatise in English. It is the comparison of his text with others written in the vernacular that needs to be made with the greatest precision. The plan for this book, and for the series of which it is intended to form a part, was worked out at Cauteret in the summer of 1999. The general theme of the relationship between law and opinion had however been considered along broadly similar lines in an essay submitted to Alan Watson at the University of Pennsylvania as early as 1983. It is feared that Professor Watson will be no more convinced by what is made of the theme now than he was by the essay he read then, and he certainly cannot be held responsible for any mistakes or misconceptions the book may contain, yet the truth is that it would not have been written without his stimulation and encouragement over many years. Gratitude is similarly due without the slightest trace of guilt – on his part, that is – to Peter Stein, who supervised the doctoral research at the University of Cambridge to which the second volume in the series will be more obviously indebted, and who has been forced to add an unseemly degree of patience to the stimulation and encouragement he too has provided over many years. Tony Weir may be surprised or even dismayed to be mentioned here, but without his trenchant criticism of a different piece of work in 1985 this book would have been even less well written. Bill Gordon, Brian Napier and David Walker will no doubt understand why they are being named, but any expression of gratitude to them must again be coupled with acknowledgement that they bear no responsibility for any errors the book contains. Further thanks are due to Richard Hart and his staff (especially Mel Hamill) for agreeing to publish the book, for helpfully passing on some comments extracted from a reader, for processing the text with exemplary care, and for graciously tolerating at least some of the writer’s idiosyncrasies. Also much appreciated is the assistance received from the staffs of the libraries and archives where most of the research for the book was carried out, namely the National Library of Scotland, the National

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xii Preface Archives of Scotland, the National Archives [of the nation that dare not speak its name], the Mitchell Library, the Signet Library, the British Library, the Bodleian Library and the libraries of the universities of Aberdeen, Cambridge, Edinburgh, Glasgow and Montpellier. The writing of the book was completed on Christmas Eve 2005, after six years of labour, which may be taken to explain some curious features of the text, such as a sentimental attachment to the old DNB (easily corrected by any reader who knows the alphabet). Though stylistic changes have been made during the past eighteen months, no attempt has been made to take account of work published since 2005, relevant as some of it (for instance in volumes issued by the Stair Society) undoubtedly is. The book is dedicated to someone who has shown how advantageous and agreeable Anglo-Scottish union can be, at least for the Scot involved. G. & C. C. 16.x.07.

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1 The College of Justice

I

N HIS LAST years Sir James Dalrymple of Stair, Scotland’s senior judge and the author of several books about Scots law, liked to boast that there were ‘few considerable families of the Nation’ that lacked a copy of his most famous work, The Institutions of the Law of Scotland, of which he had even seen copies selling ‘in England and Holland’.1 That this book had reached a wide market was not entirely surprising given Stair’s claim in promoting its first printed edition in 1681 that his aim in writing had been to provide a survey of the law ‘such as might not only be profitable for Judges and Lawers, but might be pleasant and useful to all persons of Honour and Discretion’.2 These claims suggest that Stair’s intentions in writing his Institutions will only be fully understood if his views are examined in the light of the assumptions he shared with his lay as well as his professional readers, which is how they will be examined in later volumes in this series. However, the claims he made in his last years also suggest that he did regard his fellow ‘Judges and Lawers’ as his obvious audience. Indeed, in the second printed edition of his Institutions, published in 1693 after he was raised to the peerage as the first Viscount Stair, he claimed that his original aim in writing had actually been to compose for his own ‘particular use’ a systematic review of ‘the Decisions and Acts of Session, since the first Institution of it’, sufficient to guide his judgment in the disputes he determined as a judge.3 By the ‘Session’ he meant the supreme civil court in Scotland, and by its ‘first Institution’ he meant the reconstitution of the court as the College of Justice in 1532, a significant event in a prolonged process of development in the administration of justice from the settlement of disputes by regional magnates, through increasingly centralised adjudication by parliament and council, towards the establishment of an independent judiciary.4 Although the style of Stair’s book tends to indicate that it was not written exclusively for his personal use, it also tends to confirm that it was written primarily for the benefit 1

Apology, p 6. Institutions, 1.pr/1.1.pr. 3 Institutions, sig A3v. For convenience, Stair will be referred to throughout these three volumes by his eventual title, as will anyone else eventually raised to the peerage. Others will be referred to by their family names, even if they were sometimes known by courtesy titles. 4 For the development of the session see generally Hannay 1933; McMillan 1941; Cooper 1958. For concise summaries which take account of more recent research see Sellar 1991, pp 43–5; Gordon 1995, pp 56–7; Borthwick 1996, pp 43–5. For important contributions to the debate published in the last few years see Godfrey 2001 and 2002a. 2

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2 The College of Justice of practitioners in the session, and it is with this professional audience that the first volume in the present series is concerned. The approach taken is roughly chronological. The starting point in the first section of this chapter is a discussion of Stair’s admission to the College of Justice as an advocate in 1648. The second section provides a review of the literature on Scots law available to advocates and judges in the decade after Stair’s admission to the bar, and the third offers a preliminary account of the contribution he sought to make to this literature when he wrote the first draft of his Institutions around the close of the 1650s and the start of the 1660s.

THE ADMISSION OF AN ADVOCATE

Entrance to the bar in 1648 When the College of Justice was instituted in 1532 it was envisaged that there would be fifteen to twenty judges—fifteen ordinary lords of session and four or five extraordinary lords—supported by clerks and macers, ‘ane certane nomer of advocatis and procuratouris to the nomer of tene personis’, and an unspecified number of scribes or writers.5 The judges had power to admit ‘uthiris cunniyne and able men’ in place of any advocates who died or retired, so long as the total did not exceed ten. By the end of the sixteenth century, however, it had been recognised that a more realistic figure would be fifty, and by the middle of the seventeenth century the number of advocates actually in practice had risen to over a hundred.6 A gap in the records between 1608 and 1626 makes precision impossible, but of the hundred and three advocates who are known to have been at the bar at the start of 1648 at least forty-one had been admitted ‘upon a bill’, following a recommendation to the lords of session from the established advocates and after service of a long apprenticeship with an experienced practitioner.7 As ‘expectantes’ 5 Acts of the Parliaments of Scotland, vol 2, pp 335–6; Acts of the Lords of Council in Public Affairs, pp 374–8. 6 Hope’s Major Practicks, vol 2, p 246; Finlay 2000, pp 69–70; Coutts 2003, pp 5–7; and see more generally the account of the admission of early modern advocates in Hannay 1933, pp 135–64. The remarks that follow are based on information gathered mostly from NAS, CS 1/4/2, 1/5 and 7/539–56; NLS, Adv MS 25.2.5(i); EUL, La III 528; Register of the Great Seal of Scotland; Register of the Privy Council of Scotland, 2nd ser; Acts of the Parliaments of Scotland; Register of the Society of Writers to Her Majesty’s Signet; Selected Justiciary Cases; Records of the Burgh of Edinburgh; Roll of Edinburgh Burgesses; Catalogue of the Graduates of the University of Edinburgh; Extracts from the Council Registers of the Burgh of Aberdeen; Munimenta alme universitatis Glasguensis; Brunton and Haig 1832; Omond 1883–1914; Cokayne 1900–09; Henderson 1912; Scott 1915–61; Grant 1944; Young 1992–3. 7 Not all of the hundred and three advocates referred to need have been engaged in active practice, for the figure includes all those who are known to have died after 15 February 1648 and not only those who left some evidence of professional activity. On the other hand, there are eleven more advocates who were probably still at the bar in 1648, given that they are known to have been in practice earlier in the decade, and others could still have been at the bar. The figures should balance out at a little over a hundred, and from what is known about the advocates not included in this survey it seems reasonable to suppose that the hundred and three who are included were representative of the rest.

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The Admission of an Advocate 3 or ‘advocatis servants’ these men—and by this stage they had to be men—would have been allowed to attend the sittings of the court, running errands for their masters, assisting with the documentation required in every case, and above all listening to and learning from the oral pleadings presented at the bar.8 Sometimes the servitors of advocates appeared themselves as procurators in lower courts, and a few managed to gain experience as judges in other courts. More generally they acted as secretaries to the advocates they served, writing and delivering letters, drafting and witnessing formal deeds, and in quite a number of cases branching out to spend time in practice as writers to the signet, the descendants of the scribes or writers admitted to the court in 1532.9 The formal rule was that an apprenticeship should last for seven years at least, and the available evidence suggests that the average duration was in fact fifteen to twenty years, normally (though by no means invariably) after graduation in the arts from one of the four Scottish universities.10 The training of an advocate could therefore be a prolonged business, and many of those who appear as servitors in the records never reappear as qualified advocates. But there was also a fast track to the bar. It was accepted that graduates in the arts who had proceeded to study in a law faculty could be admitted as little as two years later, and the evidence indicates that advocates who pursued this course tended to be admitted just five to ten years after graduating. In theory, faculties had been set up to provide teaching in the civil and canon laws at three Scottish universities, and there were even civilists and canonists in office at King’s College, Aberdeen, during the first half of the seventeenth century.11 In reality, however, no active teaching in law was available in Scotland at this time. Instead, prospective advocates who hoped to be admitted on the basis of their academic learning went abroad to study at continental law schools, generally in France though occasionally in the Netherlands, Germany or Italy.12 An English visitor observed of the advocates he met in 1629 that ‘they have most of them been travellers and studied in France’, which would certainly have been true of the advocates at the end of the sixteenth century and would probably still have been true of those in the middle of the seventeenth century.13 Although precision is again impossible, it is clear that thirty-six of the hundred and three advocates at the bar in 1648 had been admitted after providing the lords of session with proof of their ‘literature and qualifications’, and eleven more were very probably admitted in this way. In addition, of those admitted between 1608 and 1626, fourteen graduates have left no trace of an apprenticeship with an experienced practitioner, which suggests that rather more than half of all the advocates at the bar had been admitted on the basis of their academic credentials. After returning to Scotland, these men would have 8 Acts of Sederunt (1740), p 14, and Acts of Sederunt (1790–1811), vol 1, pp 51–2. For evidence of the earlier involvement of women in litigation see Finlay 1999. 9 For the history of the writers to the signet see Fraser-Tytler 1890; Hannay 1936; Haldane 1970. 10 Habakkuk Bisset’s Rolment of Courtis, vol 1, pp 157–9. 11 Smith 1959a; Cairns 1994; MacQueen 1997. 12 Fischer 1902, p 216; Fleming 1952, pp 170–97; Durkan 1986, pp 25–7 and 44; Feenstra 1996, pp 28 and 34; Cairns 1996, pp 143–4. 13 Lowther, Journall into Scotland, p 32. On the late sixteenth century see Hannay 1933, pp 145–7.

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4 The College of Justice been granted access to the court and would have spent a brief period learning about forensic practice and the local law. In the late sixteenth century candidates for admission had drawn attention to their practical experience as well as their academic learning, but by the 1640s those who had studied abroad relied exclusively on their acquaintance with the civil and canon laws in petitioning the lords of session. The study of these laws had come to be regarded as a suitable preparation for practice, indeed had become the preferred preparation, partly because academic learning was expected to enhance the professional prestige of the bar, but probably also because these laws were believed to have practical relevance.14 If the most obvious way for expectants to have provided proof of their literature and qualifications would have been the production of graduation certificates from foreign law schools, the reality is that very few prospective advocates did graduate abroad. Far from basing their admission on their graduation, they regarded their admission as their graduation.15 Each expectant was required to present ‘ane publict leassoune upoune the civill law’ in the presence of the whole court, wearing a cap and gown, ‘as lawers use to pass their tryalls in the universities abroad’.16 The English visitor in 1629 was led to understand that each expectant would first ‘petition to have a lesson, to dispute a question’, again in keeping with the example of the universities, where disputationes pro gradu had been in use since the thirteenth century.17 Even earlier disputationes had been developed both as a method of enquiry and as a mode of instruction, and the three uses had been closely related.18 As a method of enquiry, disputations had served to resolve conflicts between authoritative texts and learned opinions. Whatever the origins of the procedure, it had come to be handled in accordance with the principles and precepts of Aristotelian dialectic, with arguments being assembled and rigorously assessed on either side of a question until a consensus emerged among the experts. Strictly speaking, once this happened the matter ceased to be a question open to disputation, but teachers had found it an effective mode of instruction to have their pupils rehearse the debates through which the received learning had taken shape. By revisiting the disputations of the past while at the same time attending the disputations of their teachers on more topical questions, medieval students had become immersed in a tradition of enquiry in which they gradually became genuine participants.19 Their disputationes pro gradu had essentially been apprenticeship essays in the dialectical method of the schools, demonstrations of their readiness for admission to the corps of experts whose common learning constituted each 14 For the view that academic education was not thought to have much practical value, at least by the end of the seventeenth century, see Cairns 1986, pp 257–61, 1996, pp 140–41, and 1999, pp 33–4. 15 Feenstra 1996, p 31. 16 Maitland of Lethington, History of the House of Seytoun, pp 63–4. The academic style of the admissions process is discussed in Hannay 1933, pp 140 and 142–3, and at greater length in Cairns 1999. 17 Lowther, Journall into Scotland, p 32. On the relationship between lessons and disputations see Leff 1992, pp 326–8; Schwinges 1992, pp 232–3; Müller 1996, pp 343–5. 18 Bazàn 1985; Lawn 1993; Weijers 2002. 19 On this point see too Jenkins 1997.

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The Admission of an Advocate 5 field of study. Essentially the same approach had been taken in the development of every discipline, including law (where the disputational method may actually have been first employed), and even after the epistemological assumptions behind the method had been challenged during the sixteenth century, the same approach had been adopted in newly established faculties of law.20 Just as these new faculties adopted the practices of the old, so in the College of Justice the practices of the schools were reflected both in the process for admitting advocates and in the provision made to help expectants prepare for admission. When prospective advocates were granted access to the court it was for the specific purpose of auditing ‘the disputs of the lawers’, debates on controversial issues cast in the form of argumentative exchanges of reasons, answers and replies that would have looked familiar in pattern to any university graduate. While there are many possible explanations for the survival of this disputational method, one possibility must be that the Aristotelian assumptions behind its development were still adhered to and that the law was envisaged as a body of learning fashioned through expert debate. This possibility is not inconsistent with the terms of a well-known resolution issued by the lords of session in February 1650, two years after Stair’s admission to the bar, in response to complaints about the disruption of the business of the court occasioned by the frequent appearance of ‘young Gentlemen to give Proof of their Literature, by making publick Lessones’.21 The description of the expectants as ‘young Gentlemen’ seems apt enough.22 Of the hundred and three advocates who are known to have been in practice in February 1648, twenty-nine were the sons of lawyers (taken broadly to include advocates, writers, clerks and judges), twentyseven were the younger sons of lairds (excluding the many lawyers who were also lairds), nineteen were the sons of burgesses (again excluding the lawyers who were also burgesses), and seven were the sons of clerics. Two more were the sons of tenants, and while three were the eldest sons of lairds, not one was drawn from the nobility.23 It has not been possible to trace with any assurance the origins of the other sixteen advocates, but it may be significant that thirteen of them were admitted on a bill and that six of the twelve advocates who had no university degree were among these thirteen. It may be concluded, at least of those who gave proof of their literature, that they were young gentlemen whose status depended on continued professional success. Although some would have expected to inherit the estates their fathers had bought with their earnings as lawyers, merchants or ministers, and although almost all would end their careers as land owners, hardly any of these advocates had been raised with the expectation that a living could be derived from inherited wealth. It seems less likely that they were regarded in 1650 as affluent 20

Kantorowicz 1939; Fransen 1985; Feenstra 1988; Nève 1991; Ahsmann 1995. Acts of Sederunt (1740), pp 33–4. 22 On the relatively humble origins of the advocates in the first half of the seventeenth century see too Donaldson 1976, p 11; Phillipson 1976, p 100; Rae 1989, pp 3–4. 23 Although Meikle 1992 shows that the distinction between lairds and nobles was still elusive at the start of the seventeenth century, it will become apparent shortly that the distinction seemed important to Stair and his colleagues. 21

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6 The College of Justice dilettantes who meant to waste the court’s time with an empty display of learning than that there was concern about the growing number of young men who hoped to make their fortune at the bar and who had made a serious effort to acquire the expertise on which professional success was believed to depend. Stair should probably be regarded as one of these young men, even though his background was unusual. The only son of a laird, he had inherited his father’s estate while still an infant, and five years before his admission to the bar he had married an heiress with a sizable annual income.24 His wife was the widowed daughter of a lawyer who acted as a land agent for the University of Glasgow, where Stair had been working as a teacher of the liberal arts since the start of the 1640s.25 A temporary appointment as a ‘regent master’ in the liberal arts was a common beginning to a professional career, and Stair had been forced in this direction by the mortgaging of his patrimonial estate to another lawyer shortly before his father’s death.26 As a result of his marriage, he had been able to redeem the mortgage shortly before he was admitted to the bar—the formalities were concluded a month later—but by then he was clearly committed to seeking his own fortune in professional practice.27 When he appeared to give proof of his literature and qualifications on the morning of 15 February 1648—to judge from the remarks made by the lords of session in 1650, after they had granted his petition for an audience—the ordinary business of the court would have been disrupted in just the way that was causing concern. The court sat in the new Parliament House in Edinburgh, completed barely a decade earlier, for three or four hours every morning from Tuesday to Saturday during the months of June and July and from November until February, except when the building was required for a meeting of parliament.28 When a parliament was summoned it met in the only part of the building that still survives in something like its original form, as a hall measuring about one hundred-andtwenty-two by forty-four feet beneath a high hammerbeam roof.29 On the southeastern side of the hall there was originally an annex or ‘jamb’, split into two floors, each further divided into two chambers measuring about forty feet square. The upper floor was used for meetings of the lords of exchequer, who had jurisdiction in cases involving the revenues of the crown. The lower floor was used for meetings of the lords of session, who sat together in the southern chamber or ‘inner house’ of the court. The ‘outer house’ was not situated in the northern chamber, which came to be used as a robing room for judges and advocates, but at the southern end of the hall. It was divided off from the main body of the hall, occupied by the stalls and booths of traders selling ‘old buiks and cramerie waires’, by a fence 24

NAS, GD 135/2033, 2036 and 2038–9; Mackay 1873, pp 5–6 and 21–2. NAS, GD 135/630; GUA 58142 and 58266; Register of the Great Seal, vol 8, pp 95–6, 100, 164 and 274–5. Stair’s earlier years will be examined more closely in later volumes. 26 NAS, GD 135/302–7; Register of the Great Seal, vol 8, pp 217–18. 27 NAS, GD 135/308–12; Register of the Great Seal, vol 9, p 722. 28 Acts of the Parliaments of Scotland, vol 6(1), p 386; Acts of Sederunt (1740), pp 18 and 20–2; Acts of Sederunt (1790–1811), vol 1, p 55; Fraser 1889, pp 75 and 177. 29 Richardson 1910, pp 219–23; Hannay and Watson 1924, pp 2–5; Howard 1995, pp 129–31. And see now in much greater detail MacKechnie 2004, pp 94–141. 25

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The Admission of an Advocate 7 through which the macers of the court would permit only advocates, their clients, servants and expectants to pass.30 The proximity of the trading area no doubt contributed to an atmosphere of disorder in the outer house, as did the presence of all the advocates with clients whose cases might be heard on any given morning. It was here that the advocates were required to wait until they were called, on seats provided for the purpose, and it was here that cases were at first heard before a single judge sitting on a raised bench.31 It was here too that seats were provided for servants and expectants, and that expectants eventually gave proof of their literature and qualifications by delivering a lesson. The normal procedure was for advocates to be called into the inner house to address the whole body of the court on any issues that were considered too difficult or important to be handled by a single judge, but when an expectant delivered a lesson all the lords of session came into the outer house, where they presumably sat on the seats provided for the advocates. Their presence would perhaps have caused a measure of calm to spread throughout the hall. What is certain is that the business of the whole court would have come to a standstill.

Identifying a ‘thesis’ for discussion ‘Illustrious and noble Lords and most worthy senatours’, Stair began, addressing the lords of session in their more formal capacity as Senators of the College of Justice and adding a brief nod in the direction of the ‘learned Lawyers and courteous auditors heir present’.32 The ‘interpreters of fables’ had told how Orpheus, ‘being much inflamed with a huge desyre of wisdome above the measure of mortall men, undertooke a long and laborious journey to the infernall parts of the earth and remaned there a space, that being instructed in the oracles of Sybilla he might carry away the degree and triumph above all other wise men’. The interpreters of fables had apparently confused the descent of Orpheus into the underworld with Aeneas’ journey into the same regions made in the company of the Cumaean sibyl.33 Stair went on to talk about Orpheus entering the ‘sounding cave of Sybilla’, where he was amazed to see how the ‘proheticall leaves of trees sparkled’, but it was Aeneas who had been warned that the sibyl inscribed all her prophecies on leaves, which she made no attempt to keep in order, who had 30 Acts of Sederunt (1740), pp 14–16; Acts of Sederunt (1790–1811), pp 51–3; Records of the Burgh of Edinburgh, vol 4, pp 21 and 139, vol 5, p 25, and vol 7, p 96. 31 Acts of Sederunt (1740), p 21. 32 ‘Scotstarvet’s “Trew Relation”’, (1915–16), pp 380–81. 33 It is far from clear which interpreters of fables Stair had in mind, though the confusion was no doubt connected with the conventional christening of the characters of classical mythology. For instance, when Gavin Douglas, bishop of Dunkeld, translated the Aeneid into Scots in the sixteenth century, he first sought guidance on his quest from ‘our Sibill, Crystis moder deir, Prechit by prophetis and Sibilla Cumane’, who, he later added, had ‘Fosterit that Prynce, that hevynly Orpheus, Ground of all gude, our Salvyour Ihesus’ (Eneados, 1.pr 469–70, and 6.pr145–6). Douglas reckoned that Virgil’s poetry and Aeneas’ exploits were worthy of study by Christians because both men had been taught divine truths by the sibyl.

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8 The College of Justice visited the sibyl in her echoing cave, and who had persuaded her to guide him on his journey.34 In Stair’s version of events Orpheus had been so overwhelmed by the ‘many hundreth thousand leaves’ he had seen that, ‘being distracted qhere to begin, he became stupid, his hair stood up and his voyce failzied, and if by the indulgence of Sybilla he had not bein walkened and directed out he had sounded in a deadlie oblivion’. Remembering perhaps that the Cumaean sibyl was supposed to have sold the Sibylline Books to the Romans, Stair confessed that he had felt as stupefied as Orpheus when he turned over the ‘many vast volums of leaves lyke Sybillaes leaves’ that made up the ‘indigested Digest and confused Cod, and the glosses of commentaries written therupon, with there counsells and decisions’. Observing that the ‘wearisomnesse’ of these books on Roman law was ‘well knowne to such qho has stragged in these bywayis without a guide’, he admitted that he had felt inhibited from handling ‘any title or chapter of the civil Law by the copious amplitude of the matter’. Although the task of drawing a well directed discourse out of the ‘quiddities and wynding meanders of law’ was meant to pose a challenge, he suggested that it might be kinder to those who undertook ‘this bussines to have lessons of the law’ if the lords of session would assign them specific texts to discuss.35 A lesson on the law was expected to consist of a discussion of a text drawn from the body of literature generally known as the Corpus iuris civilis, of which the Digest and Code mentioned by Stair were the two central components. Both were collections of materials on the law of ancient Rome assembled at the behest of the emperor Justinian in the first half of the sixth century, the former drawn from the writings of the jurists or legal experts of an earlier period, the latter from the enactments of Justinian’s more immediate predecessors.36 The Digest was indigested and the Code confused in the sense that they consisted of texts excerpted from the juristic or legislative sources and strung together without any connecting narrative or rigorous system of arrangement. When university scholars in the north of Italy began to study Justinian’s compilations towards the end of the eleventh century, after more than five hundred years of neglect in the west, their initial concern was with constructing around the texts an apparatus of glosses or marginal annotations that would explain how they should be related to each other.37 By the end of the thirteenth century a standard apparatus had been made, enabling a more detached and expansive style of commentary to be developed in the next two centuries.38 Working on the assumption that the glossed texts of the Digest and Code were concerned with rules and principles of law that in some sense enjoyed universal validity, the late medieval commentators had written increasingly about the use that might be made of the civil law in solving the practical problems raised 34

Aeneid, 3.591–603 and 6. For a general survey of the sibylline legends see Parke 1988. For the choice made by another candidate for admission and the thinking behind it see the Diary of Sir Archibald Johnston of Wariston, 1632–39, p 161. 36 Wolff 1951, pp 162–74; Kunkel 1973, pp 163–76; Tellegen-Couperus 1993, pp 140–47. 37 Kuttner 1982a; Müller 1990; Stein 1997. 38 Ullmann 1946, pp 1–6; Dawson 1968, pp 138–45; Bellomo 1995, pp 184–202. 35

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The Admission of an Advocate 9 before the courts of different localities in Europe, publishing among other things collections of the opinions they had given on questions sent to them by court practitioners. These collections of consilia, together with reports of the decisiones eventually arrived at in the various courts, formed a bridge between the academic theory of the civil law and the professional practice of the local law, often providing advocates and judges with workable solutions to their problems derived from the Roman texts and from what the glossators and commentators had written about them. It was this handling of the civil law as a body of jurisprudence common to every nation in Europe that explained why familiarity with the Digest and Code, with the glosses and commentaries on the texts, and with the counsels of learned jurists and the decisions of foreign courts had come to be regarded as a suitable qualification for legal practice in many jurisdictions. By the time Stair presented his lesson before the lords of session it had long since become conventional for lawyers to complain about the unwieldy proportions and the labyrinthine meanders of the civilian literature. In the sixteenth century a new way of studying the Roman texts had been developed, especially in some French universities, where the medieval commentaries had typically been condemned as a barbarous and largely irrelevant encumbrance on both scholarship and practice.39 Described as legal humanism, or as the mos Gallicus in contrast to the mos Italicus of the commentators, the new approach involved the use of philological and historical methods of enquiry as a way of recovering not only the Roman law obscured by the medieval writers but also the ancient Roman law obscured by Justinian’s editors. To some extent the new approach distanced the academic study of Roman law from the contemporary practice of the civil law, but to some extent it also encouraged the development of what was to become known as the usus modernus Pandectarum or the current application of the texts.40 In this modified version of the mos Italicus it was still assumed that solutions to practical problems could be found in the texts and commentaries and in counsels and decisions. It was still assumed that the common opinions of the learned could be taken to enjoy an authority approaching the universal validity that had at first been attributed to the rules and principles discerned in the texts. But increasing emphasis was placed on the reception of these rules and principles into the laws of particular nations or territories, and it was characteristic of the usus modernus that the sources were handled in a more systematic manner than they had been in the past. Texts tended to be cited only where they were concerned with the topics under discussion, treatises were organised around clearer subject divisions, and the hope was sometimes expressed that a new Justinian would arise who might once again reduce the civilian literature to more manageable proportions, though less after the pattern of the Digest and Code than of the Institutes. Justinian’s compilers had 39

Kelley 1981; Stein 1986; Schoeck 1988. This term was originally applied specifically to developments in Germany and is often still used in the same way, but for an example of a broader usage see Feenstra 1992, pp 413–16. For the central characteristics of the usus modernus approach see Van den Bergh 1988, pp 133–5, 328–9 and 363–4; Wijffels 1992, pp xix–xxii, and 1995–6, pp 35–8; Wieacker 1995, pp 164–6. 40

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10 The College of Justice tried to abbreviate and update Roman law in the Digest and Code, but it was in the Institutes, designed as an introductory guide for students, that they had arranged the law in order. They had explained in the opening chapter or title of their book that if students were plunged straight into the study of the law in all its intricate complexity, many would simply give up while others would persevere at the cost of a great loss of self-confidence.41 Using what proved to be a memorable image, the compilers had offered to lead beginners along a ‘gentler path’ to knowledge. Stair was perhaps thinking of the need for a new institutional survey when he talked about wandering in the byways of the civil law without a guide, and he was probably mindful of the advice provided in the classical guidebooks on oratory that an audience should be won over at the start of a speech with a display of humility and a reminder of the difficulty of the task being undertaken.42 But above all he must have been painfully aware of his own lack of guidance in the study of law. As already mentioned, he had spent the six years preceding his admission to the bar as a teacher of philosophy or the liberal arts at Glasgow University. It was expected that regent masters in the liberal arts would spend their time outside the classroom in studying one of the higher academic disciplines, and Stair had evidently applied himself to the study of the civil law, almost certainly in conjunction with the canon law of the medieval church.43 His first biographer, writing within twenty years of his death and with advice from some of his children, maintained that ‘the Study of the Civil law’ had been the focus of his attention ‘during his Stay at Glasgow’.44 Stair himself claimed in 1681 that he had been engaged in ‘the Study and Practice of Law’ for ‘little short of fourty years’, which clearly implies a period of study before his admission to practice. By 1646, moreover, he had acquired sufficient ‘literature’ to be considered for appointment to a judicial post in a commissary court that sat within a mile of the university in the city’s cathedral.45 However, as has also been mentioned already, formal teaching in utroque iure, in the two learned laws, was not available in Scotland, and Stair had not gone abroad to complete his studies like other prospective advocates.46 Unlike Aeneas, he had not received guidance on his journey in search of wisdom above the measure of mortal men. If the leaves of the civilian literature were like the sibyl’s leaves in being ascribed a quality almost of divine inspiration, they were even more like the sibyl’s leaves in being so disorderly and confused that they could only be under41

Institutes, 1.1.2. Cicero, De inventione, 1.16.22; Ad Herennium, 1.5.8; Quintilian, Institutio oratoria, 4.1.7–10. The humility topos is examined in detail in Janson 1964, and see too Curtius 1953, pp 83–5; Hunt 1970, p 8; Morse 1991, pp 105–6. 43 For the general practice of regents see Rashdall 1936, vol 1, p 409; Verger 1992b, p 150; Vandermeersch 1996, pp 210–11. For Scotland see Coutts 1909, pp 20–4, 66–7 and 78; Cant 1970, p 80; Durkan and Kirk 1977, p 349; Shepherd 1983, pp 5–6; Stevenson 1990a, p 72. For the suggestion that Stair may in fact have devoted more time to the study of the canon law see Robertson 1981. 44 Forbes, Journal of the Session, p xxx. 45 Institutions, sig A4v; NAS, GD 135/2724. The commissary courts had taken the place of certain ecclesiastical tribunals after the Reformation and continued to rely heavily on the canon law. 46 On early law teaching at Glasgow see Coutts 1909, pp 30–3; Mackie 1954, pp 27–8; Smith 1959a, pp 623–5; Stein 1968, pp 45–6; Durkan and Kirk 1977, pp 127–35; Walker 1990, pp 11–22. 42

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The Admission of an Advocate 11 stood with expert assistance. Like Orpheus, Stair had made a long and laborious journey only to remain reliant on the indulgence of the oracles of the law. He had not been assigned a text to discuss in the way that his own graduating students had been assigned theses to defend, and he felt that like Orpheus he was being directed back out of the confusing cavern he had entered.47 Stair proceeded to explain how he had come to settle on the text he would discuss, saying that he had decided in the end ‘to handle something that is now in controversie in this house’ in the expectation that a discourse on a topical question would secure ‘great attention and kyndly acceptance’ from his audience and would serve ‘the verity itselffe and publick utility of the land’.48 During the half year or so that he had spent as an expectant he had observed the opening stages of a case about landed estates that had fallen ‘into the kings hands by right of his crowne by abolishing of prelats, qhich therfore the barrons held before and now hold of the illustrious king as supreme, sole and immediat lord superior of the same’.49 In the feudal theory that underpinned land ownership in Scotland (like most of Europe), virtually all land belonged ultimately to the crown.50 Other ‘owners’ held their lands as vassals of the crown, either directly or as vassals of intermediate superiors. Estates were granted to them in exchange for the performance of services and if the services could not be performed the estates reverted to the superior, as had occurred after the Reformation when many estates granted for the saying of masses had reverted from the church to the crown. One consequence had been that the former vassals of the church, untitled barons or gentry at Stair’s level in society, had come to hold their estates directly from the crown. However, as Stair also explained, ‘the same lands the noblemen defenders have obtened from the king and gotten them erected in temporal livings qherby they are interponed betwixt the king and the barrons persewers as intermediat superiors’. Instead of allowing the barons to move up in the social hierarchy as barons, James VI had made the previously fluid hierarchy more rigid by granting the recovered superiorities both to existing noblemen and to new ‘lords of erection’, turning many of the greater lairds into nobles.51 Some of those who were left as lairds had brought an action before the lords of session claiming that they were ‘and sould remane only vassals to his majesty’, and that the grants made to the noblemen interposed between them and the king should ‘be declared invalid and estemed null and to be reduced’. It seemed to Stair, who insisted that he was not arguing ‘for respect of 47 Stair had published a collection of Theses logicae, metaphysicae, physicae, mathematicae et ethicae, together with a list of the students who had defended them before graduating, in 1646. 48 ‘Scotstarvet’s “Trew Relation”’, (1915–16), pp 381–2. 49 GUA 26621 indicates that Stair gave notice of his intention to resign from his academic office in March 1647. Acts of the Parliaments of Scotland, vol 6(1), pp 774–6, indicates that the dispute he was referring to was remitted from parliament to the session at the end of that month. It must have been in the summer session of 1647, when the court reopened and after Stair had left his academic post, that he heard the case being debated in the court. 50 On feudal tenure in Scotland see generally McKechnie 1933; Farran 1958; Monteath 1958; Kolbert and Mackay 1977; Gretton 1993. 51 Brown 1973, p 35; Sanderson 1982, p 189; Lee 1985, p 25.

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12 The College of Justice any man qhatsumever’, that some support for the lairds’ case could be found in a text from the Libri feudorum, a twelfth-century compilation of materials on the feudal law which had been incorporated into the Corpus iuris civilis as the ‘tenth collation’ of the Novels.52 The first nine collations of novellae constitutiones had been assembled from statutes enacted by Justinian after the promulgation of the Digest, Code and Institutes, but the text Stair had chosen to discuss was among those that had been attached to the Roman sources several centuries after the final collapse of the western empire. Because a text had not been assigned to him, and because he did not feel qualified to select one for himself, Stair had started with a ‘publick cause’, had moved from the ‘hypothesis of the parties to these’, and had finally identified a text that was pertinent to the issue raised, reversing the usual progression from academic theory to forensic practice.53 The ‘thesis’ he had abstracted from the ‘hypothesis’ or circumstantial case awaiting the court’s attention was ‘qhither it be lesome for any man by indulgency of the prince to accept, or the king to give, such gifts qherby one or other superior may be interponed betwixt him and his vassals, they refusing to condescend to the same’. Assuring the lords of session that his ‘boldnesse’ in addressing this issue need seem neither ‘impertinent to yow nor offensive to any’, Stair went on to remark that his first task would be to set the issue raised in historical context, ‘to deduce the matter from the original itselffe’.54 He maintained that in the ‘golden age’ when the world began there had been no private property in land, for then everything had been ‘common by the law of nature’, much as the water in the sea and the air men breathed continued to be held in common. In that ‘simple and sincere age’ there had been no disputes about estate boundaries or about interests in land held by others because people had in effect owned only what they actually possessed, ‘so farre as the placing doune of the foote or the setting doune of the seats extended’. Only later, with the increase of ‘subtility and avarice’, was legal ownership distinguished from factual possession, ‘against the common law, the law of nations, by a certane necessity’. Possession was at that point ‘distinguished in civil and natural’, and it became possible to have an interest in a thing without either legally owning it or factually possessing it. Yet even in this ‘silver age’ there was scarcely any distinction between ‘usufruct or lyferents’ on the one hand and ‘full and solid dominion’ on the other, nor was it possible for anyone to assign the right to services from a tenant to anyone else 52 Stair was certainly not arguing in his own interest, at least not directly. His patrimonial estate was held immediately of the crown, and although the superiority of the estate he would shortly inherit through his wife had been acquired from the abbey of Glenluce by the earl of Cassillis as a result of the Reformation, he in fact held the superiority as vassal of the bishop of Galloway. For details see NAS, GD 135/531 and 630–34; Register of the Great Seal, vol 4, pp 580–81, and vol 6, pp 275–6; Acts of the Parliaments of Scotland, vol 4, pp 327–8; Correspondence of Sir Patrick Waus, vol 1, pp 30–1 and 86–7. 53 For the distinction between thesis and hypothesis see Cicero, Topica, 21.79–80; Quintilian, Institutio oratoria, 3.5.5–18; Boethius, De topicis differentiis, 1177c1–16 and 1205c1–19. For the transition in disputational practice from medieval quaestiones to post-Reformation theses see Kenny and Pinborg 1982, pp 26–7. 54 ‘Scotstarvet’s “Trew Relation”’, (1915–16), pp 382–3.

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The Admission of an Advocate 13 while retaining ownership of the land himself. It was the ‘iron and hard age qherin we have fallen’ that had introduced the distinction between ‘ane direct dominion and an other profitable, ane lord superior and another an inferior or fewer, to qhom againe the other inferior[s] in ane subalterne course without bounds proceed’. Ironically, while all feudal tenants could now regard themselves as domini, ‘lords or masters’, all were also ‘lyke slaves, every one become servaunts’. It was as if there was no longer ‘any thing proper or free bot the aire qherin we breath’. Most of the technical vocabulary used in this passage had been used in the Roman law texts. The jurists whose opinions were reproduced in the Digest and the Institutes had distinguished between ius naturale, ius gentium and ius civile, linking natural law with the law common to all nations in opposition to the civil law proper to each nation and adapted to its particular needs.55 The jurists had also identified the sea and the air as res communes, things that could still not be brought under private ownership in the way that most things now could.56 Private ownership or dominium had in turn been contrasted with other rights over things such as possessio (whether civilis or naturalis) and ususfructus.57 The dominus had been the person who was ultimately entitled to a thing, whereas the possessor had been the person who in fact had control of the thing, though it had come to be recognised that someone might be considered the possessor even when he did not actually have the thing. Exceptions like these were recognised utilitatis causa, rather like the ‘profitable’ dominion of the vassal, which was thought to be similar to the Roman usufruct, the right to the use and fruits of a thing belonging to another for a lifetime or less.58 In Justinian’s codification usufruct had been treated as a kind of servitus, a limitation on the freedom of the dominus who was left with the nuda proprietas.59 Stair was able to make a play on these words because servitus was also the term used to denote the subjection of a person who was acquired as a slave, so that the vassal who owed service to his superior and the superior whose land was feud to the vassal could both be said to be subject to servitude.60 Conversely, both could be said to be domini, which meant masters as well as owners in the vocabulary of Roman law, except that the Romans had tended to use the word in the latter sense with strict reference to those who had the ultimate right of dominium. The Romans had drawn a distinction between the actio directa available to a dominus who wished to vindicate his ownership and the actio utilis available to some other claimants who seemed in all fairness to merit similar 55

Digest, 1.1.1–6; Institutes, 1.1.4–1.2.2 and 1.2.11. Digest, 1.8.2; Institutes, 2.1.1. For the standard Roman assumption that there had been a golden age in which things were held in common see, for example, Ovid, Metamorphoses, 1.89–112; Seneca, Epistulae morales, 90.5–46; Virgil, Georgics, 1.125–8. Ovid went on to contrast the golden age with silver, bronze and iron ages. 57 Digest, 7.1 and 41.1–2; Institutes, 2.1–5. For the description of possession in terms of sitting and standing see in particular Digest, 41.2.1.pr. 58 Ibid, 41.2.1.14, 41.2.32.2, 41.2.40.1, 41.2.44.1, 41.3.44.6, and 41.4.2.9; Dias 1956; Ankum 1968; Feenstra 1971 and 1998. 59 Digest, 8.1.1; Institutes, 2.4.5. 60 Digest, 1.5.4.1; Institutes, 1.3.2. 56

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14 The College of Justice protection, but it was the glossators who had first coined the terms dominium directum and dominium utile, enabling feudal tenure to be reconciled with the conceptual categories of the civil law. Criticism of the neologisms invented by the glossators and preserved by the commentators had been central to the humanist campaign to clear away the medieval accretions from the ancient law. While opinions varied, many humanist scholars had rejected the common belief that the term feudum was derived from classical words like fides or foedus, along with the equally common belief that the origins of feudal tenure could be traced back to Roman institutions like usufruct or emphyteusis (a hereditary lease).61 Closer attention to history was thought to show that the feudal law had arisen among the Germanic tribes that had swept into Italy in the latter half of the sixth century, bringing to an end Justinian’s brief attempt to restore the Roman empire in the west. Stair indicated that he was aware of the sixteenth-century debates without fussing unduly about their details. With the final collapse of the Roman empire, he observed, feudal tenure ‘proceeded and was gotten from the Longobards, qho to the effect they might nourish souldiers with a constant stipend gave them roumes upon condition that the dominion sould be reserved to themselffs’.62 In fact over four hundred years were to elapse before ‘the name of few or nature of it was knowne to the wordle’, for while feudal tenure was mentioned in the legislation of some Holy Roman Emperors, even Obertus de Orto, the principal compiler of the Libri feudorum, had seen the difference between feudal tenure and the forms of land holding known to the original emperors. Stair was satisfied that ‘the Romane fewers knew no such thing nor thought upon it’, and that ‘then all mortall things were enjoyed by a full right, as now our moveable’. All the same, he had no qualms about saying that the Lombards gave their soldiers a ‘usufruct’ in exchange for an undertaking to provide loyal service, ‘from qhence such a lyke grant or roome gott the name of few from fides’. Since he was supposed to be delivering a lesson on a text from the civil law he could not afford to distinguish too sharply between the forms of land holding known to the Lombards and to the Romans or between the languages used to describe them in the Libri feudorum and in the rest of the Corpus iuris. Stair associated the German with the Roman emperors, made use of terminology from the Roman texts in referring to the institutions that had emerged from the customary practices of the barbaric tribes, and emphasised the significance of the ‘oath of fidelity’ that was ‘taken in both hands’ by the superior from the vassal. It was this oath that Obertus had remarked on when he first made a connection between the words feudum and fides, and what seemed particularly significant to Stair was the importance attached to fidelity in the system of law delineated in the Libri feudorum.63 In his opinion, it could be inferred from the concept of fidelity that ‘it was not lesome nether for the overlord to deny protec61 Kelley 1964a, 1970a, pp 183–94, and 1970b, pp 187–90; Pocock 1987, pp 70–90; Cairns 1989a. See too Van der Walt and Kleyn 1989. For a radical reappraisal of the origins of feudalism see Reynolds 1994 and 2003. 62 ‘Scotstarvet’s “Trew Relation”’, (1915–16), pp 383–4. 63 Libri feudorum, 2.3.3.

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The Admission of an Advocate 15 tion of his vassall nor [for] the vassall to deny obedience to his master by selling the few or transferring it in the persone of any other except with mutuall consent’. Not until military service had given way to other feudal burdens did the emphasis on fidelity fade, enabling the vassal to deal with his feu as a transferable item of property. By the time this happened feudal tenure had been widely established to the north of the Alps, ‘qhither it hes travelled with the foot of an heart or flowne with the wings of an eagle’, for the northern kings who had already enjoyed ‘the empyre of jurisdiction’ had mostly found it advantageous to assert in addition ‘the dominion of superioritie’.64 In talking of the imperial jurisdiction of the northern kings, echoing the famous slogan of the civilian commentators that rex est imperator in regno suo, Stair implied that the German emperors did not have universal jurisdiction and weakened further the claims that could be made for the Libri feudorum as part of the Corpus iuris.65 But in talking of the feudal superiority of the northern kings he also implied that feudalism had been clothed more locally with imperial authority and made it possible to explain how the lands of the church had been recovered by James VI on the abolition of the ‘prelaticall hierarchy’. Stair maintained that the lands had returned ‘to the king ipso facto, not by a retributary law’, and he conceded that when this happened James could at first have placed ‘others in the roome of these extruded prelats without the harme or prejudice of the vassals, seing now they are in lyke cace as they were before, provyding that they suffer not the pressure of a wylder master’. In fact in the immediate aftermath of the Reformation many new superiors had been substituted in the place of churchmen and their rights had been preserved when the church lands were formally annexed to the crown by act of parliament in 1587, though as Stair pointed out the more ‘excessive’ grants had since been rescinded by another act passed in 1594.66 He did not question the legitimacy of either act. The question he raised was whether it had been lawful for the king to interpose new intermediate superiors after it had been determined in the act of annexation that the former vassals of the church should become his own immediate vassals. By implication, Stair also raised the question whether Charles I could be said to have acted lawfully in 1625 when he revoked the erections of temporal lordships made during his father’s reign.67 In doing so Charles had caused considerable alarm, not least among the old and new nobility who had been rewarded with superiorities for their efficient administration of Scottish affairs, particularly after James’ accession to the throne of England in 1603. Part of Charles’ aim had been to provide adequate resources for the reformed church, but his ecclesiastical policies had been sufficiently unpopular to fuel an unlikely alliance between the dissident clergy and the disaffected nobility. 64

‘Scotstarvet’s “Trew Relation”’, (1915–16), pp 384–5. For the view that Scotland was an empire see Mason 1998, pp 126–37, and 1999. For the concepts of empire, jurisdiction and dominion generally see Burns 1992, with further application to Scotland in Burns 1996. 66 Acts of the Parliaments of Scotland, vol 3, p 431, and vol 4, p 63. See too Kirk 1989, pp 414–15. 67 Stevenson 1973, pp 35–42; Lee 1985, pp 9–71; Macinnes 1991, pp 49–76. 65

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16 The College of Justice In 1638 they had declared their opposition in a National Covenant and had taken up arms against the king, sparking off a decade of civil wars throughout Britain and Ireland which were to result within a year of Stair’s admission in the execution of the king in England. The ‘boldnesse’ of his choice of subject could hardly have been doubted, especially when it was remembered that several of the new nobles had been lords of session.

Giving proof of ‘literature and qualifications’ ‘Seeing the question is established anent the right and dominion of roomes’, Stair then tried to sum up, ‘with good reason I have opened to you the cause, the beginning and progresse therof even from the beginning of the wordle to our tymes’.68 The next task was ‘to apply the same to our bussinesse’, bearing in mind that while the interests of vassals and intermediate superiors might have become transferable items of property, the grants made by the king remained ‘established in the iron fundaments and pillars of a few’. This meant that arguments could be drawn from the ‘old lawes of fewes’, the laws that had been described at length in the Libri feudorum and had since come to be regarded as the ‘common feudal law’. Stair took his chosen text to state: ‘if any man make investiture or excambion of his souldiers benefice without his consent to qhom the benefice belongs, let it be holden as unmade’.69 The word excambion denoted ‘the changing of roomes’, which could happen without the formal infeftment signified by the word investiture. The word benefice meant ‘the few itselffe’, and the word soldier ‘a fewer’. It was therefore clear that any attempt by a ‘lord superior’ to introduce an intermediate superior without the vassal’s consent would be ‘voyde and null’, and Stair could see no reason why the same rule should not apply with regard to the king. He was satisfied that the imposition of an intermediate superior by the king was ‘not only prohibited by the Law, and so invalide and by way of action may be annulled, bot it is even by the law itselffe null as if it had not bein made’. This reading was consistent with imperial legislation recorded in the Libri feudorum and with the opinions of five renowned experts on the feudal law, who had maintained that vassals should never be ‘compelled to agknowledge two lords instead of one’, that in general a feu could only be taken away from someone if the alienation was ‘acording to the nature of the few’, and that it was never permissible for ‘the king to subject his vassals to another lord’.70 ‘I demaund then’, Stair concluded, ‘ is it not more cleare then the light, both from the sense of the law and doctors, that it is not lesome to the king to give infeftments of his immediate vassals few to another or to interpone an intermediate Lord or superior’? For good measure he added that ‘in all thir books of the fewes’ it appeared that ‘not one poynt is written in the contrary nor any doubts left therintill qhilk may make ane scruple’. 68 69 70

‘Scotstarvet’s “Trew Relation”’, (1915–16), pp 385–6. Ibid, p 380. Cf Libri feudorum, 1.21(22).1. ‘Scotstarvet’s “Trew Relation”’, (1915–16), pp 386–7.

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The Admission of an Advocate 17 To support his reading of the text under discussion Stair moved here from ‘the law’ to ‘the testimonies of the learned men’. After referring to constitutions enacted by the emperors Conrad II and Frederick I in which it was decreed that a superior could not alienate or transfer a feu without his vassal’s consent, he referred to the commentaries of the Italian professors Franciscus Curtius and Antonius Capycius for the explanation that no vassal should be forced to acknowledge two superiors instead of one.71 In fact the explanation had been provided in the second of the constitutions Stair cited, but he was fulfilling the expectation that he would make use of the full range of the literature he had mentioned at the beginning of his lesson. For the view that a feu could only be taken away where this was consistent with its nature he referred to a ‘counsell’ given by Baldus de Ubaldis, who had perfected the consilia genre in the fourteenth century, and to another given by Raphael Fulgosius, who had taught in Italy at the close of the fourteenth century and the start of the fifteenth.72 But it was ‘our learned countryman Mr Thomas Craig’ who had testified ‘in direct termes’ that the king could not subject his vassal to another lord.73 Craig seems to have studied law in France for seven years before his admission to the Scottish bar in 1563, and it may have been in his ‘learned book of the fewes’, which had circulated widely in manuscript after his death in 1608, that Stair read about the humanist revision of feudal history.74 At this point Stair cited a passage from the book in which Craig had been writing about the prohibition on the alienation of estates annexed to the Scottish crown, had added that in a sense all land in Scotland formed part of the king’s patrimony, and had made the observation Stair relied on that the king could not alienate his superiority to the prejudice of his vassals or subject them to another superior without their consent.75 As Stair noted, Craig had drawn his discussion ‘out of the law and our customes’, using both learned and local sources, a suitable cue to ‘proceede to the customes, qhich is an other Law’.76 French history yielded two examples of kings who had been found unable to impose superiors on their vassals, and that no such examples could be found in Scottish history served only 71 Libri feudorum, 2.34.2 and 2.54(55).4. Stair referred imprecisely to what ‘Curtius and Capit’ had written ‘in thir places’. Curtius’ commentary on the constitutions and his discussion of the standard question they gave rise to—‘an dominus possit vasallos invitos in alium alienare’—is in Tractatus illustrium iurisconsultorum, vol 10(2), f 90r. Of course, Stair could have had in mind some other work in which his point was made more clearly, but after further examination of Curtius’ writings this does seem the most likely source. Similarly, his ‘Capit’ reference was probably to Capycius’ Investitura feudalis, which was printed posthumously in 1570, was frequently referred to by other writers on the feudal law (eg, Tractatus illustrium iurisconsultorum, vol 10(2), ff 104r and 114r–15v), but is now very scarce. Again, though, Stair could have been thinking of something else. 72 Baldus, Consilia, vol 2(1), sigg A6v–B1r; Consilia excellentissimorum virorum utriusque Rafaelis, ff 93v–4r. As recorded, Stair’s lesson actually refers initially to the Consilia of ‘Bardus’, but this was clearly a scribal error. 73 Ius feudale, p 111. References are to the 1655 edition unless otherwise stated. 74 Tytler 1823; Smith 1915; Clyde 1934. Stair’s reliance on Craig’s account of European legal history will be considered further in the third chapter below. 75 It was presumably the connection with annexed estates that led Stair to focus on this passage rather than on Craig’s discussion (at Ius feudale, p 216) of the standard question whether a superior could alienate his estate without the consent of his vassal. 76 ‘Scotstarvet’s “Trew Relation”’, (1915–16), pp 387–9.

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18 The College of Justice to prove that ‘our awin customes’ excluded the practice. The example of the new superiors who had replaced churchmen in the early years of the Reformation was quite irrelevant since then ‘the ecclesiastical vassals themselffs were not immediat vassals to the king’. What seemed to have been attempted for the first time in the early years of the seventeenth century was the interjection of superiors between the king and his immediate vassals. In moving from law to custom Stair relied on Obertus’ assurance that ‘there is no such respect to be had as of the consuetude in the manner of fewes’, quoting a text in which Obertus had observed that ‘the authority of the Roman laws is not insignificant, but they do not extend their force so far as to prevail over usage and practice’.77 This text had turned on its head a famous constitution, enacted by the emperor Constantine and preserved in Justinian’s Code, which declared that ‘the authority of custom and ancient usage is not insignificant, but it is not to increase its strength to such an extent that it overcomes either reason or statute’.78 Since the Roman law texts were regarded as an authentic statement of reason and were believed to have been issued in statutory form by an emperor with universal authority, this constitution appeared to mean that local customary laws could only be valid to the extent that they were consistent with the law contained in the Corpus iuris. However, the glossators had struggled during the twelfth and thirteenth centuries to reconcile Constantine’s decree with an equally famous text, ascribed to the jurist Julian and preserved in the Digest, which stated that ‘inveterate custom is not undeservedly cherished as having almost statutory force’ and that ‘statutes may be repealed not only by a vote of the legislature but also by the tacit consent of everyone expressed through desuetude’.79 It had been explained in the text that ‘statutes themselves are binding upon us for no other reason than that they have been accepted by the judgment of the people’, and Julian had apparently believed that where no written law was in force recourse could be taken instead to the unwritten law ‘established by custom and usage’. In the fourteenth century Bartolus de Sassoferrato had made use of this Digest text in developing an account of the relationship between the learned and the local laws that came to characterise the mos Italicus, with the law contained in the Corpus iuris identified as the written law referred to in the text, with the view taken that this written law would be effective in the local courts only to the extent that it had not fallen into desuetude through contrary practice or decision, and with the Code text taken to impose the requirement that local customs would have to be consistent with divine or natural law.80 To the commentators, Obertus appeared to have reinterpreted the Code text in accordance with their understanding of the Digest text. He had indicated that feudal cases were to be determined wherever possible on the basis of local custom, 77

Libri feudorum, 2.1.1. Code, 8.52(53).2. 79 Digest, 1.3.32 (translation slightly altered). For the views of the glossators see Jolowicz 1957, pp 29–31; Dawson 1968, pp 128–32; Stein 1994, pp 373–9. 80 For the commentators see Ullmann 1940; Jolowicz 1957, pp 29–31; Dawson 1968, pp 133–4; Stein 1980, pp 254–8, and 1985, pp 331–2; Canning 1987, pp 95–7 and 148–54. 78

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The Admission of an Advocate 19 only failing which, on the basis of the written law. His own compilation had come to occupy an ambiguous place in this programme. On the one hand, as an account of a largely customary law it had been taken to rank ahead of the rest of the Corpus iuris, yet on the other hand, as an authentic statement of general as opposed to local custom it had been taken to form part of the written law.81 This way of handling feudal cases had been criticised in the sixteenth century by the French jurist Charles Dumoulin, who had insisted that feudal customs were invariably local and that the law stated in the Libri feudorum was binding only where it had been approved locally.82 Instead of regarding the feudal law as part of a ius commune from which the nations of Europe had drawn to differing degrees, he had regarded it as law that was made by each nation and was common only in the sense that broadly similar institutions had emerged throughout Europe. It may have been Dumoulin’s rejection of the conventional idea of a common feudal law that led Stair to move on next to ‘the common law and custome of nations’.83 As already noted, the expression ius commune had been used by the Roman jurists with reference to ius naturale et gentium, and in his hugely influential commentary on the feudal law Baldus had maintained that rulers with imperial authority, despite being generally free from the constraints of law, were bound by the feudal law partly because as custom it represented a gradual unfolding of ius naturale, and partly because it was implemented by pactions or contracts which were binding iure gentium.84 Making explicit reference to Baldus’ teaching and to a Digest title he had mentioned, Stair reminded the lords of session that the relationship between a monarch and his immediate vassals was ‘established by the strenght of the obligation, paction and solemne contract of the few’, as several reporters of decisions in foreign courts had confirmed.85 Since the close relationship between the Scottish king and his immediate vassals was spelled out in the feudal charters he granted, and since many charters were recited in acts of parliament, Stair wondered whether it might ‘not then be ane notable violation of both these, and most injust of the king and countries faith given them, if any other superior intervein’. Moreover, not only was the king bound by his contractual undertakings iure gentium, but he was also bound by ‘the hightest religion of an oath’. At his coronation every king was required to promise before God ‘that he sall governe his people 81 Baldus, In usus feudorum commentaria, f 30; Mattheus de Afflictis, Commentaria in feudorum usus et consuetudines, pp 235–7; Tractatus universi iuris, vol 13, f 2v (Ioannes Baptista Caccialupus); Tractatus illustrium iurisconsultorum, vol 10(1), f 100r (Guerrinus Piso), and vol 10(2), ff 17v (Petrus de Ravenna) and 298r (Ioannes Blanchi). 82 Commentarii in Parisienses consuetudines, pt 1, pp 24–5. 83 ‘Scotstarvet’s “Trew Relation”’, (1915–16), pp 389–90. Stair’s awareness of and response to these discussions will also be considered further in the third chapter below. 84 In usus feudorum, ff 18v and 34v. See too Baldus, Consilia, vol 2(2), sig F3r; Ullmann 1966, p 83; Canning 1987, pp 82–6. 85 Stair did not cite a specific passage from Baldus’ works, and he referred inaccurately to Digest, 45.1 as ‘lib 10 tit de verb. Oblig’. The reporters he named—Phelinus, Alexander, Amdopex and Dodrius—were obscure. They do not appear in the lists in Coing 1973–87, vol 2(2), pp 1113–430, nor in the published or online catalogues of the Max Planck Institute for European Legal History at Frankfurt or of any major research library in Britain.

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20 The College of Justice acording to the municipall Law and priviledges of the Land’. No branch of the municipal law was ‘more noble then that qhich concernes the reall right of Land’, nor could there be ‘any privilege comparable to that qherby the subjects are approximat and made neere to him without all mediat impediments and are so fostered, as it were, under the kings bosome and protection’. Stair finally invited the judges to address the issue in more abstract terms of justice or fairness, advancing from law to equity or from ius civile et gentium to ius naturale. ‘Let us presuppose’, he put it to them, ‘that this privilege of the subjects were nether cleared by imperiall constitution nor confirmed by the custome of nations hitherto but placed in its pure principals and wanted example’.86 If the issue were being raised for the first time ever, he asked the lords of session, ‘whither would your equity incline or decree Leade us’? He believed that when novel issues were raised the normal practice was for lawyers to examine both ‘the facility and utility therof’, guided by two general principles, ‘the one the principall of nature, the other of Law’. The natural principle of facility, drawn from the Aristotelian physics Stair had taught his university pupils, was that deus et natura operantur facillima, and he set out to examine its implications ‘that we may apprehend the most firme root of verity’.87 The simplest way to explain feudal tenure was to draw the traditional ‘distinction betwixt the direct dominion and the profitable’, and it was hard to see what room this could leave for an intermediate superior. If the king were to make a grant of superiority while himself retaining the superiority he would surely be granting nothing, for as lawyers were wont to say, dans et retinens nihil dat.88 Nor could the king make a grant to a vassal and then ‘grant the property, becaus he hath disponed it already’. Just as a vacuum was abhorred ‘in the natural bodye’—another notion drawn from Aristotle’s natural philosophy—so too ‘in the politick’ no property could be left ‘voyd nor open’ once a grant had been made.89 Making one final reference to his university teaching, Stair applied the logical ‘Law of contraries’ to arrive at the conclusion that the idea of intermediate superiority made no sense.90 If the king must ‘in all necessity’ have retained the superiority over any estate he had granted, and if he must have granted ‘a full few’ to his vassal, then it could not be said that he had the power to make a further grant. If the king had the superiority and the vassal had the property, Stair wanted to know, ‘what then by law belongs to the interjected superior’? As he was well aware, the feudal lawyers had a ‘devyse for this, that there may be more subordinate superiorities of one and the selfe few: the king retenes one and 86

‘Scotstarvet’s “Trew Relation”’, (1915–16), pp 390–91. Grant 1994, pp 661–2, and 1996, pp 145–6, explains that the principle of facility—a gloss on the statement in Aristotle’s On the Heavens, 271a33 (reiterated in his Parts of Animals, 694a15 and 695b19, and Generation of Animals, 739b20 and 744a37) that God and nature do nothing in vain—was used to reconcile the new heliocentric cosmology with Aristotelian assumptions. Confusingly enough, though, Stair explicitly repudiated the new cosmology in his Theses physicae, §. 31. For Stair’s teaching, which will be considered in the next volume in this series, see Russell 1974, p 147, and King 1974a, p 287. 88 Balfour, Practicks, vol 1, p 170; Spotiswoode, Practicks of the Laws of Scotland, p 228; Morison, Decisions of the Court of Session, vol 12, p 10057. 89 Aristotle, Physics, 213a11–217b27. 90 Ashworth 1974, pp 192–3; Schupp 1988, pp 56–61; Broadie 1993, pp 130–33. 87

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The Admission of an Advocate 21 he gives another’. The feudal lawyers found it convenient to recognise different levels of superiority, but this was where Stair’s principle of utility became important, for if the proposal was to depart from the natural order on grounds of expediency, it would have to be asked whether the proposed departure really was expedient. Stair referred to the maxim enunciated by Cicero in prescribing laws for an ideal state that salus populi est suprema lex and observed that the ‘incommodities following interjection have either regard to the prince or to the people, and that either privatly that tuicheth each man, or publickly that tuicheth all men’.91 The division of superiorities was disadvantageous to the prince because he was encouraged ‘to dispone the most beautifull and rich flowre of the crowne, viz. a 3rd of the superiorities of all the kingdome and the emoluments proceeding therfrae’. It was also disadvantageous to the private interests of the people because ‘in place of the king they are forced to agknowledge an other lord qho is more greivous’, and to their public interest because it inspired the ‘weighty shaking and overturning [of] the constitutions of the country by the acts of annexation’. Stair saw the creation of new lordships as a dangerous innovation that threatened the stability of the established order, and he exhorted the lords of session ‘to imped the progresse therof and stop the beginnings of the same’. He promised to refrain by way of an epilogue to his speech from praising the judges ‘as some flattering sycophants doe’, asking only that they would proceed as usual ‘in the care of the publick utility and distribution of justice’. But he did make one final effort to win them over by ending as he had started with a vague allusion to classical mythology. Suggesting that ‘Africk is no more fertil of new monsters, nor humane body more capable of new deseases, [than] the politick is stored with monstruous and new conceptions’, he urged the lords of session to use their ‘Herculean courage to cutt in peeces this Gordian knot’.

Recognition as ‘ane learned lawyer’ Two days after delivering his lesson Stair was found to have given satisfactory proof of his ‘literature’ by discoursing on the ‘Civill law’ and was admitted to the bar of the College of Justice.92 The record of his admission is in a conventional form, but since the lessons advocates delivered were not normally preserved it is hard to tell how far his admission was conventional in other respects. His own claim was to have avoided a strictly academic treatment of the civil law and to have dealt instead with a topical issue in the hope of winning approval and acceptance from his audience. That a copy of his lesson was preserved is evidence of his success, for it survives in an appendix to another discussion of the same issue by one of the lords of session. Sir John Scot of Scotstarvet was an ordinary lord and the 91 The maxim appears in Cicero, De legibus, 3.3.8, in the more prescriptive form salus populi suprema lex esto. There is no independent evidence that it formed part of the XII Tables, an early codification of Roman law, as was still widely believed in Stair’s time. 92 NAS, CS 1/5, f 182v.

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22 The College of Justice director of the chancery when he heard Stair speaking in the Parliament Hall in 1648.93 Ten years later he was stung into writing a ‘Trew Relation of the Principall Affairs Concerning the State’ by the appearance of a history of the reign of Charles I in which he was identified as the ‘busie Person’ who had engineered the downfall of the earl of Menteith, one of the late king’s most loyal and effective servants.94 Scot defended his conduct in the Menteith affair and also in two other public controversies, one of which was the debate on the king’s revocation. He recalled that in 1626 he had acted on behalf of other lairds when he encouraged the king to exercise more freely the powers he had asserted to reclaim the recently granted superiorities.95 Twenty years later he had again acted on behalf of ‘the gentry of this kingdome’ when he urged first the king and then the parliament of 1647 to resolve the question ‘anent the vassellis of kirklandis’. The parliament had referred the question to the lords of session in March 1647, it had been ‘delayed and frustrat’ by the court for over a year, Scot had taken the question back to parliament in 1649 craving a ‘speedie determination’, and he had finally secured the passage of an act in the gentry’s favour in March of that year. Looking back after ten more years he thought that it might be helpful ‘to subjoyne ane publick oration of ane learned lawyer, now a judge, declamed before the Lords of session anno 1648, upon that same subject justifying the gentries cause’.96 What had caused Scot to preserve Stair’s lesson was thus its relevance to a public controversy in which he had himself been involved. Although Stair had abstracted his thesis from a case raised between particular parties before the lords of session, the question had originally been raised in a more general way before parliament and had eventually been resolved in a general way by parliament. Scot described Stair as ‘ane learned lawyer, now a judge’. Stair’s rise to the bench during the 1650s will be considered in the next chapter, but what requires immediate attention is Scot’s description of him as a learned lawyer. The most obvious reading of the phrase—that Scot regarded Stair as an advocate who had proved his expertise in the learned laws—is borne out by Scot’s discussion of the other public controversy he dealt with in his ‘Trew Relation’, which had arisen from a partially successful attempt to reform the session.97 Shortly after his accession to the throne in 1625, Charles I had announced his intention to alter the composition of the court, according to Scot by ‘removing the nobilitie and officers of estate from the 93 Brunton and Haig 1832, pp 280–82; Stephen and Lee 1885–1901, vol 51, pp 39–41; Snoddy 1968, pp 9–40. 94 William Sanderson, Compleat History of the Life and Raigne of King Charles, p 230. Scot was also described by Sir James Balfour of Denmylne, Historical Works, vol 2, p 147, as ‘a bussie man in foule wether’, seemingly quite independently. For the Menteith affair and Scot’s part in it see Snoddy 1968, pp 90–111; Lee 1985, pp 119–26; Macinnes 1991, pp 82–6. 95 ‘Scotstarvet’s “Trew Relation”’, (1914–15), pp 76–81. See too Snoddy 1968, pp 112–29, and Acts of the Parliaments of Scotland, vol 6(1), pp 774–6, and vol 6(2), pp 15–20, 244–6 and 708–9. 96 ‘Scotstarvet’s “Trew Relation”’, (1913–14), p 168. Scot may not have preserved a precise record of Stair’s lesson, and may well have translated it from Latin, the language in which lessons are known to have been delivered later in the seventeenth century. Some of the deficiencies in the preserved text— for instance in the citation of Stair’s learned sources—may not have been in the original. 97 Lee 1985, pp 18–20; Donald 1990, pp 21–3; Macinnes 1991, p 50.

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The Admission of an Advocate 23 places of the session, advancing therto only the gentry’.98 As this reveals, despite James VI’s acknowledgement of the advantages of appointing advocates to the bench, not all the lords of session had been at the bar, nor did they all share the social origins of the advocates.99 Actually, of the sixty-one ordinary lords who held office between 1600 and 1648, only seventeen had been at the bar and only twelve were the sons of lawyers.100 A far higher proportion of the judges than the advocates were the sons of lairds who had not made their way in the professions, a higher proportion of those were the eldest sons of lairds, and five of the ordinary lords were the sons of peers. Nine others were raised to the peerage, and the ordinary lords were assisted in the business of adjudication by extraordinary lords who were mostly noblemen. The extraordinary lords were primarily statesmen with seats on the privy council, but between 1600 and 1626 all the ordinary lords also sat at some time on the privy council. As Scot remarked, ‘the judicatories both of counsell and session at these tymes were all confounded, for the cheife of the counsell were also cheife of the session and so ingrossed in there persons the managing of qhatsumever affairs of the kingdome’. Charles meant to change this by replacing the noblemen and officers of state who sat as ordinary lords in the session with lawyers and other lairds who had kept out of politics. One consequence of his reform was that the ordinary lords were never again all members of the council. Although the extraordinary lords remained in the session, although by the 1630s some ordinary lords had recovered their places on the council, and although by the 1640s some ordinary lords had again been raised to the peerage, the session had become less closely connected with the council. So far as Scot was concerned, what mattered about the king’s reform was that it had given the lairds more prominence in the session. He was able to claim that he had acted once more in the gentry’s interest. As Scot recalled, not everyone had supported the king’s scheme.101 Early in 1626 a series of meetings had been held in London to debate the proposed reform along with the recent revocation. Scot had been commissioned to draft a statement of ‘reasons’ justifying the king’s proposal, the earl of Melrose, one of the noblemen removed from the session, had produced a list of ‘answers’, Scot had written ‘replies’ to the answers and eventually, following debate on all these papers, had composed a set of ‘reformed reasons’. The central question that had arisen for discussion was whether ‘by law and auntient practick’ the ordinary lords were granted their offices for life or at the king’s pleasure, the answer turning partly on interpretation of the legislation instituting the College of Justice, partly on ‘the consuetude of the realme, quich is in place and force of law qher no Law is made 98

‘Scotstarvet’s “Trew Relation”’, (1913–14), p 169. NAS, CS 1/4/2 and 1/5, and GD 100/318, pp 206–10; NLS, Adv MS 25.2.5(i); EUL, La III 528; Register of the Great Seal; Register of the Privy Council, 1st and 2nd ser; Acts of the Parliaments of Scotland; Brunton and Haig 1832; Fraser 1889, pp 78–9; Cokayne 1900–09; Balfour Paul 1904–14; Hannay 1933, pp 112–27; Donaldson 1976, pp 9–11. 100 Hannay 1933, pp 147–8, appears to indicate that the proportion of advocates raised to the bench was actually slightly higher before the seventeenth century. 101 ‘Scotstarvet’s “Trew Relation”’, (1913–14), pp 168–86. See too the Report on the Manuscripts of the Earls of Mar and Kellie, pp 139–44. 99

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24 The College of Justice to the contrair’, and partly on the ‘opinions’ of ‘Learned men’. In his initial ‘reasons’ Scot had drawn attention to a passage in Thomas Craig’s treatise on the feudal law in which public offices were described as a kind of feu and were said, on the advice of ‘ane most learned man’, Sir John Bellenden of Auchnoul, to terminate on the death of the granter.102 Like Scot himself, Bellenden had not been an advocate before becoming a lord of session and officer of state but had acquired a reputation for expertise in the law and the constitution of Scotland, subjects on which he had helped to write a treatise for Mary of Guise and her French advisers.103 In his ‘answers’ Melrose objected that while ‘Mr Thomas Craig and Mr Jon Ballentyne were Learned men of good fame, yet there privat and singular opinions were of no greater force nor authority [than] Sir John Scots is’. Scot in turn replied that the ‘testimony of so famous a jurisconsult as was Mr Craig, qhose booke of the fewes is now in credit throw all Europe, and of so worthie a statesman as Sir Jon Ballenden, qho was both a sessioner himselffe and director of the chancellarie and justice clerke, may well serve for a probation to maintain his majesties royall prerogative’.104 The terms ‘testimony’ and ‘probation’ had obvious significance in a legal setting, and to some extent Scot was summoning Craig and Bellenden as witnesses to the renovation of public offices at the start of the reign of James VI.105 But the terms had equally obvious significance in an academic setting, where they were generally associated with terms like ‘credit’, ‘fame’ and ‘authority’.106 In the dialectical theory of the schools, questions could be resolved by reference either to reason or to authority, the latter either the public authority to make binding pronouncements or the private authority derived from a reputation for learning and probity. Scot was citing Craig and Bellenden as authors whose opinions demanded respect. He went on in his ‘reformed reasons’ to refer further to the views of the famous French jurist Jean Bodin and to a text from Justinian’s Institutes, and it was perhaps in the same vein that he reinforced his support for the other controversial measure he dealt with by reproducing the lesson of a learned lawyer who had himself relied on ‘the testimonies of the learned men’.107 102

Ius feudale, pp 54–5. On Craig’s familiarity with Bellenden see Finlay 2004, p 306. For Scot’s legal learning see Nisbet, System of Heraldry, vol 2, p 292. On Bellenden see generally Tytler 1823, pp 117–21; Brunton and Haig 1832, pp 91–2; Stephen and Lee 1885–1901, vol 2, pp 187–8. The Discours particulier d’Escosse, written jointly by Bellenden and Sir James McGill of Nether Rankeillor, was not printed until the nineteenth century and may have been unknown to Scot. On the original context see Ritchie 2002, pp 236–8. 104 Scot may have known what he was talking about in remarking on Craig’s international reputation, for Snoddy 1968 and Cameron 1983 show that he had an extensive network of continental contacts. Certainly, Craig’s book was used in lectures abroad after it was printed, and the second edition was actually printed at Leipzig in 1716. 105 Scot mistakenly believed that Bellenden had witnessed events in 1581, four years after his death. It must have been an earlier incident that Craig was referring to, unless Sir John Bellenden was being confused with his son and successor in his offices, Sir Lewis Bellenden of Auchnoul. A solution to the problem is suggested in Finlay 2004, p 325. 106 Byrne 1968, pp 105–10; Hacking 1975, pp 18–30; Patey 1984, pp 3–34; Marenbon 1987, pp 27–34; Evans 1992, pp 77–80. 107 Bodin, Six Bookes of a Commonweal, pp 91 and 276–7; Institutes, 3.26.10; ‘Scotstarvet’s “Trew Relation”’, (1915–16), p 387. 103

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The Admission of an Advocate 25 For his part Melrose may not have been denying altogether the relevance of learned opinion in legal debate. A former advocate who had studied the civil and canon laws in France for six years before his admission to the bar, and himself a legal author who epitomised the rise of the new professional administrators, ending life as the first earl of Haddington, he merely stated that in the absence of a pronouncement by someone with public authority the law could not be settled by the ‘singular’ opinions of learned men.108 It was generally accepted by civil and canon lawyers that court practitioners, as opposed to academic jurists, ‘ought to follow common opinions and not adhere to singular opinions’.109 As one writer on the subject explained, while it was appropriate for scholars in the universities to concentrate on controversial questions and to dispute with each other, judges and advocates were ‘bound to follow if not certain and clear at least presumed truth, and consequently common opinions which are presumed true’.110 The basis of this presumption was ‘the authority of the doctors, for a sound and expert doctor is reckoned to be able to speak the truth’, and where several doctors concurred ‘their greater number and accordingly greater authority induces a greater presumption of truth’. Bartolus had inferred from Roman law texts that judges were bound to take the advice offered by jurists, and Baldus had maintained that the common opinions of experts had the same legal force as custom, but fundamentally the authority of opinion rested on the perceived ability of expert jurists to uncover the truth.111 Another writer remarked that ‘in legal science, and (unless I am mistaken) in every art and discipline, we are obliged to follow what we observe to be believed, if not by everyone, yet more often and frequently and for the most part’.112 Like the other writers referred to here he was mindful of Aristotle’s teaching that in areas where certainty was not available the only alternative was to rely on opinions that were ‘accepted by everyone or by the majority or by the wise’.113 Although such opinions would lack the force of necessity, they would in all probability be true, at least if they had been tested against each other by disputation. A passing remark in the Digest was taken to confirm the importance of disputation in developing the discipline of law, and elaborate rules were laid down to govern the extraction of common opinions from the writings of jurists who always wrote in a disputational style, who sometimes wrote in a disputational style, or who never presented their opinions in this way.114 In the courts judges could safely decide cases non ex opinionibus singulorum sed ex communi opinione precisely because the common opinions of the doctors were the result of the dialectical refinement of their individual opinions in the schools. 108 Tytler 1823, pp 253–66; Brunton and Haig 1832, pp 221–5; Stephen and Lee 1885–1901, vol 24, pp 209–12. 109 Syntagma communium opinionum, vol 1, p 100 (Ioannes de Nevizanus). See generally Ourliac and Gilles 1971, pp 140–49; Gorla 1978, pp 49–50; Helmholz 1990a, pp 12–16. 110 Syntagma communium opinionum, vol 1, pp 3–4 (Antonius Maria Coratius). 111 Bartolus, Opera, vol 4(2), f 76v; Baldus, Commentaria super Decretalibus, f 13v. 112 Syntagma communium opinionum, vol 1, p 57 (Macagnanus Azzoguidus). 113 Topics, 100b21–2. 114 Digest, 50.4.18.26; Bartolus, Opera, vol 2(2), f 246r; Syntagma communium opinionum, vol 1, pp 1–2 and 17–18 (Coratius), and 67 (Azzoguidus).

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26 The College of Justice Stair made it clear at several points in the lesson he presented that he was aware of the parallel between the admissions process and the disputationes pro gradu he had presided over at Glasgow University, and he drew directly on his university teaching in seeking to ‘apprehend the most firme root of verity’. Scot could have reproduced his lesson as an example of the kind of academic discourse from which the consensus of learned men might emerge as a source of law alongside statute and custom. Yet as Scot himself observed, Stair’s lesson was not presented in a disputational style, with arguments and authorities assembled and appraised on either side of the question, but was ‘declamed’ in the style of a ‘publick oration’. According to teachers of rhetoric, a well-trained orator would be able to handle any question or thesis in utramque partem, defending either side of the issue on demand.115 If another orator were called upon to defend the other side, the outcome would be similar to a disputation, but the style of argument would be quite different. In presenting his lesson Stair followed the rules of rhetoric rather than dialectic, opening with an allusive prologue designed to capture the attention of his audience, moving on to a narration that explained how the question had arisen, then to an extended proof of his side of the case, and finally to a brief and again allusive epilogue.116 At the start of the proof, considered in classical rhetoric to be the most important part of a forensic oration, he promised to demonstrate that the intrusion of a new superior was not permitted ‘by the common Law, the municipall or Law of nations, nor our custome’, a puzzling remark which could not have helped the judges to make sense of what followed.117 Later he said that having worked his way through ‘Law, custome, paction and oath’ he would proceed to a discussion of ‘justice & equall equity’, a more accurate summary of what he was doing which owed less to the categories of the civil lawyers than to the topics of forensic oratory prescribed by Cicero.118 Although the Roman orators who represented litigants in court had used the same sources of law as the jurists who wrote in relative abstraction from practice, they had also referred more freely to other sources and had regarded the legal arguments of the jurists as just one means of persuasion among others.119 In announcing that salus populi est suprema lex Cicero had deliberately moved beyond the narrow focus of the jurists on the civil law of Rome to explore issues of universal justice and equity which he believed the jurists were inclined to neglect.120 115

Clark 1966, pp 85–99; Kennedy 1994, pp 166–72; Skinner 1996, pp 27–30. This pattern is clearly prescribed in Cicero, Topica, 26.97–9. More elaborate but broadly consistent schemes were presented in the anonymous Rhetorica ad Herennium, 1.3.4; Cicero, De inventione, 1.14.19, and De oratore, 1.31.143; Quintilian, Institutio oratoria, 4.pr.6. The relationship between the varied schemes was explained sympathetically in Cicero, De partitione oratoria, 8.27, and more critically in Aristotle, Rhetoric, 1414a30–1414b18. 117 ‘Scotstarvet’s “Trew Relation”’, (1915–16), p 385. For the Roman municipia and the early notion of municipal law see Sherwin-White 1973, pp 159–65. 118 ‘Scotstarvet’s “Trew Relation”’, (1915–16), p 390; Cicero, De inventione, 2.22.65–8 (also 2.53.160–62.54.162, and Ad Herennium, 2.13.19–20), and Topica, 23.90; Stein 1978. 119 For the conventional view that the jurists and orators formed two separate professions in Cicero’s time see Schulz 1946, pp 43–5; Watson 1995, pp 195–200; Crook 1995, pp 37–46. The alternative view proposed in Tellegen 1983 has gained few adherents. 120 De legibus, 1.4.14 and 1.5.17. 116

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The Admission of an Advocate 27 By presenting his lesson in the form of a rhetorical declamation, and by including in his proof discussion not only of law and custom, but also of paction, oath, justice and utility, Stair may therefore have been indicating that he viewed legal debate as part of a broader political debate. His purpose may have been to win the argument about the imposition of intermediate superiors by any means available rather than to assist the judges in reaching the correct legal answer to the question raised before them. Given that the question had been remitted to the session from parliament it may have seemed more appropriate than usual for the judges to be invited to consider the question as if it had never been raised before. In effect, they were being asked to legislate or to give advice on the enactment of new legislation, and Stair led them through all the areas of debate that might have been explored in parliament. Scot in due course proceeded to entreat the members of parliament to pass a statute that would be consistent both with ‘the lawes and liberties of this kingdome’ and with ‘good conscience and equitie’.121 In addressing the judges Stair similarly began with the existing law of Scotland, then remarked on the liberties or privileges secured for the Scottish people by the pactions and oaths of their rulers, and then considered the requirements of justice or equity. He turned finally to the utility or expediency of interjected superiorities, implying that, in a political setting, arguments drawn from law, liberty and equity, however compelling, could never be conclusive. At least in the setting in which the question he dealt with had been raised, a narrowly focused lesson on a text from the civil law would not have been satisfactory, and it may have been because of the wider setting that Stair adopted a rhetorical approach. Yet no one had required him to participate in such a politically charged debate. Instead of presenting a purely academic lesson he had explained his reluctance to handle a civil law text in the usual way, had deliberately chosen an issue with practical significance, had talked about the part of the learned laws that was most clearly bound up with local custom, and had drawn attention to the problems involved in attempting to connect the feudal with the civil law. He may have been trying, as he said, to capture the attention of practitioners who were known to be frustrated by the disruption of their ordinary business, or he may have been sceptical about the value of delivering a disputational address on a civil law text. The latter possibility remains consistent with Scot’s description of him as a learned lawyer. If the phrase most obviously indicated that Scot regarded Stair as an advocate who had proved his expertise in the learned laws, it could also have indicated that he regarded Stair as an advocate who had managed to display the wide-ranging learning recommended to forensic orators by the classical teachers of rhetoric.122 Scot himself had devoted much of his life to ‘the advancement of learning’ in a broad sense, above all learning in the classics and in the ‘more humane’ disciplines of grammar, rhetoric, poetry, history and moral philosophy 121 ‘Scotstarvet’s “Trew Relation”’, (1914–15), p 81. Whether Scot used these precise terms in the late 1640s is unclear. As the next chapter will explain, they assumed importance during the 1650s. 122 Cicero, De oratore, 1.11.45–1.17.79; Quintilian, Institutio oratoria, 2.21.1–24.

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28 The College of Justice associated with the cultivation of eloquence.123 He had edited three collections of Scottish poetry (including some verses of his own) in both Latin and the vernacular, had seen Timothy Pont’s maps of Scotland through the Blaeu press in the Netherlands, had drawn up an inventory of feudal charters, and had prepared a translation of Craig’s book on the feudal law for publication. He had founded a chair and a library to encourage the study of the humanities at St Leonard’s College, St Andrews, had established bursaries at Glasgow University, and had been a ‘bountiful Patron to Men of Learning’, running his own home at Scotstarvet Tower as ‘a Kind of College’.124 In his typically humanist discussion of The Staggering State of the Scots Statesmen he had frequently given the impression that politicians had more prospect of preserving their precarious positions in public life if they were ‘of good learning’, which sometimes meant legal learning in particular but only as a branch of humane learning generally.125 It is therefore possible that he decided to keep a copy of Stair’s lesson partly because it illustrated the style of argument he admired and wished to promote. If so, he would have regarded Stair as a learned lawyer not in the narrow sense of an expert in the civil and canon laws, but in the wider sense of a lawyer who had brought his learning in law, the arts and the humanities to bear on his handling of an important political issue. Scot’s description of Stair as a learned lawyer was therefore ambiguous, as was the significance of the lesson Stair delivered before the lords of session. On the one hand, it remains possible that advocates admitted to the bar of the College of Justice were genuinely expected to demonstrate their readiness for admission to a corps of experts in the learned laws, that Stair made a serious effort to fulfil this expectation, and that he managed to do so to the satisfaction of Scot and the other lords of session. As was noted earlier, in the absence of a record of the lessons delivered by other advocates it is impossible to know what significance should be attached to the approach Stair took. But the possibility that his lesson should be construed as an attempt to consolidate the law by reference to learned opinion raises interesting questions which may be asked with more prospect of solution in relation to the book he started to write just ten years later. Could the consolidation of Scots law by reference to learned opinion have been his purpose in writing his book? If so, how would he have understood the relationship between the learned opinions of lawyers and other sources of law like statutes and customs, or between the expertise of academic jurists and of practising lawyers in the College of Justice, or between the learned and the local laws? It is with these and similar questions that the present volume in this series is concerned. On the other hand, it is also possible that Stair and at least some other practitioners in the session did not take 123 Bradner 1940, pp 158–60; Snoddy 1968, pp 41–71; Cant 1970, p 69. On Renaissance humanism generally see Rabil 1988; Goodman and MacKay 1990; Kelley 1991; Nauert 1995; Kraye 1996. 124 Nisbet, System of Heraldry, p 293. More will be said about Scot’s cultural activities and their relevance for Stair’s work in the closing chapter of this book. 125 For examples see Staggering State of the Scots Statesmen, pp 14, 18–20, 23, 54, 57–8, 72, 109, 112–13, 119–126, 145–50, 158–9 and 160–63. In commenting on Sir John Bellenden at pp 129–30, it may be noted, Scot made nothing of his legal expertise. See too Snoddy 1968, pp 205–20.

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The Literature of the Law 29 the academic pretensions of the admissions process seriously, and that greater significance should be attached to his movement from law to equity and utility than to his rather unconvincing use of the civilian literature.126 At two points in his lesson he seemed to indicate that the ‘verity’ of the matter in hand would be discovered not from the civil law but from natural law, which he proceeded to handle in relation to the Aristotelian philosophy of the schools. The second volume in this series will be devoted to a more detailed account of Stair’s natural law theory than will be found here, presented largely against the background of his experience as a university teacher. The third volume will have more to do with his movement from equity to utility, and will present a fresh interpretation of his book in the light of the humanist politics Scot wrote about. In reading this volume it needs to be borne in mind that dimensions of Stair’s thought are being deliberately neglected for the time being and will be returned to later.

THE LITERATURE OF THE LAW

Four modes of legal writing The questions raised by the lesson Stair presented in 1648 have more chance of being answered when asked in relation to the book he started writing around 1658 because other books written by practitioners in the session during the same period survive and can be used for purposes of comparison. These books will be identified and described in the third section of this chapter, but before then something needs to be done to fill in the background against which Stair and his colleagues undertook to write about the law of Scotland. To a large extent this will be a matter of identifying and describing the types of book that practitioners in the session were already in the habit of writing, which may be as much as can be attempted in the hope of producing reliable results. It may also be possible, however, to make some progress towards understanding how these authors conceived of the relationship between law and writing and what they aimed to do, as lawyers, by writing. That the practitioners in the session must have had some conception of the relationship between law and writing seems clear from their general familiarity with the civil law. As was mentioned in the last section, a distinction had been drawn between written and customary law in a well-known Digest text ascribed to the jurist Julian, and this was actually one of several texts that made reference to a distinction, borrowed from the Greek rhetoricians by the Roman orators, between ius scriptum and ius non scriptum.127 Another Digest text recorded the opinion of Ulpian that the law of Rome was partly written and partly unwritten, ‘as the Greeks put it’.128 In an 126 Again, it should be noted that the deficiencies of Stair’s lesson may have been in Scot’s copy—or in the only surviving copy of Scot’s copy—rather than in the original. 127 Aristotle, Rhetoric, 1368b8–9 and 1373b1–9 (and see too Politics, 1287b5–6); Cicero, De partitione oratoria, 37.130; Quintilian, Institutio oratoria, 12.3.6–7; Seneca, Controversiae, 1.1.14. 128 Digest, 1.1.6.1.

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30 The College of Justice excerpt from a work on legal history by Pomponius it was learned jurisprudence that was identified as unwritten law, notwithstanding its preservation in the writings of the jurists, whereas in the Institutes the distinction was drawn in Julian’s way, with the opinions of the jurists listed among the forms of written as opposed to customary law.129 It was suggested there that the Greek distinction offered a peculiarly apposite way of classifying the sources of ius civile since the Romans had originally modelled their laws on those of the Greek polities, sometimes following the example of Athens, where laws were set down in writing, and sometimes following the example of Sparta, where laws were always kept in memory. As was also mentioned in the last section, the distinction between ius scriptum and ius non scriptum was used by later civilians to differentiate between the law described in the Corpus iuris and the customary laws of each locality in Europe. The notion that law might or might not be written would therefore have been familiar to the advocates who had studied the civil law. However, there were two reasons why an advocate who took the time to think about the distinction would have had difficulty in understanding the explanation provided in the Institutes that some laws were committed to writing while others were preserved in memory. The explanation is consistent with the contrast commonly noted by social anthropologists and social historians between the laws of literate and oral cultures.130 Where writing is used, it is observed, laws become fixed in their terms and predictable in their impact and so are accessible to everyone who can read and relate cases logically to rules. Where writing is not used, laws are more indeterminate and unpredictable and are accessible only to the recognised remembrancers of the law, whose recollections in particular cases are likely to be influenced by their desire to deliver just or expedient decisions. In early Rome the knowledge of the law was entrusted to the college of pontiffs and did not become widely available until records of customary practice and procedural forms were published in the XII Tables of around 450 BC and the Ius Flavianum of around 304 BC. 131 Pomponius regarded these early records as examples of written law, unlike the collections of juristic opinions that later came to be published by the successors of the pontiffs.132 These collections were also a record of unwritten law, and as an authentic record they began to deprive the unwritten law of its characteristic fluidity, but it was not until the time of Justinian, despite repeated attempts to authorise the opinions of the jurists, that excerpts from the collections finally assumed the character of written law by being issued with legislative authority.133 A similar transition from unwritten to written law was thought to 129

Digest, 1.2.2.5 and 12; Institutes, 1.1.2.3–10. Goody 1986, pp 127–70; Thomas 1992, pp 15–28, 65–73, 144–9 and 164–6; Clanchy 1993, pp 1–21, 106–8, 260–78 and 295–9. For early modern Scotland see generally Houston 1985, pp 193–210. 131 Wolff 1951, pp 54–61 and 92–9; Jolowicz and Nicholas 1972, pp 88–97 and 108–13; Kunkel 1973, pp 23–32 and 95–8. 132 Digest, 1.2.2.3–7 and 35–53. 133 For earlier attempts at imperial authorisation see Wolff 1951, pp 108–9 and 159–61; Jolowicz and Nicholas 1972, pp 374–8 and 451–3; Kunkel 1973, pp 105–8 and 156–8. 130

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The Literature of the Law 31 have occurred in the twelfth century after the customs of Lombardy were recorded in the Libri feudorum, and the process was repeated between the late fifteenth and early seventeenth centuries when the customs of northern France and the southern Netherlands were redacted.134 Earlier discussions of the customs of these areas by private authors had again imported a degree of uncharacteristic rigidity into local practice, but it was not until an official record of the customs remembered by each community was made and promulgated by public authority that the character of the laws finally changed. The new records were issued as binding statements of the law, further reference to oral tradition was forbidden, and the new records became the subject of learned commentaries like other parts of the written law. What seems obviously problematic about these developments is that the law could be thought to remain essentially unwritten even when it was in fact reduced to writing. Although private authors could initiate the transition from unwritten to written law, there tended to be a prolonged period of interaction between the oral tradition and its written record before the law was finally taken to have lost its unwritten character.135 Furthermore, quite apart from the fairly obvious point that technically unwritten laws could actually be written, there was also the problem that technically written laws, laws set down in texts that were taken to be authoritative, could in reality be recognised as laws not as they were written down but as they were memorised. That books of written law were not always fixed in their terms, but often went through a process of repeated revision and rewriting in the hands of editors and copyists, has been recognised for some time, and it may have been connected with the phenomenon of mouvance to which scholars of medieval literature have drawn attention.136 It was a well-known feature of the manuscript culture of the Middle Ages not only that texts were inadvertently altered by careless scribes but also that they were deliberately altered, expanded, updated, rearranged or adapted to new settings. They remained to a significant extent fluid and dynamic, partly because of the oral origins of much of the material they embodied, but partly too because of the importance attached to memory in learned as well as popular circles.137 Although the culture of the universities and other centres of learning may properly be described as textual rather than oral, this does not mean that knowledge was believed to be held in texts rather than in memory. On the contrary, there is ample evidence that medieval texts were designed to facilitate learning not by reducing the amount that required to be memorised but by increasing the amount that could be memorised. Writers made use of a range of mnemonic techniques, some of which were borrowed from rhetorical sources and given a more dialectical function, as a way of imprinting on the minds of 134

Dawson 1940; Gilissen 1950; Filhol 1971. Cf Geary 1994, pp 12–15; Innes 1998, pp 3–9; Van Houts 1999, pp 3–5. 136 Richardson and Sayles 1934; Zumthor 1981; Reynolds 1989; Sturges 1991; Reiter 1996. For an example related to Scots law see Simpson 2005, pp 144–5. 137 The major study of learned memory is Carruthers 1990, though for the distinction drawn here see too Geary 1994, pp 9–10, and Van Houts 1999, pp 6–11. 135

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32 The College of Justice readers what was written on the page.138 Readers were helped to commit what they read to memory not so much because their expertise depended on how much they personally knew as because each discipline was formed by a process of expert memorisation. Each discipline consisted of opinions that were commonly considered to be memorable. Whether a legal writer was dealing with customary law or with technically written law he might therefore have been concerned with law that was essentially preserved in the memory. In dealing with customary law he might have been trying to negotiate an authentic record of the law held in the popular memory, setting down a draft statement that might be endorsed, rejected or modified in practice after further consultation with the traditional remembrancers. In dealing with technically written law he might have been engaged in a similar process of negotiation, but more often with a learned audience and as a way of securing consensus on an authoritative opinion instead of an authentic record. The memorable opinions through which learning in any area could be developed were related to the texts or auctoritates on which all university disciplines were ultimately based, for the auctoritates were themselves defined as sententiae dignae imitatione.139 To merit imitation a sentence or opinion had to derive from an auctor and had in this sense to be authentic, yet an auctor was simply a writer who had acquired a reputation for learning in his field, the term deriving from the verb augere and signifying a writer who could augment an existing store of knowledge. Although at first the auctores had all been classical writers, it had been accepted that those who contributed to a better understanding of the classical sources by writing glosses or commentaries on them, or by exemplifying the relevance of the sources to new situations, could also be regarded as auctores. By the later Middle Ages the title had been appropriated by writers in the vernacular who had tried to translate authority from the ancient texts into their own by writing new versions of the texts, by incorporating passages or themes from them into their own narratives, or by adopting and adapting ancient forms.140 The provenance of the authority claimed by vernacular writers eventually became obscured, but what was not forgotten was the need for writers to negotiate authority with their readers. While it is true that an auctoritas was an opinion attributed to an auctor, an auctor only had authority to invest in his opinions because he was recognised as having a sound grasp of the significance of the existing auctoritates. A learned author was a writer who had the ability to work coherently within a tradition of enquiry, extending what his readers already knew rather than breaking completely new ground.141 The learned author of the Middle Ages was thus significantly different from the more familiar type of author who began to emerge during the Renaissance, at the 138 For the arts of memory see in addition Yates 1966; Bolzoni 2001; Carruthers and Ziolkowski 2002. And for the epistemological significance of the concept see generally Coleman 1992. 139 Kuttner 1982b, pp 71–5; Minnis 1988, pp 10–12, 25–6 and 94–5; Evans 1992, pp 94–5 and 101–7; Verger 1992a, pp 41–5; Irvine 1994, pp 12–15, 107–17 and 355–8. 140 Machan 1990; Mann 1991; Copeland 1991; Pinti 1993; Kelly 1997. Machan and Pinti, it should be noted, base their discussion on Scottish examples. 141 Wogan-Browne et al 1999.

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The Literature of the Law 33 same time as the concept of literary property.142 With the advent of printing and the development of the practice of granting exclusive rights of publication to printers and booksellers, writers came to realise that the texts they composed could be marketable commodities to the extent that they could be claimed as their own. Value was increasingly attached to authentic statements of opinions in the sense of statements made in a writer’s own words. By the eighteenth century a distinction would emerge between the ownership of the original expression of ideas and the ideas themselves, which others would be at liberty to express in different terms, and for this distinction to emerge the relationship between the author and the reader had first to be transformed. Whereas the writer of the Middle Ages would only have been an author if his readers had recognised his work as a seamless extension of existing learning, the new writer who emerged in the early modern period would have been an author if he had made a novel departure from everything that had been written before.143 He would often have made reference to what had been written before, indeed he would often have gone to some trouble to convince his readers that he was well versed in the existing learning, but he would not have expected his status as an author to depend on the response of his readers.144 A self-conscious author of the modern type would on the contrary have asserted the right to authenticate and authorise his own statements, and would have expected his readers to authenticate and authorise no more than their own readings, recognising that there could be as many readings of his text as he had readers. In reality, of course, writers in the early modern period would seldom have been fully conscious of their changing status as authors and would have had difficulty in formulating abstract distinctions like those drawn here, which have the misleading simplicity engendered by hindsight. In particular, writers would have had difficulty in distinguishing between the personal development of a tradition of enquiry and an innovative departure from a traditional approach, not least because not every writer would have given theoretical consideration to what he was doing. It remains the case, however, that changes in the nature of authorship were occurring, as some writers clearly did appreciate. These changes appear to have been connected with two even broader developments in the culture of western Europe. The first was the rise of scepticism, both as a widespread frame of mind and as a distinctive form of philosophy.145 Through the exploration of contrasting cultures overseas and the disintegration of their church at home, Europeans had been confronted with an unsettling degree of diversity in human behaviour and belief. Conventional certainties had been shaken, and with them the assumption that the truth or anything approximating to it could be discovered. In the universities the supremacy of the scholastic philosophers had been undermined by the growing emphasis placed on philology and rhetoric by humanist scholars, and it was these same scholars who by bringing lost 142 143 144 145

Rose 1993; Kewes 1998; Mann 2000a; Eden 2001; Loewenstein 2002. Quint 1983; Losse 1988; Elsky 1989; Dunn 1994; Weimann 1996. On the danger of oversimplification here see Miller 1986. Popkin 1979; Schmitt 1983; Schiffman 1984; Kahn 1985; Burke 1991.

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34 The College of Justice texts to light had popularised among other things the study of ancient doctrines of scepticism.146 Not only had the humanists encouraged closer study of the Academic scepticism known from the works of Cicero and St Augustine, but they had also made available the forgotten works on Pyrrhonian scepticism by Sextus Empiricus. In these works questions were raised not only about the possibility of attaining certain knowledge, which was what the Academic sceptics had doubted, but about the possibility of proving that any opinion was more probably true than another, which had not been doubted by the Academic sceptics. One result of the revival of Pyrrhonian scepticism was a more radical rejection of the dialectical methods of the schools and a further reinforcement of the claims of rhetoric. Writers aimed increasingly to persuade their readers to accept their point of view rather than to convince them that it was correct, relying less on logical proofs and the assembling of authorities than on eloquent style and the citation of classical paradigms. Another consequence of the sceptical revival was the realisation that stability of opinion would depend in future less on intrinsic than on extrinsic authority. The second broad development in the culture of western Europe that seems to have been connected with changes in the nature of authorship was the increase in the importance attached to the concept of sovereignty, which entailed that opinions would have necessary effect if laid down by those who occupied positions of authority in the state, regardless of their intrinsic merit.147 That the opinions expressed by rulers in the form of legislation could have this effect had long been the assumption behind the notion of ius scriptum, but in the early modern period vigorous efforts were made to demonstrate that all law must ultimately derive from the exercise of sovereign authority and that sovereign authority must be located somewhere within each nation state. It follows that there were, very broadly speaking, four options open to a writer on law in the seventeenth century. In the first place, he could have tried to produce an authentic record of local custom, setting down his sense of the current position and inviting his readers to compare his account with their recollections or with evidence adduced in court cases. In the second place, he could have tried to take part in a more literate tradition of enquiry, setting down his sense of learned rather than popular opinion and inviting his readers to endorse or improve on his views. In the third place, he could have tried to express more personal opinions, setting down views that he could claim as his own and leaving others to express their own views. In the fourth place, he could have tried to improve the accessibility of written law, setting down accurate restatements of the decrees and enactments promulgated by those in positions of authority and expecting both lawyers and laymen to abide by them as binding pronouncements of the law. It is tempting to simplify by saying that he could have tried to write about local custom, the learned 146 The relationship between scholasticism and humanism is discussed at various places in the surveys of humanism cited in n 122 above. For a study devoted to the subject—which avoids the sweeping generalisations that are inevitable here—see Rummel 1995. 147 Giesey 1973; King 1974b; Hinsley 1986; Franklin 1991; Spruyt 1994.

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The Literature of the Law 35 laws, his own views, or legislation, but this would actually be misleading. In comparison with the learned laws, local custom would have been taken to include local legislation, and its handling could have been influenced by learned sources like the Digest text in which Julian talked of statutes falling into desuetude.148 Similarly, although a learned author could have focused exclusively on learned sources, he could instead have written about the use made of learned sources in local practice. Again, a more modern author would have written about law to the extent that he expressed his views on the recognised sources of law, and of course a more medieval author could also have expressed his singular opinions on the sources. Even an editor of legislation would only have been engaged in a different enterprise from other writers if he edited texts that were formally authorised, as in fact other types of text—most famously the King James version of the Bible—could be.149 The distinctions that need to be drawn are not so much between the different subjects writers dealt with, which are relatively easy to identify, as between the different attitudes writers adopted towards what they were doing, which are much harder to discern. One instructive approach would be to look more closely at the philosophical assumptions of the period in which the writers worked, and this will be attempted in later volumes in this series. For the moment the approach will be to probe no further into the abstract categories just enumerated, in misleadingly crude terms, but to look at how legal writers went about their business and at how they reflected on their business. A convenient starting point will be a review of Scottish legal literature published in 1655, not long before Stair began writing his Institutions.

Burnet’s preface to Craig’s Ius feudale The writer of the review was Robert Burnet, the fourth son of an Aberdeenshire laird, Alexander Burnet of Leys.150 Admitted to the bar in 1617 after studying the civil law for seven years in France—where he had supplemented his income by giving lessons in the humanities—he had retired from practice twenty years later when the members of the College of Justice were required to subscribe the National Covenant drafted by his brother-in-law and former pupil, Archibald Johnston of Wariston.151 Burnet had spent most of the next decade in voluntary exile in France but had returned to his estate at Crimond, a few miles south of Fraserburgh, by 1652, where he resisted requests that he write a history of the late 148

Digest, 1.3.32.1. For the relationship between James’ roles as learned author, creative writer and sovereign legislator see Goldberg 1983, pp 17–27; Helgerson 1987, pp 2–6; Marcus 1988, pp 136–8; Sharpe 1994, pp 123–31; Bushnell 1994, pp 104–11. 150 Brunton and Haig 1832, pp 373–4; Foxcroft 1904, pp 315–26; Clarke and Foxcroft 1907, pp 4–17. 151 NLS, Adv MS 25.2.5(i), f 219v; Supplement to Burnet’s History, p 452; Family of Burnett of Leys, pp 130–31; Diary of Sir Archibald Johnston, 1632–39, pp 135, 231–2, 258–9, 262, 306, 312 and 332; Grant 1944, p 25. 149

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36 The College of Justice troubles.152 He claimed to find the subject depressing and pointed out that he had less time at his disposal than people imagined, for he was still active as a iurisconsultus, living in detachment from practice but dealing with regular requests ‘de iure respondere’. Furthermore, ‘unum pedem habens in sepulchro’, and fearing that he might suffer the same rebuke as Jerome that he was not a Christian but a Ciceronian, he had decided to devote the little free time he did have to the study of theology, attending to the studia humaniores only to the extent that they were relevant to the education of his children. His third son Gilbert later recalled the rigorous schooling he had received from his father in the humanities, and also his father’s delight when he announced in 1658 that he meant to abandon his study of the law and to pursue instead a career in the church.153 His father would no doubt have been pleased to know of Gilbert Burnet’s success in his career and eventual eminence as bishop of Salisbury, but he would perhaps have had mixed feelings about his enduring reputation as a historian. Although Robert Burnet confessed to finding the Latin classics and related disciplines absorbing, he considered them to be ‘puerile and merely humane studies’, suited only to preparing young men for mastery of the higher disciplines. Not only was his third son to enter the church, but his eldest son had already qualified in medicine, and it was while his second son was studying for admission to the bar that Burnet wrote his brief review of Scottish legal literature. His books had been transported from Edinburgh to Crimond in 1652, among them a manuscript copy of the treatise on feudal law composed by his wife’s grandfather, Thomas Craig. His review was written in preface to the first printed edition of Craig’s Ius feudale, which he saw through the press in 1655. Burnet addressed his remarks ‘to young people eager for the laws’, using what may strike modern law teachers as an absurdly optimistic phrase to deliver two signals.154 In the first place, he signalled his desire to present the treatise not to readers who were ‘truly learned or versed in the law’ but to those who were ‘tyros and aspirants in the law’, prospective advocates in the position of his second son. He was claiming that Craig’s treatise would be especially useful to students of the law. In the second place, by lifting the phrase cupidae legum iuventuti from the preface to Justinian’s Institutes, Burnet signalled a desire to develop a parallel between Justinian and Craig in his own preface, ‘so that everyone who reads this may know that just as antiquity owed a great deal to Justinian, so these times owe a great deal to this author of ours’. In the opening paragraph of his preface Burnet managed to refer to Craig no fewer than four times as author noster, echoing a reference in Justinian’s preface to ‘Gaius noster’, meaning a second-century jurist whose influential Institutes had effectively made him everyone’s teacher.155 The expression 152 Miscellany of the Spalding Club, vol 1, pp 45–51; Gilbert Burnet, Memoirs of the Lives and Actions of James and William, Dukes of Hamilton and Castleherald, p ix. The connection between the requests that he write a history of the late troubles and the cultural programme Sir John Scot was promoting will be explained in the final chapter below. 153 Supplement to Burnet’s History, p 455. 154 Ius feudale, sig A4. 155 Constitutio Imperatoriam, 6. Cf Cairns 1988, p 318.

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The Literature of the Law 37 more obviously signified that Craig was an author, though at this stage it is unclear in what sense. Burnet proceeded to discuss in some detail the legislative achievements of Justinian in promulgating as law his Institutes, Digest and Code, replacing the ‘huge mass’ of literature that had accumulated over the centuries with an authorised redaction. ‘Would that some new Justinian would emerge’, Burnet went on, ‘who by a new exertion for the common good might drive out the pernickety commentaries of the interpreters of the law and their confused hotchpotch, though this ought rather to be wished than hoped for’. While it seemed unlikely that the civil law would ever again be reduced to manageable proportions, it did seem possible to speak of ‘Iustinianus hic Noster Scoticus’. An author had recently done for Scots law what Justinian had formerly done for Roman law, at least in the sense of rendering the law of Scotland more accessible and intelligible, and for this he deserved to be recognised as a Scottish Justinian. Burnet believed that the magnitude of Craig’s achievement would only be properly appreciated if consideration were given to the plight of those ‘who were aspirants after Scots law and were striving to become advocates in the Edinburgh senate or the lower courts’. Until Craig wrote his book these tyros had ‘had nothing, no aids to study, by which they might be guided towards their intended destination, but unsure which path and way they should tread in the study of the laws, in order not to spend a lifetime on what they could have pursued in a few years, they hung on the lips of either advocates or judges’. Once again Burnet was reminding his readers of the opening of Justinian’s Institutes, where the publication of an orderly introduction to the law was described in similar terms as a way of curtailing long years of study.156 In Scotland no institutional guide had been available and expectants had been left to plot their own course through the complexities of the law by spending time in the courts, seeking direction from the established advocates and judges and scrutinising their pleadings and decisions. Even attending to what the judges had decided was of limited value since, ‘equally unsure, they wandered freely beside the point, constrained by no fixed statute, their judgments often serving in place of statutes; for our whole municipal law consists either in acts of parliament or in decisions of the Edinburgh senate or lords of session’. Instead of providing guidance in the study of the law by showing how it dictated their decisions, the lords of session had been a law unto themselves, not so much applying as making law in their decisions, for where there were no acts of parliament to apply there were no other local sources compelling them to decide in a particular way. Burnet was well aware of the many old books of the law that had been ‘reduced to order and brought to light’ by Sir John Skene of Curriehill, primarily the treatise that was known from its opening words (adapted, as Burnet pointed out, from the opening words of Justinian’s Institutes) as Regiam maiestatem. Without going into the controversial issue ‘whether this was our proper law, written or enacted, as our colleagues suggest, by David I, or was borrowed from our neighbours and from Richard of Glanvill’, Burnet warned that the 156

Institutes, 1.2.2. No one, he was saying, had led them to knowledge of the law by a lenior via.

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38 The College of Justice old books edited by Skene, several of which were ‘incerto Authore’, and even the old acts of parliament that Skene had collected together, ‘were not founded on public authority and were almost all fallen into desuetude’. The work carried out on the old books and acts by Sir John Skene, an advocate, lord of session and officer of state in the late sixteenth and early seventeenth centuries, had resulted from his involvement in a series of parliamentary commissions appointed to reform the law.157 The parliament that assembled in 1575, ‘understanding the harme quhilk this commoun weill sustenis throw want of a perfyte writtin law quhairupoun all jugeis may knaw how to proceid and decerne’, had asked some lawyers and others 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 wer meit and convenient to be statute, that the same, being reportit agane to the estattis, it, or samekill therof as sal be found gude and allowabill, may be ratifiit and establissit in parliament’.158 The 1575 commission was neither the first nor the last to be charged with the task of clarifying, correcting and consolidating the law. Throughout the fifteenth, sixteenth and seventeenth centuries successive commissions were given instructions to produce a revised version of the books and acts suitable for authorisation by parliament as ‘ane certain writtin law’, in one case with the intention expressly stated that all other copies of the books and acts should then be destroyed.159 The terms in which a commission was directed in 1566 ‘to mak ane body of the civile and Municipale lawis, devidit in heids conforme to the fassone of the law Romane’, suggest that ‘the body of our lawis’ referred to in 1575 may have been envisaged as a Corpus iuris Scoticani and that the problems faced in Scotland may have been thought similar to those that had been faced in the later Roman empire.160 Burnet’s comment that Skene had reduced the books and acts to order and had brought old laws to light—reminiscent of claims made for Justinian and his compilers—is clearly consistent with the view currently held by some historians that lawyers were troubled less by a sense of the scarcity of their law, as was once supposed, than by a sense of its superfluity.161 They seem to have believed that court decisions were bound to be indeterminate when advocates were drawing on a mass of literature that no one could fully comprehend, with counsel citing contradictory sources or contradictory copies of the same 157 Innes 1844, pp 25–8; Omond 1883–1914, vol 1, pp 60–6; Skene 1887, p 108; Thankerton 1936, p 6; Cooper 1947, pp 2–3; Smith 1958a, p 31; Walker 1985, pp 67–79; Fergus 1988, vol 1, pp 196–209; Cairns, Fergus and MacQueen 1990, pp 52–6; 158 Acts of the Parliaments of Scotland, vol 3, p 89. 159 Mackay 1873, pp 42–5; Cooper 1936, pp 71–2; Robertson 1977, p 143; Williamson 1979, pp 64–5; Walker 1985, pp 19–22, and 1988–2004, vol 2, pp 263–4, vol 3, pp 368–72, and vol 4, pp 354–60; Cairns, Fergus and MacQueen 1990, pp 50–1. 160 Acts of the Parliaments of Scotland, vol 3, p 40. 161 Constitutio Tanta, 17; Constitutio Imperatoriam, 5; MacQueen 1993, pp 91–2, and 1994, pp 14–15. For the view that lawyers in early modern Scotland were not innovators after a ‘Dark Age’ so much as heirs to a rich tradition see Robertson 1977; Sellar 1988, 1991 and 1997; MacQueen 1993.

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The Literature of the Law 39 sources, and debating the meaning of statements made in a distant age.162 Burnet granted that Skene had gone some distance towards accomplishing the tasks assigned by Justinian to his compilers, for they too had been asked to restore knowledge and understanding of the older texts of the law.163 Where Skene had fallen short of the Roman compilers was in failing to produce editions of the older texts that parliament had been willing to ratify and establish as ‘ane certain writtin law’. So far as Burnet was aware, no act of parliament had ever been passed giving statutory force to his editions. Skene himself had attributed the authority of the old books and acts to the statutory approval they had received from earlier legislators, adhering to the conventional thesis that Regiam maiestatem, as well as several of the other old books, had been enacted as law by David I, a twelfth-century claimant to the title of Scotland’s Justinian.164 The thesis was too well established for Burnet to feel comfortable in rejecting it, though he knew that it had been subjected to searching criticism by Craig.165 While surveying the sources of Scots law, Craig had denied that Regiam maiestatem formed part of the proper law of Scotland, making the point that a revised edition had never in fact been approved and declaring that ‘there is nothing contained in these books that pertains to our custom or to our forensic usage, nor was it ever the purpose of the writer either to be of assistance to our people or to prescribe laws to us, for the author of those books was Ranulph de Glanvill, earl of Chester’.166 Regiam maiestatem had been composed in four books in imitation of Justinian’s Institutes, but it had been based more directly on, and indeed to a considerable degree had been lifted from, the treatise De legibus et consuetudines regni Angliae that Ranulph de Glanvill was thought to have written in the reign of Henry II, king of England after the death of David I.167 Craig condemned the production of Regiam maiestatem as a case of ‘manifest theft’ and drew the forceful conclusions ‘that these books have no authority, that they contain nothing from which the decision of a case can be sought, and that they should never be recognised in court in place of authentic customs’. It did not follow from this that Regiam maiestatem or the other old books were to be completely ignored, and Craig did make use of them in writing his own treatise.168 But it did follow that care would need to be taken to check that the old books provided an accurate account of the laws and customs of Scotland. Although it might have been possible to argue that something stated in the books had been authorised by the decisions 162 Acts of the Parliaments of Scotland, vol 2, p 105; Aberdeen Council Letters, vol 1, p 89; Hume, History of the Houses of Douglas and Angus, p 358. 163 Constitutio Deo auctore, 4–10; Constitutio Tanta, 1 and 10. 164 Regiam maiestatem (Latin edn), pt 1, f 8v, and Lawes and Actes, sig T3. For the claims made for David I as Scotland’s Justinian see MacQueen 1993, pp 86–8, and 1995, pp 7–8. 165 For an exceptionally illuminating treatment of the subject see MacQueen 1994, and also 1995, pp 16–19. 166 Ius feudale, pp 38–9. 167 Regiam maiestatem is now believed to have been written some time, probably not long, after 1318. See Duncan 1961; Stein 1969; Harding 1984. 168 Cooper 1936, p 78, and 1947, p 6; Sellar 1981, pp 144–5; Cairns, Fergus and MacQueen 1990, pp 63–4; MacQueen 1995, p 17.

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40 The College of Justice of the session, it could never have been appropriate to argue that the decisions of the session were authorised by something stated in the books. Skene had also drawn attention to several acts of parliament in which reference had been made to Regiam maiestatem and the other old books as if they were part of Scots law, which he took to mean not only that those who passed the acts had acknowledged the prior authorisation of the books but also that they had invested them with statutory authority of their own.169 If it seemed harder to deny that the books had subsequently been invested with statutory authority, and harder still to deny that the old acts edited by Skene had been invested with statutory authority, Burnet’s response was to observe that both the old books and the old acts had largely fallen into desuetude. Turning to the later acts of parliament, he observed that they had lain ‘hidden in the archives for a long time until, at first published by a certain Lekprevik in an old and black character (from which they were called the Black Acts), the acts of James I and of succeeding kings, right up to the end of 1597, were made into public law by the care and zeal of that most famous and learned man, the foresaid John Skene’. The Black Acts or Actis and Constitutiounis of the Realme of Scotland, an edition of all the statutes enacted in the ‘parliamentis haldin be the rycht excellent, hie and mychtie princeis kingis James the first, secund, third, feird, fyft, and in the tyme of Marie, now Quene o Scottis’, had been printed by Robert Lekprevik in 1566. According to a preface written by Edward Henryson, a lord of session who had previously taught law at a French university, and who had been appointed in his capacity as a ‘doctour in the Lawis’ to the commission set up to reform the law earlier in the same year, the Black Acts were printed as a step towards fulfilling the queen’s instruction ‘to sycht, considder, correct and cause publis in prent the haill body of the Lawis of this hir Realme’.170 Henryson had proposed to the queen that steps be taken to ensure that ‘the rest of the auld Lawis of Scotland be brocht to lycht, and put in the leigis handis’, which was what Burnet believed Skene had managed to accomplish forty years later. He was now pointing out that Skene had not only edited the legislation from the reigns of Malcolm I to Robert III, but had also produced an improved and updated edition of the statutes passed during the fifteenth and sixteenth centuries, to which ‘the remaining acts of kings James VI, Charles I and Charles II were successively added’. Burnet warned, however, that the published acts of parliament had proved to be of limited value to law students. For one thing, ‘there were only a few copies of them (so that it is hardly surprising if they are not available for sale today), and they came into the hands of students with difficulty’. For another, ‘the reading of those acts did not convey much to young people, for most were fallen into desuetude and were not observed’. Furthermore, ‘most also had more to do with the government of the kingdom than with civil disputes, and there were few cases of law decided in them’. 169

Regiam maiestatem (Latin edn), pt 1, ff 8v–9r, and (Scots edn), sigg A3v–5r. Acts of the Parliaments of Scotland, vol 1, p 29; Actis and Constitutiounis, preface; Brunton and Haig 1832, pp 132–3; McCrie 1899, pp 365 and 460–61; Tucker 2001, pp 220–21 and 337–40. 170

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The Literature of the Law 41 Burnet was painting a bleaker picture here than Craig had done. Having questioned the authority of Regiam maiestatem, and having insisted that informal conventions of the three estates of the Scottish people could not pass acts with statutory force, Craig had acknowledged that the only ‘proper written law’ in Scotland was to be found in the acts passed by the Scottish parliaments. However, he had gone on to observe that ‘though these relate to the public policy of the kingdom rather than to the decisions of private affairs, nonetheless there are many things in them that are of use in settling the disputes of private men’.171 He believed that the first step a lawyer ought to take when addressing a controversial issue was to see if a solution could be drawn out of the acts, and that only if no solution could be found there should he turn his attention to other sources, beginning with the decisions of the session. These decisions could provide evidence of an established custom, and established customs were regarded everywhere as a kind of law, but Craig insisted that customs should never be permitted to prevail over acts of parliament. While it was a commonplace that ‘if anything in the proper written law should prove doubtful or ambiguous, custom is the best interpreter’, it was important to bear in mind that ‘custom does not overturn but only interprets statute’. Craig remarked on the value of perpetuating customary interpretations once they were established by repeated usage over a period of years, on the peculiar value of customs that were established through contentious litigation, and on the danger that erroneous customs might be established through the incompetence, negligence or dishonesty of the advocates who represented litigants in particular cases. He drew his discussion of the indigenous sources of Scots law to a close by saying that where statute and custom proved deficient, ‘recourse should then be taken to what is nearest either to law or to custom, especially if it rests on the same reason, for if the proper law and custom fail then the person who exercises jurisdiction should proceed by analogy and make good the jurisdiction or authority, particularly if the analogy promotes the same interest and reason attends the same’. In commenting on custom Craig managed to allude to almost all the texts in the last quarter of the Digest title ‘De legibus, senatusque consultis et longa consuetudine’, in which Julian’s account of the role of custom as a source of law had been followed by further texts indicating that custom should be adhered to in the absence of written law, that it should be asked whether an alleged custom had ever been upheld in contentious litigation, that custom was the best interpreter of statutes, that ambiguities in statutes should be resolved by reference to customs and decisions, and that customs based on initial misunderstandings should not be extended to cover analogous cases.172 Indeed, Craig structured his whole discussion around Julian’s observation that lawyers should refer in the first instance to written law, then to custom and lastly to whatever seemed analogous to custom. What he did not mention was Julian’s explanation that written law derived like 171 172

Ius feudale, p 39. Digest, 1.3.32–4 and 37–9.

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42 The College of Justice custom from popular approval, with the corollary that statutes could be tacitly repealed by being allowed to fall into desuetude.173 He concentrated instead on the texts in which custom was described as the best interpreter of statutes, denying that custom could overturn enacted law and replacing the explanatory part of the text from Julian with a repetition of the descriptive part designed to emphasise the contrast between the exercise of jurisdiction that gave recognition to custom and the authority of legislation that gave force to statute. Although the views expressed in this passage were heavily qualified elsewhere in Craig’s treatise (as will be made apparent in due course), he did not accept the rather harsh judgment of his wife’s uncle, the renowned humanist George Buchanan, that ‘in Scotland, as there are almost no laws except acts of parliament, and these in general not fixed but temporary, and as the judges as much as they can hinder the passing of statutes, all the property of the subject is entrusted to the will of fifteen men who evidently possess a perpetual tyranny, because their will alone is law’.174 Burnet clearly had more sympathy with ‘Buchananus noster’, every educated Scot’s teacher of the humanities.175 He had heard that Buchanan was ‘in the habit of saying that it would be good if one act were fixed in place by which the others were ordered to be observed’, and he agreed that the acts of the Scottish parliaments lacked the stability expected of written law. Far from custom serving to interpret an essentially written law, it seemed more accurate to view the acts passed in the Scottish parliaments as tentative interventions in an essentially customary process. Even when students were able to obtain copies of the printed acts, they would still need assistance from experienced practitioners before they could know which acts had been received into consuetude and which had been allowed to fall into desuetude. That Burnet felt no more comfortable with this conclusion than either Buchanan or Craig is apparent from his inclination to contrast the leges enacted by parliament not so much with the longa consuetudo established by the decisions of the session as with the decisions themselves as senatusconsulta, another type of written law in Rome.176 As Craig had also done, Burnet made much of the formal status of the lords of session as Senators of the College of Justice, which he usually called the senate.177 It seemed to him that by comparison with the acts of parliament, ‘the decisions of the Edinburgh senate conveyed far more, at least when they were accessible to everyone, although to some degree they were inconsistent and uncertain and liable to change at the whim of the judges, and to some degree they lay unknown in concealment and in the archives’. As he had already commented, the decisions of the court frequently served in place of statutes, which reinforced the impression that they were like senatusconsulta, except that the judges still tended to wander 173

Digest, 1.3.32.1, and see too 1.3.35–6. History of Scotland, vol 2, p 306. 175 Ius feudale, sig A4v. For the influence of Buchanan’s historical writing see Allan 1993, pp 32–44. 176 Institutes, 1.2.5. 177 As Cairns, Fergus and MacQueen 1990, p 67, point out, the supreme courts of Europe were often referred to in this way, a point that will be returned to in a later chapter. It will also become clear in a later chapter that Craig constantly referred to the session as the senate of Scotland. 174

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The Literature of the Law 43 freely without guidance or constraint, departing from their earlier decisions either deliberately or through ignorance of what they had previously done. Burnet knew that some advocates had at their disposal ‘certain old practicks by Balfour, Lethington, Wemyss, Hamilton and others, and among works of another kind the extremely useful treatise by Sir Thomas Hope of Craighall, a king’s advocate, a most famous man learned both in the civil law and in our own, and highly experienced in court practice’. Believing that there were ‘more things of this kind’ in the possession of Hope’s family, Burnet wondered why they were not yet available to a wider audience, and he complained generally that ‘all these works, both treatises and practicks, were either in the hands of a few or were badly and ineptly copied, so that in many places no clear and complete sense can be drawn from them’. He had heard that the practicks of Sir Alexander Gibson of Durie, Craig’s son-in-law and his own wife’s uncle, were in the possession of his immediate family, and he hoped the nation would not be deprived for long of ‘so noble and elaborate a work, since nothing could come forth from a man of such a precise and disciplined intellect that did not smell of the midnight oil’. Having himself surprised Gibson in the small hours ‘engrossed in reading the civil law and the doctors of the law (for he carried Scots law in the casket of his heart) and, as I conjecture, in marrying the civil law with Scots law’, he looked forward to another extremely useful book being made available to practitioners by the author’s relatives. As it transpired, Burnet’s conjecture was rather wide of the mark. What Gibson had produced was a chronological series of reports of the more important cases heard by the session during the twenty years between 1621 and 1642 when he sat as a judge.178 Each report was presented under the names of the parties and the date of the hearing. A brief outline was provided of the facts of the case and of the issues raised between the parties, a summary was often added of the advocates’ arguments, and an account was given of the court’s ruling. The approach was broadly in keeping with the pattern established in the reports compiled by judges like Sir Richard Maitland of Lethington, Alexander Colvil of Wemyss, abbot of Culross, and Sir John Scot’s former adversary Thomas Hamilton, earl of Melrose and then Haddington.179 Where Gibson developed a slightly more distinctive style was in adding notes and cross-references at the end of many of his reports, observing with some frequency that the decisions reported were inconsistent with those delivered elsewhere and commenting on the relevance of other sources, including the texts and treatises of the civil law. Although earlier reporters had also recorded their own reflections on cases from time to time, Gibson’s sustained attempt to 178 Brunton and Haig 1832, p 264; Stephen and Lee 1885–1901, vol 21, pp 271–2; Walker 1985, pp 176–7. In the collection eventually published as the Decisions of the Lords of Council and Session, Gibson quite often referred to another set of notes he was compiling. These are not known to have survived and they could conceivably have come closer to fulfilling Burnet’s expectations. 179 On Maitland and Colvil see Tytler 1823, pp 62–9 and 266–9; Brunton and Haig 1832, pp 97–9 and 160–62; Stephen and Lee 1885–1901, vol 11, p 418, and vol 35, pp 368–70. Many of the reports of these and other judges have been printed in Morison, Decisions of the Court of Session, and Brown, Supplement to the Dictionary of Decisions, and an edition of Maitland’s practicks can now be found at www.special.lib.gla.ac.uk/teach/scotslaw/practiques. On Haddington see Brooks 2004.

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44 The College of Justice connect the decisions he reported with other sources of the law brought him closer to the approach adopted in the book known as Balfour’s practicks. Sir James Balfour of Pittendreich had been a lord of session in the late sixteenth century, and his practicks seems to have been written as a result of his appointment to the law reform commission of 1575.180 He had already played a leading role in the production of the Black Acts, and he is said to have received assistance after 1575 from Sir John Skene, but instead of producing editions of the books and acts as Skene began to do Balfour connected extracts from the written sources with summaries of the decisions delivered by the lords of session.181 He drew together materials from ‘the bukis of the law, actis of parliament and decisionis befoir the sessioun’, as the parliamentary commissioners of 1575 had been instructed to do in fashioning ‘the body of our lawis’.182 His listing of discrete extracts and summaries is reminiscent of the style of Justinian’s Digest and Code, and like the writer of Regiam maiestatem he borrowed both the arrangement of his titles and the preface that can be found in some copies of his book from Justinian’s Institutes.183 Far from being enacted as a corpus iuris, however, Balfour’s practicks, like the reports compiled by the judges and unlike the books and acts edited by Skene, was not even in print when Burnet was writing. Burnet made nothing of the marked contrast between Balfour’s book and the reports of Maitland, Colvil, Haddington and others, evidently believing that its chief value lay in going beyond Skene’s works by making accessible the early decisions of the court. The distinction he did draw was between the ‘practicae’ produced by all these judges and the ‘tractatus’ written by Sir Thomas Hope of Craighall, who had in fact produced during Gibson’s time in the session a collection of extracts and notes not dissimilar in style to Balfour’s practicks.184 Generally known as Hope’s major practicks, this book had been in circulation since at least 1643, the year in which the writer’s second son, who sat in the session as Lord Kerse, died.185 Lord Kerse had edited his father’s book (and as a result was at one time mistaken for its author), adding citations from some practicks of his own and from sources he referred to as ‘my fathers practiques’, ‘Resp. Pa.’ and ‘Inst. Patr.’186 By 180 For Balfour’s career see Tytler 1823, pp 91–105; Brunton and Haig 1832, pp 110–14; Stephen and Lee 1885–1901, vol 3, pp 52–3; McNeill 1960a and 1962, pp xi–xxxii; Walker 1985, pp 33–53. In connection with the origins of his practicks see especially McKechnie 1931, p 181; McNeill 1962, p lviii; Cairns, Fergus and MacQueen 1990, pp 50–1. The Practicks of Sir James Balfour was first printed in 1754 and this edition was reissued in facsimile by the Stair Society in 1962–3. Most of the manuscript copies are described in the introduction to the Stair Society edition—McNeill 1962, pp xxxiv–xxxviii— though others have since come to light. 181 Actis and Constitutiounis, preface; Hume, History of the Houses of Douglas and Angus, p 358. 182 Acts of the Parliaments of Scotland, vol 3, p 89. 183 McKechnie 1931, p 189; McNeill 1962, pp xlii and lvii; Walker 1985, pp 43–4. 184 For Hope’s career see Omond 1883–1914, vol 1, pp 93–147; Clyde 1937, pp vii–xi; Mathew 1955, pp 70–7; Walker 1985, pp 93–6; Stevenson 1996, pp 105–14. Hope’s Major Practicks was printed for the first time by the Stair Society in 1937–8. An incomplete list of the manuscript copies can be found in the editor’s introduction—Clyde 1937, pp xviii–xix—and see too Moir 1999. 185 NLS, Adv MS 24.1.3. For Sir Thomas Hope of Kerse see Brunton and Haig 1832, p 306; Stephen and Lee 1885–1901, vol 27, pp 325–6; Young 1992–3, vol 1, p 360. 186 Clyde 1937, pp xvi and xix–xxviii.

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The Literature of the Law 45 his father’s practicks he seems to have meant further collections of case notes, of which a few copies have survived, and by Responsa patris he may have meant the written opinions his father had given in response to questions received from his clients.187 By Institutiones patris he certainly meant a book that was soon known as Hope’s minor practicks, a series of discursive notes on the local law which had also been in circulation since at least 1643.188 It is not certain which of Hope’s books was known to Burnet. On the one hand, knowledge of the major practicks would explain his awareness that Hope’s family possessed other similar works, yet on the other hand it was the minor practicks that most obviously fulfilled the educational function of an institutional treatise.189 Either way, what Burnet found pleasing in Hope’s writing was clearly his occasional reference in the course of discussion of the local law to the civil law.190 He praised Hope for combining expertise in the local and learned laws, praised Gibson in the same way, and went on at once to note that ‘the civil law does not have force with us, but where our municipal law proves 187 NLS, Adv MSS 6.2.5 and 6.2.11 contain chronological notes of decisions by Hope running from 1610 to 1619. MS 2935 contains notes of decisions running up to 1646, the year of Hope’s death, as well as notes added by the writer on cases decided in 1647–50. The writer was Thomas Veitch, Hope’s godson, who graduated from Edinburgh University in 1645 and was admitted to the bar, after giving a lesson on the civil law, in 1649 (Diary of the Public Correspondence of Sir Thomas Hope, p 217; Catalogue of the Graduates of the University of Edinburgh, p 63; NAS, CS 1/5, f 188r). During the intervening period Veitch had also copied Balfour’s practicks and some other texts on Scots law (NLS, MS 2941), which, along with his noting of decisions, gives some impression of how learned intrants prepared themselves for practice. With regard to Hope’s responsa, there is some evidence of his activities both in his Diary and in the letters published in the First Miscellany of the Scottish History Society, p 73. 188 The copy in EUL, La III 402, was said to have been ‘written and begune 15th Januarii 1643 by Mr George Olyphant’, perhaps the George Oliphant who graduated from Edinburgh University in 1639, was a younger son of the lord of session Sir James Oliphant of Newton, had three uncles and a cousin at the bar, but never himself became an advocate (Catalogue of the Graduates of the University of Edinburgh, p 55; Cokayne 1900–09, vol 2, pp 367–8). The copy separated into CUL, Dd 3.84(II), ff 242r–55v, Dd 3.85 and Mm 6.69, ff 5r–16v, may have belonged to Edward Littleton, an English judge with an interest in comparative law, who died in 1645 (Baker 1974 and 1996, pp lii–liii, 22 and 521–2). EUL, Dc 1.56, appears to have been made in 1643, and La III 403, has on it: ‘Hic liber inchoatus 8o Die Octobris Anno Dom. 1649’. At least twenty-eight manuscript copies of the minor practicks have survived, despite the appearance of printed editions in 1726 and 1734, a clear indication of the book’s popularity. 189 The copies in NAS, GD 6/2171, GUL, MS Hunter 617, and EUL, Gen 68D have the title ‘Ane breif treatise upon severall substantiall heads of the Scotts law, very profitable for young students’. In the title of a copy made in 1685 the book is said to have been ‘dictat be Sir Thomas Hope off Craighall, his majesties advocat, to his sons as the ground and principalls off the Scots law and pratique, for there instructione’ (EUL, Dc 5.92). In the editor’s preface to the Minor Practicks, or, A Treatise of the Scottish Law (1726) it was said, on advice from ‘some of the near Relations of the Family’, that the book had been put together rather casually by Hope, ‘being dictated to his Sons for their Instruction, in Mornings while he was a dressing’ (p. vii). These last two statements may have been related, for in dedicating the 1726 edition to Sir Walter Pringle of Newhall, a lord of session, the editor appears to have expected him to be aware already of its origins (p. v). The 1685 copy was made by Robert Pringle, possibly the advocate of that name who was admitted to the bar in 1691, three years after his brother Walter (Grant 1944, pp 174–5). Their father, Sir Robert Pringle of Stichel, had married the daughter of Sir John Hope of Craighall, Sir Thomas Hope’s eldest son (Cokayne 1900–09, vol 4, p 318), and it was her brother, Sir Archibald Hope of Rankeillor, also a lord of session, who was described by the editor as a ‘near Relation to the Family’, who possessed the manuscript from which the 1726 edition was taken (p. viii). 190 See, eg, Major Practicks, vol 1, pp 216, 219 and 329, and vol 2, pp 3, 73–4 and 111, and Minor Practicks (1726), pp 122, 124 and 146.

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46 The College of Justice deficient the reason of the civil law has always been held in high esteem by us and has been highly valued by learned and expert judges, and they have often followed it in deciding cases’.191 Burnet believed that civil law learning would therefore be an asset to advocates, ‘provided they know how to use it correctly’, which not many did. He remembered being told by Sir Lewis Stewart of Kirkhill, admitted as an advocate in 1613, that he had almost despaired of making the transition from years of academic study in France into forensic practice in Edinburgh until he came across a copy of Craig’s book. Finding himself in the same ‘wretched condition’ as all prospective advocates, with the enacted body of laws little more than an aspiration, with the acts of parliament left doubtful in their significance, and with the decisions of the session both inconsistent and inaccessible, Stewart had discovered that the claims made for Justinian’s Institutes as a guide designed to save beginners from protracted toil or ultimate despair ‘could truly be made for this work’. Reverting to his initial claim that Craig should be viewed as ‘our first author, in effect another Justinian’, Burnet added that ‘you aspirants after Scots law now have a leader you may follow who will release you from the labyrinth of all these difficulties and lead you quickly into court more surely than an Ariadnean thread’.192

Craig’s status as an ‘author’ For present purposes the most important aspect of Burnet’s review is his central claim that Craig was ‘our first author, in effect another Justinian’, and it ought now to be asked in what sense he considered Craig to be an author. The most obvious way in which Craig could have been considered Scotland’s ‘first’ legal author is as a writer who had composed his own account of the local law, and not only because this is how the term tends to be used today.193 The writer of Regiam maiestatem was suspected of plagiarising most of his material from a foreign source, the authorship of the other old books was described as uncertain, Skene and Balfour were known to have compiled their books by editing and excerpting from existing texts, and Burnet regarded Hope as Craig’s only clear successor, possibly as author of the minor practicks.194 Burnet was keen to point out that he had tried in his edition to preserve so far as he could ‘the words of the author’, possibly under the influence of the Renaissance humanists who had stressed the need for accurate editions of texts.195 He certainly regarded Craig as a humanist, comparable to Buchanan and ‘learned in Greek and Latin beyond all of his generation’. Craig himself had hinted at a modern conception of authorship when he accused the writer of Regiam maiestatem of ‘manifest theft’, and again when he found time in dedicating his book to James VI to respond to the predictable criticism that he had 191 192 193 194 195

Ius feudale, sig B1r. On the labyrinth metaphor, often applied to the literature of the civil law, see generally Doob 1990. Clyde 1934, p xix; Black 1936, p 62; Walker 1981, p 70. Cf NAS, GD 6/2172, and EUL, La II 89, f 147, of which more will be said later. Ius feudale, sig B1r.

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The Literature of the Law 47 written nothing new.196 Yet the terms of his response are revealing, even when it is recognised that he was indulging in a conventional display of humility. ‘I actually congratulate myself to the highest degree for this’, he had remarked, ‘that I may have presented nothing of my own, nothing new, in this book’. His only claim to novelty was as the first Scot to have ‘collated our forensic usage with the written law of the feus, so that our law, which is considered vague and uncertain by most people, might be reduced to some form and order’. To this end it would have been a virtue to write nothing new, to add no more to the existing sources than an accurate restatement of the current law, and he invited his readers to correct any errors he had made and improve upon what he had done. Craig thus located his book in a tradition of enquiry, making it difficult for later readers like Burnet to view him as an original author in the modern sense. If it could have been felt that he had underestimated the originality of the expression of his views, it could also have been pointed out that several other writers on Scots law had in fact used their own words, for instance in reporting the decisions of the session or in annotating the texts they edited. In any case, it is not easy to see how an author in the modern sense could have been envisaged as another Justinian, especially given that Justinian was known to have valued the correction and compilation of texts more highly than their original composition.197 When Burnet first suggested that Craig should be regarded as a Scottish Justinian he emphasised the importance of the Institutes as a guide to Roman law for beginners. As author noster and Iustinianus noster, Craig was being compared with celebrated teachers like Buchanan and more obviously Gaius, whose great achievement had been to provide an orderly account of the law as it related to the ‘persons’ affected by it, to the ‘things’ persons dealt with, and to the ‘actions’ persons used to claim things.198 In contrast to the traditional arrangements of Roman legal books, which had owed more to the chaotic order of the XII Tables and of later procedural codes than to any logical analysis, Gaius’ institutional scheme had mapped out the law in an intelligible way.199 Even when the scheme was given imperial approval in Justinian’s Institutes, however, students were still expected to progress beyond the elementary structure of ‘the initial cradle of the laws’ and to immerse themselves in the denser detail of the subject as it was presented in the more traditional arrangements of the Digest and Code.200 It was not until the Renaissance that legal scholars, influenced by a more general humanist interest in systematic arrangement, began to explore the restructuring of the whole law on the institutional model.201 The humanist interest in systematic arrangement arose from the revival of classical rhetoric among scholars who believed that they might at last be on their way to satisfying Cicero’s desire for ius civile ad artem 196 197 198 199 200 201

Ibid, sig A3. Constitutio Deo auctore, 6. Schulz 1946, pp 159–66; Stein 1983, pp 154–8; Birks and McLeod 1987, pp 16–18. Stein 1983, pp 151–4; Rawson 1985, pp 203–12; Watson 1995, pp 117–23. Constitutio Imperatoriam, 3–4. Ong 1958; Gilbert 1960; Kelley 1979; Van der Merwe 1989; Stein 1996.

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48 The College of Justice redactum.202 This is an important theme to which attention will be devoted in a later volume, but it is not one that requires much discussion here, for although Craig was clearly alluding to Cicero’s project when he claimed in his preface to have reduced Scots law to some form and order, he could not have been regarded by Burnet as the first author to have dealt with Scots law on the pattern of Justinian’s Institutes. Craig had actually used a traditional arrangement in writing his treatise, starting with discussion of the origin of feus, of the etymology of the term and of the different types of feu, then moving on to discussion of who could grant what as a feu to whom, of the acquisition of feus from the living or the dead, and of the loss of feus, and finally dealing with the resolution of feudal disputes.203 If it is possible to detect the institutional scheme of persons, things and actions here, it is no more discernible than in the structure Balfour appears to have discovered in Regiam maiestatem.204 Craig may have shown how expectants familiar with the treatises on the feudal law could use their learning to organise their materials on Scots law, but if anything he had moved away from the institutional model that had previously been used. In reducing Scots law to order he was far from being the first author to have followed the example of Justinian’s Institutes. The other thing Burnet emphasised about Justinian was his role as one of the great legislators of antiquity, and it is conceivable that Craig was regarded as the author of a body of enacted law. Of course, Craig could not have been regarded as a legislator or as Scotland’s Justinian in the straightforward way in which David I had been, but he could have been regarded as the author of a book that had been clothed with statutory authority, perhaps more strictly as Scotland’s Tribonian than as Scotland’s Justinian. Both Skene and Balfour appear to have written their books in response to instructions received from parliament. In Skene’s case this had been formally acknowledged in an act of parliament passed in 1607 to make provision for ‘the prenting of the book callit Regiam maiestatem’.205 It was noted then that Skene had ‘presentit’ his edition of the book to parliament so that it might be ‘authorizit’ in conformity with the terms of the statutes establishing the law reform commissions, and he was granted a licence for the printing of the old books ‘wherewith, and be the actis of parliament maid sensyne, the haill liegis of this Realme sall be Judgeit, reulit and governit’. Skene’s edition of the later acts had been printed in 1597 under an exclusive privilege granted by James VI, and his editions of the old books were similarly printed in 1609 ‘cum privilegio regiae maiestatis’, granted ‘regia auctoritate’ in 1608.206 James had been encouraged both by 202

De oratore, 1.42.190. For a few examples of earlier works on the feudal law arranged in this way see the Tractatus illustrium iurisconsultorum, vol 10(1), ff 162 (Gulielmus Hannetonius,) and 304 (Udalricus Zasius), and vol 10(2), ff 43 (Franciscus Curtius) and 123 (Franciscus Sonsbeccius). Several other treatises in these volumes have a similar arrangement, except that succession is dealt with as a way of losing rather than acquiring a feu. On this point see Craig, Ius feudale, p 224. 204 Cooper 1947, pp 20–1; McNeill 1962, pp xli–xlii; Watson 1993, pp 36–7. 205 Acts of the Parliaments of Scotland, vol 4, pp 378–9. 206 Lawes and Actes, sig A2v; Regiam maiestatem (Latin edn), sigg A1r and A4v, and (Scots edn), sigg A1r and A2v. See too Register of the Privy Council, vol 8, pp 55–6 and 534–5; Brunton and Haig 1832, pp 232–4. For the significance of the phrases quoted here see Mann 2000b, pp 140–1. 203

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The Literature of the Law 49 his council in 1610 and by the parliament of 1612 to grant a privilege for the printing of ‘Mr Thomas Craige his warks’, and the parliament of 1633 had eventually licensed the printing of Craig’s treatise on the feudal law after being told that it ‘wald be verie usefull to the cuntrie and for the instructioun of these quha aspyres to the knawledge and practick thairof’.207 A petition to this effect had been received from Craig’s son Robert, a practising advocate, and from the College of Justice, four members of which had been instructed to examine the treatise before it was sent to the press. These four lawyers—Thomas Hope, Alexander Gibson, Lewis Stewart and Sir Andrew Fletcher of Innerpeffer, a lord of session—had all been appointed to a new commission for ‘the surveying of the lawes and generall customes of the kingdom’ set up by another act passed on the same day.208 It may be that the treatise written by Craig, who had himself been appointed to a law reform commission in 1578, was believed to have gone some way towards fulfilling the need for precision and certainty in the law, and it could later have been argued that an edition of his book had been authorised in the same way as Skene’s edition of Regiam maiestatem.209 Yet this cannot have been what Burnet had in mind, for he made no mention of the 1633 licence (which he must have known had expired in the year before his edition came out) and he did not accept that even Skene’s edition had been clothed with statutory authority. Another possibility is that Burnet regarded Craig as the first learned author to have imported authority into Scotland from the civil law. What he had to say about Gibson as someone who appeared to have followed in Craig’s footsteps points firmly towards this conclusion. When he wrote about Gibson’s nocturnal meditations on the civil law and the doctors of the law, and about him carrying Scots law in the casket of his heart, he was using standard metaphors for the learned process of memorisation.210 When he went on to suggest that Gibson had been engaged in marrying the civil law with Scots law he was using a standard metaphor for the learned process of transferring authority from a body of established doctrine into another area of enquiry. It has been observed that in using this metaphor Burnet was echoing the remarks of participants in the early usus modernus Pandectarum like Charles Loyseau, a French writer who had declared in the preface to one of his books, published at the close of the sixteenth century, that ‘it is necessary to marry law with practice, usage with reason: in short, it is necessary to combine Roman law with ours’.211 Loyseau had written of the difficulties faced by advocates freshly qualified from the universities, to whom the courts seemed an 207 Register of the Privy Council, vol 9, pp 572–3; Acts of the Parliaments of Scotland, vol 4, p 523, and vol 5, p 57. See too Mann 2000b, pp 101–2. 208 Acts of the Parliament of Scotland, vol 5, pp 46–7. Fletcher’s background is a little obscure. The eldest son of a merchant, he may have been the advocate who appears in the Register of the Privy Council, vol 9, p 690, though if so it is unknown how he was admitted. See generally Brunton and Haig 1832, pp 272–3; Stephen and Lee 1885–1901, vol 19, p 292; Young 1992–3, vol 1, pp 242–3. 209 Acts of the Parliaments of Scotland, vol 3, p 105. 210 Caplan 1970, pp 214–15; Carruthers 1990, pp 39–40 and 162–7; Coleman 1992, pp 138–9, 164–5 and 448–50. 211 Oeuvres de Maistre Charles Loyseau, pt 4, p 1; Luig 1972, pp 196–7; Mohnhaupt 1979, pp 283–4.

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50 The College of Justice alien environment, and also of the difficulties faced by unlearned practitioners, who found it impossible to devise solutions to new problems. The best lawyers would be neither ‘entirely preoccupied with Roman law’ nor ‘interested in practice alone’, but like the best practitioners of any art would combine ‘la Theorie’ with ‘la Pratique’. It seemed to Loyseau that ‘Roman law is the theory and our usage the practice of jurisprudence’, and to justify this view he made explicit reference to the medieval idea of a translatio studii. Just as the Romans had consciously modelled their writing on the literature of Greece in order to translate the wisdom and authority of the Greeks into their works, so later writers had imported wisdom and authority into their writing by following the example of the Romans. It was a commonplace of French literature that the centre of learning, after passing in antiquity from Athens to Rome, had since passed from Rome to Paris, and Loyseau was suggesting that the use of Roman sources in the exposition of French law could be viewed as part of this development.212 Burnet made a similar suggestion in relation to Scots law, and provided an example of how the translation of learning from Rome to Scotland might be effected by alluding throughout his preface to the prefatory remarks in Justinian’s Institutes. As a poet of some distinction Craig would presumably have been aware of the keen interest Scottish poets had taken in French literary theory in the late sixteenth century, and he had given the readers of his Ius feudale some cause to believe that he had been influenced by literary theory in his legal writing.213 He had written in one of his early chapters about the history of the civil law, from its origins in Rome to its exposition by the medieval commentators, and had ended by remarking on its contemporary use in various parts of Europe. If it was not surprising that it had little influence in places where ‘the laws and customs of the land are almost all comprised in written sources’, the reality was that ‘among us there is a great dearth of written laws and we naturally follow the civil law in most affairs’.214 Craig went on to concede that this dependence on the civil law was not as natural as it ought to have been since ‘among us there have hitherto been no professors of law who have taught law publicly, which should indeed be regretted, but unwillingly we are pretty well set apart with our proper written law’. Instead of being educated in the 212 Jongkees 1967; Kelly 1978; Walters 1998. More examples of this usage and further discussion of its relevance will be found in ch 3 below. 213 For the interest in the theory and practice of French poetry see McDiarmid 1948; Craigie 1955; Jack 1989; McClure 1991; Fleming 1999. Although none of these critics refers explicitly to the idea of a translatio studii, it fits with what they describe and is at least alluded to in contemporary sources. It must not be assumed from the fact that this development occurred at the height of the Renaissance that the transfer of learning was an essentially humanist ideal. As Jongkees 1967, p 42, points out, there is an important difference between the humanist notion of a renaissance of classical learning, starting in its original locus and spreading northwards throughout Europe, and the medieval notion of a transfer of learning from one place to another, in which it could receive different and possibly superior treatment. As for Craig’s reputation as a poet, it may be noted that when the privy council urged the king to have his works printed in 1610 his poems were the only writings they specifically mentioned in addition to his Ius feudale (Register of the Privy Council, vol 9, pp 572–3). Some of the poems were printed in 1637 in Sir John Scot’s Delitiae poetarum Scotorum, vol 1, pp 221–67; another appears at the start of Skene’s Regiam maiestatem (Latin edn), sigg ¶1v–2r. 214 Ius feudale, p 11.

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The Literature of the Law 51 civil law, the Scots had been left to work from their own rather limited resources, constrained by the few written laws they had but mostly ‘guided by the kindness of nature alone or by the mere dignity of law’. They had not been in a position to draw on the civil law in dealing with new problems, not at least until fairly recently. What had finally released them from reliance on a mere sense of natural justice had been the rise of the session as a professional court in the fifteenth and sixteenth centuries. ‘It may well be believed of our old sessions’, Craig observed, ‘by whom all our actions were determined, that they consisted of distinguished men from the clerical class who, being excellently instructed in the civil and canon laws, exercised judgment in accordance with written law’. When James V reconstituted the session as the College of Justice in 1532 ‘he admitted to that place neither men drawn exclusively from the nobility, nor those steeped in high honours, but those who were learned and expert in the learned laws, those who, following the civil law in judging, commended it to posterity as well’. Although the Scots had not managed so far to put the law faculties in their universities into regular operation, it could be claimed that a transfer of learning had been effected from the continental law schools to the College of Justice.215 It was this translatio studii that Craig, who regarded the feudal law as a ‘part of the civil law’, had been intent on promoting in his Ius feudale. 216 This, at any rate, is how Burnet appears to have understood Craig’s purpose. In this passage Craig had presented an account of Scots law that made sense to Burnet, who agreed both that the Scots did not have much written law of their own and that where written law was lacking the decisions of the courts could only be based on a sense of natural justice. When he commented that the lords of session were often left to make their own decisions in place of laws the word he used for decisions was arbitria, not the word iudicia that Craig had used to denote the decisions of the more learned lords of session. Burnet reserved the word iudicium for his description of the qualities of Alexander Gibson, his model judge, who had married the local with the learned laws. It was by this means that arbitria could be turned into iudicia, genuinely legal rulings, because by this means decisions could after all be based on written law. The writer who had first shown how this might be done was Craig. As he himself had claimed in his preface, by collating the vague and uncertain law of Scotland with the written law of the feus he had reduced it to some form and order, an achievement that appeared to Burnet to merit comparison with Justinian’s codification of Roman law. This was not because Craig could be regarded as a legislator. The notion of a translatio studii had often been linked with the older notion of a translatio imperii, meaning originally the transfer of imperial authority from Rome to Germany, but this latter notion had been discredited and Burnet was quite clear that the civil law did not have statutory force 215 On the attempt in Craig’s time to regenerate law teaching in Scotland, and on the extent to which it had actually been going on, see Cairns 1994 and 1998. The inaccuracy of Craig’s remarks would seem less surprising if it were recognised that his aim was not to provide an account of legal education in Scotland so much as to advance an argument for the exercise of learned authority by practitioners. 216 Ius feudale, sig A3r.

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52 The College of Justice in Scotland.217 Rather, his understanding was that the reason of the civil law was often followed in the decisions of the session and that in this way they had come to be based on a law that was written less by legislative than by learned authors. By handling the sources of Scots law convincingly in relation to the sources of the learned laws Craig had proved himself to be a learned author and had imported the authority of the civil law into Scotland. He had provided the Scots with the written law they lacked and so deserved to be regarded as their first legal author, in effect another Justinian.

Authors and authority more generally There were significant gaps in Burnet’s review of the literature on Scots law. That he omitted to mention the many collections of specimen documents—the style books of the writers and the protocol books of the notaries—is not surprising given that he was addressing his remarks to prospective advocates.218 That he omitted to mention any of the books dealing with the procedure of the session is more surprising, though he was clearly focusing on the substantive law the court had to deal with and did in fact refer indirectly to the ‘Treatise anent the Order of Proces’ published in Skene’s vernacular edition of the old books and acts.219 Skene had been assisted in developing a revised version of his treatise by Habakkuk Bisset, a former writer to the signet who had also assisted Balfour with the production of his practicks, and Bisset had used the revised version as the basis of a broader collection of materials he tried to have published in 1626.220 It may be that Burnet omitted to mention Bisset’s collection because it was mostly concerned with areas of the law that were primarily dealt with in the admiralty, commissary and other courts. Burnet certainly had nothing to say about the literature available to practitioners in these tribunals, such as the treatises on sea law by William Welwood in which, as Bisset remarked, ‘he hes sa lernedlie and scholasticlie handled the mater’.221 It may alternatively be that Burnet knew nothing of Bisset’s collection, which does not seem to have been in widespread circulation.222 The 217 Curtius 1953, pp 28–9; Lewis 1954, vol 2, pp 448 and 460–61; Jongkees 1967, pp 43–5; Copeland 1991, pp 134–5; Wieacker 1995, pp 31, 102–3 and 160–61. 218 Murray 1910; Miller 1925; Angus 1936; Wedderburn 1936; Durkan 1983. 219 Regiam maiestatem (Scots edn), pt 2, f 109r. This and other examples of the genre can be found in Thomson, Compilation of the Forms of Process. 220 Bisset’s Rolment of Courtis, vol 1, pp 5, 12, and 74–5, and vol 2, pp 274–5; Register of the Privy Council, 2nd ser, vol 8, p 368; Neilson 1916–24, pp 275–92; Hamilton-Grierson 1926, pp 1–3. 221 Welwood, Sea-Law of Scotland (1590), and Abridgement of all Sea-Lawes (1613); Bisset’s Rolment of Courtis, vol 2, p 265. Welwood had also written a treatise De dominio maris (1615) in response to the Mare liberum (1609) of Hugo Grotius, who had written a reply (‘Some Less Known Works of Hugo Grotius’, p 154) and with whom Burnet was personally acquainted (Supplement to Burnet’s History, p 458). On Welwood see generally Baxter 1959; Alsop 1980; Cairns 1998. 222 Only two complete copies are known to have survived, both in Bisset’s hand (preface to the printed edition). There are extensive excerpts from the collection in EUL, La III 427, but it will be shown later that this manuscript was made after the Restoration, and comments by the copyist on pp 1 and 22–3 suggest that the collection was not well-known even then.

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The Literature of the Law 53 same explanation may perhaps account for his failure to mention the practicks of Sir William Oliphant of Newton, a lord of session between 1611 and 1626, and of Sir Robert Spotiswoode of Pentland, a lord of session between 1622 and 1641, and president of the court after 1633.223 Although known at the close of the seventeenth century, Oliphant’s practicks was not sufficiently popular for a copy to have survived until now, and while the large number of surviving copies of Spotiswoode’s book provides evidence of its popularity, the earliest was made in 1657.224 Both these books were ‘promiscuous Collections of Decisions, Statutes and Customs’ like Balfour’s practicks and Hope’s major practicks, as distinct from the practicks that consisted entirely of brief case notes or fuller reports of the facts, pleadings and rulings in cases.225 As Burnet admitted, he had cited only a few of the collections in this category, of which some were merely private jottings but others had gone into public use. Nevertheless, despite being far from comprehensive, his review did provide a basically reliable overview of the literature on the substantive law dealt with in the session, divided into editions of the old books and acts, editions of more recent legislation, reports of the decisions of the session, and general surveys based on these and other sources, at least some of which could be distinguished from the practicks as treatises. It is clear that much of this literature was produced as a result of the appointment of the law reform commissions. The Black Acts were printed in partial fulfilment of the instructions given to the commissioners appointed in 1566. Skene’s Lawes and Actes bore a similar relation to the instructions given to those appointed in 1592, more than fifteen years after he had been encouraged to start work on his two editions of Regiam maiestatem by his involvement in the research of the 1575 commissioners. Balfour’s practicks may have arisen more directly from his membership of the same commission, and even Craig’s Ius feudale may have had some connection the law reform movement, if only in the sense that his membership of the 1578 commission may have led him to frame an alternative to the proposed body of enacted law. In the seventeenth century Bisset went to some trouble, when he tried to pull his materials together in 1622 and again in 1626, to connect his work with the commissions behind the Black Acts and Skene’s editions, describing his labours as an extension of Skene’s and suggesting rather implausibly that he might present the new king with a ‘writtin buik of the lawes of the Kingdome of Scotland’, much as the high priest Hilkiah had presented King Josiah with ‘the book of the law’ discovered in the temple at Jerusalem.226 Charles I had shown an early interest in the reform of Scots law.227 As well as trying to change the personnel of the session and to establish circuit courts, ‘out of his zeall and cair to establish ane certane and constant course in all the supreme courts’, he had issued 223 On Oliphant see Brunton and Haig 1832, pp 252–3; Omond 1883–1914, vol 1, pp 87–92 and 95–8; Stephen and Lee 1885–1901, vol 42, pp 139–40. Spotiswoode will be returned to later. 224 NLS, MS 2712 (cf ‘Scotstarvet’s “Trew Relation”’, (1913–14), p 165). Spotiswoode’s Practicks of the Laws of Scotland was printed in 1706. 225 Forbes, Journal of the Session, p xxiii. 226 Rolment of Courtis, vol 1, pp 2 and 70–82; 2 Kings 22.8–10; 2 Chronicles 34.14–18. 227 Hannay 1935, pp 322–5; Lee 1985, pp 90–9; Macinnes 1991, pp 92–4.

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54 The College of Justice instructions in 1628 to those who were believed to be the ‘most expert’ in the law of Scotland for ‘surveying, recognoscing and considering the lawes, statuits and acts of parliament of the said kingdome, alsweill printed as not printed, with the customes and consuetudes of the samyne quhilkis ar and hes beine observed as lawes within the said kingdome’.228 These instructions had been renewed by a convention of the estates in 1630, with an additional request that advice be provided ‘anent the ommissioun of suche actes and statuites as ar abrogat or become in desuetude and out of use’, and by the parliament of 1633, with an additional request that advice be provided ‘anent the trew sense, meaning and interpretatione of all such lawes and actes of parliament quhilks ar unclear and doubtsome in the selff and may receave divers interpretationes, and quhilk hes beine drawen in questioun befor the lords of sessioun’. Despite frequent prompting from both parliament and council, the commissioners never did provide advice to be ‘authorized and confirmed be forme of law and statute’, though it is possible that Hope’s major practicks resulted from his appointment to the commissions along with Scot, Haddington, Gibson, Spotiswoode and Stewart.229 Most of the decisions Hope reported date from a period before he became involved in promoting the king’s projects, after 1626 as king’s advocate in succession to Oliphant. Neither the decisions nor any of the acts of parliament he cited are dated after 1633, and he listed the acts of parliament as being either ‘printed’ or ‘unprinted’, an unusual distinction which recurs throughout the instructions issued between 1628 and 1633.230 The impression is given that he began work on his book some time after Charles I acceded to the throne and finished shortly after the parliament of 1633, quite possibly in the belief that he had gone some way towards satisfying the demands for a survey of the current state of the law.231 As already mentioned, occasional reference had been made in Hope’s major practicks to the works of continental authors, of which the most frequently cited by far was the Commentaires sur la coustume reformée du pays et duché de Normandie written by Jacques Godefroy before 1626.232 That there were perceptible similarities between the law reform and codification movements in Scotland and the north of France has often been noted, though one obvious difference was the failure in Scotland to conduct any form of enquiry into the usages of local 228 Register of the Privy Council, 2nd ser, vol 4, pp 137–9; Acts of the Parliaments of Scotland, vol 5, pp 46–7 and 209; Stirling’s Register of Royal Letters, vol 2, pp 592 and 639–40. 229 Register of the Privy Council, 2nd ser, vol 4, pp 116 and 149–50, and vol 5, pp 9, 11, 32–3, 138–9, 206, 227, 233, 280 and 318; Acts of the Parliaments of Scotland, vol 5, pp 39 and 225–8. The dating of the sources assembled by Haddington, Gibson and Spotiswoode does not seem to indicate any close connection between their writing and their membership of the commissions. 230 Clyde 1937, pp x–xi, followed closely in Walker 1985, pp 101–2, provides the figures and suggests that Hope stopped work on his collection in 1633 because he then became more of a statesman than a lawyer. Yet as Clyde also notes, there is evidence of Hope’s continuing practice as a lawyer in his Diary. What Clyde does not mention is Hope’s involvement in the law reform commissions. 231 The significance of a commission appointed in 1649 will be returned to in later chapters and at greater length in the next volume. 232 Major Practicks, vol 1, pp 18, 21 and 219, and vol 2, pp 60, 67, 73, 220–21, 253 and 286. It seems from the manuscripts that Hope’s use of Godefroy’s book was even more extensive than the printed edition reveals, a point that will be returned to later.

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The Literature of the Law 55 communities.233 The reform commissioners were never instructed to gather oral or written evidence of local practices and popular expectations but were instead instructed to examine the written records of parliament and the courts. The instructions issued in 1630 and 1633 were typical in directing the commissioners towards ‘the haill registers and rolles conteining the lawes and acts of parliament’, ‘the registers of decreitts and interloquutors of the lords of sessioun’, and ‘the buikes intitulat Regiam maiestatem, quhilk conteines ane record of the auncient lawes and customes’.234 Where the 1633 instructions became more explicit than most was in specifying that the aim was ‘to collect and sett downe the haill customes and generall consuetudes’, meaning those ‘quhilks have beine receaved in practick by the decreits of the lords of sessione’. The general customs of Scotland could presumably have been more local in their relevance before they were received into practick by the session, but the fact that it was only the received customs that the commissioners were meant to investigate raises several questions to which attention will need to be given in due course. How willing were the lords of session to hear evidence of local usage and of popular opinion on its relevance? Would proof of local usage have bound the court or would the usage only have acquired the force of law if it was approved in the rulings of the court? Would the court have been engaged in negotiating an authentic understanding of the usage with a popular audience, or in negotiating an authoritative opinion on the usage with its learned practitioners, or in imposing sovereign authority on matters left indeterminate by usage and opinion? Closely related questions need to be asked about the aims of those who wrote about the practick of Scotland, whether in reporting the decisions of the session or in reflecting more generally on their import. It has been suggested, for instance, that in writing his Ius feudale Craig was intent on providing an authentic account of the feudal customs of Scotland, referring to learned sources for evidence of the historical origins of the local law, but relying on decisions of the session to justify his view of the law in force.235 The suggestion is that he relied on decisions because he believed that all law derived its force from sovereign authority, identifying the customary law of Scotland with the practick established in the king’s courts of justice. But did he think that the decisions themselves were binding, or that customary law could emerge from the decisions? If the latter, how did he believe that the process of emergence would operate? Was he inviting his audience to confirm the accuracy of his view of the developing custom, so that it might be cited in the courts as an authentic record, or was he inviting them, as Burnet appears to have understood, to accept the authority of his opinions? Either way, his approach would not have been based on the assumption that all law owed its authority to the sovereignty of the king. 233

Cooper 1936, p 72; Williamson 1979, p 65; Cairns, Fergus and MacQueen 1990, p, 52. Register of the Privy Council, 2nd ser, vol 4, pp 137–9; Acts of the Parliaments of Scotland, vol 5, pp 46–7. 235 Cairns, Fergus and MacQueen 1990, pp 65–7, where it is observed that lawyers like Craig relied on ‘essentially Renaissance notions of sovereignty’ and tried to explain all law ‘in terms of the ultimate political authority of the king’. 234

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56 The College of Justice There is no doubt, however, that the idea of sovereignty was central to the thinking of many lawyers and statesmen in the late sixteenth and early seventeenth centuries.236 It was clearly what lay behind the frequently reiterated instructions to the law reform commissioners that they should present the products of their research to parliament so that it might then ‘establish and inact’ them (as the 1628 instructions put it) ‘in forme of lawes’. Although the requests added to these instructions in 1630 and 1633—that advice be given on acts of parliament that had fallen into desuetude or had been found open to varying interpretations—reveal awareness of the obstacles to using legislative sovereignty to displace popular or learned opinion in the law-making process, this was transparently what the estates were trying to do. Similarly, it was clearly the idea of sovereignty that lay behind Skene’s defence of the authority of the old books and acts. Both in claiming that they had been endorsed by David I and in claiming that they had subsequently been ratified in many acts of parliament Skene was arguing that they had been clothed with the extrinsic authority of a legislator. ‘These reasons’, he insisted, ‘proves necessarlie, that all the statuts and constitutions, written in these bukes, were authentick, and publick lawes, made [by] Kings of Scotland for the time’.237 As Skene confirmed in an appendix to his edition of the later acts, he contrasted the old books as repositories of authentic and public laws with books written by ‘private’ men, which might contain ‘profitable principals, and rewles of the lawes of this Realme, worthie to be remembred’, but did not contain statutes and constitutions.238 In reading books written by private men the task was to extract the authoritative material they contained and commit it to memory in any appropriate words, whereas in reading books written by public authors, because their authority was extrinsic rather than intrinsic, the task was to recover the original text and examine the precise wording used by the author. Skene claimed to have taken great pains in preparing his editions of the old books for the press to establish authentic readings from the manuscripts, following wherever he could ‘the most reliable and oldest copies’.239 It was perhaps because he presented the parliament of 1607 with what purported to be an accurate record of previously enacted law that it did not establish and enact his books in statutory form but merely ordered them ‘to be prentit authentiklie for the weill of the haill Judges, persones and subjectis of this realme’.240 Where books had originally been written with legislative authority, authentic editions would preserve the writer’s authority, and since the preservation of legislative authority would be the purpose of maintaining authenticity the two notions would tend to be run together. Skene certainly claimed to have preserved the legislative authority of David I and previous parliaments, but it has been known at least since the eighteenth 236 This is the professed thesis of the article just cited, and see too Levack 1994. Goodare 1999 argues that a sovereign state was in fact taking shape in early modern Scotland. 237 Regiam maiestatem (Scots edn), sigg A4v–5r. 238 Lawes and Actes, sigg T3–4r; Regiam maiestatem (Scots edn), pt 1, f 99v. See too Cairns, Fergus and MacQueen 1990, pp 62–3. 239 Regiam maiestatem (Latin edn), sigg A5–6r. 240 Acts of the Parliaments of Scotland, vol 4, pp 378–9.

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The Literature of the Law 57 century that his editions of the old books were actually quite inaccurate.241 While there is evidence that he was a competent and industrious scholar of the public records, of which he had charge as clerk register between 1594 and 1612, there is also evidence that he did not always adopt the wording of the oldest and most reliable manuscripts but sometimes retained later modifications or even made new modifications of his own, seemingly on ideological grounds.242 One possible explanation is that he was torn between his wish to produce an authentic record of existing laws, ‘purged of errors and restored to their pristine splendour’ by use of the humanist techniques he had learned as a student, and his wish to fulfil the demand for a body of laws suited to enactment in his own time, a demand that was fundamental both to the law reform movement in Scotland and to the codification movement in France.243 Another possible explanation is that, despite his humanist predilections, he remained sympathetic towards the use of learned authority in the gradual refinement of the texts of the law.244 In a much quoted passage from his dedication of the old books to James VI he recalled that after returning from years of study at a continental law school—unusually, in Germany—he had been reluctant to conform to the normal practice of the learned advocates, ‘since these men spend days and nights in the study of the civil law of the Romans, and expend all their labours in meditating upon it, and having neglected their native laws are possessed of no desire for the law of Scotland, which ought especially to be their concern’.245 Skene’s aim in editing the old books and acts, in producing an updated version of the Black Acts, and also in publishing a dictionary of the local terms used in the acts, had been to promote knowledge of the native written law.246 Yet if this was intended to reduce the need for recourse to the written law of the schools, it was not intended to replace dependence on learned authority with dependence on legislative authority. The clear implication of Skene’s remark 241 Their deficiencies appear to have been noted for the first time by Stair’s great-grandson, Sir David Dalrymple of Hailes, in his Examination of Some of the Arguments for the High Antiquity of Regiam maiestatem (1769), p 4. 242 Buchanan 1937, pp 226–7; Murray 1971, p 135; Cairns, Fergus and MacQueen 1990, pp 54–5. 243 Regiam maiestatem (Latin edn), sig A3v. This is the explanation suggested in Fergus 1988, vol 1, pp 196–209. In Cairns, Fergus and MacQueen 1990, p 52, an attempt is made to resolve the general tension between these desires by suggesting that the law reform and codification movements were themselves inspired by humanist thinking on custom. Unfortunately this does not help to resolve the specific tension in Skene’s work but tends rather to deprive a plausible explanation of significance. 244 Van den Bergh 1985 argues that the legal humanists were generally less exact as textual critics, and more sympathetic towards the aims and assumptions of their scholastic predecessors, than humanists in the strict sense were. See too Osler 1985, and for Skene’s humanist tendencies see Cairns, Fergus and MacQueen 1990, pp 52–6. Osler 2001 suggests that the mistake may lie in attributing modern standards and aspirations to humanist scholars generally. 245 Regiam maiestatem (Latin edn), sig A2v. Sir James Melville of Halhill, Memoirs of His Own Life, p 366, remembered that when Skene’s appointment to an embassy in 1588 was opposed by the king on the ground that ‘ther wer many better lawers’, he was won round by the observation that the new advocate was the one ‘best acquanted with the conditions of the Germanes, and culd mak them lang harrangues in Latin’. Skene may also have been remembering this incident when he told the king rather pointedly that he had studied at Wittenberg, ‘which is in Germany, the seat and home of good letters’. 246 Skene’s dictionary was composed as an alternative to the civilian works De verborum significatione, based on Digest, 50.16. See Smith 1958a, p 31; Kelley 1970a, p 89; Percival 1985, pp 180–84; Stein 1986, p 303; Maclean 1992, p 33.

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58 The College of Justice in his dedication was that the Scots should study their own laws in precisely the same way as they had learned to study the civil law, driven to nocturnal meditation by a deep desire for knowledge. Moreover, like Loyseau and Burnet, what he was keen to avoid was a narrow focus either on the learned law or on the local law. On returning from abroad, he recalled, ‘I decided to pore over Scottish jurisprudence and to collate my learning of it with the science of the civil law of the Romans, and to note the agreements and disagreements (which are varied and manifold) between them and, for my own benefit, to marry the foreign with the domestic’.247 The fruits of his labours had been made more widely available in many of the articles in his dictionary and also, as he emphasised, throughout his Latin edition of the old books and acts in ‘notes confirmed by the authority of the civil, canon and Norman laws’.248 The privy council had drawn this aspect of his work to the attention of the king in 1607, and the parliament of the same year had only sanctioned the printing of the volume after it had ‘allowed and authorized the same as ane worthy and memorable werk’.249 If there was a tendency for authenticity and legislative authority to be run together, both could be further combined with the imputation of learned authority. For those who wished to provide the Scots with written laws, the conflation of these ideas would have had obvious attractions. In one way or another the Scots were being provided with an antidote to the endemic vagueness and uncertainty of their law, and for most purposes it would have made little difference whether the written law was to be found inscribed in authentic records of the decrees of sovereign legislators or in the learned memories of expert jurists. Where the distinction would have mattered was in cases of conflict between the decrees of the legislative authors and the opinions of the learned authors, for it would then have seemed that the law had not been settled after all. Indeed, it would scarcely be surprising if laymen had generally found it difficult to accept the suggestion that the law could be settled in the minds of lawyers, whether through a simple exchange of opinions or through the discussion of the significance of decided cases. Their impression might well have been that there was no more chance of the law being settled in the form of learned jurisprudence than there was of it being settled in the form of popular custom, and that until a comprehensive code of law was enacted by parliament the decisions of the courts were bound to remain arbitrary. The lawyers could only have defended the view that the law could be written by learned as well as legislative authors if they had developed some understanding of the 247 See again Luig 1972, p 197. In his Scots edition of Regiam maiestatem, sig A3v, Skene claimed to have worked as a ‘faithfull interpretour’ in that he had ‘not followed the words, bot the sentence’ of the Latin text. Actually this meant that he had taken the advice in Horace’s Ars poetica, 131–4 (one of the basic texts of medieval translation theory), that the translator should not be a fidus interpres but should appropriate the sentiments of the text he was working with by transferring them to a new setting—see Norton 1984; Fleming 1993; Kelly 1997. Goodare 1999, p 34, hints that Skene may even have envisaged some sort of translatio imperii from Germany to Scotland. 248 Regiam maiestatem (Latin edn), sigg A1r and A3v. 249 Brunton and Haig 1832, p 233; Acts of the Parliaments of Scotland, vol 4, pp 378–9; Register of the Privy Council, vol 8, pp 55–6. The council’s letter was signed by the earl of Dunfermline, Lord Balmerino, John Preston of Fentonbarns and the earl of Haddington, all members of the session.

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The Writing of Stair’s Institutions 59 distinction and relationship between the two, and one objective of this book is to find out how far they had. At this stage it seems clear that they did make use of the ideas of legislative sovereignty, learned authority and authenticity, even though the differences between them were sometimes obscured. The same may be said in relation to the modern idea of original authorship, which appears rather tentatively in the preface to Skene’s De verborum significatione.250 Like Craig in the preface to his Ius feudale, Skene invited the readers of his dictionary to ‘accomplish and make perfite’ what he had attempted, promising anyone who succeeded that ‘the profite and commoditie redoundis to thee’. Unlike Craig, however, Skene did not claim to have said nothing new, but emphasised that he had attempted something never ‘treated be uthers of before’, and if he invited his readers to make corrections, he limited his invitation to those mistakes ‘quhilks are ignorant, and nocht wilfull’. ‘I am affrayed of all Readers’, he wrote, ‘for ilk man hes his awin Judgement & opinion, quhairof their is als mony contrarieties, as diversities of persones’.251 He did not mind his readers forming their own opinions provided they left him his and did not criticise him rashly. Striking a conventional pose of humility, he still managed to make a less conventional claim to the ownership of his statements.

THE WRITING OF STAIR’S INSTITUTIONS

Confirming the authorship of Stair’s book When it came to claiming the ownership of statements Skene had the great advantage over almost all other writers on Scots law before 1655 that his books had been printed with his name firmly attached to them. Even his editions of the statutory sources were very much his editions, fixed in a particular form by his hand and claimed as his work on the title pages, in the prefaces and at several other places. At the end of his Lawes and Actes, for example, he added his personal ‘signe and subscription manuall’, not only attesting the accuracy of his record but also asserting his ownership of the record in its authenticated form.252 Although his readers were free to make their own revised, annotated or rearranged copies of the collections he edited, his versions would remain fixed in print and would not be lost in the process of manuscript transmission that had made recovery of the original texts so difficult. If Skene had in the end contributed to the gradual transformation of the texts, his contribution would always be identifiable, and it was in this that he had the advantage over most of his contemporaries, for it is clear that the copyists of works circulating in manuscript at the start of the seventeenth century had not always adhered precisely to the words used by the authors of the texts they 250 251 252

Lawes and Actes, sig H1v. For this use of the quot homines, tot sententiae topic see Kerrigan 1996, pp 113–14. Lawes and Actes, f 177v. Cf Brown 1995, p 193, and see too Johns 1998, p 182.

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60 The College of Justice transcribed.253 Balfour’s practicks, for instance, quite apart from being reworked in abridgements and alphabetical rearrangements, contains passages written after the author’s death, and it could also have been supplemented in its surviving form with other passages added by copyists.254 Similarly, it has been noted already that Hope’s major practicks contains passages added by his son, and it may be that the additions were not all marked as such. Doubts have arisen about the authorship of both these works and also of the revised version of Skene’s work on court procedure, resolved only by the discovery of his holograph revisions.255 In the absence of the author’s holograph, the fact that texts clearly were modified by copyists makes it difficult to know how far the author can be held responsible for the words attributed to him. While this may not have posed a problem for readers with little interest in the idea of original authorship, it does pose obvious problems for historians who wish to use texts as evidence of the views of particular writers. These problems arise in relation to the treatise eventually printed as Stair’s Institutions. As was noted at the head of this chapter, Stair’s book was printed for the first time in 1681. Although he complained twelve years later about typographical errors he had been unable to prevent, the implication is that he was otherwise content to accept the text as his own.256 However, in 1681 he asserted that the writing of the book had been his ‘aim and endeavour more then twenty years’, and since his own manuscript is not known to have survived there is no direct evidence available to show how his text was developed during this period.257 Use must instead be made of over thirty manuscripts that have survived, mostly in the National Library of Scotland, though also in several other collections.258 The original ownership of about a third of the manuscripts can be detected from signatures on their flyleaves. A few were owned by laymen, but most appear to have belonged to lawyers, as might have been predicted. These expectants, advocates and judges formed what has lately been described as a ‘scribal community’, meaning an existing social group whose members had the opportunity and inclination to circulate 253 This is not to deny, of course, that printed texts could also depart from the writer’s words—it seems from the Register of the Privy Council, vol 8, pp 534–5, that Skene’s editions of the old books and acts were actually seen through the press by James Carmichael, minister of Haddington, who was expected to have control over the words finally printed—or that there could be different versions of printed texts—as Osler 1987 points out, and as Donaldson 1959–62 illustrates in relation to Skene’s dictionary. But the point is that writers had far greater control over printed texts, which obviously were less susceptible to variation than those left in manuscript. 254 McNeill 1962, pp xxxv–xxxvi and lxiii. 255 Hamilton-Grierson 1926, pp 1–3; McKechnie 1931, pp 182–9; Clyde 1937, pp xx–viii. 256 Institutions, sig A3v. Stair’s remark was reminiscent of Burnet’s warning in his preface to Craig’s Ius feudale, sig B1, that because of his absence from Edinburgh he had been less able to correct the printer’s proofs than he would have liked. The relationship between the prefatory remarks in Stair’s Institutions and in Craig’s Ius feudale will be examined closely in a later chapter. 257 Institutions, sig A4v. 258 NLS, Adv MSS 24.2.10, 25.1.5, 25.1.7–14, 25.3.2–3 and 25.4.17, and MSS 3172, 3721, 5058, 5434 and 7116; NAS, GD 45/26/62 and 135/171, and RH 13/58; SL, MSS 16 and 32–3; EUL, Dc 1.10 and 4.24, La III 416–18, and Gen 1427; GUL, Gen 1495; ML, SR 175/124141; AUL, MSS 592 and 2097; HLS, AHZ 6947. See too Watson 1981, p 31, on a copy in a private collection (though note that the other references there, to NLS, Adv MS 25.3.5 and MS 5334, are mistaken). Not all of the copies listed are complete; indeed, NAS, RH 13/58 is no more than a fragment.

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The Writing of Stair’s Institutions 61 manuscripts among themselves.259 They could have been inclined to do so for a variety of reasons, perhaps because their interests were not widely enough shared to merit a print run, or because they had an interest in keeping material to themselves, or because they wished to reinforce their corporate identity by exchanging with each other material that was not freely available. Another possibility is that they regarded the material they were dealing with as inherently fluid and more suited to manuscript transmission than to dissemination in print. It was within the scribal communities of the seventeenth century that medieval attitudes to writing, or at least the practices of modification and collaborative composition associated with them, are most likely to have survived.260 It is therefore possible that the surviving copies of Stair’s book bear a limited resemblance to the text he wrote, and even that the copy-text he eventually sent to the printers was derived from the work of his readers as much as from his own writing and revision. Before any attempt can be made to locate the text Stair wrote in the context in which it was produced it will first have to be established that the text he wrote can be identified. Obviously it would help to know who made the copies of Stair’s book. There are two main possibilities, starting with professional copyists, who could have operated in two ways. First, scribes could have been employed by booksellers to make multiple copies of legal texts for sale in their shops. Although the inventories of the stationery booksellers in Edinburgh tend to show that their stock consisted exclusively of printed matter, these booksellers fought a running battle against the itinerant chapmen who set up stalls in and around the Parliament House and who sold any books they could lay their hands on at low prices.261 It is possible that the chapmen, who certainly ‘bought books in sheits and employed bookbynders in the Cittie to bind the same’, also bought books in manuscript and had copies made and bound for sale to the lawyers who were their most likely customers. Secondly, it is clear that scribes were sometimes directly commissioned by lawyers to copy texts for them, as one advocate indicated by noting in his diary the expense he had incurred in buying paper for a copyist and paying him a fee for transcribing a treatise on Scots law, which he probably then had bound like a number of other legal manuscripts in his possession.262 The advocate did not indicate who the copyist was in this case, but he may well have been a kind of lawyer himself. Notaries public had been willing to transcribe literary texts as well as legal documents since the fifteenth century, and Habakkuk Bisset’s employment to produce multiple copies of Balfour’s practicks at the author’s direction, and to transcribe other material for both Balfour and Skene, may illustrate a more general availability of writers to the signet to perform literary services for judges and 259

Love 1993, pp 179–82; Round 1999, pp 166–9; Dobranski 1999, pp 16–17. Marotti 1995, pp 135–47; Kerrigan 1996, pp 117–19; Woudhuysen 1996, pp 162–3. 261 Records of the Burgh of Edinburgh, vol 4, p 21, and vol 7, p 96; Bannatyne Miscellany, vol 2, p 185, and vol 3, p 197; Grant 1921–5. On the book trade generally see Mann 2000b. 262 Lauder, Journals, pp 241, 258, 264–5, 270, 278 and 297. For the importance of bookbinders to the College of Justice see the Records of the Burgh of Edinburgh, vol 6, p 392. 260

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62 The College of Justice advocates.263 Although Bisset’s later suspension from membership of the society of writers to the signet for failing to keep an ‘oppin buith’ in Edinburgh suggests that he was not entirely typical, this happened after he had moved beyond the copying of texts for others and had started making his own collections.264 Moreover, what seems significant about Bisset’s suspension is the enforcement of the rule that writers to the signet should make their services available, which they tended to do in ‘writing chambers’ near the Parliament House. The rules of the society were rigorously enforced partly because of the threat posed by a rising number of other ‘writers’ who offered their services to lawyers.265 Excluded from the preparation of many of the documents used in the legal process, these writers tried to find other ways of obtaining employment and they may well have taken commissions for the transcription of legal books. How these professional copyists would have gone about their business seems fairly clear. In the later seventeenth century concern was expressed in parliament about ‘the ignorance and inadvertencie of some writters and Nottars’, which may have meant the writers who did not belong to the exclusive society of writers to the signet, a branch of the College of Justice which had its own rules against ‘careless writing, blotting, and erasing’.266 However ignorant and careless some writers may have been, it is evident that they were expected to produce accurate and reliable versions of legal documents, and the same expectation would presumably have applied to their transcription of any other texts they were given to copy. Professional scribes were generally expected to follow their own notions of spelling, punctuation and abbreviation, and those familiar with legal documents would no doubt have used their knowledge to correct any errors or infelicities in their exemplars, but they would have been expected to adhere closely to the substance of any text they transcribed, at least when fulfilling a commission and not reproducing books for their personal use.267 However, it seems less clear that the other possible group of copyists would have been so punctilious. Legal texts were not infrequently transcribed by lawyers themselves, and for these copyists the process of transcription would have formed part of the process of learning the 263 For the availability of notaries public see Van Buuren 1966, pp 370–71; MacQueen 1977, pp 200–03; Lyall 1989, pp 242–6. For the employment of Bisset see his Rolment of Courtis, vol 1, pp 12 and 75, and vol 2, p 275. For the frequent employment of legal writers to produce literary manuscripts in England see Love 1993, pp 94–7; Woudhuysen 1996, pp 52–66; Beal 1998, pp 5–11. 264 History of the Society of Writers to Her Majesty’s Signet, pp 244 and 248; and see too pp 231, 236–7, 242–3, 276, 287 and 337. 265 Dingwall 1994, pp 217–20, gives figures for the end of the century. For the society’s opposition to the encroachment of other writers on their business see the History of the Society of Writers to Her Majesty’s Signet, pp 278–80, 297–8 and 300–01. 266 Acts of the Parliaments of Scotland, vol 8, p 247; History of the Society of Writers to Her Majesty’s Signet, pp 251 and 277. 267 Cameron 1971, pp 528–9; Love 1993, pp 119–21; Beal 1998, p 45. See too Fergus 1996, pp 91–6, where it is argued that Quoniam attachiamenta, one of the old books edited by Skene, was copied in the fifteenth century by notaries who did not feel justified in altering the substance of the ‘core text’. The assumption is that these scribes were copying the text for their own use and that they ascribed a particular status to Quoniam attachiamenta as an authoritative book of law. Another possibility is that their professional training and etiquette discouraged a more active approach.

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The Writing of Stair’s Institutions 63 law.268 In the era before touch-typing, texts were not transcribed directly from one page to another but passed through the short-term memory of the copyist.269 In the case of a text copied by an expectant, who aimed to imprint what he was reading on his long-term memory, the gap between one page and the next would have been extended, and there need not have been much determination to reproduce precisely the same words as appeared in the exemplar.270 In the case of a text copied by an advocate or judge there would also have been some incentive to reconcile what was written in the exemplar with the law already stored in the memory. It would at least have been tempting to bring up to date any references to statutes or decisions, to note any discrepancies between views stated in the text and views held by other lawyers, or even to alter any passages that seemed misleading or mistaken. Particularly where the books lawyers wrote were regarded as no more than aids to developing the law in the memories of experts, there would have been little reason to reproduce texts exactly as they had been written. Consequently, it cannot be taken for granted that the book Stair wrote has been preserved in its original form. Evidence will need to be adduced that those who made the surviving copies did not alter the substance of the text they transcribed. To begin with, it can be confirmed that the text preserved in the manuscripts does bear some relation to the text eventually printed. All the complete manuscripts are of a text arranged in thirty-one consecutively numbered chapters or titles, further divided into two parts at the end of the twenty-second title, and with each title broken up into numbered paragraphs. The numbering of the paragraphs is variable, but otherwise the arrangement of the text is the same in all the manuscripts and also in the first printed edition, except that titles dealing with tacks (or leases) and teinds (or tithes) appear in reverse order there. As for the substantive contents of the text, detailed comparison of two manuscripts both with each other and with the first printed edition reveals a high level of continuity between the texts reproduced.271 Leaving aside the almost constant variations in spelling, punctuation and abbreviation, and also the less constant but not infrequent variations in the exact wording used, the text found in the two manuscripts is mostly the same as the text found in the first printed edition. There are a number of differences between the two manuscripts, as will be noted presently, and many more between the manuscripts on the one hand and the first printed edition on the other, but by and large the text remains the same, and even where it does not there 268 A striking example is NLS, Adv MS 25.1.14, a copy of Stair’s book which was said to have been ‘writt by Sir Alexander Falconers own hand when President of the Session in King Charles tyme’. Sir David Falconer of Newton (perhaps confused with an earlier lord of session called Alexander) was president of the session between 1682 and 1685, after Stair’s book had appeared in print. If he did make a copy by hand, it was presumably because he saw some virtue in the copying process and adhered to the opinion that ‘those things that we copy we impress more deeply in the mind’ (quoted in Beal 1998, p 2). See too Cunningham 1989, pp 119–20. 269 Love 1993, pp 314–15. 270 Examples of expectants who made their own copies of books have already been given in nn 187–9 above. One of those mentioned, Robert Pringle, was the owner and possibly the maker of EUL, La III 416, a copy of Stair’s book. 271 NLS, Adv MSS 25.1.10 and 25.1.5.

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64 The College of Justice can be signs of continuity. For instance, in a title dealing with obligations of restitution there is a passage that begins in the first printed edition with the sentence: ‘The doubt remaineth greater, whether what Enemies having Possest, being recovered by a Nation or Party, ought not to be Restored to their proper owners of that Nation’.272 Immediately before this it was stated with some certainty that ‘things recovered from Thieves, Robbers or Pirats, are lyable to this obligation of Restitution’, so that it is unclear what the lesser doubt was supposed to be. In the manuscripts, however, these passages are separated by a discussion of the question whether a nation victorious in war need restore to its former enemy the plunder it has taken during the war. This discussion concludes with the sentence: ‘But whatever be the law of nationes in this matter, yet as to the peculiar and civil law of anie natione the doubt remaineth greater’, continuing with the words found in the first printed edition.273 In another title of that edition there is an extensive treatment of the prize cases arising from the later Dutch wars, which cannot be found in either of the manuscripts.274 It seems that this treatment was meant to supersede the discussion found in the two manuscripts and that the manuscript passage was excised without a necessary adjustment being made to the remaining text. Quite apart from shedding light on an obscurity in the printed text, the manuscripts provide evidence here of their derivation from the same archetype as the first edition, even though the text they reproduce is not the same. Further evidence of continuity is provided by a solitary reference in the first printed edition to the standard gloss on the Corpus iuris civilis.275 The reference is in the form ‘Gloss, ibid.’ and seems to signify a gloss on the Digest text last referred to. The form is peculiar, however, in contrast to the more standard form of the reference that appears two lines earlier in one of the manuscripts to ‘Gl: ad l. 1. eod.’276 In the other manuscript this standard reference is followed by the reference that appears in the first printed edition in isolation and in a form more appropriate to a supplementary reference.277 Again, the manuscripts appear to have reproduced an earlier version or versions of the archetype from which the first edition derived, and they may at least be taken to illuminate a peculiarity in the first edition. Another peculiar reference can be found in a title on ‘Conjugal Obligations’, where comparison is made between the law of Scotland and ‘the Law and Custom of Holland, Art. 3. Ord. Pol.’278 There is nothing unusual about the comparison of Scots law with the law of a neighbouring nation, a common feature of Stair’s book, but what is odd is the reference to the Dutch politijcque ordonnantie.279 Elsewhere, information on the laws of neighbouring nations was always drawn from the descriptions provided by other writers, and the sources cited were invariably 272 273 274 275 276 277 278 279

Institutions, 7.5. NLS, Adv MS 25.1.10, 7.4, and Adv MS 25.1.5, 7.5. Institutions, 12.42–4. See too Carty 1981; Graham 1982; Murdoch, Little and Forte 2003. Institutions, 10.50. Cf Digestum vetus, gl. ‘Illatae sunt’ ad 4.9.1.8. Adv MS 25.1.10, 10.31. Adv MS 25.1.5, 10.31. Institutions, 4.11. Alain Wijffels kindly provided advice on this point.

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The Writing of Stair’s Institutions 65 written in English, Latin or (far less frequently) Greek. It might be inferred from the reference to the ordonnantie that Stair could read Dutch, but the manuscripts suggest that it may instead provide further evidence of his willingness, identified by Professor Gordon, to borrow citations from other writers without recourse to the sources cited.280 In both of the manuscripts there is in place of the reference to the Dutch source a reference to ‘Corvin. ad tit. ff. de ritu nuptiarum’, meaning the discussion of the Digest title on the formation of marriage in a book by Ioannes Arnoldus Corvinus, a relatively obscure jurist in the Netherlands.281 In the first edition of his book, printed in 1642, Corvinus had given a simple account of the mores Hollandiae, but in a revised edition, printed in 1664, he had included a reference to the ordonnantie cited in Stair’s book. Whether or not Stair actually read the Dutch source, the manuscripts show fairly clearly where his information had come from and so appear again to have derived from the same archetype as the printed text. It is in the citation of sources that the manuscripts differ most frequently from each other and from the first edition. The two manuscripts were selected for examination partly because of their legibility, but mostly because of an earlier survey of the copies belonging to the Faculty of Advocates which was made on the basis of the citations they contain. When the Faculty’s collection was catalogued in the National Library of Scotland it was found that in seven copies the most recent references to decisions and statutes were dated around 1662, whereas in six other copies the most recent references were dated around 1666. One of the manuscripts selected is from the 1662 group.282 It contains some two thousand references to decisions and statutes, to texts on the civil, canon and feudal laws, and to books by later jurists, none of which is dated after 1662. The other manuscript selected is from the 1666 group.283 It contains five hundred or so more references than the earlier copy, a few of which date from 1667, but none of which dates from after that year. In the first printed edition the number of references increases by about a thousand more to a total of around three thousand five hundred, mostly through the addition of references to decisions and statutes from the 1660s and 1670s. Almost all of the references found in the manuscript from the 1662 group can also be found in the manuscript from the 1666 group, and almost all of the references found in the manuscript from the 1666 group can also be found in the 1681 edition. What seems striking is that scarcely any citations can be found both in the manuscript from the 1662 group and in the 1681 edition but not in the manuscript from the 1666 group. Again, there is evidence of continuity in the development of the text, from the version reproduced in the 1662 manuscript through the version reproduced in the 1666 manuscript towards the version printed in 1681. It is of course possible that the first printed edition was based on a version updated by a 280 Gordon 1985. For the significance of the inference see Smith 1959b, pp 39–40; Feenstra and Wall 1975, p 84; Walker 1985, pp 123–4; MacQueen and Sellar 1995, p 293; Feenstra 1996, pp 39–40. 281 Digesta per aphorismos strictim explicata, 23.2. 282 Adv MS 25.1.10. The others are Adv MSS 24.2.10, 25.1.8–9, 25.1.11, 25.1.14 and 25.4.17. 283 Adv MS 25.1.5. The others are Adv MSS 25.1.7, 25.1.12–13 and 25.3.2–3.

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66 The College of Justice copyist whose revisions Stair was prepared to adopt, but it seems more likely that the 1666 manuscript was copied from a revised version of Stair’s own manuscript, which he further revised before sending a final version to the press. This seems all the more likely when it is realised that most of the additional references to decisions of the session were to reports of the decisions that Stair himself was compiling, for Stair’s reports do not appear to have been made available to others until the 1680s.284 That some copyists did endeavour to bring the citations up to date is apparent from three other manuscripts. In one—a manuscript from the 1662 group in the Faculty of Advocates’ collection—the text of Stair’s book is followed by a copy of some reports of the decisions of the session compiled by Sir George Mackenzie of Tarbat, a judge in the court.285 Mackenzie’s reports ran chronologically across the years 1661 to 1663 and covered far more ground than the dozen notes on cases decided in 1661 and 1662 that can be found in the manuscript selected from the 1662 group. In another copy—again from the 1662 group—there is a similar set of reports at the end of Stair’s book, but starting in 1663 at the point where Mackenzie’s reports finished and running on to 1668.286 Although it might have been expected that in this copy at least some of the decisions Mackenzie reported would have been included in the text of Stair’s book, in fact it seems to contain only the dozen notes on cases found in the manuscript selected from the 1662 group. Another copy contains at the end of Stair’s book a series of case notes ranging widely in date but coming mostly from the years 1662 to 1666.287 Each note is headed with a reference to the text, such as ‘ad Tit. 22’, and in the margin next to each there is a letter of the alphabet which reappears in the margin of the designated title in Stair’s book. Again, however, although it might have been expected that the decisions referred to in this appendix would appear at the relevant places in the text of Stair’s book reproduced in the manuscript selected from the 1666 group and in the first printed edition, they cannot in fact be found there. If these three copies indicate how some copyists did attempt to bring the text up to date, what they suggest is that the copyists did not presume to alter the text itself, an impression reinforced by four manuscripts belonging to the Faculty of Advocates that end with an explicit. The manuscript selected from the 1666 group has a note that it was completed on ‘April 4: 1678’, and it is not easy to imagine why a copyist who was trying to bring his references up to date in 1678 would have cited no cases decided after 1667. Two other manuscripts from the 1666 group were made 284 Stair’s Decisions of the Lords of Council and Session was printed in two volumes in 1683 and 1687, and forms the basis of the adaptations and annotations in NLS, Adv MSS 6.2.19 and 81.1.1, and MS 1943. Lauder, Decisions of the Lords of Council and Session, vol 1, p 74, and NLS, Adv MS 24.4.2, p 7, indicate that one advocate had access to the collection in 1680, but there is no evidence that it was made available to others before then. Lauder, Historical Notices of Scotish Affairs, vol 1, p 38, and NAS, CS 1/7, f 166v, tend to indicate that it was not. 285 Adv MS 25.1.11. For Mackenzie’s career see Brunton and Haig 1832, pp 356–8; Stephen and Lee 1885–1901, vol 35, pp 145–8; Young 1992–3, vol 2, pp 459–60. For other copies of the reports written by Mackenzie see NLS, Adv MS 6.2.13 and MS 1943. 286 Adv MS 24.2.10. 287 NLS, MS 3172.

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The Writing of Stair’s Institutions 67 in 1677, and there is even a manuscript from the 1662 group that was made in 1673.288 All this evidence suggests that the manuscripts reproduce versions of Stair’s text that derived more or less precisely from his archetype. Examination of some of the other variations that can be identified in the texts of the manuscripts selected supports the same conclusion. One passage that can be found in the manuscript from the 1662 group cannot be found either in the manuscript from the 1666 group or in the first printed edition.289 Twelve other passages that appear both in the manuscript from the 1666 group and in the first printed edition cannot be found in the manuscript from the 1662 group.290 Other passages appear in the manuscript from the 1666 group in a form that is closer to the form found in the first edition than to the form found in the manuscript from the 1662 group, largely because of the inclusion of references to later statutes and decisions.291 Conversely, no passages have been found in the manuscript from the 1662 group that can be found in the first edition but not in the manuscript from the 1666 group, or that can be found in a form closer to the form found in the first edition than to the form found in the later manuscript. It would therefore seem that the manuscript from the 1666 group represents a revised version of the text reproduced in the manuscript from the 1662 group, and that the first edition was a revised version of the text reproduced in the manuscript from the 1666 group. Again, although it is possible that the copy-text sent to the press in 1681 incorporated alterations made by a copyist and adopted by the author, it seems more likely that the copyist of the manuscript from the 1666 group transcribed a version of the text revised by the author. Examination of the other manuscripts strengthens this impression. The other six manuscripts from the 1662 group are like the copy examined except that they contain seven of the additional passages found in the manuscript from the 1666 group and in the first edition. Eight other manuscripts are in the same condition.292 Of the other manuscripts in the 1666 group, one is like the copy examined and the others are more like it than the copy from the 1662 group.293 Another manuscript is also like the copy from the 1666 group, and eleven are closer to it than to the copy from the 1662 group.294 The fifteen manuscripts that are more like the 1666 than the 1662 copy are not identical with each other. Although they all contain most of the passages found in the 1666 copy and in the first edition but not in the 1662 copy, the passages included vary from one 288 Adv MSS 24.2.10, 25.1.5, 25.1.7 and 25.3.3. Watson 1981, p 31, assigns the manuscript that he examined in a private collection to the 1666 group though it was made ‘from November 7, 1678, to June 26, 1679’. 289 Adv MS 25.1.10, 10.67–8. 290 Adv MS 25.1.5, 4.1 (4.4 in the first edition), 4.6 (4.3, the numbering having gone awry in the first edition), 9.25 (9.30), 10.33 (10.53), 13.30 (13.45), 13.32 (13.46), 15.7 (15.12), 19.10 (18.21), 20.1 (20.1), 24.1–2 (24.1–2), 26.16–17 (26.16–17), and 30.20 (30.21–5). 291 The clearest examples are, first, Adv MS. 25.1.10, 13.17, Adv MS 25.1.5, 13.17, and first edition, 13.27, and secondly, Adv MS 25.1.10, 20.9, Adv MS 25.1.5, 20.9, and first edition, 20.9–11. 292 NLS, MSS 3172, 5058, 5434 and 7116; NAS, GD 135/171; EUL, La III 416–17; AUL, MS 592. 293 The copy like Adv MS 25.1.5 is Adv MS 25.1.7. 294 EUL, Gen 1427. The other eleven are NLS, MS 3721; NAS, GD 45/26/62; SL, MSS 16 and 32–3; EUL, Dc 1.10 and 4.24, and La III 418; ML, SR 175/124141; AUL, MS 2097; HLS, AHZ 6947.

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68 The College of Justice manuscript to the next, and no clear pattern of development emerges.295 Where one manuscript includes three changes and another only the first and second, others may include the second and third or the first and third, so that it cannot be said that some manuscripts move closer to the 1666 copy than others, or that some changes may be taken as evidence of a later stage in the development of the text. This last point is important, for it suggests that the manuscripts were subject in their making to conflation rather than correction.296 In other words, given that the passages included vary from one manuscript to the next, the copyists must have altered the text they copied by incorporating changes they had noted in other manuscripts rather than by making changes of their own. The copyists must have drawn their revisions from a common source, each transcribing his exemplar in the knowledge that there were new passages included in other manuscripts and incorporating these new passages into the text transcribed with varying degrees of reliability. The amount of conflation means that a genealogical analysis of the manuscripts into stems would be extremely difficult if not impossible to execute, but it also means that the probability of the author being responsible for the changes made to the text is greatly increased. Once again, while it is possible that the copy-text sent to the press in 1681 included passages added by the copyists and adopted by the author, it seems far more likely that the copyists included in their texts changes made by the author. Clearly, it was not the normal practice for the copyists to make additions of their own, and while it is possible that a few made changes which passed into common currency, or that one in particular produced a new version of the text which the other copyists and eventually the author himself tried to reproduce, it seems far more likely that the copyists tried to reproduce the text written by the author. Taken together with the general impression of development of the text through its 1662 and 1666 manifestations towards the 1681 edition, and with the clear evidence that the copyists did not attempt to update the citations in the text itself, the variations in the contents of the text support the conclusion that Stair was responsible for all the passages preserved in the manuscripts. It does not seem that the copyists of the text contributed to its development.

Dating Stair’s work on his book The conclusion just reached is firmly corroborated by evidence found in a manuscript of Stair’s book acquired by Glasgow University Library in 1979.297 Signatures on the flyleaves indicate that the manuscript belonged originally to 295 Adv MS 25.1.12, for instance, includes 9.25, 10.33, 10.67–8, 13.17, 13.30, 13.32, 15.7, 19.10, 20.1, 20.9, 24.1–2, 26.16–17 and 30.20. Adv MS 25.1.13 includes 4.1, 4.6, 9.25, 10.33, 10.67–8, 13.17, 13.30, 13.32, 19.10, 20.1, 20.9, 24.1–2, 26.16–17 and 30.20. MS 3721 includes 4.6, 9.25, 10.33, 10. 67–8, 13.17, 13.30, 13.32, 19.10, 20.1, 20.9, 26.16–17 and 30.20. 296 Dearing 1974, pp 15–18; Love 1993, pp 320–21; Greetham 1994, pp 324–5. 297 GUL, Gen 1495.

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The Writing of Stair’s Institutions 69 Patrick Pitcairn, possibly the advocate of that name who had been admitted on a bill in 1634 and had been appointed commissary of Dunkeld and sheriff depute of Perthshire in 1649.298 When the manuscript was examined for entry in the library catalogue it was found to contain no references dated after 1659.299 With the assistance of lists of the references found in the manuscripts from the Faculty of Advocates’ collection it is actually possible to trace all the references dated between 1660 and 1662 in the manuscript selected from the 1662 group in the Glasgow manuscript, but no reference dated after that year has been found there. The Glasgow manuscript includes the passage that appears in the manuscript from the 1662 group but not in the manuscript from the 1666 group or in the first edition, and it contains four of the passages that appear in all the manuscripts from the 1662 group apart from the one selected, but it does not include any passages that appear in the manuscripts from the 1666 group alone.300 It may therefore be taken to represent an earlier version of the text, at least as it was originally transcribed. But what is particularly interesting about this manuscript is that it does also contain many of the passages that appear in the manuscripts from the 1666 group alone. All of the additional passages found in the first twelve titles of the manuscript selected from the 1666 group can be found in the Glasgow manuscript, written in a different hand from the main text either in the margins or on inserted slips of paper. All of the additional references found in the first twelve titles of the manuscript from the 1666 group have been added in the same way, and the passage included only in the manuscript from the 1662 group has been scored out, with a note made in the margin that it ‘is deleat in the new iditione’.301 As well as serving to substantiate the otherwise worrying impression that the manuscript selected from the 1666 group happens to contain all the changes made to the text, the modifications made to the Glasgow manuscript also confirm that the changes were made in a new edition of the text and not by a gradual accumulation of scribal corrections.302 There is no reason to suppose that the person responsible for modifying the Glasgow manuscript attributed the new edition to anyone other than the original author of the text, identified by the copyist as ‘the Lord Stair’.303 The obvious reason for modifying the manuscript was to take account of changes that were known to have been made by the author so that it would remain an accurate copy of his text. 298 NAS, CS 1/5, f 88v; Acts of the Parliaments of Scotland, vol 6(1), pp 165 and 347–8; Register of the Great Seal, vol 8, pp 412 and 441–2; Government of Scotland under the Covenanters, pp 30–1. 299 See now www.special.lib.gla.ac.uk/manuscripts. 300 GUL, Gen 1495, includes the passages listed above as Adv MS 25.1.10, 10.67–8, and Adv MS 25. 1.5 (and first edition), 9.25 (9.30), 13.17 (13.27), 19.10 (18.21) and 30.20 (30.21–5). 301 GUL, Gen 1495, 10.66–7. 302 An obvious weakness in the survey undertaken is that the two manuscripts selected for examination were bound to emerge as copies of the least and most developed versions of the text. The evidence from the Glasgow manuscript, considered only after the survey of the manuscripts in the National Library was completed, offers some reassurance, though it remains the case that there may well be significant variations among the manuscripts that have not been uncovered here. Furthermore, some variations that seem insignificant for present purposes may be significant for other purposes. 303 GUL, Gen 1495, f 128r.

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70 The College of Justice Although the person responsible for the modification of the manuscript abandoned the task after the twelfth title, it was not particularly arduous. Gathered together, the changes made would only have filled a few extra pages, which must make it doubtful that the author would have made the changes in the course of writing out a completely new version of the text. Moreover, it would not have been obvious from a completely new version of the text that one passage in the old version had been deleted. It seems more likely that the author amended his text in the way that the Glasgow manuscript was modified, by adding passages in the margins or on inserted slips of paper and by scoring a passage out. Rather than allowing someone to make a fresh copy of the new text he would perhaps then have allowed someone to make a note of the amendments. Subsequent copyists could have worked from a copy of the old text along with a more or less reliable copy of the note, or of a set of notes if each change was recorded on a separate slip of paper, incorporating the amendments when they remembered to make use of their notes. This would explain the occurrence of conflation in the manuscripts from the 1666 group. That the latest citations in these manuscripts date from 1666 or 1667, notwithstanding that several of the copies were made as much as a decade later, clearly indicates that the new edition was produced during these two years.304 Closer inspection reveals that, with the exception of two references to cases decided in 1667, the latest references in the first part of the text copied in the manuscript from the 1666 group are from February 1666, whereas in the second part there are references to cases decided in June and July of that year. The impression is thus given that Stair revised the first part of his book during the vacation from March to May 1666, that he revised the second part during the vacation from August to October 1666, and that he revised the whole text again and made a few slight alterations in the following year. To judge from the dates on which copies are known to have been made, it may have been some years later that he allowed someone access to his revised text and enabled notes of the changes he had made to pass into circulation. As already mentioned, these changes do not appear to have been extensive, nor does any extensive revision appear to have been made until the text was prepared for the press in 1681. The general dating of the earlier revision in 1666 to 1667 is supported by two other pieces of evidence. First, one of the manuscripts in the National Library of Scotland bears the title ‘My Lord Stairs first book of practiques, 1666’.305 In fact it seems to be a copy of the first part of the text reproduced in the manuscripts from the 1662 group, which may mean that 1666 was the year in which the copy was made. But the person who wrote the title appears to have believed that it was the year in which the text was written, which may explain why he did not bother to transcribe its second part. After starting to transcribe a text that he knew had been revised in 1666 he may have given up once it became clear that it was not the revised text he was transcribing. Secondly, at least twelve copies have survived of 304 In addition to the copies mentioned in n 285 above, NAS, GD 135/171 was completed in 1673, SL, MS 16 in 1674, NAS, GD 45/26/62 in 1675, and EUL, La III 417–18 in 1677. 305 NLS, MS 5058.

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The Writing of Stair’s Institutions 71 another book Stair wrote in 1666 or 1667.306 It provides an account of the procedure followed in taking cases through the session and was known as his ‘Form of Process’. In 1681 it was printed, bound and sold with his Institutions, though Professor Watson has rightly argued that it was never meant to be part of that work.307 Stair had dealt in the first part of his Institutions with the creation or constitution of rights and in the second part with their conveyance from one person to another, and it had always been his intention to write a third part dealing with ‘the cognitione of rights by decisione and executione’, but there can be little doubt that his ‘Form of Process’ was neither intended nor understood to be the third part.308 The two books were seldom copied and bound together, and even when they were the ‘Form of Process’ was usually bound before the other book.309 When Stair signed a contract for the printing of his books it referred to his ‘Institutiones of the Law of Scotland, first and second pairt, with the forme of process before the Lords of Sessione’, and the two books were in due course printed with separate titles and pagination.310 Nevertheless, although the ‘Form of Process’ was never meant to be the third part of the Institutions, it may have been written as an alternative to the third part, and its writing may help to explain why Stair did not feel the need to complete his longer book when he revised it either in 1666 and 1667 or in 1681. It certainly seems significant that three copies of the ‘Form of Process’ are dated ‘Anno 1666’ and a fourth ‘Anno 1667’, though copies are not known to have been made before the 1670s, like the copies of the manuscripts of the Institutions from the 1666 group in the Faculty of Advocates’ collection.311 It seems clear that Stair did work on his books in 1666 and 1667. It seems equally clear that he had also worked on his longer book in 1662, since the latest cases cited in the manuscript selected from the 1662 group and in the Glasgow manuscript were decided in that year. More precisely, these two manuscripts contain a dozen references to cases decided between November 1661 and February 1662, as well as ten references to statutes passed by the parliament of 1661, which would seem to suggest that Stair worked on his book no later than the vacation from March to May 1662. A great deal of confusion has been caused by a remark made by the anonymous author of a pamphlet published in 1695 to the effect that Stair began work on his book in June 1664.312 Stair himself indicated clearly enough 306 NLS, Adv MSS 25.1.12 and 25.7.9, and Acc 11941; NAS, GD 18/5634 and RH 13/66; EUL, Gen 1427 and Dc 6.20; ML, SR 155/M20636 and SR 175/124141; GUL, Hunter 618 (S 7.11) and Gen 11; and see too Watson 1981, p 31. 307 The book was published in 1681 under the title Modus litigandi. See again Watson 1981, p 31, and for a contrary view Hutton 1981b, p 79. 308 NLS, Adv MS 25.1.5, 1.26 and 23.pr, and Adv MS 25.1.10, 23.pr; Institutions, 1.22. 309 NLS, Adv MS 25.1.12; EUL, Gen 1427; ML, SR 175/124141; Watson 1981, p 31. 310 NAS, GD 135/25/5; Dallas, System of Stiles, pt 2, p 152; Mackay 1873, p 173. The printing of the books is not in itself very significant since the two parts of the Institutions were also given separate titles and pagination. 311 NLS, Adv MS 25.7.9; EUL, Dc 6.20; GUL, Gen 11 and Hunter 618 (S 7.11). EUL, Dc 6.20 was copied in 1677 and GUL, Hunter 618 (S 7.11) in 1680. Mackay 1873, p 152, argues persuasively that NLS, Adv MS 25.7.9 must have been made after 1671. ML, SR 155/M20636 is entitled ‘Modus litigandi or form of process’, which suggests that it was made after 1681. 312 Impartial Account of Some of the Transactions in Scotland, p 7.

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72 The College of Justice that he had started work in the late 1650s, and there is no evidence to suggest that he resumed work in 1664. There is no justification for the statement made by one recent commentator that the earliest manuscripts of Stair’s book date from 1664, or that the earliest copies of his ‘Form of Process’ date from the same year.313 Nor is there much to commend the suggestion made by the same commentator that Stair wrote his book in parallel with his reporting of the decisions of the session.314 He began to make reports in June 1661 (not 1657 as the commentator states) and the dozen references in the earlier manuscripts to cases he had himself reported constitute a minute fraction of the total number of citations these manuscripts contain.315 The text reproduced in the earlier manuscripts is based almost entirely on material that would have been available as early as February 1659, when—for reasons to be explained in the next chapter—the Scottish courts stopped sitting. It was not until June 1661 that the session resumed its sittings, and the commentator is on firmer ground when he suggests that it was during this period of enforced idleness, from February 1659 until June 1661, that Stair is likely to have written most of his text (though the dates stated by the commentator are inaccurate). It would seem that Stair returned to the text in March 1662, that he did not return to it again until March 1666, and that a year later he laid it aside until 1681. The author of the 1695 pamphlet was wrong about when Stair started work on his book, was wrong to imply that the book was based on the collection of decisions he was already compiling, and should not be relied on for evidence of the dating of the text. There are in fact other reasons for believing that the text was substantially written before 1661 and was revised in 1662. Little weight should perhaps be attached to the slight discrepancy between an observation that something had been ‘laitlie found’ in July 1657 and an observation that something else had been ‘laitlie done’ in February 1662.316 The adverb may have been used rather loosely (like the adjective ‘recent’ in the preceding paragraph of this book), though it may be that these observations were made several years apart (like the preceding paragraph and an earlier account of the dating of Stair’s Institutions).317 More significant is the variation already identified in the substantive contents of the manuscript selected from the 1662 group in the Faculty of Advocates’ collection, the Glasgow manuscript and the other manuscripts from the 1662 group. It cannot be said that these manuscripts provide evidence of the same level of conflation as the manuscripts from the 1666 group, or even that they provide any clear evidence of conflation. The Glasgow manuscript could be taken to represent a 313

Hutton 1981b, pp 79–83. The suggestion that Stair based his Institutions on his Decisions appears to stem from the Impartial Account, p 6. 315 As was indicated in n 284 above, although manuscript copies were made of Stair’s reports, they all derived from the printed volumes and so provide no evidence of reporting before 1661. As will be noted below, Stair did also refer to cases decided in the late 1650s, and he could conceivably have made separate reports of them, but this can be no more than speculation. 316 NLS, Adv MS 25.1.10, 9.17 and 30.70. 317 Ford 1988, pp 24–33, which was itself based on a draft written in 1985. More evidence has come to light since this account was written, and the thesis of which it forms part does not merit attention. 314

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The Writing of Stair’s Institutions 73 more developed form of the text than the manuscript selected from the Advocates’ collection, and the other manuscripts could be taken to represent a more developed form of the text than the Glasgow manuscript. However, it would be strange if the text had gone through a series of revisions without any opportunity being taken to update the citations, which appear to be identical in all these copies. Given that only twenty-two references dated after 1659 have been found, and that only six passages have been found in some but not all of the copies, it again seems unlikely that Stair would have written out a completely new copy of his text in 1662, and still less likely that he would have written out a series of completely new copies before 1662. It seems more probable that the text was revised in 1662 in the same way as it appears to have been revised in 1666 and 1667, that the changes made were successfully incorporated into some copies, which may then have served as exemplars for others, but that some copies were made less successfully.318 If this is correct then it must follow that no record has survived of the original version of Stair’s book, composed, as he himself indicated, at the end of the 1650s. Yet it would also seem to follow that the version of the text represented by the manuscripts from the 1662 group is very close to the original version. The revisions made do not appear to have been extensive until 1681, and even then most of the text that can be found in the manuscripts was preserved. Since both copyists and compositors were expected to use their own spelling and punctuation, and since Stair did endorse the printed text as an acceptable version of his own, passages that can be found in all the manuscripts as well as the first printed edition are perhaps best quoted in their printed form, and this will be the policy adopted here.319 Passages that appear in the manuscripts alone will be quoted primarily from the copy selected from the 1662 group, after comparison with, and where appropriate correction from, all the other copies in the same group. Alterations made in 1666 and 1667 will be noted in a similar way.

Legal writing at the end of the 1650s Comparison of the 1681 edition of Stair’s Institutions with the surviving manuscripts thus tends to suggest that at least by the 1670s, when the dated copies were first made, it was not the usual practice for the copyists of legal books to modify substantially the texts they were transcribing.320 Study of the manuscripts also tends to suggest that it is a mistake to suppose, as many readers have done, that 318 The copyist of NLS, Adv MS 25.1.10 certainly appears to have omitted 9.25 (9.30), which can be found in all the other manuscripts, by mistake. 319 Most printed copies derive from the second edition, so for ease of reference passages that appear in both the editions Stair saw through the press will be cited in the form first edition/second edition. 320 It is of course likely that the manuscripts in the 1662 group were transcribed before the later edition became available, apparently in the 1670s, but none of them is clearly dated before then. BL, Add MS 35125, f 103, indicates that Stair himself had a copy of his book made for distribution in 1664. Awareness of this fact could conceivably explain the confusion introduced by the writer of the Impartial Account.

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74 The College of Justice Stair wrote his book against the background of his judicial experience during the 1660s and 1670s. It seems clear that the book was written against the background of his experience during the 1650s, mostly at the turn of the decade and with only minor revision during the early 1660s. If further comparison is to be made with other books written at about the same time, it will have to be with those written in the decade following the printing of Craig’s Ius feudale, of which there were several. Within a year of the appearance of Craig’s book a vernacular epitome of it had been acquired, and may have been written, by Robert Ker of Crailing, the eldest son of a border laird.321 Although not particularly well born, Ker had benefited, and continued to benefit, from the changing fortunes of his family.322 His father had been the fourth son of Sir Thomas Ker of Ferniehirst and had acquired the small estate of Crailing on the death without issue of an elder brother, after which he had been in a position to acquire through marriage the nearby estate of Hundalee. A younger brother had gone to the royal court, had become a favourite of the king and had been raised to the English peerage, first as Viscount Rochester and then as the earl of Somerset.323 Before his fall from grace, after the murder of his mentor, Sir Thomas Overbury, Somerset had persuaded James VI to raise the eldest of the Ker brothers to the Scottish peerage as Lord Jedburgh, subject to the condition that he first extend the family’s estates through marriage. The marriage resulted in the birth of six daughters but only one son, who died before his father, shortly after becoming an extraordinary lord of session.324 On the death of the first Lord Jedburgh the family estates and title passed to the surviving son of the next brother, then to his only son, and then on his death without issue to the only son of the fourth brother. Due to the influence of one uncle and the failure of the lines of three others, Robert Ker thus inherited not only the estates of Crailing and Hundalee in 1645, but also much larger estates in and around Ferniehirst in 1669, and the title of Lord Jedburgh in 1670. At the time of his father’s death he had apparently contemplated a career at the bar. With no university degree, he had immersed himself in legal practice and had observed the handling of disputes before the session.325 As well as acquiring an epitome of Craig’s treatise in 1656, he had also acquired in the same year a copy of some case reports compiled by the earl of Haddington, the brother-in-law of the second Lord Jedburgh, and in 1659 a copy of a compendium of Sir Alexander Gibson’s reports.326 Twelve years later he acquired a copy of Stair’s book, but by then his fortunes had changed considerably and he never did become an advocate.327 321

NLS, MS 5437. NLS, MS 5447, ff 6, 10r, 14r and 18r; Acts of the Parliaments of Scotland, vol 7, pp 91, 430, 505 and 543; Register of the Privy Council, 3rd ser, vol 1, pp 306, 446 and 512; Acts and Ordinances of the Interregnum, vol 2, pp 1154 and 1394; Register of the Great Seal, vol 9, pp 767–8, and vol 11, p 493; Jeffrey 1857–64, vol 2, pp 267–72; Stephen and Lee 1885–1901, vol 9, pp 172–6, and vol 31, pp 57–8; Balfour Paul 1904–14, vol 5, pp 49–80; Cokayne 1910–98, vol 7, pp 81–2. 323 On Somerset’s notorious career see Lindley 1993; Somerset 1997; Bellany 2002. 324 Brunton and Haig 1832, p 279. 325 NLS, MS 5411, f 33, MS 5434, ff 1v–2 and 170–81, and MS 5435, ff 215–20. 326 NLS, MSS 5433, 5435 and 5437. 327 NLS, MS 5434. 322

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The Writing of Stair’s Institutions 75 Ker’s epitome of Craig’s Ius feudale is not in itself terribly significant. It contains a misleading and often misconceived summary of the text, such as an uninformed and inattentive student might have made while reading, and it does not seem to have been copied by anyone else.328 However, as well as being of some interest as an example of how one expectant may have attempted to learn the law, it is also of interest because it appears at one point to be more closely related to another epitome than to the treatise itself.329 This other epitome was a great deal more accomplished and came to be more widely read than the Latin original, circulating among expectants and advocates in the later seventeenth and early eighteenth centuries, mostly under the title ‘A Compend or Breviarie of the Most Substantiall Poynts Relateing to the Law Extracted Forth of the Bookes of that Learned Jurisconsult D:T:C: Treating upon the Feudal Law’.330 In one copy the title adds that the abbreviation was ‘supposed to be done by Sir John Nisbet’, a lawyer’s son who had become an advocate in 1633 after giving a lesson on the civil law.331 Unlike Ker, Nisbet was to be remembered as ‘a Man of vast Reach and Depth of Judgment, great Penetration and Application to Business, and a Lawyer of the first Magnitude’.332 He was to be recognised as ‘one of the best Lawyers and Countrymen that ever pleaded’, as ‘one of the worthiest and most learned men of the age’, and as a scholar who had ‘travelled much in the learned Languages’.333 He was believed when one of the commissaries of Edinburgh to have made ‘uncommon Researches into the Consistorial Law’, an area still heavily influenced by the canon law, and he was also known to have had a deep interest in the feudal law.334 When Burnet was working on his edition of Craig’s treatise he sometimes turned for assistance with the reading of obscure passages in the two manuscripts he had at his disposal to his ‘old and learned friend Mr John Nisbet, advocate, whose copy was 328 Ker’s epitome does not cover the historical introduction to Craig’s treatise but begins at the eighth chapter of the printed edition, like another epitome copied in EUL, La III 382 and La III 424, and also a fragmentary epitome copied in ML, Baillie’s 39607. These epitomes were not obviously related to each other, nor is there any indication of when those in EUL and ML were made. 329 Compare NLS, MS 5437, f 2v, with Adv MS 25.6.1, p 16. 330 NLS, Adv MSS 25.6.1–2 and 28.3.14; EUL, La III 427; GUL, Hamilton 97; ML, SR 175/187629. NLS, MS 1950, EUL, La III 387, SL, MS 47 and BL, Stowe 385, have the clearly related title ‘Ane Epitome or Abridgment of the Most Substantiall Things Contained in the Booke of that Famous and Learned Jurisconsult Mr Thomas Craig of Riccartoune, Advocat before the Lords of Counsell and Sessione, Treating upon the Feudall Law’. NLS, MSS 5438 and 9248, GUL, Murray 520, and ML, SR 175/115544, have no title, though the first seems originally, before part of its opening page was torn away, to have had something like the most common title. See too SL, MS 20 for a partial copy, and Baker 2000a, p 123, for what appears to be another copy. In contrast to these fifteen or sixteen copies, only three copies of the treatise itself are known to have survived—NLS, Adv MSS 25.4.1–2, and EUL, Dc 4.59. For part of the explanation see Cairns 1988, p 331. 331 EUL, La III 427. For Nisbet’s admission as an advocate see NAS, CS 1/5, f 75v, and for his early career see generally Brunton and Haig 1832, p 389; Omond 1883–1914, vol 1, pp 186–7; Stephen and Lee 1885–1901, vol 41, pp 70–1; Nesbitt 1941, pp 25 and 257–8; Walker 1985, pp 177–8. 332 Forbes, Journal of the Session, p xlii. 333 Mackenzie, Vindication of the Government in Scotland during the Reign of King Charles II, p 34; Burnet, History of His Own Time, vol 1, p 275; Forbes, Journal of the Session, p xlii. See further Mackenzie, Works, vol 1(2), p 7. 334 Forbes, Journal of the Session, p xli.

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76 The College of Justice aliis correctius & emendatius’.335 The phrase left untranslated here could have meant that Nisbet’s copy was the most reliable guide to what Craig had actually written, for although the copy had only been made in the 1640s, Nisbet’s grandmother had been Craig’s sister and it is possible that use was made of an exemplar retained in the family.336 On the other hand, the phrase could instead have meant that Nisbet’s copy was the best guide to what Craig ought to have written, for Burnet was admitting here that he had sometimes been forced to alter the text where ‘no sense could be elicited from the words’. In any case, it would not be surprising if Nisbet had been responsible for an epitome that appears to have been produced at about the same time as the treatise was printed.337 Occasionally the author of the epitome made an ‘additione’ to the text, drawing attention to changes in the law since Craig’s time, and at one point he commented on an act of parliament passed in 1646 to raise revenue ‘for prosecuting the endis of the covenant’.338 Since the act was rescinded in 1661, the statement in the epitome that ‘now’ certain persons ‘are’ liable to taxation was presumably written before then, and since the reference in the act to a ‘monethlie mantenance’ was translated in the epitome into a reference to a monthly assessment or ‘cess’, a word that only came into use in Scotland during the 1650s, it was presumably written less than ten years before then.339 That the epitome may have been available to the writer of Ker’s epitome in 1656 reinforces the impression that it was written in the mid-1650s.340

335

Ius feudale, sig B1v. NLS, Adv MS 25.4.2 is Nisbet’s annotated copy of Craig’s book. When James Baillie announced in publishing the third printed edition of the Ius feudale in 1832 that he had attempted to provide ‘ipsius Auctoris textus, quoad eius fieri posset, emendatissimus’ (p. xv), he clearly meant that by collating the earlier editions with a manuscript in the Advocates’ Library—presumably Adv MS 25.4.1—he had tried to recover the most accurate record of the author’s own words that could be identified. Whether he should be considered successful must depend to a large extent on whether he was correct in believing that the manuscript he used had been made ‘either by an amanuensis of the author or certainly before his death’. It is by no means obvious how Baillie came to believe this. 337 ‘Craig de feudis in writ bound’ was listed in A Catalogue of the Excellent and Rare Books Which Was the Library of the Late Lord Dirltoun, p 10, as a legal treatise composed in English, which suggests that Nisbet (who later sat on the bench as Lord Dirleton) may at least have owned a copy of the popular epitome. 338 See, eg, NLS, Adv MS 25.6.1, p 265, and MS 5438, f 107v; EUL, La III 387, p 206, and La III 427, p 131; GUL, Hamilton 97, p 221, and Murray 520, f 59r; and for the act referred to see the Acts of the Parliaments of Scotland, vol 6(1), pp 632–3. The citation of the 1646 act rules out the possibility that the popular epitome was the translation Sir John Scot claimed to have written ‘anno 1644’ (‘Scotstarvet’s “Trew Relation”’, (1913–14), p 190). He stated that the translation was contained in ‘7 quaires of paper’, roughly a hundred and seventy-five pages, which would not have been enough for a full translation. 339 Acts of the Parliaments of Scotland, vol 7, p 86, and vol 12, p 761; Rait 1924, p 500; Donaldson 1965, pp 352–3; Stevenson 1972a, p 122; Dow 1979, pp 23–5; Whyte 1997, pp 88–90. Although it appears from Stair, Decisions, vol 1, p 511, that the rule introduced by the 1646 act continued to receive effect after the Restoration, the assumption in the epitome was that the act itself applied. It may have been because the 1646 act had been rescinded that later copyists were puzzled by its date, which in most copies is left blank or incomplete. 340 Like NLS, MSS 5434, 5435 and 5437, MS 5438 later belonged to George Carre, an advocate and lord of session in the eighteenth century, who as Robert Ker’s nephew succeeded to a portion of his estate when he died without male issue. As already noted, part of the first page is torn away, so that it is not clear whether it originally bore Ker’s signature, as his other books did. 336

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The Writing of Stair’s Institutions 77 What is more certain is that an index of the Ius feudale was compiled shortly after the treatise appeared in print.341 In the only copy that is known to have survived the index is written in Latin and reference is made to the book, chapter and page numbers of the printed edition. The author is identified as Andrew Gilmour, an advocate better known for compiling an ‘Index of the Acts of Parliament’, which circulated among his colleagues under the title ‘Ane Abridgement of the Principall Acts of Parliament Sett Downe Ordine Alphabetico’, or more often under the title ‘The Most Materiall Acts of Parliament Selected According to the Order of the Alphabet’.342 It would have made rather more sense to regard the book as an abridgement than an index since each entry consisted of a statement of a rule of law, or a description of something that had been decided, supported by a reference to an act or acts of parliament.343 Use was made of the editions prepared by Skene, whose own opinions were sometimes mentioned, and more extensively of the sessional editions of the acts passed by the parliaments of the first half of the seventeenth century. One copy of the abridgement is headed ‘Master Androw Gilmours Table upon the Acts of Parliament, 12 July 1661’.344 The son of a writer to the signet and the younger brother of one of the most prominent advocates of the time, Gilmour had received his master’s degree at the University of Edinburgh in 1637, had studied the learned laws at the University of Leiden, and had been admitted to the bar in June 1652.345 The surviving copies of his abridgement actually contain a number of references to acts of parliament passed after 12 July 1661, but it may have been then that ‘Mr Andrew Gilmour’, as he was also called in other copies, completed his work, for he became a knight baronet a month later and died on 14 March 1662.346 The surviving copies are not identical. The entries are longer in some than in others, and the arrangement varies. In some copies the acts relating to criminal law are dealt with before those relating to civil law, in others this order is reversed, and in one the criminal and civil acts are dealt with together. Yet in every copy the acts are abridged and presented under headings that would have been familiar to Scots lawyers, with the headings ordered alphabetically. The original aim was clearly to render the statutory law more accessible, especially the law that had been enacted since the appearance of Skene’s editions, and lawyers evidently did find the work useful, at least when it was augmented or rearranged. In style Gilmour’s abridgement was broadly similar to the compendium of Gibson’s reports that belonged to Robert Ker.347 Under the title ‘Duries Pretickes 341

ML, SR 177/549135. NLS, Adv MSS 6.2.3, 25.4.5, 25.5.3, 25.6.13 and 25.7.5, and Acc 11941; EUL, La III 421 and La III 427; ML, SR 175/187634. 343 For an earlier work in the same genre see EUL, La III 402. 344 ML, SR 175/187634. 345 Catalogue of the Graduates of the University of Edinburgh, p 53; Album studiosorum academiae Lugduno-Batavae, col 315; NAS, CS 7/558, f 20v; Records of the Burgh of Edinburgh, vol 4, p 308; Records of the Burgh of Glasgow, p 303; Register of the Great Seal, vol 10, p 162; Nicoll, Diary of Public Transactions, p 363; Mackenzie, Works, vol 1(2), p 7. 346 Register of the Great Seal, vol 11, p 56; Diary of Mr John Lamont, p 144; Nicoll, Diary of Public Transactions, pp 343 and 363. 347 NLS, MS 5435. 342

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78 The College of Justice Compendized Alphabetically, the 23 Jarii 1659’, this work consisted of brief statements of the points decided in the cases reported, collected together under standard headings, which were again arranged in alphabetical order. Following each statement there was a reference to one of the two volumes in which Gibson’s reports had started to circulate in the late 1650s, the first running from 1621 to 1630 and the second from 1630 to 1642.348 No other copy of the compendium owned by Ker is known to have survived, but there are at least seven surviving copies of another broadly similar work that circulated as ‘Ane Compend of Duries Practiques Ordine Alphabetico’, or ‘Ane Alphabeticall Compend and Index of Duries Ano Volumes of Practiques and Decisions’.349 This more popular compendium was generally attributed to George Lockhart, the second of three sons of Sir James Lockhart of Lee, a lord of session, who became advocates in the 1640s and 1650s.350 George Lockhart was admitted to the bar in 1656, apparently after studying on the Continent, and he soon gained a reputation as ‘the most learned lawyer, and the best pleader’, of his generation.351 His compendium also consisted of brief statements of the points decided in the cases Gibson had reported, arranged alphabetically under standard headings. Occasionally Lockhart added personal observations on decisions, and more frequently he mentioned cases decided or statutes enacted between 1662 and 1666.352 He was believed to have been responsible in addition for some ‘Practiques Observed befor the Lords of Session, Collected Alphabetically, from the Year of God 1660 to 1666’.353 Since not all the later cases mentioned in the compendium were also included in this collection, the reports it contains were presumably composed before Lockhart became aware, in the process of writing his compendium, of the significance of the omitted cases. On the other hand, the memory of the omitted cases must still have been fresh when they were mentioned in the compendium, which is unlikely to have been completed after 1666. What may have happened is that Lockhart worked simultaneously during the early 1660s on a compendium of Gibson’s reports and on a collection of his own reports, forming an alphabetical arrangement of each set of notes at the close of 1666. It may have been shortly afterwards that his compendium began to circulate among advocates as a guide to Gibson’s reports, which 348 Many copies of Gibson’s reports survive. See, eg, NLS, Adv MSS 6.1.3, 24.2.2, 24.4.8–13, 24.5.7, 25.5.13(ii) and 25.5.14, and MSS 2696 and 5344–5; EUL, La III 738–9 and 744; GUL, Murray 583, 648 and 653–4; and see too Baker 1983, p 72, and 1995a, p 199. It appears from the Decisions of the English Judges, pp 22 and 80, that Gibson’s reports were not generally available in January 1656 but were by November 1657. See too p 157 of the same volume. 349 NLS, Adv MS 24.4.14, and MS 2695; SL, MS 28; EUL, La III 419 and La III 427, and Dc 6.32; GUL, Murray 585. 350 Omond 1883–1914, vol 1, p 168; Stephen and Lee 1885–1901, vol 34, p 44; Grant 1944, p 125; Lockhart 1976, p 54; Young 1992–3, vol 2, p 433. 351 NLS, Adv MS 25.2.5(i), f 310r; Lively Character of Some Pretending Grandees, p 4; Mackenzie, Works, vol 1(2), p 7; Burnet, History of His Own Time, vol 1, p 246; Lauder, Historical Notices, vol 1, p 80; Diary of Thomas Burton, vol 4, p 115. 352 See, eg, NLS, MS 2695, pp 16, 37, 49, 72, 123, 149, 189, 192, 207–8, 213–14, 218, 227–8, 265, 271, 285, 298 and 311. 353 NLS, Adv MS 24.3.9, ff 43r–89v.

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The Writing of Stair’s Institutions 79 were conveniently referred to at the end of each entry by the dates of the hearings, and in some copies by the names of the parties.354 Two copies of a similar work have survived with the title ‘Hadingtounes Practiques, from November 1609 to 1613 and from January 1622 to 30 off July 1623’, and at one time what appears to have been a third copy of the same work existed with the more descriptive title ‘Lord Hadingtons Practiques in the Law, Alphabetically Digested into Titles; from November 1609 to 1613, and from January 1622 to the 30th of July 1623, by Lord Durie, Extracted Forth of His Two Volumes’.355 The description certainly fits the two surviving copies, which do indeed digest under titles arranged in alphabetical order some of the many decisions reported chronologically by the earl of Haddington between his appointment to the bench in 1592 and his removal from office in the mid-1620s.356 Unlike another alphabetical rearrangement of Haddington’s practicks, these manuscripts also digest the reports in the sense of summarising them in statements of the points decided, and this appears to have been done in three ways.357 First, in cases in which Haddington had himself set down no more than a short statement of the point decided, his statement was usually reproduced.358 Secondly, in some cases headings added to Haddington’s reports were copied instead of the reports themselves.359 Thirdly, in other cases a new statement was framed summarising the decisions reported at length by Haddington.360 It is possible that this was done by Sir Alexander Gibson, working from two volumes containing Haddington’s reports from 1609 to 1613 and from 1622 to 1623, though these would have been rather slim volumes.361 It is also possible that the copyist who thought the compendium of Haddington’s practicks had been formed ‘by Lord Durie, Extracted Forth of His Two Volumes’, was confused. One of the two surviving copies of the work is accompanied in the same hand and format by another similar work with the title ‘Ane Breiffe Summ or Compend of Duries Two Volumes of Practiques, Alphabeticallie Digested into Titles’, which is at once followed by ‘A Joynt Table to the Two Preceiding Compends of Hadingtoun and Duries Practiques’.362 The compendium of Haddington’s reports was thus associated with, and may perhaps 354 This mode of reference would itself have made Lockhart’s compendium more suited to general use than the one owned by Ker, in which the references were made by page number to a particular copy of Gibson’s reports. 355 NLS, Adv MS 6.2.7; CUL, Kk 5.22; Bannatyne Miscellany, vol 2, p 153. The library containing the third copy—owned by the duke of Lauderdale—also contained copies of the popular epitome of Craig’s Ius feudale and of Gilmour’s abridgement of the acts of parliament. 356 Most (though not all) of the surviving Haddington manuscripts are described in Brooks 2004, pp 219–25. 357 BL, Harleian MS 4691. 358 See, eg, NLS, Adv MS 24.2.1(ii), ff 32v and 34r, and CUL, Kk 5.22, pp 2 and 55. NLS, Adv MS 6.2.7 is unpaginated, but the same examples can be found there. 359 See, eg, NLS, Adv MS 24.2.1(ii), ff 90 and 197r, and CUL, Kk 5.22, pp 80 and 87. 360 See, eg, NLS, Adv MS 24.2.1(ii), ff 12v, 37v and 145v, and CUL, Kk 5.22, pp 28 and 67–8. 361 The contents of the Haddington manuscripts vary considerably, but none matches these dates. NLS, Adv MS 24.2.1 is in three volumes, with the third devoted to indexing, but the years covered in this compendium are all covered in the second volume. 362 CUL, Kk 5.22.

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80 The College of Justice have been confused with, a compendium of Gibson’s reports, which were circulating by the late 1650s in two volumes. This was not the compendium owned by Ker or the more popular compendium made by Lockhart but a third work in the same style, made or at least started in February 1660. The compendium of Haddington’s reports seems to have been copied at about the same time. On the first page of the other surviving copy a decision was dated 15 December 1662, though the case had in fact been dealt with on 10 December 1622.363 The year was corrected, but it has to be wondered why a copyist would have had the later date in mind. Another manuscript, written between October and November 1660, reproduces some of Haddington’s reports at length, but it is also an alphabetical digest of cases from the same two periods, and occasionally it summarises cases in very similar terms to those used in the two manuscripts described here.364 It seems to have been connected with the compendium they contain. Whenever the compendium of Haddington’s reports was composed, an attempt was clearly made to combine it with a compendium of Gibson’s recently recovered reports in 1660. Other attempts were made at about the same time and with varying degrees of success to draw different sources together. In one manuscript a fourth compendium of Gibson’s reports was integrated with statements summarising acts of parliament in force in 1660.365 It does not appear to have been copied by anyone else. Similarly, no other copy is known to exist of an extensive collection entitled ‘Sir Alexander Gibson His Praticques and Observationes of the Decisions of the Lords of Sessione, from the Year of God 1621 to 1642, with Sir Thomas Hope His Observationes and Praticques, with ane Compend of the Acts of Parliament, all which are Redacted to the Ordinary Heads and Titles of the Scottish Law and Digested and Disposed in ane Alphabeticall Methode and Ordour and Contained in Three Tomes’.366 Use was actually made of a wider range of sources than this indicated. As the title of the second volume declared, the compiler had digested ‘the Observationes of Durie, Hope, Balfour, Spotswode and Haddingtone anent the Decisiones of the Lords of Sessione’, and he had also included notes from several tracts on court procedure and maritime law, as well as an ‘Epitome seu breviarium libri secundi domini Cragii de feudis’. Most of the sources used were dated before 1642, but in the third volume there was also a section of notes on cases decided in the 1650s, and the latest acts of parliament cited were from 1661, which is presumably when the collection was completed.367 By then the compiler had access not only to Gibson’s reports and to Hope’s practicks but also to the book by Spotiswoode of which Burnet appears to have been 363 NLS, Adv MS 24.2.1(ii), f 159v, and Adv MS 22.3.4, p 741; CUL, Kk 5.22, p 1, and Kk 5.4, f 3r; SL, MS 13, p 157, and MS 20, p 176. 364 See, eg, NLS, Adv MS 24.2.1(ii), ff 23 and 159v, CUL, Kk 5.22, pp 1 and 28, and Kk 5.4, ff 3v and 24v. In the second example a phrase is used in Kk 5.22 but omitted from Kk 5.4. It is also omitted from the summary in NLS, Adv MS 6.2.7 (of William Home’s case, under ‘Escheat and Declarator Therupon’). 365 EUL, La III 421. 366 NLS, Adv MS 24.2.3. 367 The notes on cases decided in the 1650s include informations written by George Norvall— cf NAS, CS 8/23, 14 and 28 February 1654, and CS 98/101—who could conceivably have been the compiler of the collection.

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The Writing of Stair’s Institutions 81 unaware. As was mentioned earlier, no copy of this book is known to have been made before 1657, when it was transcribed by a Mr John Thomson, who seems to have been a student at Glasgow University in the late 1630s and to have been involved in legal practice in the Dumfries area in the 1650s.368 Thomson made a separate set of notes on Spotiswoode’s practicks in 1660, which was bound in a volume with copies of Hope’s major practicks, Gilmour’s abridgement of the acts of parliament, and Sir John Scot’s ‘Trew Relation’.369 Thomson’s notes were not themselves copied by other lawyers, perhaps because they consisted for the most part of selections from Spotiswoode’s book that made no advance on the original. If these collections provide evidence of a desire to move beyond the ‘epitomising’ of Craig’s treatise, the ‘abridging’ of the acts of parliament, and the ‘compendising’ of Gibson’s reports, and to amalgamate these and other legal sources, they do not appear to have satisfied the desire. A more successful attempt was made in another work that clearly did come to circulate widely among practitioners in the College of Justice. At least nine copies still survive of a book known as ‘Sir Thomas Wallace His Practicks’, or as Wallace’s ‘Repertorium iuris, or Repertorie of the Scots Law’, ‘Law Repertorie and Collection Ordine Alphabetico’, or his ‘Collections and Observations’.370 Thomas Wallace was the son of Sir William Wallace of Failford, an estate adjacent to Stair on the river Ayr.371 He was described in the early eighteenth century as a kinsman of the first Viscount Stair, with whom he was certainly related professionally, for in 1642 he had matriculated in the class taught by Stair at Glasgow University, and when he was admitted to the bar in the late 1650s it was on the strength of an apprenticeship served with Stair.372 At that stage he was still referred to as ‘Mr Thomas Wallace, younger of Failford, advocate’, but in 1662 he inherited a cousin’s estates at Craigie, and he was knighted by the king before 1665.373 It was apparently in this year that he completed his practicks, which consisted largely of another compendium of Gibson’s reports. In the familiar style, propositions of law were extracted from the decisions Gibson had reported and were listed under standard headings arranged in alphabetical order. But sometimes propositions of law were supported by reference to Hope’s major practicks or to Haddington’s practicks, or rather less frequently by reference to Balfour’s or to Spotiswoode’s practicks. Quite often they were 368 NLS, MS 2712; ‘Scotstarvet’s “Trew Relation”’, (1913–14), p 165; Munimenta alme universitatis Glasguensis, vol 3, p 91; ‘Dumfries Burgess Lists’, p 80. It is possible, though it must be stressed that this is sheer speculation, that Thomson came into direct contact with Spotiswoode’s son when the latter tried to recover his family’s estates in Dumfriesshire at the close of the Interregnum (Barry and Hall 1997, p 16). More will be said about Spotiswoode and the writing and circulation of his book in ch 3 below. 369 ML, SR 175/187631–4. 370 NLS, Adv MSS 24.1.3 and 24.3.2, and MSS 943 and 3171; EUL, La III 420; GUL, Murray 518 and 631, and Gen 1230; ML, SR 175/187635. 371 Brunton and Haig 1832, p 399; Stevenson 1841, pp xlvi–xlvii; Paterson 1847–52, vol 1, pp 339–40; Rogers 1889, vol 1, pp 58–71 and 117–24; Cokayne 1900–09, vol 2, pp 441–2, and vol 4, pp 276–7; Grant 1944, p 213; Young 1992–3, vol 2, p 713. 372 Munimenta alme universitatis Glasguensis, vol 3, pp x and 98; Forbes, Journal of the Session, p xxxiv; NAS, GD 25/8/448–9; Decisions of the English Judges, pp 29 and 146. 373 Register of the Great Seal, vol 11, pp 100–01, 160 and 452.

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82 The College of Justice supported by reference to acts of the parliaments of the late sixteenth and early seventeenth centuries, and occasionally by reference to the old books and acts. In many titles the propositions extracted from the decisions of the session and the acts of parliament were preceded by Latin summaries of passages from Craig’s treatise, which was cited by the book and page numbers of the printed edition. The work was therefore aptly called a ‘repertorie’ or ‘collection’, for its primary function was to amalgamate in a compendious form the main sources of the local law, and especially those that had only become available in the late 1650s. In fact it also contains a number of references to cases decided and statutes enacted in the 1650s and early 1660s, the latest dating from 1665, and at many places the author expressed his own views on how the law was then developing, often with reference to the opinions of others.374 To this extent the work is more than an amalgamation of a compendium of Gibson’s and other reports, an abridgement of the acts of parliament, and an epitome of Craig’s treatise, and it has understandably been placed in the same genre as the practicks of Balfour, Hope and Spotiswoode.375 One other book that seems to have been written in this period has more in common with Hope’s minor than major practicks.376 In the sole surviving copy it bears the title ‘A Treatise anent the Scotts Law in Civills’, and like Hope’s minor practicks it takes the form of a continuous discussion of the law from the author’s own perspective and in his own words. In many passages propositions of law are presented as summaries of points decided in cases or enacted in statutes, none of which is dated after 1666. In support of propositions reference is made to the reports of Balfour, Haddington, Hope, Gibson and Spotiswoode, and opinions are sometimes cited from Craig’s Ius feudale, Skene’s editions of the old books and acts, and Hope’s minor practicks. To this extent the book is similar to those written by Gilmour, Lockhart and Wallace, except that the propositions and citations are run together to form part of a coherent narrative instead of being listed in discrete paragraphs. In other respects, however, this book is rather different from theirs. For one thing, instead of being arranged in alphabetical order it is loosely structured around three main themes. It begins with a series of titles on the various courts sitting in Scotland and their jurisdictions, which ends with a discussion of the commissary courts. This leads into a series of titles largely concerned with the topics handled in the commissary courts, under the influence of the canon law, and the final series of titles is then devoted to discussion of land tenure, with frequent mention of the feudal law. Another unusual feature of the book is the amount of attention paid to these learned laws. It was the author’s view, he explained, that although ‘the canon law was composed by the pope, and that the popes authoritie be abrogat in Scotland, yet we follow very much the reason of the canon law and sometymes determine by his authoritie where reason is dubious’.377 374 See, eg, NLS, Adv MS 24.3.2, pp 6, 33–4, 53, 71, 92–3, 147, 160, 213, 241, 278, 292 and 331. EUL, La III 420, is dated 1663, but this is hard to reconcile with the citations it contains. 375 McKechnie 1936, pp 26 and 38. 376 NLS, MS 8490. This is a copy made in 1681, not the original. 377 Ibid, pp 92 and 160.

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The Writing of Stair’s Institutions 83 It was also his view, he further explained, that ‘lands in Scotland are called fewes, and the law that regulats these lands and heritages is called the feudall law, for Longobards having destroyed the Roman empyre, they distributed the land they conquest among the souldiers, and invented this barbarous word called feudum’. While Craig’s influence was evident both here and elsewhere, the author did not attempt at any stage to epitomise the Ius feudale, preferring instead to comment on the standard practices of lawyers involved in conveyancing. He could, however, have been John Nisbet, whose particular interests were believed to lie in the areas covered by the book. In the decade after Nisbet helped Burnet to produce his edition of Craig’s treatise, it may therefore be concluded, a great deal of writing on Scots law was undertaken. As will become apparent in due course, other books on Scots law were written later in the seventeenth century, but the period between around 1656 and 1666 formed a cohesive and distinctive phase in the development of the legal literature of Scotland. A typical feature of the books written during this period was their use of brief statements to sum up points of law elaborated on in acts of parliament or judicial decisions.378 Although the same approach was sometimes taken by other writers—most notably in Balfour’s practicks, where the summaries of decisions may actually have been copied from an existing compendium—at no other time did it form such a central feature of so many different books.379 Similarly, although the digesting of sources under titles arranged in alphabetical order was not unique to this period, it was typical then but exceptional at other times. The obvious purpose of the writers was to improve the accessibility and hence the awareness of earlier books and sources, especially those that had not been available previously—above all Gibson’s reports and also Spotiswoode’s practicks—or that had not circulated freely—such as Hope’s major and minor practicks.380 The various attempts to epitomise Craig’s treatise appear to have had the same motivation, though they differed in style from the lists of propositions and references found in the other books. The personal observations occasionally inserted into all of these books by the writers are of considerable interest, and the author of the ‘Treatise anent the Scotts Law in Civills’ clearly went much further in expressing his own views, but generally the writers were more intent on engaging with the existing literature than on breaking new ground. They seem mostly, so far as they can be identified individually, to have been advocates writing within a decade or so of their call to the bar, not quite the tyros to whom Burnet had addressed his remarks but not quite his learned colleagues either. Since Stair started writing his book within a decade of his call to the bar, and since he completed and revised his original draft within the decade or so following the 378 Another compendium of decisions that may well have been written at this time will be described in ch 5 below. 379 Gordon 1995, pp 68–9. 380 Notice has not been taken here of the many copies of earlier books and sources—such as GUL, Gen 1470, in which Spotiswoode’s practicks is combined with Gibson’s reports—which were probably made during the same period. There seems generally to have been an explosion of literary activity among lawyers at this time, for reasons that will be returned to later.

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84 The College of Justice appearance of Burnet’s preface, it obviously needs to be asked whether he shared the motivation of writers like Andrew Gilmour, George Lockhart and Thomas Wallace. The question is partly how he engaged with the works of previous writers like Craig, Gibson, Hope or Spotiswoode, and partly how his book compared with the others produced in the same period, particularly those that also began to circulate within the scribal community of the College of Justice.

Describing Stair’s contribution to legal literature At the start of this chapter it was noted that when the second printed edition of Stair’s book appeared in 1693 he claimed that it had originally been written for his personal use, ‘that I might know the Decisions and Acts of Session, since the first Institution of it’.381 To this end, he went on to remark, ‘I made Indexes of all the Decisions, which had been observed by men of the greatest Reputation, and did Cite the same’. What is intriguing about this statement is that it does seem to connect Stair’s book with those produced by other writers during the period in which he worked. Whether he actually started by compiling alphabetical indexes of the major reports of the court’s decisions, prior to digesting them in a different order in his Institutions, cannot be conclusively determined from the text of his book, but it is clear, even without the survival of any indexes, that he abridged the reports in the style favoured by his contemporaries. To a large extent his book is made up of propositions of law supported by references to the decisions of the court, often listed one after the other under appropriate titles. Despite his claim that he had digested the decisions of the court since its first institution as the College of Justice, he had in fact focused almost entirely on the reports written during the first half of the seventeenth century. In the earliest surviving version of his text no more than two or three decisions are mentioned from each of the collections compiled by Sinclair, Maitland and Balfour.382 His main source was Gibson’s reports, referred to over six hundred and sixty times. Another two hundred and eighty references were made to Hope’s major practicks, one hundred and fifty to Spotiswoode’s practicks, and about one hundred to Haddington’s practicks. Unusually, less frequent reference was also made to a collection assembled by Sir Thomas Nicolson of Carnock in the 1630s, and cases decided in the 1650s and early 1660s were dealt with in the same way as those cited from the earlier reports.383 There were in addition around two hundred and forty propositions of law backed up by references to acts of parliament, mostly acts that had been passed since Skene’s time. The 381 Institutions, sig A3v. According to NLS, MS 3171, and GUL, MS Gen 1230, Wallace’s practicks was also ‘compiled by him for his readier use’. 382 The two references to Balfour’s practicks were omitted from the printed editions, so that Stair’s use of the old reports was even less evident in 1693. The point he was trying to make will be returned to in a later chapter, as will the reports of John Sinclair and others. It is worth noting that EUL, La III 410, was Stair’s own copy of Balfour’s book. 383 Nicolson’s reports will also be returned to later. The decisions from the 1650s and early 1660s were cited like many others not from named reports but by the parties’ names and their dates alone.

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The Writing of Stair’s Institutions 85 lengthy passages in which these propositions of law and their supporting references were listed do not now make easy reading, but to a lawyer in the later 1660s they would have provided a familiar means of gaining access to the books and sources of the law from the first half of the century. It was perhaps for this reason that Stair’s book was generally known during the first twenty years of its existence as his practicks, though what exactly the word practicks was taken to mean here is unclear.384 One possible meaning can be quickly ruled out. Advocates sometimes talked about ‘the pratick and order of Scottland’ or ‘the practic and forme usit’ when they were thinking of the procedure followed in the courts, and books on procedure were occasionally given a name like ‘Practica forensis’.385 It was more usual, however, for these books to bear the title ‘Form of Process’. The manual Stair wrote in 1666 and 1667 was given this title, and since he did not add an account of procedure to his major work until 1693 it cannot have been known as his practicks because it dealt with the subject. A different use of the expression was exemplified by advocates who drew attention to a ‘practique past in the lyke caise’ or to ‘practikis led afoir the counsell’, meaning the previous decisions of the court. The organisation of practicks or decisions had been, by Stair’s own admission, one of his central aims in writing his major work, and one copyist thought it appropriate to give his manuscript the title ‘Decisiones before the Lords of Counsell and Sessione, Partlie Collected out of the Writtings of Learned Lawyers, and Partlie Observed by Sir James Dalrymple of Staires’.386 That the digesting of decisions had been central to Stair’s purpose was not lost on his early readers, yet it seems less likely that they regarded his book as another compendium of cases than that they used the word practick in a third sense. It was in this sense that advocates sometimes urged the court to apply the ‘lawis and practick of the realme’ or the ‘law and practice usit of befoir in all sik actionis’, at the same time distinguishing between the statutory and customary laws and associating them closely together. A volume of practicks like those of Balfour, Hope or Spotiswoode would in this sense have been regarded as an account of the whole law of Scotland, drawn from both written and unwritten sources, with the emphasis at least on the local sources of the law, for a fourth and closely related use of the word practick was in contrast to the ‘theorick’ of the law schools.387 Advocates contrasted the local with the learned laws when they talked of ‘thingis observit in practique be the lords of counsall, suppois the commoun law quhylis be in the contrarie’, or of an expectant who had ‘studit his tyme in the lawis, and sensyne hes usit the practik’. Those who assumed that practice was to be 384 NLS, Adv MS 6.2.2 and MSS 5058 and 5434, GUL, MS Gen 1495, and AUL, MS 592, all bear the name, at the beginning of either the first or the second part; and for other examples of the usage see NAS, GD 26/13/378; NLS, Adv MS 28.3.14; EUL, La III 427, f 47; ML, SR 161/75574. In the British Library there is even a copy of the first printed edition with the older name on its spine. On the meaning of the word practick or practique see McKechnie 1936, pp 27–8; Shearer 1951, pp xxii–xxiii; Smith 1962a, p 147; Murray 1980, p 90; Walker 1988–2004, vol 3, p 8. 385 NLS, MS 2940. The examples given here are taken from Craigie et al 1931–2002, vol 6, pp 97–9. 386 SL, MS 16. 387 Cf Murray 1980, p 90. Further examples of this contrast will be given in a later chapter.

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86 The College of Justice contrasted with theory would have used the title ‘Staires booke off practickes’ in the belief that the book was essentially concerned with the local law.388 As Burnet’s review of legal literature indicates, however, the distinction between a book about the practick of Scotland and a learned treatise on the law was imprecise. The readers of the earliest surviving version of Stair’s book would have found that in addition to the references to decisions and statutes there were also some two hundred and fifty references to the Corpus iuris civilis, the papal decretals, the Libri feudorum and the works of civilian authors, most of whom were French or Dutch writers of the late sixteenth and early seventeenth centuries.389 These learned references distinguish Stair’s book from those produced by Gilmour, Lockhart and Wallace, who tended to mention learned sources only where they were already mentioned in the local sources they summarised and rearranged. In Wallace’s case, particularly because he included summaries of passages from Craig’s treatise, the learned laws were referred to rather more often, and in the popular epitome of Craig’s treatise they were naturally referred to quite frequently. Stair also made extensive use of Craig’s treatise, and not only (as will be shown later) in the seventy to eighty places at which he cited it expressly.390 It is not difficult to discern Craig’s influence in other parts of Stair’s book. Indeed, it is not difficult to discern Craig’s influence in Stair’s general approach to writing about the law of Scotland. Like Craig, he tried to locate his discussion of each area of the local law in a broader context.391 In most chapters of his book he prefaced his review of the local sources with an account of the law of nature, the civil, canon and feudal laws and the laws of neighbouring nations, presented in historical order. This was the approach he had followed in composing the lesson he had delivered before the lords of session in 1648, and it was the same approach that he claimed to have followed in writing his book when he sent it to the press in 1681. In the long title given to his first printed edition he announced that in its pages the law of Scotland had been ‘Deduced from Its Originals, and Collated with the Civil, Canon and Feudal Laws, and with the Customs of Neighbouring Nations’, recalling the rather exaggerated boast made in the long title of the first printed edition of Craig’s treatise that in its pages ‘Not Only Are the Feudal Customs and Land Rights that Obtain in Scotland, England and Most Parts of France Comprehended, but the Whole of Scots Law and Almost All Topics of Law are Clearly and Lucidly Expounded and Taken Back Individually to the Fountains of the Feudal and Civil Law’. Stair had more justification than Burnet for claiming that the book he was

388 Stair himself talked in 1664 of having a copy made of his ‘book of observationes on our customes’ (BL, Add MS 35125, f 103). This copy was untitled (Bannatyne Miscellany, vol 2, p 154). 389 As already noted, Gordon 1985 shows that Stair’s references do not provide a reliable guide to the learned sources he actually used in writing his book. If anything, however, the truth of the matter would seem to be that he was even more indebted to early modern French and Dutch authors than his references suggest. 390 Not only this point, but the whole argument presented here, will be expanded on in a later chapter. 391 Law 1898, p 347; Paton 1981, pp 202–3; Cairns 1988, p 317.

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The Writing of Stair’s Institutions 87 issuing dealt with the whole private law of Scotland.392 Not only had he made use of Craig’s treatise in writing about the areas of law it covered, as several other writers had done at the same time, but he had also followed Craig’s example in writing about areas of the law barely touched upon in the Ius feudale. Whether or not the lesson Stair delivered in 1648 had been unusual in its approach, the book he began to write a decade later certainly had been. If the book was known as his practicks, it might also have been regarded by readers like Burnet as a treatise.393 This may help to explain why there was at least one advocate who preferred to call Stair’s book his ‘Systema iuris’. One manuscript of the book (though only one) bears this title, and Sir John Lauder of Fountainhall, an advocate admitted to the bar in 1668 after studying in France, often made reference to ‘Stairs Systeme’ in the copious notes he compiled on the practice of the session and other courts.394 In one of the two senses of the word that became standard during the seventeenth century a system was a collection of things that were connected with each other.395 In this sense what may have seemed distinctive about Stair’s book was the way in which he went beyond the listing of propositions of law and showed how they could be regarded as conclusions drawn from general principles under the influence of the learned laws and the laws of neighbouring nations. In Stair’s book, it may have been believed, the law of Scotland became more than a collection of rules and operated as a developing process governed by reason. Stair himself claimed that he had set out to handle Scots law as a ‘Rational Discipline, having Principles from whence its Conclusions may be deduced’, and he contrasted his approach with that of other authors who settled for ‘any order, whereby the particular Heads and Titles may be found’.396 In its other standard sense a system was an orderly scheme of principles and conclusions, and it must have been partly in this sense that Stair’s book was occasionally called his system.397 Another significant difference between his book and those written by Gilmour, Lockhart and Wallace was its avoidance of the alphabetical arrangement they were all given. His book was more like Craig’s treatise, and so more like the epitomes of Craig’s treatise, in following an arrangement borrowed from the literature of the learned laws, and he had gone further than Craig in devising a new scheme based on the structure of 392 Burnet’s title was rather more ambitious than the one Craig himself had proposed in 1607, which is now preserved in PRO, SP 14/27, f 1: ‘In consuetudines feudorum libri diegetici tres, in quibus non solum ius universum quo hodie Scotia in praediis et rebus immobilibus sed etiam quo Anglia utitur, ex iure feudali descendisse et eisdem fundamentis ex rationibus niti evidenter apparebit’. 393 In this respect it was of course comparable to the ‘Treatise anent the Scotts Law in Civills’, in which comparison was routinely made between ‘the canon law’ or ‘the feudal law’ and ‘our law’. 394 EUL, La III 417, bears the title ‘Systema iuris’. Comparison with NLS, Adv MSS 6.2.15, pp 4, 17, 48, 51–2 and 73, and 6.2.16, f 1, shows that this was not the copy Lauder referred to, though whether his copy had the same title is unclear. In NLS, Adv MS 24.4.1, f 250, Lauder managed to refer on one page to ‘Stairs system’ and on the next to ‘Stairs practiques’. King 1974a, p 167, mentions that reference was made by a philosophy teacher at Glasgow University during the 1670s to Stair’s ‘Legis naturae, civilis et Scoticanae concordia’. 395 Simpson and Weiner 1989, vol 17, pp 496–8. 396 Institutions, 1.16/1.1.17. 397 It was presumably in the same sense that Balfour’s practicks was eventually printed with the subtitle A System of the More Ancient Law of Scotland.

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88 The College of Justice Justinian’s Institutes.398 This aspect of Stair’s work is of great interest and will need to be examined at length, but the way in which he and his contemporaries sought to arrange the material in their books cannot be understood without a full investigation of their education in the arts and humanities. As already indicated, both the question how Stair and other authors went about arranging their material, and the question how Stair and others understood the relationship between the law of Scotland and the law of nature, will be returned to in later volumes in this series, where attention will extend beyond the narrow setting of the College of Justice. For the moment it may be noted that the arrangement Stair devised for his book was clearly connected with the title he himself favoured when he sent his text to the press in 1681. By calling his book the Institutions of the Law of Scotland he encouraged his early readers to associate it with a continental tradition and enabled modern historians to assign it to a recognisable genre in the legal literature of early modern Europe.399 In the seventeenth and eighteenth centuries lawyers throughout Europe wrote about their local laws in books based on the Institutes of Justinian, following more or less closely the structure of Justinian’s text and generally using a similar title. These institutes of national law, as they have come to be known, are sometimes regarded as a legacy of the humanist movement in the sixteenth century.400 It is easy enough to connect their authors’ interest in the systematic arrangement of material with the humanist revival of Cicero’s quest for ius civile ad artem redactum, and it may be argued that it was the humanist emphasis on the historical context in which Roman law first developed that prompted lawyers with an academic training to turn their attention away from Roman law and towards their own national laws. That there was a gradual shift of attention is clear.401 Lawyers who at one time would have written and read books focused on the Corpus iuris civilis began to make observations on how rules drawn from the civil law were applied in contemporary practice. Books then came to be written about the civil law only to the extent that it had been received into local practice, and eventually the focus shifted to the national laws in their own right. The copyists who called Stair’s book his ‘practicks’ certainly recognised that his central concern was with the law put into practice in Scotland, and though there is no evidence that the name ‘institutions’ was given to his book before 1681, one copyist did at least hint at a civilian model for his handling of the local sources. He entitled his manuscript ‘The Body of the Scots Law’, adding that in its pages the ‘acts of parliament’ and ‘practiques before the Lords of the Sessione’ were all ‘Methodicallie Digested into Titles and Paragraphes’.402 For this copyist the book was a digest of local sources but systematically arranged along civilian lines. 398 Institutions, 1.22/1.1.23. See too Campbell 1954, pp 9–14; Walker 1981, pp 102–3; Stein 1984, pp 224–5; Birks and McLeod 1987, pp 20–1; Birks 1995, pp 93–4, and 1997, pp 172–3. 399 Luig 1972, pp 220–23; Watson 1981, pp 70–1; Walker 1981, pp 250–51; Cairns 1983, p 90; Sellar 1991, pp 48–9. 400 See especially Watson 1981, pp 62–82. 401 See especially Luig 1972, pp 193–200. 402 AUL, MS 2097.

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The Writing of Stair’s Institutions 89 Whether or not the writers of the institutes of national law were influenced by legal humanism, their interest in systematic arrangement and their concern with their local laws typified the movement later known as the usus modernus Pandectarum.403 One way of studying Stair’s book might therefore be to examine it against the background of this movement in general and in comparison with other institutes of national law in particular, starting with the hypothesis that Stair followed Craig’s example in relating Scots law to the learned laws and represented a later stage in the progression towards concentration on the local law.404 However, it would be dangerous to begin like this with a European model, for two reasons. In the first place, given that what is required is a model of gradual divergence from a shared method of legal analysis, any attempt to construct a model for most of Europe must run the risk of distorting what actually happened in each country. It is not surprising that historians cannot agree about how far a common law may be said to have survived in the early modern period.405 In the second place, it would be rash to assume from a superficial survey of the contents of Stair’s book and from a review of the titles applied to it that he genuinely participated in a continental tradition of enquiry. That he was influenced by Craig’s example, that there was more civilian content in his book than in most others produced in Scotland at the time he was writing, that he based the arrangement of his material on Justinian’s Institutes, and that he eventually used an institutional title for his book is quite clear. But it is also clear that in his handling of the local sources of Scots law he had a great deal in common with the other writers who were active at the same time, that his book was recognisably similar to the older collections of practicks, and that to this extent it differed from the institutes of national law produced in other countries.406 Far from moving away from a focus on the learned laws towards a focus on the local law, Stair may have been trying to add a more learned dimension to the conventional treatment of the local law, which is what Burnet believed that Craig, Gibson and Hope had tried to do. The safest way of studying Stair’s book will therefore be to locate it primarily in a Scottish setting and to explore the continental context only when there is evidence to suggest that it may have been relevant. This is how Stair’s book will be examined in later chapters, but first more needs to be said about the setting in which the Scottish writers worked during the late 1650s and early 1660s.

403

See especially Wijffels 2000a, pp 105–14. Black 1936, p 62, declared that Craig’s Ius feudale was ‘not so much a work on Scots law as a legal treatise by a Scots lawyer’, Cooper 1957, p 223, similarly declared that it was ‘European rather than Scottish’, while Reid 2000, p 199, has recently remarked that it was ‘as much a contribution to the ius commune as an exposition of the law of Scotland’. By contrast, Stair is generally taken to have focused on the local law. 405 Eg, compare Zimmermann 1990, pp ix–xi, with Osler 1997, pp 405–10. 406 Cf Luig 1981, pp 241 and 247. 404

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2 The Interregnum Court

T

HE LAST CHAPTER was written in a very odd way. Just as the preface attached by Burnet to his edition of Craig’s Ius feudale was written as if the lords of session were sitting as they had done for over a century, so the last chapter was written as if nothing much had changed between Stair’s admission to the bar in 1648 and the composition of his Institutions in the late 1650s and early 1660s. In fact, the lords of session had barely sat at all during the decade following Stair’s admission. The court had continued to function until the end of February 1648 but had not met again until June 1649.1 It had then kept the summer session of 1649 followed by the winter session of 1649 to 1650, but after February 1650 it did not meet again until June 1661. The cause of these long interruptions was the political conflict that dominated the period. The meetings of the court had already been subjected to frequent disruption in the decade preceding 1648, following the subscription of the National Covenant in 1638.2 As already mentioned, within a year of Stair’s admission to the bar Charles I had been executed in London. The Scottish government had promptly declared his son king of the whole of Britain and Ireland, the English government had responded by sending an army into Scotland under the command of Oliver Cromwell, and by the end of 1651 the country had been brought under the military control of the republican regime in England. For the next decade the administration of justice in Scotland had been directed from London, and it was this system of justice that provided the immediate background to Stair’s writing. The aim of this chapter is to examine the impact of English rule on the judicial system in Scotland at its highest level.3 The first section of the chapter provides an overview of the arrangements that were made, with particular emphasis on the directions issued from London and on how they would have been interpreted by the administrators and lawyers sent into Scotland. The second section looks at how the Scottish advocates responded to English rule and makes some attempt to explain why Burnet and other authors wrote as they did in the 1650s. The third section considers to what extent the revolutionary character of republican rule was expected to have a revolutionary effect on the law, and what significance this might have had for legal writing. Overall, the chapter aims to 1

NAS, CS 1/5, ff 182v–211v. For a survey of the disruptions see Stevenson 1972b. 3 See too Brunton and Haig 1832, pp 345–7; Mackay 1873, pp 58–66; Omond 1883–1914, vol 1, pp 156–68; McMillan 1937; Cooper 1946; Smith 1979, pp 103–35. 2

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92 The Interregnum Court provide more information on the professional context in which Stair wrote his book, leaving detailed examination of his text to later chapters.

THE APPOINTMENT OF THE ENGLISH JUDGES

Reconstituting the supreme civil court After the lowlands of Scotland had been effectively conquered by the English army in the autumn of 1651, a bill was introduced at the Westminster parliament ‘asserting the Title of England to Scotland’.4 By the end of the year parliamentary commissioners had been appointed to visit Scotland and reduce the country to order, though not in the way that was first envisaged.5 On 13 October 1651, a fortnight after the bill asserting England’s title to Scotland was introduced in parliament, the council of state issued a policy statement on the settlement of the north in which it was proposed that Scotland should be ‘incorporated into, and become one Common-wealth with this of England’.6 As one observer noted, this proposal was meant to be regarded as a ‘free conferring of liberty upon a conquered people’, a generous offer of a right to send representatives to Westminster to claim ‘equall shares in the Lawes of England’.7 It was in fulfilment of the council of state’s proposals, approved as A Declaration of the Parliament of the Commonwealth of England, Concerning the Settlement of Scotland, that instructions were issued to the parliamentary commissioners to travel into Scotland, give notice of the government’s intentions, and consult with deputies elected by the Scottish burghs and shires about the arrangements to be made.8 Among the more specific instructions was an injunction to find the ‘best wayes and meanes’ of ensuring that the people of Scotland had ‘right and justice duely administered unto them’, which was to involve having ‘the lawes of England as to matter of government’ put into effect ‘as neere as the constitution and use of the people there and the present affairs will permit’. The commissioners were authorised to make ‘proclamations forbidding and annulling the Exercise of any power, authoritie, or jurisdiction whatsoever in that Nation, other than such as is or shalbe derived from the Authoritie of the Parliament of the Comonwealth of England’, and also to ‘Erect, allow, alter, or continue any Court or Courts of justice or judicatories in any place or places in Scotland, with all rights, powers, jurisdictions, incidents, and necessaries requisite for the same, and to appoint and place in every one of them such judges, justices, officers, and ministers, English or Scotts’, as seemed to be required for the due administration of justice. 4 Journals of the House of Commons, vol 7, pp 14 and 22. See further Firth 1895, pp xxiii–xxiv; Terry 1902, pp xv–xxv; Smith 1979, pp 56–61. 5 Journals of the House of Commons, vol 7, pp 30, 49 and 53. 6 Acts of the Parliaments of Scotland, vol 6(2), p 809; Nicoll, Diary of Public Transactions, pp 81–3; Cromwellian Union, pp xxi–xxiii. 7 Scotland and the Commonwealth, p 41. 8 Scotland and the Protectorate, pp 393–8. Significantly, the nobility were to be excluded.

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The Appointment of the English Judges 93 The commissioners arrived in Scotland on 15 January 1652 and at once instructed the burghs and shires to choose deputies to represent them.9 At the end of that month the commissioners exercised their authority to annul the jurisdiction of the existing courts, and in the first week of February they had the parliamentary Declaration formally proclaimed at the market cross in Edinburgh. The deputies of the burghs and shires were invited to accept the terms of the Declaration as a ‘tender’ of incorporating union with England, though of course they had little option but to do so. Some delayed for as much as two months before undertaking to live peaceably under rule from London, and many also took the opportunity to express their ‘desires’ that the union might be effected through open negotiation and that local institutions might be revived as soon as possible. The deputies of Dumfriesshire, for example, asked that all the deputies might ‘be ordained to meete together to prepare and propose Overtures for bringing the Union to effect, and that in the interim, in place of trust, men be set up by advice of the said Deputies, who may administer Justice, Criminal and Civell, according to the knowne Lawes and customes of this Land’.10 It was a constant refrain in the desires voiced by the burghs and shires that there should be ‘ane supreame judicatorie presentlie established within this natioun of qualefeit persones for administrating of Justice conforme to the law of the land’, that the deputies should be consulted as to ‘the right orderinge of the Civill Judicatories’, and that the Scottish people should be governed by their ‘awine Lawe, tho’ the power of administratioune be deryved from the parliament of the Commoun-wealth of England’. The parliamentary commissioners had asked in late February to have judges sent up from London and had repeated their request in early March, when they had advised the government to press ahead with the union.11 On 13 April a bill was introduced at Westminster ‘for incorporating Scotland into one Commonwealth with England’, followed a day later by the publication in Edinburgh of a Declaration of the Parliament of England in Order to the Uniting of Scotland into One Commonwealth with England.12 Neither document was precise about the terms of the union. Instead provision was made for Scottish deputies to travel south to discuss ‘the particulars for the effecting hereof, and setling of the Laws and Government’. Within a month the parliamentary commissioners had returned to London. Before leaving they had made arrangements for the establishment of a new supreme court for civil causes, consisting of three Scottish and four English judges.13 9 Nicoll, Diary of Public Transactions, pp 79–81; Diary of Mr John Lamont, pp 37–8; Terry 1902, pp xxv–xxxii; Dow 1979, pp 35–46; Smith 1979, pp 61–71. 10 Cromwellian Union, p 40; and see too pp 42, 44, 54, 70–1, 77, 79, 96, 101, 108, 123, 128, 148, 158, 162–3, and 165. 11 Journals of the House of Commons, vol 7, pp 107–8, 110–11 and 132; Cromwellian Union, pp 98–9. 12 Scotland and the Commonwealth, p 41; Cromwellian Union, pp 140–44. 13 Acts of the Parliaments of Scotland, vol 6(2), p 747; Journals of the House of Commons, vol 7, pp 108 and 132; Calendar of State Papers (Domestic Series), 1649–60, vol 4, p 210. The impression was given that Colonel George Fenwick, one of the parliamentary commissioners, was meant to serve as a fifth English judge—Nicoll, Diary of Public Transactions, p 93; Diary of Mr John Lamont, p 42; and see too

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94 The Interregnum Court Only one of the judges had previously been involved in the administration of justice in Scotland. Sir John Hope of Craighall, the eldest son and heir of the former king’s advocate, had never practised at the bar, but he had become an ordinary lord of session in 1632, just ten years after graduating from the University of Edinburgh, and when the court stopped sitting in 1650 he held office as its president.14 A graduate of the Universities of Oxford and Cambridge by incorporation, he had incurred the wrath of the Scottish government by proposing that part of the country be surrendered to Cromwell, and he had come to believe that ‘God haid a great work to wirk by the Englisches’.15 William Lockhart of Lee was also the eldest son and heir of a lawyer, but unlike his younger brothers he did not become an advocate.16 At the age of fifteen he had run away from home and entered service as a mercenary, initially in Holland but mostly in France. In 1645 he had returned to serve in the Scottish army, but in 1650, after taking umbrage at his treatment by the government, he had shifted his allegiance to Cromwell, whose niece he later married. The third Scottish judge, John Swinton of that ilk, who came to be described as ‘the man of all Scotland that had been most trusted and employed by Cromwell’, had followed a similar course, fighting in the Scottish army until 1650 but then defecting to the English.17 His father had served as a judge in the sheriff and commissary courts of Berwickshire, but Swinton had been even less closely connected with the law than Lockhart. By contrast, all four of the judges sent up from England could have been described as professional lawyers, though the background of one was purely academic. Andrew Owen had become a student at Trinity Hall, Cambridge, in the early 1630s and a fellow of his college in 1634, graduating as a bachelor of laws in 1637 and as a doctor of laws in 1652.18 Having spent twenty years in the study of the civil law, he was sent into Scotland at the point at which those with his qualifications tended to enter practice in the few English courts that applied the civil law.19 Another of the English judges, John March, may have graduated as a bachelor of civil law at St Edmund Hall, Oxford, in 1632, but within four years he had joined NLS, MS 7032, f 114, and Calendar of State Papers (Domestic Series), 1649–60, vol 7, p 211—but if so he never took his place. Provision was also made for the handling of criminal cases, as is well explained in the surveys cited in n 3 above. The focus here is of course on the court that replaced the session. 14 NAS, CS 1/5, f 190; Register of the Great Seal, vol 8, pp 47, 161, 293 and 521; Catalogue of the Graduates of the University of Edinburgh, p 35; ‘Twenty-Four Letters of Sir Thomas Hope’, pp 88–9; Brunton and Haig 1832, pp 289–90; Cokayne 1900–09, vol 2, p 343; Stephen and Lee 1885–1901, vol 27, pp 315–16. 15 Nicoll, Diary of Public Transactions, p 124; Balfour, Historical Works, vol 4, p 238; Foster 1891–2, vol 2, p 742; Venn and Venn 1922–7, vol 2, p 404. 16 Stephen and Lee 1885–1901, vol 34, pp 50–2; Lockhart 1976, pp 37–49; Furgol 1990, pp 227 and 257–8. 17 Burnet, History of His Own Time, vol 1, pp 85–6; Swinton 1883, pp 64–77; Stephen and Lee 1885–1901, vol 55, pp 237–9; Furgol 1990, pp 334–5 and 342; Young 1992–3, vol 2, p 690. 18 Malden 1902, p 153; Dale 1911, pp 11–12, 178 and 195–6; Venn and Venn 1922–7, vol 3, p 290. 19 For the teaching of the civil law at Trinity Hall and for the close connection between the college and Doctors’ Commons, the practitioners’ centre in London, see Malden 1902, pp 102–7; Curtis 1959, pp 151–2 and 155; Levack 1973, pp 19–21; Squibb 1977, pp 30–2; Crawley 1992, pp 70–112. It seems that Owen never did go into practice in England, for his name does not appear in the lists in Squibb 1977, pp 118–209, and NLS, MS 7024, ff 20 and 22, suggests that he later taught law in Cambridge. See too Griffith 1996, pp 274 and 309–10.

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The Appointment of the English Judges 95 Barnard’s Inn and then Gray’s Inn, where he was called to the bar in 1641.20 The other two judges from England had also been called to the bar at Gray’s Inn. George Smith had matriculated at Trinity College, Oxford, in 1619, had become a student at Gray’s Inn in 1624 and had become a barrister in 1633.21 Edward Moseley, after matriculating at Brasenose College, Oxford, in 1634, had entered Gray’s Inn in 1636 and had become a barrister in 1645.22 Before the outbreak of the English Civil War in 1642 these three barristers would have received an education at the inns of court that was broadly similar in style to the education available at Oxford and Cambridge, attending ‘readings’ in place of lectures and taking part in ‘moots’ in place of disputations.23 In this ‘third university’, however, they would have studied not the civil law but the law that had been applied in the more important royal courts of England since the twelfth century, for which the name ‘common law’ had long since been appropriated.24 The ‘commissioners for the administration of justice to the people in Scotland’ met in the Parliament House on several occasions during May 1652 to make arrangements for the approaching summer session, which they duly kept throughout June and July and for much of August.25 In early June a newsletter writer described for an English audience how justice had started to be administered in Scotland.26 He told his readers that there was ‘little difference betwixt our Lawes, save only in the Terms and Forms’, explaining that ‘they imitate us English in most things, but come short of our method in Proceedings’. So far as the substance of the law was concerned the English judges were not expected to have much difficulty in fulfilling their instructions to promote generally the aims of the parliamentary commissioners and in particular to determine causes ‘according to the laws of Scotland, equity and good conscience’.27 Where they seemed more likely to encounter difficulty was in relation to the procedure followed in the Scottish courts, which was less familiar to English lawyers but was preserved ‘because of the want of English Clarks and Attournies’. English clerks had been put in charge of issuing the documents used to initiate cases, but with one alteration these remained the summonses and letters that had been used before the lords of 20 Wood, Fasti Oxonienses, pt 1, col 465, and Athenae Oxonienses, vol 4, cols 373–4; Pension Book of Gray’s Inn, vol 1, p 353; Stephen and Lee 1885–1901, vol 36, pp 123–4; Foster 1889, p 211, and 1891–2, vol 3, p 969; Brooks 1995, p 86. 21 Pension Book of Gray’s Inn, vol 1, p 314; Foster 1889, p 172, and 1891–2, vol 4, p 1371; Prest 1986, pp 138 and 338. 22 Pension Book of Gray’s Inn, vol 1, p 353; Visitation of the County Palatine of Lancaster, 1613, p 37; Visitation of the County Palatine of Lancaster, 1664–65, vol 2, pp 213–14; Court Leet Records of the Manor of Manchester, vol 4, p viii, and vol 5, pp vii–viii and 78–80; Foster 1889, p 211, and 1891–2, vol 3, p 1040; Cokayne 1900–09, vol 2, p 79; Axon 1902, pp 3–24; Shaw 1906, vol 2, p 265. 23 Prest 1972, pp 115–36; Richardson 1977, pp 91–210; Baker 1986a, pp 7–23 and 31–8, and 2000b, pp 3–28 and 69–76. 24 Pollock and Maitland 1968, vol 1, pp 176–8; Hudson 1996, pp 16–19; Baker 2002, pp 27–9. 25 NAS, CS 7/557, 558 and 559, ff 1r–150r; Scotland and the Commonwealth, p 43; Nicoll, Diary of Public Transactions, pp 93–6; Diary of Mr John Lamont, p 42; Diary of Sir Archibald Johnston of Wariston, 1650–54, p 167; Bibliography of Royal Proclamations, vol 2, p 348. 26 Cromwellian Union, pp 180–81. 27 Calendar of State Papers (Domestic Series), 1649–60, vol 5, pp 304 and 320; NLS, MS 7032, f 114.

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96 The Interregnum Court session.28 One of the first things the new judges had done was to require the writers to the signet to accept the tender and to swear that they would continue to draft documents in their customary forms. Not all the writers had been willing to comply, and the clerks who had kept a record of cases as they proceeded before the lords of session had also been reluctant to serve the new judges, but eventually two Scots were installed as principal clerks of the process, assisted by four underclerks.29 The record kept by these clerks confirms that the new court adhered to the old procedure and that advocates continued to dispute points before the judges in the established manner, either in the outer house or on more difficult points in the inner house.30 The newsletter writer observed that ‘the Advocats (all except 3 or 4) have refused to subscribe to the Tender of the union, whereby they stand incapable to plead’.31 In fact the names of nineteen advocates can be found in the records of the first session of the new court, though only a few seem to have appeared during the early weeks, and it is striking how few of the senior figures made appearances, most of those named being of less than ten years standing.32 In an early case the English clerk of the bills, Richard Ward, made a surprising appearance as an advocate, and the judge-advocate of the English army, Henry Whalley, appeared on a dozen occasions, opening a career at the Scottish bar that was to continue in later sessions of the court. Like Ward, Whalley had been admitted to Gray’s Inn towards the end of the 1640s, but he cannot have received much instruction there and he had not been called to the bar.33 His appointment as judge-advocate has been attributed to his close friendship with one of Cromwell’s sons, to the influence of his elder brother, one of Cromwell’s generals and a member of the court that had tried the king, and to his being Cromwell’s cousin. Ward returned briefly to England in the autumn of 1652 when he accompanied the deputies elected by the burghs and shires to travel south and discuss the details 28 Nicoll, Diary of Public Transactions, pp 94–5, and see too p 336. William Clerk was appointed as keeper of the signet, and Richard Ward as clerk of the bills. 29 Diary of Sir Archibald Johnston of Wariston, 1650–54, pp 161 and 164–5. 30 NAS, CS 8/23; NLS, Adv MS 25.2.5(i), f 303v; Acts of the Parliaments of Scotland, vol 6(2), pp 894 and 906–7; Records of the Burgh of Edinburgh, vol 4, p 296; Scotland and the Commonwealth, pp 276–81. See too NAS, CS 7/566, f 61, for a discussion of how disputes were to be handled. 31 Stair, Apology, p 4, claimed that he had been among those who refused to accept the tender. 32 As Grant 1944 indicates, Patrick Falconer and James Cunningham had been admitted to the College of Justice in 1642, George Norvall, John Anderson, Robert Sinclair and James Abernethy in 1647, James Ramsay in 1648, Thomas Veitch in 1649, and Patrick Fraser in 1650. Andrew Gilmour, John Muirhead, Andrew Dick, Thomas Winzeat and William Yeoman were all admitted to plead before the new court. Of the more senior figures, only Robert Trotter appeared with any frequency, though David Heriot, John Ellis, William Maxwell and Alexander Cumming all made isolated appearances. It needs to be remembered, however, that the registers of acts and decreets in which these names can be found only cover the cases of which a record was ‘extracted’ at the request of one of the parties, so that other advocates could conceivably have appeared in other cases. Whether it is true, as later came to be believed, that the more experienced advocates gave advice to those who remained at the bar, cannot be determined from the records. 33 Noble 1737, vol 2, pp 154–5; Foster 1882, p 357, and 1889, p 251; Stephen and Lee 1885–1901, vol 60, pp 394–6.

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The Appointment of the English Judges 97 of the union, among them the judges Lockhart and Swinton.34 The English parliament—the rump of the Long Parliament called by Charles I in 1640—had appointed a committee to deal with the question of union and other issues relating to Scotland, and it was the expectation of the twenty-one Scottish deputies that they would negotiate freely with this body.35 They soon found, however, that the committee regarded them as no more than advisers, for even after it was confirmed by parliament that they had been called to England not as ‘Private Persons’ but as ‘Trustees’ of the Scottish people, they were still invited to attend only some parts of some meetings of the committee. They were refused copies of the bill for union, which the committee worked on between October 1652 and April 1653, and there is no evidence that they had any influence on its terms.36 In their own meetings they repeatedly rehearsed their desires to see the Scots ‘reuled be ther own lawes and customes, whils a comon law be established for both nations’, and to see the College of Justice reinstated in its traditional form, with fifteen judges appointed on their recommendation.37 In April the committee did at least take note of their desires that ‘Scotland may be ruled according to its own laws, until a known law be established for governing Scotland and England united into one commonwealth’, that the ‘court or college of sessions, consisting of a president and 14 ordinary judges, may be revived’, and that in the meantime the determination of cases ‘may not be left to men’s private judgments, by the generals of equity and good conscience’.38 Less than two weeks later the Long Parliament was dissolved. The desires of the deputies were ignored by the council of state, though it did try to sustain a dialogue on Scottish affairs with Lockhart, Swinton and a few others who remained in London. These Scottish advisers urged again ‘that Commissions for Courts of Justice might be issued to Men of Conscience and Abilities, to judge according to the Law and Practice of the Nation; and that the Judicatories might be of that same Number as formerly, to be nominate by Advice and Consent of the Nation’.39 In early June the council of state gave way to the assembly that came to be called Barebone’s Parliament, with members appointed from Scotland and Ireland as well as England. Lockhart and Swinton attended as representatives of Scotland, along with John Hope’s brother, Sir James Hope of Hopeton, and Alexander Jaffray, the director of the chancery.40 When a bill for 34 Nicoll, Diary of Public Transactions, pp 98–9; Diary of Mr John Lamont, p 56; Calendar of State Papers (Domestic Series), 1649–60, vol 4, p 405; Terry 1902, pp xxxii–xliii; Dow 1979, pp 46–51. 35 Acts of the Parliaments of Scotland, vol 6(2), pp 789–805; Journals of the House of Commons, vol 7, pp 189–90, 194–5, 202–3, 219, 227, 229, 233, 253–4, 262, 265 and 273; Calendar of State Papers (Domestic Series), 1649–60, vol 4, pp 439, 441–2, 448, 456, 458–60, 467, 475, 484–5, 488, 491 and 495–6, and vol 5, pp 38–9, 51–2, 60, and 269–70. 36 For minutes of the committee’s meetings see PRO, SP 25/138. According to the Diary of Mr John Lamont, p 56, the deputies returned to Scotland in 1653 ‘having done litell or nothing’. 37 EUL, La II 89, ff 54r–55v and 61r. 38 PRO, SP 25/138, pp 64–5; Acts of the Parliaments of Scotland, vol 6(2), p 804; Calendar of State Papers (Domestic Series), 1649–60, vol 5, pp 269–70; and see too EUL, La II 89, ff 68–9. 39 Calendar of State Papers (Domestic Series), 1649–60, vol 5, pp 304, 310, 320, 325, 387 and 418; Journals of the House of Commons, vol 7, p 298; Cromwellian Union, p xlvii. 40 Nicoll, Diary of Public Transactions, pp 109 and 111–12; Diary of Mr John Lamont, p 55; Diary of Alexander Brodie, p 57; Diary of Alexander Jaffray, p 51; ‘Diary of Sir James Hope, 1646–54’, pp 159–60.

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98 The Interregnum Court uniting Scotland with England was introduced in early October they tried to have a clause inserted providing that ‘the lawes, practiques and customes of Scotland shall be the only rule by which justice shall be administrat in all cases to the people of Scotland’, unless a change was introduced ‘by a new law, now or heerafter to be made by common consent in Parliament’.41 The bill had not been passed when the assembly dissolved itself in December. The presence of Lockhart and Swinton in London meant that only five judges were left in Scotland to administer justice during the winter session that was kept from the start of November 1652 until as late as the end of March 1653, or the summer session that was kept throughout June and July 1653.42 Given that Hope had been elected the permanent president of the court, it was presumably the four English judges who took it in turns to sit in the outer house, leaving a bare quorum of four for the inner house.43 The outcome was evidently believed to be unsatisfactory, for at the start of the winter session of 1653 to 1654 the court was reconstituted.44 Hope, Smith and Moseley were left in office, but the council of state had decided in September that Owen and March should be ‘dismissed’ and ‘recalled to England’, a decision that had been approved by Barebone’s Parliament at the end of October.45 Owen returned to Cambridge, where he died in 1665, but March was granted permission to stay in Scotland and to practise as an advocate. The council of state, after encountering difficulty in finding suitable replacements for these two men, appointed two more barristers, who travelled north in November.46 William Lawrence had matriculated at Trinity College, Oxford, in 1631, had been admitted to the Middle Temple in 1634, and had been called to the bar there in 1641.47 Henry 41 EUL, La I 290, f 9r; Journals of the House of Commons, vol 7, pp 329, 333, 335–6, 339–40, 350 and 355; Exact Relation of the Proceedings and Transactions of the Late Parliament, p 11; Terry 1902, pp xlv–xlviii; Woolrych 1982, pp 159, 161–2 and 298–9. It is not certain that the amendment to the bill was proposed at this stage, but since it was probably the same bill that was returned to in 1654, as noted below, the timing of the proposal is not crucial. 42 NAS, CS 7/559, ff 150r–404v, 560–63, and 564, ff 1r–206r, and CS 8/23. 43 The books of sederunt for the Interregnum period have not survived, and the notes taken from them in NLS, Adv MS 25.2.5(i), ff 303r–24v, do not begin until 1654. Nor was the practice maintained at this stage of noting in the general minute book which judges sat in the outer house. But there is some evidence of the English judges sitting there in NAS, CS 15/284. Hope’s presidency was often recorded in the registers of acts and decreets, and see too the Diary of Mr John Lamont, p 42. 44 NAS, CS 7/564, ff 206r–310v, 565–8, 569, ff 1r–210v, and 570, and CS 8/23. 45 Nicoll, Diary of Public Transactions, p 115; Acts of the Parliaments of Scotland, vol 6(2), pp 750–51 and 779–80; Calendar of State Papers (Domestic Series), 1649–60, vol 6, pp 139, 143 and 202–3; Journals of the House of Commons, vol 7, pp 338–9 and 341. Omond 1883–1914, vol 1, p 158, states that ‘Owen was dismissed for preaching in Edinburgh’, but no evidence is offered nor has any been found to substantiate this assertion. 46 Acts of the Parliaments of Scotland, vol 6(2), p 752; Calendar of State Papers (Domestic Series), 1649–60, vol 6, pp 273. An approach was first made to a ‘Mr Ruworth’, possibly the John Rushworth who was called to the bar at Lincoln’s Inn in 1647 and who achieved some fame as a historian (Stephen and Lee 1885–1901, vol 49, pp 419–22), and to ‘Mr Edward Hopkins’, who does not seem to have been a barrister and may have been the former governor of Connecticut, who retained an interest in the administration of justice in the English colonies (ibid, vol 27, pp 333–4). 47 Wood, Athenae Oxonienses, vol 4, cols 63–4; Minutes of the Parliament of the Middle Temple, vol 2, pp 816–17, 821, 869–70, 894, 908 and 967; Stephen and Lee 1885–1901, vol 32, p 285; Foster 1891–2, vol 3, p 889; Hutchinson 1902, p 141; Sturgess 1949, vol 1, p 129.

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The Appointment of the English Judges 99 Goodyear does not appear to have matriculated at either Oxford or Cambridge, but he had been admitted to Gray’s Inn in 1638 and had been called to the bar there in 1645.48 Following the arrival of these judges the English contingent were all common lawyers and were in a clear majority, though another Scottish judge was also appointed. With Lockhart and Swinton in London, steps had been taken in May and June to recruit James Hope to the bench, but he had instead been called to London in July, and he was still there when Alexander Pearson of Southall was appointed in October.49 Although Hope had been sent abroad to study the civil law by his father in 1636, and had become a lord of session in 1649, he had abandoned his studies after a few months and had devoted the years before his judicial appointment to the pursuit of a lucrative interest in mining and metallurgy.50 Pearson had also been appointed an ordinary lord of session in 1649, but he had been in practice as an advocate for more than thirty years, which made him the most professional of the Scottish judges and the oldest by some distance of all the judges.51 He assumed his seat on 1 November 1653, when ‘the judges met and began to purge the hous’, replacing one of the clerks of the process with another Scotsman, and the keeper of the signet with another Englishman, who may have been a brother of one of the English judges.52 In the weeks before the new English judges arrived, Hope, Smith, Moseley and Pearson sat in the inner house, dealing with cases pending from the preceding session and issuing instructions on the conduct of cases before them.53 Drawing heavily on instructions previously issued by the lords of session, they tried to regulate the soliciting of judges by advocates and to make sure that cases were dealt with in the order in which they were raised rather than when advocates were able to persuade the clerks or judges to call them. At the end of the session, in the middle of March 1654, steps were taken to reinvigorate the society of writers to the signet under the direction of the new keeper.54

48

Pension Book of Gray’s Inn, vol 1, p 357; Foster 1889, p 217. Calendar of State Papers (Domestic Series), 1649–60, vol 5, pp 312, 320 and 418; ‘Diary of Sir James Hope, 1646–54’, pp 158–9; Diary of Sir Archibald Johnston of Wariston, 1650–54, pp 243 and 276. 50 Catalogue of the Graduates of the University of Edinburgh, p 52; Diary of Sir Thomas Hope, pp 38 and 68; Brunton and Haig 1832, pp 321–2; Stephen and Lee 1885–1901, vol 27, pp 326–7; Young 1992–3, vol 1, pp 359–60. Hope acquired his mining interest from his father-in-law, who as well as being an advocate had been a member of the Middle Temple (Register of the Great Seal, vol 9, p 331; Bedwell 1920, p 100; Grant 1944, p 76). 51 Catalogue of the Graduates of the University of Edinburgh, p 21; Register of the Privy Council, 2nd ser, vol 3, pp 23–4 and 293, vol 4, pp 378, 441 and 427, vol 5, p 410, vol 7, p 264, and vol 13; p 507; Register of the Great Seal, vol 7, p 117; Selected Justiciary Cases, vol 1, pp 155 and 172; Brunton and Haig 1832, pp 338–9; Stephen and Lee 1885–1901, vol 44, pp 160–61. Confusion has been caused by the admission to the bar of another advocate called Alexander Pearson, the son of James Pearson of Balmadies (NAS, CS 1/5, f 204; EUL, La III 528, p 85; Register of the Great Seal, vol 9, p 252, and vol 10, p 155). 52 Nicoll, Diary of Public Transactions, p 115; Visitation of the County Palatine of Lancaster, 1664–5, vol 2, p 214; Axon 1902, pp 18–19. 53 NAS, CS 7/564, ff 206r–310v, and 565–70, and CS 8/23; Nicoll, Diary of Public Transactions, pp 116–17; Scotland and the Commonwealth, pp 276–81. 54 History of the Society of Writers to Her Majesty’s Signet, p 274. 49

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100 The Interregnum Court By then Oliver Cromwell had been proclaimed lord protector of England, Scotland and Ireland.55 An alteration in the style to be used by ‘wryteris, clerkis, and notaris’ had been announced in January, three weeks after the Protectorate was proclaimed in England, but otherwise news of the change in government was suppressed in Scotland until the council of state confirmed the union in an ordinance passed in April 1654.56 The ordinance was based on the bill that Barebone’s Parliament had failed to pass and contained no provision on how justice might be administered in Scotland. What it did provide for was the election of thirty members to represent Scotland in the parliament at Westminster. The Protectorate and ordinance of union were proclaimed together in Edinburgh at the start of May 1654, elections were held over the summer, and the first parliament of the Protectorate assembled at the start of September.57 An attempt was made to confirm the ordinance in the form of an act of parliament, but the bill had not been passed when the parliament was dissolved in late January 1655.58 Lockhart and Swinton, who had not resumed their judicial duties after the dissolution of Barebone’s Parliament, were also members of this parliament, as was George Smith. John Hope had died at the end of April 1654, and although his brother had finally been added to the court at the beginning of the summer session in 1654, he had been removed barely a month later by the protector himself, who had not been impressed with his evident preference for republican government in its purer form.59 For the rest of that session the only judges present had been Smith, Moseley, Lawrence, Goodyear and Pearson, and during the winter session of 1654 to 1655 the only judges present were Moseley, Lawrence, Goodyear and Pearson, who took it in turns to preside.60 Smith returned to the court in the course of the summer session of 1655, and Swinton sat then on at least some occasions, but there were never more than six judges present and usually only five.61 Nevertheless, despite the difficulties the English rulers were continuing to face in finding enough suitable men to hold all the offices they needed to fill, the new court had been firmly established by the time Robert Burnet published his edition of Craig’s Ius feudale in 1655. Seven consecutive sessions had been kept, mostly by one or two Scottish judges sitting alongside three or four judges sent up from 55 Calendar of State Papers (Domestic Series), 1649–60, vol 6, pp 297–8; Firth 1899, pp xxix–xxx; Terry 1902, pp l–lvii. 56 Nicoll, Diary of Public Transactions, p 121; Diary of Mr John Lamont, p 64; Acts and Ordinances of the Interregnum, vol 2, pp 871–5; Calendar of State Papers (Domestic Series), 1649–60, vol 6, pp 364–5 and 782, and vol 7, p 90; Scotland and the Protectorate, pp 17–18, 44 and 95. 57 Nicoll, Diary of Public Transactions, pp 124–6; Diary of Mr John Lamont, pp 70–2; Scotland and the Protectorate, pp 99–100. 58 Journals of the House of Commons, vol 7, p 407. See too Gaunt 1986. 59 Nicoll, Diary of Public Transactions, pp 124 and 132; ‘Diary of Sir James Hope, 1646–54’, p 168; Diary of Mr John Lamont, pp 69 and 74; Diary of Sir Archibald Johnston of Wariston, 1650–54, pp 243–4, 276 and 280–81; Scotland and the Protectorate, pp 98, 214 and 385; Acts of the Parliaments of Scotland, vol 6(2), p 894. For Hope’s politics see Williamson 1995. 60 NAS, CS 7/569, ff 211r–412v, 570–73, 574, ff 1r–283v, and 575, ff 1r–101v, and CS 8/23; NLS, Adv MS 25.2.5(i), ff 303r–4v. 61 NAS, CS 7/574–5, and CS 8/23; NLS, Adv MS 25.2.5(i), ff 304v–6r.

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The Appointment of the English Judges 101 England, subject to instructions to decide cases in accordance with the laws of Scotland, equity and good conscience. These instructions had caused the Scots some concern and need now to be examined more closely.

Decision according to law, equity and good conscience So far as English observers were concerned, the crucial fact about Scotland after 1651 was that it had been conquered, and the importance of this fact was not lost on at least one Scot. Ironically enough, the royalist author Sir Thomas Urquhart of Cromarty felt able to declare that Cromwell had finally made it possible for one of James VI’s most cherished ambitions to be fulfilled.62 Writing in prison after the battle of Worcester in 1651, Urquhart reminded his readers of the negotiations on a closer union between the two kingdoms that had followed James’ accession to the English throne in 1603, and especially of the contribution made to the debate by Sir Francis Bacon, at the time a bencher of Gray’s Inn and later the lord chancellor of England.63 Urquhart quoted at length from a speech Bacon had delivered in 1607, in which he had drawn attention to the benefits the ancient Romans had derived from extending their citizenship and laws to some of the nations they had conquered.64 He then quoted from another speech Bacon had delivered a few weeks later on the specific question of legal unification, in which he had argued that a unified legal system was a realistic aim and well worth pursuing but had recognised that it was unlikely to be achieved in the immediate future.65 The problem Bacon had identified was that Scotland had been united with England by inheritance rather than by conquest, with the result that legal unification would require the creation of a new British law and could not be achieved simply by replacing Scots law with English law. The task of drawing the two laws together into one body had not struck Bacon as being impossible, ‘for as their language hath the same roots that ours hath, but hath a little more mixture of Latin and French; so their laws and customs have the like grounds that ours have, with a little more mixture of the civil law and French customs’. He recognised, however, that it would take time for the two laws to be combined, for detailed restatements of the law in force on either side of the border would need to be drawn up before any unified code of law could be drafted, revised and enacted for the whole of Britain.66 Although Bacon had himself gone on to make a contribution towards the restatement of English law, no further progress had been made in this direction, partly because the Scots had been given reason to fear that they would not have much 62

The Jewel, pp 49 and 191–202. On the union debate see Levack 1980; Galloway and Levack 1985; Galloway 1986; Wormald 1996; Wijffels 2002b. 64 Letters and Life of Francis Bacon, vol 3, pp 307–25, and see too pp 90–9, 204–6, 218–34 and 327–32. For discussion of Bacon’s views see Coquillette 1992, pp 70–7; Wormald 1993, pp 154–8; Jardine and Stewart 1998, pp 280–82. 65 Letters and Life of Francis Bacon, vol 3, pp 335–41. 66 Works of Francis Bacon, vol 7, pp 728–43. 63

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102 The Interregnum Court influence on the final outcome. In 1607, just three days after Bacon had delivered his speech on legal unification before the English parliament, the king had sought to appease the same body by promising that while he hoped to see ‘a perfect Union of Lawes and persons’, Scotland would be drawn into a closer union with England ‘as if you had got it by Conquest’.67 James had described the common law of England as ‘the best of any Law in the world’ and had considered it obvious that Scotland would ‘be subjected to the Lawes of England, and so with time become but as Cumberland and Northumberland’, northern regions with their own ‘particular customes’ accommodated within the common law of England.68 It now seemed to Urquhart, as much as to English observers, that since Scotland had in fact been conquered the union could at last be perfected ‘in an identity of priviledges, laws and customs’, so that the Scottish people would ‘enjoy everywhere in all things the emoluments and benefits competent to the free-born subjects of England’. In support of his argument Urquhart referred further to the law reports compiled by Sir Edward Coke, who had been chief justice of the English court of common pleas in 1608, when the famous case of the postnati was heard in a specially assembled court of fourteen judges in the exchequer chamber.69 Despite encouragement from Bacon, James and others, which had been reinforced by advice from eleven of the most senior judges in England, the English parliament had refused to pass an act in 1607 declaring that all Scots born after 1603 were by the common law citizens of England. The same issue had then been brought before the courts in an action raised in the name of Robert Calvin, a Scot born in 1605 who claimed title to an estate in England. The fourteen judges who had eventually heard the case had rejected the plea that as an alien Calvin could not claim title to land under English law, affirming again that the postnati were subjects of the English king. As Urquhart observed, the decision had confirmed that ‘the Scots unwillingness to receive the English laws should be no impediment to their naturalization’, and Coke’s report of the decision had given an indication of what was expected to happen when the Scots did finally acknowledge their ‘subordination to the meer authority of this land’.70 Coke had drawn a distinction between the ‘Conquest of a Kingdom of a Christian King, and the Conquest of a Kingdom of an Infidel’. In the latter case, once the people were reduced to subjection, ‘there ipso facto the Laws of the Infidel are abrogated, for that they be not only against Christianity, but against the Law of God and of Nature, contained in the Decalogue, and in that Case, until certain Laws be established amongst them, the King by himself, and such Judges as he shall appoint, shall judge them and their Causes according to natural Equity, in such sort as Kings in ancient Time did with their Kingdoms, before any certain Municipal Laws were given’. In the former case, where a king 67

Workes of the Most High and Mightie Prince, James, pp 509–25. On James’ later reflections on this theme see Nicholls 1999, pp 34–7. Reports of Sir Edward Coke, pt 7(1). See too Ferguson 1977, pp 103–5; Galloway 1986, pp 148–57; Kim 2000, pp 176–99. 70 The Jewell, pp 49 and 200; Reports of Sir Edward Coke, pt 7(1), f 17v. 68 69

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The Appointment of the English Judges 103 became ruler of ‘a Christian Kingdom by Conquest, seeing that he hath vitae & necis potestatem, he may at his Pleasure alter and change the Laws of that Kingdom, but until he doth make an Alteration of those Laws, the ancient Laws of that Kingdom remain’. That a conqueror, having power to execute those he defeated, could impose laws on them was believed to be established by the civil law.71 What attracted common lawyers to this doctrine was the notion that the laws of a Christian people would survive unless they were expressly repealed by a conqueror, for it enabled them to argue that the ancient laws of England had survived the Norman conquest.72 The example given by Coke in the case of the postnati— and also mentioned by Bacon and by the lord chancellor in the speeches they delivered in the case—was Ireland, which had not been subjected to English law immediately after the conquest in the twelfth century and which had been governed partly under English law and partly under Gaelic custom until the start of the seventeenth century.73 By the end of the seventeenth century Coke’s version of conquest theory was to be accepted as the legal doctrine that would underpin the expansion of the British empire, though subject to two modifications.74 In the first place, whereas Coke had suggested that the laws of an infidel kingdom would be deprived entirely of effect by conquest, it came generally to be assumed that they would lose effect to the extent that they were contrary to the laws of God and nature. The task for judges sent into an infidel kingdom would therefore be to measure its laws against the standards of natural equity, to enforce the laws so far as they seemed equitable, and otherwise to determine issues in accordance with the law of nature, at least until new laws were imposed by the will of the conqueror. In the second place, once it was recognised that the laws of an infidel kingdom might be consistent with natural law, it was a short step to recognising that the laws of a Christian kingdom might not be. This had indeed been noted in relation to Ireland, where English administrators had increasingly complained about a lack of ‘civility’ and ‘true religion’, sometimes drawing parallels with the territories that were being opened up on the far side of the Atlantic.75 Ireland had been reconquered at the end of the reign of Elizabeth I, and the common law of England had been imposed on the whole island at the start of the reign of James I.76 Sir John Davies, a barrister who had been heavily involved in the transformation of Irish law between 1603 and 1619, identified the failure to replace the ‘wicked and mischeevous’ institutions of the local law as a major cause of the ‘barbarisme and desolation’ he had found in

71

Digest, 1.5.4.2, 41.1.5.7, 41.2.1.1 and 41.2.18.4; Institutes, 2.1.17; Sutherland 1972. Reports of Sir Edward Coke, pt 2, p x; Davies, Le primer report des cases, f 3r; Selden, Historie of Tithes, p 482; Burgess 1992, pp 82–6; Christianson 1996, pp 24–7; Sommerville 1999, pp 65–8. 73 Works of Francis Bacon, vol 7, pp 660–61; Ellesmere, ‘Speech of the Lord Chancellor’, p 232. 74 English Reports, vol 1, pp 21–2, vol 84, pp 789–90, vol 86, p 275, vol 90, p 445, and vol 91, p 357; Lee 1946, p 8; Jennings and Tambiah 1952, pp 179–83; Allott 1960, pp 3–4; Gledhill 1964, pp 211–12; Hahlo and Kahn 1968, pp 575–6; Williams 1990, pp 300–03; Fagan 1996, pp 54–7. 75 Quinn 1958; Bottigheimer 1978; Canny 1988. 76 Clarke 1976, pp 187–208; Beckett 1981, pp 33–8; Canny 1987, pp 150–87. 72

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104 The Interregnum Court the country.77 In a test case described in a volume of law reports he sent to the press in 1615 Davies claimed that one of the Gaelic customs could not have survived ‘the establishment of the common law of England, which was justly done according to the law of nations, notwithstanding that this was a Christian kingdom’.78 Since the custom had formed part of the law that had now been replaced by the common law, it could not have been treated as a local custom accommodated within the common law, comparable to ‘the custom of Gavelkind in Kent’. Moreover, Davies had argued at the bar that since the custom was demonstrably ‘repugnant to the law of reason, which is above all positive laws’, it must have been ‘void ab initio’. The implication was that this custom and all others like it would not have been upheld by English judges even if the local law had not been replaced by the common law. To demonstrate that the custom was repugnant to the law of reason Davies referred to a number of cases decided in the English courts, and in the preface to his reports he explained why he believed the common law to be a sound guide to the law of reason.79 He maintained that it was called the common law ‘as comming neerest to the lawe of Nature, which is the roote & touchstone of all good lawes’. Since the purpose of all human laws was to give effect to natural law, and since the law of England had taken shape through the gradual recognition of the implications of natural law for particular cases, it could be argued that no other law had ‘more harmony of reason in it’, that no other law was more consistent with the ius commune in the original sense of the term, and above all that ‘our native Common lawe is farre more apt and agreeable [to ius naturale], then the Civill or Canon lawe’. As Davies was aware, in reporting the postnati case Coke had pointed out repeatedly that ‘before Judicial or Municipal Laws were made, Kings did decide Causes according to natural Equity, and were not tied to any Rule or Formality of Law’.80 Just as judges sent by the king into infidel kingdoms were now required to decide cases in accordance with natural law, so judges in England had at first decided cases according to their personal perceptions of the requirements of that law. Through the gradual accumulation of cases, however, decisions had come to be governed not (as Coke put it elsewhere) ‘by natural reason but by the artificial reason and judgment of law’.81 In the postnati case he had objected to the suggestion that ‘we are driven to determine the Question by natural Reason’, insisting that it must rather be determined by ‘the legal and profound Reason of such as by diligent Study and long Experience and Observation are so learned in the Laws of this Realm, as out of the Reason of the same they can rule the case in Question’. 77 Discovery of the True Causes Why Ireland Was Never Entirely Subdued, pp 164–71. For the central role Davies played in the imposition of the common law on Ireland see Pawlisch 1985. 78 Report of Cases and Matters in Law, pp 78–114. See further Newark 1950. 79 Le primer report des cases, ff 1–3. For this line of thought generally see Pocock 1987, pp 30–69; Burgess 1992, pp 19–78; Sommerville 1999, pp 81–104; Cromartie 1999, pp 80–94; Tubbs 2000, pp 129–72. 80 Reports of Sir Edward Coke, pt 7(1), ff 3–4, 12–14, 18–19 and 27–8. See further Lewis 1968; Gray 1980 and 1990; Stoner 1992, pp 13–68; Cromartie 1995, 11–29; Burgess 1996, pp 165–208. 81 English Reports, vol 77, p 1343. See too Doddridge, English Lawyer, p 242.

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The Appointment of the English Judges 105 Judges now had to decide not ‘according to that which they think to be fit, but that which out of the Laws they know to be right and consonant to Law’. Quoting Aristotle’s dictum on the need to follow the opinions of experts in areas of uncertainty, Coke had praised the counsel at the bar who ‘spake not out of their own Head and Invention’, who saw no need to mention ‘foreign Laws’ or ‘alien Precedents’, and who regarded English law as a reliable restatement of divine law. Although the common law was supposed to have met the particular needs of the English people, it is hardly surprising that judges who were later sent into conquered countries to administer justice on the basis of Coke’s theory of conquest were inclined to follow the reason of the common law, even when the local law was left in place. One of those who had suggested in the postnati case that new questions might have to be determined by natural reason was the lord chancellor, Lord Ellesmere, who had published his own judgment with the king’s encouragement in 1609.82 Ellesmere had accepted that the question raised could actually be answered by following the analogy of ‘many plaine and direct Examples, and like Cases’, but he had also observed that in principle, ‘if examples and arguments a simili doe faile, then it remaineth Recurrere ad Rationem’.83 The examples and cases often referred to in the courts were ‘Arbitria Iudicum, & Responsa Prudentum, received, allowed, and put in practise and execution by the Kings authoritie’, and the earliest judgments and opinions could not themselves have been based on anything other than natural reason, ‘for the first Precedent which we have now, had no precedent when it began’. Where Ellesmere felt bound to take issue with Coke was in asserting that entirely new questions could still arise and that the king and his judges should then have recourse to natural reason. He insisted that ‘no lawe ever was, or ever can be made that can provide remedie for all future cases, or comprehend all circumstances of humane actions which Judges are to determine’. New questions were bound to arise, and when they did the judges could not ‘stay for a Parliament’ and in the meantime ‘give no remedie to the partie grieved’, but must at once ‘follow Dictamen rationis’. As Ellesmere indicated, this thesis was not difficult to justify in terms of constitutional history.84 When a medieval king of England had been petitioned to administer justice as his conscience dictated one option had been to send the petition in the form of a bill to his great council or parliament, where it could have been passed as a general act binding on all his subjects. Another option had been to send it in the form of a writ issued from the chancery to a royal court, where it would have been dealt with in an action between particular parties. The category of available writs had been closed by the end of the fourteenth century, but a third option had been to entrust any petition received to the officer of the 82 Ellesmere, ‘Speech of the Lord Chancellor’, pp 215–27, 238–9 and 247–9. See further Knafla 1977, pp 184–6. 83 As Kim 2000, pp 177–82, explains very clearly, the allegiance of the Scottish postnati was taken to depend on natural law, so that their lack of submission to the common law did not matter. The point was, however, that analogous use of natural law principles was made elsewhere in the common law. 84 Milsom 1981, pp 82–96; Musson and Ormrod 1999, pp 12–28; Baker 2002, pp 195–222.

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106 The Interregnum Court council most able to deal with it, which had usually meant the chancellor as ‘keeper of the king’s conscience’. In the fifteenth century the chancellor had started to receive petitions directly, and in the sixteenth century his office had come to rival the ordinary courts in the volume of business it dealt with. Whereas the ordinary courts had decided cases in accordance with the statutory law enacted by parliament and the common law built up around the original writs, the chancery itself had decided cases in accordance with the dictates of conscience and had provided remedies in cases where the common law had proved to be deficient. Ellesmere had observed in another famous case that ‘the Office of the Chancellor is to correct Mens Consciences for Frauds, Breach of Trusts, Wrongs and Oppressions, of what Nature soever they be, and to soften and mollify the Extremity of the Law’, explaining further that the chancery had to exist because ‘mens Actions are so divers and infinite, that it is impossible to make any general Law which may aptly meet with every particular Act, and not fail in some Circumstances’.85 Here, as in the case of the postnati, he had alluded clearly to Aristotle’s discussion of the concept of equity, in which it was said that even the best laws would sometimes lead to injustice if applied rigidly in every case and that equitable adjustments would have to be made in order to secure the just results intended by the law maker.86 In the sixteenth and seventeenth centuries English lawyers often alluded to Aristotle’s discussion in explaining how the jurisdiction of the chancery related to the jurisdiction of the ordinary courts.87 Most agreed that the chancellor was sometimes called upon to fashion a new remedy to an entirely new problem, and some even agreed that he did this on the basis of sovereign authority delegated to him by the king.88 But the point most frequently extracted from Aristotle’s teaching was that the equity followed in the chancery was already implicit in the law followed in the ordinary courts. In a popular dialogue between a doctor of divinity and a student of the common law Christopher St German had defined equity as ‘an excepcyon of the lawe of god or of the lawe of reason from the generall rewles of the lawe of man’, adding that it was ‘secretely underst[ood] in every generall rewle of every posytyve lawe’.89 From this it could be inferred that ‘the lorde Chaunceller must ordre his conscyence after the rewles and groundes of the lawe of the realme’, following the reason of the common law in preference to his own sense of justice.90 In another dialogue, written later in the sixteenth century, Edward Hake had rejected the view of ‘certayne civilians’ that ‘lawe and Equity are twoe things, and the one of them not included within the body of the other’, so that ‘Equity is not drawne owte of the lawe, but deryved from some 85 English Reports, vol 21, pp 485–9. See too Yale 1957, p xli; Baker 1969, pp 377–9; Knafla 1977, pp 171–2. 86 Ethics, 1137a31–38a3, Rhetoric, 1374a25–b23, and Politics, 1282b1–5. 87 Vinogradoff 1928, vol 2, pp 190–204; Yale 1953, pp xiii–xxv; Thomas 1976, pp 509–19; Fox and Guy 1986, pp 179–98; Doe 1990, pp 101–6; Fortier 2005, pp 59–86. 88 Doddridge, English Lawyer, p 211; Lambarde, Archeion, pp 42–3; Hake, Epieikeia, pp 139–40. 89 St German, Doctor and Student, p 97. See too Barton 1974; Yale 1975a; Rueger 1982; Guy 1985; Behrens 1998. 90 St German, Doctor and Student, p 105.

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The Appointment of the English Judges 107 other thing, as from the conscience of the Prince’.91 It was a mistake to suppose that only the chancellor could administer equity, given that the common law was itself so equitable, or that in administering equity the chancellor was to draw his decisions ‘owte of his owne breste’. As St German had taught, when the chancellor was called upon to make adjustments to the common law he had to take guidance from the law itself, which further implied that he ought to be ‘a man no lesse learned in the Common Lawes of this Realme, than accomplished with the skill of this Moderation and Equitie’.92 While medieval chancellors had tended to be clerics, for whom the chancery was the secular equivalent of the confessional, those appointed in the sixteenth century had tended to be common lawyers, for whom the chancery was an integral part of the legal system. The chancellors continued to receive assistance from masters in chancery who had traditionally been trained in the civil law, but in the seventeenth century these officers also came increasingly to be common lawyers.93 The distinction between the decision of cases according to ‘the Law’ and according to ‘Equitie, and a good Conscience’ was thus in the process of becoming less precise, though the institutional separation of the courts of law and equity was to survive until the end of the nineteenth century.94 By contrast, it was known that to the north of the border ‘the Session and colledge of Justice doth not decide strictlie secundum rigorem iuris onlye: but also secundum aequum et bonum, and in that representinge the Court of Channcery in this Kingdome’.95 In Scotland there was a supreme court empowered to deal with issues of both law and equity, and it was presumably for this reason that the judges who were sent north in the 1650s were instructed to decide cases according to the local law in conjunction with ‘equity and good conscience’. But what exactly these words were supposed to signify was not spelled out. Clearly, Scotland was not being treated in the same way as Ireland, where attitudes had hardened after the rising of 1641.96 When Cromwell finally reconquered Ireland in 1649 the Catholic people there appear to have been regarded as barbarous enemies of the true faith, and union with England was simply imposed on them by force, along with renewed subjection to the common law. When Scotland was conquered in 1651 the Protestant people there were regarded as misguided Christians who needed to be coerced into renewing their alliance with England in a closer union.97 The deputies elected to represent the burghs and shires of Scotland certainly took the view that they had been invited to accept the union voluntarily, subject to the condition that satisfactory terms could be settled by negotiation. They believed that Scotland had been left in subjection to her own laws and insisted that this should remain so until a genuinely British law could be enacted by parliament, much as Bacon had recommended after the union of the 91 92 93 94 95 96 97

Epieikeia, p 121. Lambarde, Archeion, p 46; and see too Hake, Epieikeia, p 140. Yale 1965, pp 49–50; Jones 1967, pp 110–11; Levack 1973, pp 27–8 and 62–3. Lambard, Archeion, p 37. ‘Manner of Judicatores’, p 269. Barnard 1975, pp 1–15; Beckett 1981, pp 82–103; Canny 1987, pp 204–18. Stevenson 1990b; Barber 1995; Wheeler 2002.

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108 The Interregnum Court crowns. They were worried, however, by the replacement of the session with a smaller court staffed from England, and particularly by the reference to equity and good conscience in the judges’ commissions. They complained that these words left the decision of cases ‘to men’s private judgments’, apparently interpreting them as a reference to natural equity and as a warrant for recourse to a standard outside the law. What may in reality have troubled them was the fear that the English judges would gradually assimilate the law of Scotland to the law of England, much as the king had predicted would happen in 1607, with Scotland being treated in effect as a region of England and her laws being accommodated within the common law as local customs to the extent that they were considered to be reasonable.98 Given the assumptions English lawyers were inclined to make about the relationship between equity and the common law, and between the common law and reason, and given that Scotland had in fact been conquered, this fear would not have been altogether groundless. In the next three years it became clearer that assimilation of the laws was indeed intended.

Judicial arrangements in the later 1650s It was noted earlier that the court established by the English government in Scotland was reconstituted at the start of the winter session of 1653 to 1654, apparently because of problems experienced in the handling of cases in the outer house. The court was reconstituted again at the start of the winter session of 1655 to 1656, when it became clear that there were still problems with the outer house.99 In fact there had been no sittings there in the winter session of 1654 to 1655, when only four judges were left in Scotland, or in the summer session of 1655, even though there were by then as many as six judges available.100 The advocates had been ‘very sollicitous’ on their own and their clients’ behalf in November 1654, and Stair and three other advocates had been sent to petition the judges in July 1655 concerning ‘the late interruptione of calling’, persuading them to undertake that the outer house would be restored in the autumn.101 In the meantime, however, new problems had been identified. In September 1655 a local council for Scotland had started to meet in Edinburgh, consisting of ‘six or seven English sojours and two of our complying gentlemen’.102 The complying gentlemen were William 98 Cf Levack 1987, p 74. It would of course have been tactically inept for the deputies to have taken the words equity and good conscience to signify the reason of the common law. For the possibility that they meant precisely what they said see the third section of this chapter. 99 NLS, Adv MS 25.2.5(i), ff 306–7; Nicoll, Diary of Public Transactions, p 168; Diary of Mr John Lamont, p 95. 100 Nicoll, Diary of Public Transactions, pp 149 and 155; Baillie, Letters and Journals, vol 3, p 288; Scotland and the Protectorate, p 214. 101 NLS, Adv MS 25.2.5(i), ff 303–6. 102 Baillie, Letters and Journals, vol 3, p 288; Nicoll, Diary of Public Transactions, pp 159–60; Diary of Mr John Lamont, pp 91–2; Scotland and the Protectorate, p 306; Firth 1909, vol 2, pp 91–124; Dow 1979, pp 165–94; Smith 1979, pp 77–104.

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The Appointment of the English Judges 109 Lockhart and John Swinton, and it was assumed that they would not be able to participate further in the work of the court.103 The remaining judges—George Smith, Edward Moseley, William Lawrence, Henry Goodyear and Alexander Pearson—could in theory have sat in both houses, but in practice it had come to be recognised that the outer house could only function effectively when several Scottish judges were available.104 Most of the work of the court was in reality done in the outer house and the judge who sat there needed to be ‘an able man, both of parts and boddy, the worke requiringe good intellectualls and experience as well as corporall strength’. The need for experience had resulted in recognition of ‘the impossibility of havinge any from England able to doe the worke of the outward house’, and the need for intellectual and physical strength had resulted in recognition that the only Scot left in the court was ‘wholly unable for that worke’.105 The new council had first decided to recommend for appointment Sir James Learmonth of Balcomie, a former judge with twenty years’ experience in the session, and they had then decided to recommend for an additional appointment Andrew Ker, ‘ane young advocatt, yit weill gifted, and a scoler’.106 Part of their thinking was that ‘the duty of the outward house would have deter’d any one man from acceptinge it, had he not seen an able assotiat, who might from time to time have eased him therein’, and part of their thinking was that by appointing an advocate they would limit the ambitions of ‘the old lords of the cessions’. As time was passing they had instructed Learmonth and Ker to join the court in November, and they now asked the council in London to confirm that they had not exceeded their authority. Instructions had been issued to the Scottish council in March 1655, among them an injunction ‘to endeavour to preserve peace, and have justice well administered, and to promote the union by having the proceedings in courts of judicature conducted agreeably to the laws of England, as far as the rules of the courts will permit’.107 Although it was still accepted that justice would have to be administered in accordance with the procedural law of Scotland, it was announced that the aim was otherwise ‘to carry on justice there according to the laws of England, as the judges and officers in the Court of Judicature are instructed’, and to have 103 NLS, Adv MS 25.2.5(i), f 310r, indicates that Lockhart did sit in the court in January 1656, though possibly only to witness the admission of his brothers George and John to the bar. By April of that year he had left the country to begin a successful career as a diplomat. Swinton does not appear to have returned to the court until later, though his position remained open to doubt and he continued to receive two salaries (State Papers of John Thurloe, vol 4, p 323). 104 Acts of the Parliaments of Scotland, vol 6(2), p 894. 105 NAS, CS 8/25 shows that Pearson did in fact take his turn in the outer house throughout the winter session of 1655 to 1656, but his inadequacies are also indicated in the State Papers of John Thurloe, vol 4, pp 104–5, in Nicoll’s Diary of Public Transactions, p 122, and, by implication, in Baillie’s Letters and Journals, vol 3, p 317. 106 NAS, CS 1/5, ff 189v–9r; Nicoll, Diary of Public Transactions, p 168; Brunton and Haig 1832, pp 277 and 347; Grant 1944, p 116; Tucker 2001, pp 239 and 364. 107 Calendar of State Papers (Domestic Series), 1649–60, vol 8, p 108. These instructions would make a better focus for debate than those issued to the parliamentary commissioners in 1651, which are construed in contrasting ways in Trevor-Roper 1972, p 420, and Stevenson 1990b, p 176.

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110 The Interregnum Court England, Scotland and Ireland ‘subject to the same laws’.108 Roger Boyle, Lord Broghill, an experienced administrator brought in from Ireland, immediately began to look for ways ‘to introduce the English Lawes’.109 It was his understanding, he informed Cromwell in October 1655, that his colleagues were ‘to endeavor, by the best waies and meanes they can, to take care and give order, that the proceedings in all courts of judicature in Scotland, and the administration of justice there, be agreable and according to the lawes of England, as fully as the same may be done by the power and rules of the courts, judges and officers there’.110 As the English judges had warned him, however, the words equity and good conscience were ‘the only words in their commissions, that give a rise to bringe the laws of Scotland to the laws of England’, and he understood that the Scots lawyers were ‘much averse to that expression, and pleade hard to keepe the judges to the knowne statute law’.111 An obvious response was to make sure that the English judges were kept in the majority. In September Broghill had urged the government in London ‘to consider of sendinge us speedely at lest four able English judges, or els we shall still continue Scotch’.112 When the new Scottish judges were recommended for appointment a month later he again asked to have others sent from England, and on the same day that he wrote to Cromwell, outlining the duties of the council in Edinburgh, he wrote once more to the secretary of the council in London begging him ‘to hasten us som English judges, for without them I feare your worke heere will never be well carryed on’.113 Although these requests were not granted, the reconstitution of the court meant that in practice the English judges were in a clear majority throughout the winter session of 1655 to 1656 and the summer session of 1656.114 Pearson, Learmonth and Ker sat week about in the outer house, where the addition of a third clerk of the process, the appointment of a keeper of the minute book, and the return to the bar of most of the advocates enabled them to deal with routine cases more rapidly.115 Orders were given for the redirection of cases to the outer house, and the writers to the signet were again exhorted to adhere to the traditional forms and

108 Report by Thomas Tucker, pp 45–6; Calendar of State Papers (Venetian Series), vol 30, p 99; Calendar of State Papers (Domestic Series), 1649–60, vol 8, p 319. 109 NLS, MS 7032, f 73. Broghill had joined Gray’s Inn in 1636 (Foster 1889, p 211), though only as a prelude to a continental tour (Little 2004, p 20). On his use of his Irish experience in Scotland see Little 2003. 110 State Papers of John Thurloe, vol 4, p 106. 111 Ibid, vol 4, p 324. 112 Acts of the Parliaments of Scotland, vol 6(2), pp 892–4. 113 State Papers of John Thurloe, vol 4, pp 104–5. 114 NAS, CS 7/575, f.201r, to CS 7/583, f 297v. 115 NLS, Adv MS 25.2.5(i), f 306; Nicoll, Diary of Public Transactions, p 168; Baillie, Letters and Journals, vol 3, p 317. Until the troubles of the 1640s there had been three clerks of the process in the session, each of whom had compiled both a register of acts or procedural orders and a register of decreets or final decisions. Between 1652 and 1655 two amalgamated registers of acts and decreets were compiled. After 1655 distinct registers of acts and decreets were again compiled, though only by two of the clerks, as will be observed further in the final chapter below.

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The Appointment of the English Judges 111 practices of their profession.116 There was to be an enormous increase in the volume of business handled by the court after 1655, largely because the outer house of the session had effectively been restored.117 So far as the settlement of disputes was concerned, most cases were to be dealt with in future along conventional lines by Scots judges receiving advice from Scots lawyers. On the other hand, so far as the development of the law was concerned, more difficult issues were to be determined in the inner house of the court where the English judges would always outnumber the Scots by two to one (since one Scot would be sitting in the outer house). When an anonymous reporter began to keep a record of the cases he considered worthy of note in November 1655 he naturally focused his attention on the determination of issues by all the ‘Commissioners’, ‘Judges’ or ‘Lords’.118 In most of the cases that came before the judges sitting in the inner house one of the Scots would have taken the others through the stages of a dispute he had presided over in the outer house, recounting all the allegations, exceptions, replies and answers submitted by the advocates, summarising any evidence he had received, and no doubt in some instances advising the court in a way that would have inclined it towards a particular decision. Nevertheless, it was the court as a whole that would have dealt with any legal questions raised, and where the judges thought these to be of ‘universal concernment’ or ‘importance’ they would first have asked to hear them ‘contentiously disputed in praesentia’.119 It would then have been the task of the advocates to persuade four English judges and just two Scots to respond to the questions raised in an appropriate manner. In many of the reports of cases decided between November 1655 and July 1656 ‘Dalrymple’ was named among the advocates who disputed questions in the inner house. Seven weeks after the summer session of 1656 ended the second parliament of the Protectorate assembled at Westminster and made another attempt to pass an act on the union of Scotland and England.120 A bill was read for the first time on 116 NLS, Adv MS 25.2.5(i), ff 308 and 310; Nicoll, Diary of Public Transactions, p 174; History of the Society of Writers to Her Majesty’s Signet, pp 276–7. For the refurbishment of the Parliament House see too Nicoll, Diary of Public Transactions, p 162, and Records of the Burgh of Edinburgh, vol 4, p 432. 117 Whereas the general minute book for 1652 to 1655 is contained in one volume (NAS, CS 8/23), the minute book for the years after 1655 fills about two volumes for each year (CS 8/24–30). Similarly, whereas the processes for the first three years of the court’s existence are contained in one box (CS 15/284), those for the remaining four years fill fourteen boxes (CS 15/285–98). Smith 1979, p 120, calculates that in the winter session of 1653 to 1654 the court dealt with 1,766 cases, whereas in the winter session of 1657 to 1658 it dealt with 3,114. 118 The Decisions of the English Judges, during the Usurpation, was printed in 1762 from what is now NLS, Adv MS 24.3.1. This copy appears to have been made long after the Interregnum, but it was clearly based on a copy in Adv MS 24.4.1, ff 19–50, which seems to have been made not long after the reports were revised by their compiler in the early 1660s. It appears from the Decisions of the English Judges, p 73, that the compiler was actively involved in the administration of justice during the 1650s, but not always present in the inner house. There is no evidence to support the suggestion in McMillan 1937, p 245, that he was William Downie, one of the principal clerks of the process. 119 Decisions of the English Judges, pp 18, 129 and 232. 120 Nicoll, Diary of Public Transactions, p 194; Acts of the Parliaments of Scotland, vol 6(2), p 903; State Papers of John Thurloe, vol 5, pp 366–7 and 754. On the thirty members of the parliament sent from Scotland see Pinckney 1967, and for a survey of the legislative activities of the parliament see Roots 1974. For the debate on the union see Terry 1902, pp lxvi–lxxiv.

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112 The Interregnum Court 25 October and for the second time on 4 November, when the English judges were urged to attend the debate ‘because of some clauses about the lawes’, and when members were reminded of the significance of the ‘case of the postnati amongst Judge Cookes reports’.121 The bill was then referred to a grand committee of the whole house, which returned to it on several occasions in the next three months.122 On the first occasion two hours were spent in examining the meaning of the word ‘incorporated’, for it seemed to many of those present that Scotland could not be genuinely incorporated into England ‘except all there lawes were first altered, and be as the lawes of England are, to prove which they aleged the example of Wales when it was incorporated into England by Edward the first’.123 The record does not specify how this was ‘very well answered’, but the reply may well have been that for two and a half centuries after the English conquest of Wales there was no more than a gradual assimilation of the local customary law with the law of England, and that even after the common law was imposed on the Welsh by an act of parliament in 1536 the local law was still expressly allowed to survive to the extent that it was found reasonable by English lawyers.124 A month later another legal issue arose when an amendment was proposed to the union bill for the preservation of the trading privileges of the Scottish burghs.125 When some members objected that they could not possibly agree to the amendment without knowing what these privileges were, it was replied that ‘you have granted far more by confirming their laws in the former laws’. One member clarified the point by saying that ‘you have confirmed none of their laws but only this: that justice shall be administered to the people of Scotland according to their laws’, and another member (who sat on the council of state and who had studied at Gray’s Inn) added that ‘if one conquer a nation, and confirm their laws, it is to be understood of such laws as are just, &c’.126 In preserving the privileges of the Scottish burghs, it was argued, the parliament would not be agreeing to anything unreasonable any more than it had done in accepting that the judges sent into Scotland should apply Scots law. The amendment was eventually carried, but the bill itself was not enacted. Instead, on 28 April 1657, the protector’s ordinance of union was ratified in the form in which it had been issued in 1654, still without any provision on the administration of justice in Scotland.127 Two months later the second parliament of the Protectorate went into recess. One of the few members for Scotland who had participated in the union debate was the English judge, George Smith, who had been mocked when he offered to explain the practice of the court in Scotland. ‘I have heard of St George that was a 121 Journals of the House of Commons, vol 7, pp 445 and 450; Clarke Papers, vol 3, p 80; Scotland and the Protectorate, pp 333–6. 122 Journals of the House of Commons, vol 7, pp 452–7 and 464; Diary of Thomas Burton, vol 1, pp 12–19 and 346–8. 123 Clarke Papers, vol 3, p 81. 124 Pierce 1963; Davies 1966; Smith 1966–7; Jenkins 1970; Swett 1996. 125 Diary of Thomas Burton, vol 1, pp 12–19. 126 Stephen and Lee 1885–1901, vol 55, pp 54–5; Foster 1889, p 152; Woolrych 1982, pp 428–9. 127 Journals of the House of Commons, vol 7, p 524.

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The Appointment of the English Judges 113 champion for England’, a member quipped, ‘[yet] it seems there is now another St George risen up for Scotland’.128 Smith’s attendance at Westminster meant that only six judges had been left in Edinburgh during the winter session of 1656 to 1657.129 Pearson, Learmonth and Ker had continued to sit week about in the outer house, but in May 1657 Pearson had died, so that when the summer session started a few weeks later there were only two judges able to sit in the outer house and only three others—Smith still being away at Westminster—able to make up a quorum in the inner house.130 George Monck, the commander of the English army of occupation, who had taken over from Broghill as the spokesman of the council in Scotland, wrote at once to the secretary of the council in England asking him to arrange for the urgent appointment of ‘one that is very fitt, and knowing the practique of the lawes of this nation’, adding that if he could not secure the appointment of someone suited to ‘the businesse of the outer house’ he would ‘as good put in none’.131 An approach was made to Alexander Brodie of that ilk, a former lord of session, who excused himself from taking office by pleading his ‘infirmitie’ but who had actually determined ‘to eschew and avoid employment under Cromwell’.132 Monck then wrote directly to Cromwell, drawing his attention to ‘one Mr James Dalrymple, as a person fit to be a judge, being a very honest man, a good lawier, and one of a considerable estate’.133 Three days later Learmonth dropped dead, ‘even in a moment, sitting upone the binsche in the Parliament Hous’.134 Monck again wrote directly to Cromwell, reminding him of the advantages of maintaining an outer house in which ‘one of the judges would determine and adjudge in many civill causes, which did spare much paines to the whole judicature, in decideing of causes of lesser importance, and without which, proceedings would be too slow’.135 Recognising that with only four judges left in Scotland there was a pressing need to add someone who was ‘very able in the laws 128

Diary of Thomas Burton, vol 1, p 18. NAS, CS 7/582–90. As already indicated, these volumes contain three registers of acts (CS 7/584–6 and 589), but only two registers of decreets—one of which was kept in the office of James Brown (CS 7/582 and 587), and the other in the office of William Downie (CS 7/583, 588 and 590). The Records of the Burgh of Edinburgh, vol 5, p 37, reveals that in early October 1656 a carpenter was instructed to remove the ‘chalmeris in the bodie of the Parliament hous’ and ‘to build two wrytting chalmeris in the east side of the utter jam of the Parliament hous for the use of William Downie and James Brown, Clerks to the Judges’. No provision was made for James Balfour, the third principal clerk of the process. 130 NAS, CS 7/584–5, 589–91 and 594, and CS 8/26–7; NLS, Adv MS 25.2.5(i), ff 311v–12v; Diary of Mr John Lamont, p 123. 131 Acts of the Parliaments of Scotland, vol 6(2), pp 906–7. The State Papers of John Thurloe, vol 4, p 323, reveals that Broghill had been trying to get out of Scotland from the moment he arrived, for he feared that his ‘old ennemy the gout’ was exacerbated by the ‘cold clymat’. He managed to be elected to the second Protectorate parliament both as a Scottish and as an Irish member, and he did not return to Edinburgh. For his later career see Little 2004. 132 State Papers of John Thurloe, vol 6, pp 351 and 364; Diary of Alexander Brodie, p 41; Brunton and Haig 1832, pp 343–4; Stephen and Lee 1885–1901, vol 6, pp 377–8; Bain 1904; Young 1992–3, vol 1, pp 68–9. 133 Acts of the Parliaments of Scotland, vol 6(2), p 907. 134 Nicoll, Diary of Public Transactions, p 198; Diary of Mr John Lamont, p 99. 135 Acts of the Parliaments of Scotland, vol 6(2), p 908. 129

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114 The Interregnum Court and practice of proceedings heere’, the Scottish council had instructed Dalrymple to join the court immediately, which he did at the start of July.136 They had heard that John Swinton had been issued with a new commission in London and he too returned to the court in July, restoring the balance of four English and three Scottish judges. By the start of the next session, however, the balance in the court had shifted. Since January Archibald Johnston of Wariston had been in London campaigning to have the public records of Scotland returned to Edinburgh.137 He had been the clerk register in 1651 when the records were captured and removed from Scotland, and after regaining that office in July 1657 he had persuaded Cromwell in September to appoint him to the bench as well.138 Johnston had argued that the clerk register had previously been a lord of session and that like the master of the rolls in England he needed to be a judge if he was to exercise proper control over the clerks who kept the court records.139 He believed that he had also won Cromwell’s favour by persuading Alexander Brodie to accept judicial office after all. With Smith still at Westminster, attending the recalled parliament in the winter of 1657 to 1658, and with Swinton sitting only intermittently, Johnston’s appointment to the bench meant that the English and Scottish judges were evenly balanced in November and December 1657.140 When Brodie joined the court in January 1658 the Scots were for the first time in the majority.141 Johnston had tried to persuade Cromwell of the merits of ‘putting 6 Scots juges instead of 3 Inglish’, but in June 1658 the members of the council in Edinburgh received fresh instructions ‘to see that all proceedings in Courts of Justice are according to the Laws of England, in order that the peaceful union of England and Scotland may be preserved’, and in July 1658 Samuel Desborough, the English chancellor of Scotland, was ordered to join the court.142 Although there were periods when Desborough was able to sit ‘frequently’ in the court, like Swinton, with whom he sat on the Scottish council, he was not able to attend regularly.143 In the summer of 1658 the regular attenders, on the English side, were Smith, Moseley, Lawrence and Goodyear, and on the Scottish side were Stair, Ker, Johnston and Brodie. In the winter sessions of 1657 to 1658 and 1658 to 1659 Moseley and Lawrence sat 136 NAS, CS 8/26, 2.vii.57; NLS, Adv MS 25.2.5(i), ff 312v–13r; Records of the Burgh of Edinburgh, vol 5, p 61; Nicoll, Diary of Public Transactions, p 198; Diary of Mr John Lamont, p 99. 137 For Johnston’s career see Brunton and Haig 1832, pp 306–10; Stephen and Lee 1885–1901, vol 30, pp 56–8; Mathew 1955, pp 59–69; Hill 1984, pp 78–83; Stevenson 1996, pp 151–73; and for the recovery of the records see Stevenson 1971. 138 Diary of Sir Archibald Johnston of Wariston, 1655–60, pp 90–100; State Papers of John Thurloe, vol 7, pp 537–8; Nicoll, Diary of Public Transactions, pp 201 and 205. 139 Cf Murray 1974, p 134. On returning to Scotland, Johnston initiated a review of the clerks’ offices (NLS, Adv MS 25.2.5(i), ff 316v–18r; Nicoll, Diary of Public Transactions, pp 203–4). 140 NAS, CS 7/589 and 591–8; NLS, MS 7032, ff 106–11. 141 Nicoll, Diary of Public Transactions, p 210. Nicoll, who detested Johnston, maintained that Brodie had responded to ‘a long call and invitatioun, maid be the Judges of the Court of Sessioun, and of the laweiris, clerkis, and wryteris, by the space of many weekis befoir’. 142 NAS, CS 7/595–6, 578–9 and 600–2; Nicoll, Diary of Public Transactions, pp 215–16; Calendar of State Papers (Domestic Series), 1649–60, vol 12, p 60. 143 NLS, Adv MS 25.2.5(i), f 323.

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The Appointment of the English Judges 115 occasionally in the outer house, but the burden of handling business there fell mostly on the Scots and on some more than others.144 It fell most heavily on Stair, who sat in the outer house for fifteen of the forty-four weeks during which hearings were heard between November 1657 and February 1659.145 By the beginning of the winter session of 1658 to 1659 the balance in the court had shifted again.146 George Smith had died in September, not long after Oliver Cromwell succumbed to pneumonia.147 George Monck had then written to Richard Cromwell, the new protector, explaining why the practice for the past six years had been to send English judges into Scotland.148 The intention had partly been to bring ‘the way and practice of proceedings for the administration of justice here to as neer a conformity as might be with those in England’, but it had also been to secure ‘the more impartial administration of justice’, and it was this latter point that Monck emphasised in urging the secretary of the council in London to make arrangements for the appointment of a new English judge. He recognised that there was a problem with having lawyers sent up from England, for ‘though they bee never so able, they doe not understand the law heere’, which was essential in a judge who was ‘to dispatch the businesse of the outer court’.149 On the other hand, those who understood Scots law best were the advocates and in general they were not suited to judicial appointment, ‘they being in the nature of counsellors, and are so used to take money, that I doubt they may be corrupted’. Monck was satisfied that ‘itt would bee best to have an English judge’, as was Edward Moseley, the sole survivor of the original quartet of English judges, who provided the names of two barristers he had known at Gray’s Inn to be considered for appointment in Smith’s place.150 Samuel Desborough also wrote to the secretary, warning that ‘our Scotch judges will indeavor to have his place filled up by a Scotsman’, and exhorting him to ‘take thoughts of us, that som able Englishman or men, as occasion shall bee, may be sent downe’.151 The protector received similar encouragement from the author of some ‘Humble Proposalls Concerneing the

144

NAS, CS 8/28–9. Ker sat for eleven weeks, Johnston for six and Brodie for five. Moseley and Lawrence spent three weeks each in the outer house, and Swinton only one. 146 NAS, CS 7/600 and 602–7. There were still three principal clerks of the process—Brown, Downie and Balfour (Diary of Sir Archibald Johnston of Wariston, 1655–60, p 188; Nicoll, Diary of Public Transactions, pp 221–2; Scotland and the Protectorate, pp 386–8)—but there were also still only two registers of decreets. 147 NLS, Adv MS 25.2.5(i), f 321v; Diary of Mr John Lamont, p 108; Nicoll, Diary of Public Transactions, p 219. 148 Acts of the Parliaments of Scotland, vol 6(2), pp 916–17. 149 State Papers of John Thurloe, vol 6, p 464. 150 BLO, MS Rawlinson A 43, f 159. One suggestion was John Naylor, who had studied at Corpus Christi College, Cambridge, between 1622 and 1626, had entered Gray’s Inn in 1628, and had been called to the bar there in 1636 (Pension Book of Gray’s Inn, vol 1, p 327; Foster 1889, p 186; Venn and Venn 1922–7, vol 3, p 234). The other was Daniel Watson, who had studied briefly at Queen’s College, Oxford, in the mid-1630s, had entered Gray’s Inn in 1637, and had been called to the bar there in 1645 (Pension Book of Gray’s Inn, vol 1, p 353; Foster 1889, p 212, and 1891–2, vol 4, p 1582). 151 State Papers of John Thurloe, vol 7, p 435. 145

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116 The Interregnum Court Courts of Judicature in Scotland’, who urged him to take care that ‘the number of Scotch Judges may not exceed the number of the English’.152 A few weeks later the secretary of the council received the predicted letter from Archibald Johnston suggesting the appointment of an additional Scottish judge or judges.153 He first relayed the opinion of Alexander Brodie—who had committed himself as early as 1652 to having ‘the laws in Scotland ratified and established, and judges to judge by them’—that the court was badly understaffed.154 Before 1651, Brodie had remarked, the administration of justice in Scotland had occupied the time of ‘fyftein of the ablest men and most experimented with the lawes and prattiks of this nation, and every on of them releved another week about of the great burthen of the utter house, which now hath lyen upon thrie or four, the rest being unwilling hitherto to undergoe it becaus of the clamours of the people and their unacquayntednesse with the formes theirof’. The English judges remained unable to take their share of the business in the outer house, even though they had now been in Scotland for several years, and as Johnston himself had pointed out when he was in London, the Scottish judges were paid half as much as their English colleagues.155 Suggesting that it would be better to appoint ‘two Scots acquaynt with the lawes and customes and pratticks of the nation’ than ‘on persin that is not acquaynt with our lawe and custome, the grounds of our decisions’, he provided the names of several candidates for appointment, including his brother-in-law Robert Burnet, to whom the court had been in the practice of sending business relating to the north of Scotland.156 In fact Smith was not replaced by anyone, and Henry Goodyear was too ill to sit during the winter session of 1658 to 1659. Desborough, Swinton and Johnston travelled to Westminster in January 1659 to attend the parliament called by Richard Cromwell, which left only Moseley, Lawrence, Stair, Ker and Brodie to sit in the court during the last few weeks of the session.157 After 26 February 1659 the court never met again.

Attempts to revive the administration of justice Whether Stair was already working on his Institutions when the court stopped sitting is unclear, but as the last chapter indicated, he clearly did start work at about this time and he probably wrote most of his text within the next two years. He had spent only six months in practice before the lords of session when they stopped sit152

BL, Add MS 4158, f 101r. BLO, MS Rawl. A 61, ff 271–2. 154 Diary of Alexander Brodie, pp 20–1. 155 Acts of the Parliaments of Scotland, vol 6(2), pp 896 and 911. 156 For Burnet’s refusal to accept judicial office during the Interregnum see Gilbert Burnet, History of His Own Time, vol 1, p 52. 157 Mukerjee 1934; Casada 1972; Hirst 1988. In Acts of the Parliaments of Scotland, vol 6(2), p 919, Monck was presumably confusing Lawrence with Desborough when he wrote to the secretary of the English council in April warning that Johnston, Swinton and Lawrence would have to be sent back if the court was to sit effectively in the summer. 153

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The Appointment of the English Judges 117 ting, and had instead risen to prominence as an advocate in a court consisting of English as well as Scottish judges, often appearing to plead before the English judges in the inner house. He had begun his judicial career in the same court, bearing the heaviest burden of all the judges in the outer house and reporting on the cases he heard to his colleagues in the inner house. It was as ‘a good lawier’ who was ‘very able in the laws and practice of proceedings heere’ that he had been recommended for appointment, though Monck had also been quick to emphasise that he was ‘a very honest man’ and—exceptionally among the advocates admitted to the bar in the first half of the seventeenth century—‘one of a considerable estate’. If this had been expected to make him less corruptible, the court had taken the further precaution a few days after his appointment of issuing a fresh ban on the soliciting of judges by litigants.158 Stair himself was one of several Scots who have been credited over the years with coining the phrase ‘a wheen kinless loons’ to describe the English judges, the implication being that they had not favoured friends and family in the way that litigants expected.159 It is impossible to discover to what extent the English judges were less partial than their Scottish colleagues or were more anxious to avoid partiality.160 For present purposes what matters is that ample evidence does exist of a difference of opinion between the English and Scottish judges over the question of assimilation of the laws of their countries. There is no doubt that the question was raised, and not only in relation to constitutional or procedural law.161 The assimilation of the substantive laws had apparently been impeded by the failure to send enough English judges into Scotland, and the Scots had been able to press home their advantage by securing a majority on the bench.162 Nonetheless, when Stair began work on his Institutions the future of the private law of Scotland was uncertain, and it remained so while he continued working in the next two years. When the members elected to represent Scotland in Richard Cromwell’s parliament arrived at Westminster in the spring of 1659 they found that their right to participate was about to be challenged.163 Since the previous parliament had merely enacted the late protector’s union ordinance, and since the ordinance had merely stated in general terms that there should be thirty members of parliament to represent Scotland, it was unclear that those who travelled south had been 158

NLS, Adv MS 25.2.5(i), ff 312v–13r. Godwin 1824–8, vol 3, p 315; Mackay 1873, p 62; Smith 1979, p 72. 160 Mackay 1873, pp 61–2; McMillan 1937, pp 234–6; Stevenson 1990b, pp 176–7. 161 McMillan 1937 argues that in the 1650s, as in 1707, what was intended was an alteration in public rather than private law, and that the English judges were only supposed to intervene on behalf of the government ‘in matters in which its interests appeared to be affected, but not to interfere actively in matters affecting the private rights of individuals’ (pp 242–3). Cooper 1946 argues similarly that the court was in practice dominated by the Scottish judges, but Smith 1979 comes closer to the mark in suggesting that ‘it was the Englishmen who provided the professional backbone of the bench’ (p. 117). The relationship between the procedural laws of the two countries will be returned to in the last chapter of this volume. 162 Dow 1979, p 221, overstretches the point when she concludes that by November 1657 ‘the ideal of assimilating the legal systems of England and Scotland had been quietly abandoned’. 163 Journals of the House of Commons, vol 7, pp 612–16. 159

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118 The Interregnum Court elected in accordance with the law. In the debate that ensued three different views of the legal relationship between England and Scotland emerged.164 One was expressed by George Lockhart, who had become the protector’s advocate in 1658, two years after his admission to the bar, and who informed the English members that he had been ‘bred in law, though not acquainted with the law of England’.165 He conceded that the right of the Scottish members to participate was not as clear as it might have been under English law, but he wondered ‘how the legality or illegality of your writs for England, can concern Scotland’. In his view the Scots had been bona fide possessors of seats at Westminster for the past five years and thus, ‘by the law of our nation’, had a sufficient right to remain. The opposing view was that the Scots had been admitted to the English parliament and could only be entitled to sit under English law. ‘If this nation intend to bear part in your legislature’, one member insisted, ‘certainly they will be judged by your law; so that the distribution, or aught else, cannot be ruled by their law’. ‘We conquered them’, another member reminded the house, ‘and gave them the first fruit of our conquest in making them free denizens with us’. ‘I take Wales and Scotland to be all one’, another asserted, pointing out that English parliaments had always legislated for ‘foreign dominions’. A third view was first expressed by English lawyers and then taken up by John Swinton and some other members from Scotland. It was that the act of union had to be regarded as a ‘treaty’ or as a ‘contract and agreement’ or a ‘transaction’ between the two nations, and that it could not be governed by the law of either.166 According to the originator of this line of argument, ‘we cannot, in leagues and contracts between nations and nations, impose upon one another’, but rather ‘it is ius gentium must determine it’. Swinton readily agreed that ‘we are not bound to observe the law of England, but the law of nations’. To others it seemed that the arguments of ‘right and law’ were less compelling than the arguments of ‘equity and prudence’, but for whatever reason it was eventually decided that the members from Scotland should be allowed to remain. Within a month, however, the experiment in Scottish representation at Westminster had come to an end.167 Under pressure from the army, the protector dissolved the parliament on 22 April 1659. On 6 May the officers of the army announced that they would be recalling the rump of the Long Parliament, in effect signalling a return to the constitutional arrangements that had prevailed in April 1653. In Scotland the executive and judiciary ceased to function.168 On 18 May 1659 the council of state in England was asked to advise parliament on how best to preserve the union of Scotland with England and on the following day on how best to 164

Diary of Thomas Burton, vol 4, pp 112–19, 122–39, 143–7 and 163–223. NLS, Adv MS 25.2.5(i), f 321v. 166 Scots lawyers have since developed a similar interpretation of the 1707 act of union, without direct reference to the 1659 debate and perhaps without awareness of its existence. See in particular Smith 1957. 167 Davies 1955, pp 70–85; Roots 1966, pp 232–41; Hutton 1985, pp 21–41. 168 Nicoll, Diary of Public Transactions, pp 244, 248, 265–6 and 329; Life of Mr Robert Blair, pp 337–8; Scotland and the Protectorate, pp 385–92; Pitilloch, ‘Scotland Mourning’, pp 8–10. 165

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The Appointment of the English Judges 119 promote the administration of justice in Scotland.169 Archibald Johnston, who had been appointed to represent Scotland on the council three days earlier, had tried to have an act passed ‘for the juges continewing of justice til further order’, but John Swinton and some of the other deputies who had represented Scotland in 1652 had been persuaded that ‘ony particular ordour (though bot temporary) for reveving of courtes of justice or ony pairt of the civill governament thair, farder than is necessarie for preservatioun of the peace and management of the revenues, will be attendit with many inconvenientis’.170 They had learned from experience that their desire to have justice administered by fifteen lords of session in accordance with the law of Scotland was not likely to be satisfied if a court staffed with English judges was already in place, but they should also have learned that their desire to be taken seriously as parties to a negotiated union would be treated with disdain. A union bill drafted by an English barrister was read for the first time towards the end of June and was debated on a dozen occasions between then and October, with scant regard paid to pleas from the Scots that the English should not ‘use them as a province conquered by force, but as brethren united by consent’.171 A further plea that they should be ‘ruled by their owne lawes in the administration of justice’ had little effect when the question of judicial appointments was reconsidered.172 Johnston heard that many members of parliament were intent on ‘taking away Scots lawers and imposing Inglish’, and he understood that they ‘spak of Inglish lawers to draw us to their lawes’. ‘I fear they use us mor and mor as a province’, he lamented, though he had himself managed to head off one move towards assimilating the laws. When instructions were drafted for new parliamentary commissioners to be sent into Scotland, he had persuaded the council of state to excise a clause about ‘the lawes of Ingland being the reule of our justice in Scotland’.173 As it turned out, neither these instructions nor the judicial appointments nor the union proposals made any practical difference, for on 13 October the rump of the Long Parliament was expelled again by a faction of the army.174 Johnston then managed to persuade the council of state to recommission the judges who had sat in Scotland during the winter session of 1658 to 1659, but while Monck recognised the need to revive the court he did not recognise the authority 169 Journals of the House of Commons, vol 7, pp 658–9; Calendar of State Papers (Domestic Series), 1649–60, vol 12, p 348; Whitelocke, Memorials of the English Affairs, vol 4, pp 348–9. 170 Diary of Sir Archibald Johnston of Wariston, 1655–60, pp 110–11 and 113; Cromwellian Union, pp lxxxix–xc; Nicoll, Diary of Public Transactions, pp 242–3; Journals of the House of Commons, vol 7, p 664; Calendar of State Papers (Domestic Series), 1649–60, vol 12, p 354. 171 Whitelocke, Memorials of the English Affairs, vol 4, pp 352, 355, 357, 359 and 362; Diary of Sir Archibald Johnston of Wariston, 1655–60, pp 125–6; Calendar of State Papers (Domestic Series), 1649–60, vol 12, pp 362 and 386, and vol 13, p 120; Journals of the House of Commons, vol 7, pp 681–2, 693, 736, 740, 745, 749, 754, 757, 762–3, 768–9, 773, 775, 779, 789 and 792; Clarke Papers, vol 4, pp 50–5. 172 Calendar of State Papers (Domestic Series), 1649–60, vol 13, pp 183, 190, 237 and 240–41; Journals of the House of Commons, vol 7, pp 749, 775–6 and 791–2; Diary of Sir Archibald Johnston of Wariston, 1655–60, pp 141–3. 173 BL, Egerton MS 1048, f 176; Calendar of State Papers (Domestic Series), 1649–60, vol 13, pp 200, 214–15 and 235; Diary of Sir Archibald Johnston of Wariston, 1655–60, p 136. 174 Journals of the House of Commons, vol 7, p 797.

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120 The Interregnum Court of the army and council to do so.175 Instead of making arrangements for these new commissions to receive effect he invited the burghs and shires—led increasingly by noblemen—to send representatives to Edinburgh for a conference.176 The burghs desired to make the well-rehearsed recommendations both that ‘the natioun be governed according to the Scotis lawes’ and that ‘publict judicatories be speadilie set up, and judges be appointit of integritie and knowledge in the lawis of Scotland’.177 The lairds and peers insisted that no courts should be set up until it was clear who the judges would be, ‘pretending that mony of the former Judges wer ignorant and unable’.178 Confident of the general support of the estates, and satisfied that there was little risk of a Scottish revolt against English government, Monck marched into England in the new year with most of his army.179 At the start of the eighteenth century documentary evidence existed showing that on the day before he set off ‘he called Judge Dalrymple to a private Conference, desiring his Opinion freely what was best to be done for settling the Three Nations’.180 Stair apparently replied that he should assemble ‘a full and free Parliament’ and also urged him ‘to interpose at London effectually for setting the Course of Justice agoing, which then was stopp’d be Reason of the Disorder and Unsettledness of the Times’. The significant point about this answer is the assumption Stair made that steps would need to be taken in London to revive the administration of justice in Scotland. Monck forwarded suggestions for judicial appointments to the Long Parliament—which had been recalled in December—as he marched south, and he reiterated his advice after he reached London in February.181 Eventually, after the parliament had dissolved itself in mid-March, instructions were issued to Moseley, Goodyear and two other members of Gray’s Inn, and to Stair, two other advocates, and two other lairds, to hold the summer session in Edinburgh.182 The legitimacy of their appointments was again questioned, however, and the court did not meet. In late April the parliament reconvened and in the following month it recognised Charles II as king of England, Scotland, France and Ireland. A new constitutional order was to be established for the restored monarchy. As an English observer lost no time in pointing out, the closer union of the nations was one aspect of the Interregnum regime that might have been consid175 Calendar of State Papers (Domestic Series), 1649–60, vol 13, pp 256–7; Diary of Sir Archibald Johnston of Wariston, 1655–60, pp 147–8; Nicoll, Diary of Public Transactions, pp 256–7; Clarke Papers, vol 4, pp 88–9. 176 Nicoll, Diary of Public Transactions, pp 257–8; Gumble, Life of General Monck, pp 146–9; Clarke Papers, vol 4, pp 113–16 and 120–21. 177 Records of the Convention of Royal Burghs, vol 3, pp 493–5 and 502. 178 Nicoll, Diary of Public Transactions, p 272. 179 Davies 1955, pp 256–306; Roots 1966, pp 251–6; Hutton 1985, pp 68–118. 180 Forbes, Journal of the Session, p xxxii. 181 Journals of the House of Commons, vol 7, pp 808, 826 and 835; Gumble, Life of General Monck, pp 202–4, 207–16 and 233; Calendar of State Papers (Domestic Series), 1649–60, vol 13, p 308. 182 Nicoll, Diary of Public Transactions, p 278; Lauderdale Papers, vol 1, pp 6–9 and 15–16; Pension Book of Gray’s Inn, vol 1, pp 443–4; Brunton and Haig 1832, pp 347 and 374–5; Foster 1889, pp 160, 175 and 221; Cokayne 1900–09, vol 1, p 257; Grant 1944, pp 68 and 180; Young 1992–3, vol 2, pp 727–8.

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The Appointment of the English Judges 121 ered worthy of preservation.183 He suggested that the advantages of the Cromwellian conquest ought not to be discarded, that among other things the laws of the nations should continue to be assimilated, and that Scotland should remain ‘in a like degree and conditions with Wales, as hath been for many hundred years; those Laws and customs onely being in force, which are reasonable and agreable to the Laws and customs of England’. The earl of Clarendon, the principal architect of the Restoration settlement in England, was initially of a similar opinion, until he realised that the king ‘would not build according to Cromwell’s Models’.184 It was apparent as early as August 1660 that Charles was intent on reinstating the Scottish parliament, privy council and session, and the three estates were in due course assembled in the Parliament House in January 1661.185 The legislative programme of the parliament was directed as it had been before the 1640s by lords of the articles, and the privy council similarly regained the control it had then exercised over the administration of royal policy. In the immediate future, however, a branch of the Scottish council would meet in London, overlapping in its membership with the English privy council, and the council in Scotland would receive instructions from the king’s secretary of state at Whitehall. Several councillors in Scotland would sit in the session as extraordinary lords, and several ordinary lords of session would sit in the privy council. These Scottish judges began to hear cases again on 4 June 1661, after two months in which cases had been heard by a parliamentary committee.186 The last English judges had gone home in July 1660. In March 1661 an act of parliament had been passed in which it was formally stated that ‘the Judges or Commissioners for administration of justice did sometymes proceid in ane arbitrary way, contrare to law and justice, and at other tymes, many of them being strangers and ignorant of the law, did proceid unwarrantably and unjustly betwixt parties’.187 It was accepted that the rulings of the court would have to be accepted as valid determinations of the specific disputes they had settled, but dissatisfied litigants were given a year in which to have decisions reviewed by the session, and clearly little weight was to be attached to them as general rulings on the law. It has often been noted that Stair made frequent, and sometimes quite appreciative reference to English law in his Institutions, and it has been suggested that he probably acquired his knowledge from conversations he had with the English judges during the 1650s.188 What is not well known is that he made frequent reference to cases decided during the 1650s in the early versions of his text, treating these decisions in the same way as he treated the decisions of the session. This tends to strengthen the impression that he wrote most of his text before 1661— 183

MH, History of the Union, pp 111–13 and 137–40. Life of Edward, Earl of Clarendon, vol 1, pp 287–8. 185 Burnet, History of His Own Time, vol 1, pp 73–82; Mackenzie, Memoirs of the Affairs of Scotland, pp 3–63; Life of Edward, Earl of Clarendon, vol 1, pp 286–99. 186 Acts of the Parliaments of Scotland, vol 7, pp 123–4, 189 and 193; Diary of Mr John Lamont, pp 137–8; Nicoll, Diary of Public Transactions, pp 328–9 and 335–6. 187 Acts of the Parliaments of Scotland, vol 7, p 62. 188 Mackay 1873, p 66; Cooper 1946, p 24; Sellar 1981, p 142. 184

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122 The Interregnum Court when the act was passed condemning the rulings of the Interregnum court and when he returned to work as a judge—and that he made only slight alterations in the first vacation of 1662.189 When he next returned to the text and wrote his brief treatise on procedure in 1666 and 1667 questions were again being raised about the relationship between Scotland and England.190 In January 1666 the French had entered the war the Dutch had been waging against England for the past year. The military disaster that ensued, coupled with the experience of plague in the capital and dearth in the countryside, and with reports of armed insurrection in Scotland, resulted in the first of several crises of confidence in the restored monarchy in England. In Scotland the loss of the continental markets merchants had been used to exploiting led to complaints that the Scots were expected to suffer the privations of war without gaining any benefits from English foreign policy. During the successful war waged against the Dutch in the 1650s, it was recalled, the Scots had not only been able to trade with France but had also been allowed to trade freely with England and her colonies, whereas these markets had now been closed off by a series of navigation acts. Formal discussions of the commercial relations between the two kingdoms were initiated after the fall of Clarendon in 1667, when the meetings of the London branch of the Scottish council ended, and the question of political union was then reopened.191 Circumstances had changed significantly, however. For one thing, the Scots were no longer in the position of a conquered nation, so that those who favoured ‘a Union, and incorporating of Scotland into England, under the Laws of England’, were forced to concede that the Scots would have to consent to the replacement of their laws.192 For another, the Scots had developed a better appreciation of their own legal resources through the printing and epitomising of Craig’s Ius feudale, the analysis of the statutes enacted by the Scottish parliaments since 1597, the recovery and abridgement of the practicks of Gibson, Hope and Spotiswoode, and the amalgamation of these and other sources in new surveys of the law. To understand what the writers on Scots law in the late 1650s and early 1660s had been attempting to achieve, more attention will need to be given to the response of the advocates to the appointment of the English judges.

189 Almost all of the sixty-six references to cases from the 1650s found in NLS, Adv MSS 25.1.5 and 25.1.10 were to decisions made while Stair was a judge in the court. Only one survived into the first printed edition, and it was excised in the second, where Stair indicated, at 2.3.3, that he did not think the decisions of the Interregnum court worth noting. His initial attitude may be contrasted with the remarks in the Decisions of the English Judges, pp 25, 29 and 189, and it may also be observed that although, at 14.20/2.6.20, 20.9/2.10.9, 21.15/2.11.15, 22.27/2.12.27, 4.1.37 and 4.1.58, he referred disparagingly to the period of ‘the troubles’ or ‘the Usurpation’, none of these passages appears in the manuscript versions of his text. 190 Witcombe 1966, pp 34–77; Seaward 1989, pp 236–50; Jones 1996, pp 145–78. 191 The union negotiations of 1667 to 1670 will be examined in more detail in a later chapter. For earlier studies see Bruce 1799, vol 1, pp 185–230; Omond 1897, pp 122–41; Lee 1965, pp 43–69; Lennox 1977, pp 240–89; Lee 1995, pp 203–15. 192 Miscellanea aulica, pp 192–8.

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The Response of the Advocates 123

THE RESPONSE OF THE ADVOCATES

Reinforcing the lex municipalis Perhaps the most intriguing of all the recorded remarks made by the English judges is the report passed on by Lord Broghill in 1655 that while they were doing their best to assimilate Scots law with English law, in keeping with the instruction to apply ‘equity and good conscience’, the Scottish judges were determined to apply ‘the knowne statute law’.193 Since Broghill was relaying a report of the apparent attitude of the Scots it would be rash to assume that they actually made use of the words quoted. It would be interesting to know exactly what the Scottish judges did say in their discussions with their English colleagues, but this is not in fact possible. As disputes proceeded before the court written records were gradually accumulated by the clerks, consisting of the summons or other document used to initiate the case, any written evidence the parties may have submitted, any written pleadings the advocates may have drawn up for the parties, the clerks’ minutes of evidence received from witnesses and of oral pleadings presented at the bar, and a bare statement of the court’s ruling.194 When the successful party to an action wished to rely on the ruling, one of the clerks was required to draft a formal record of the dispute in duplicate, one copy being delivered to the litigant, the other to the clerk register for preservation among the acts and decreets of the court.195 In this record the clerk would reproduce the summons or other document, would note any appearances by the parties and their representatives, and would again set down a bare statement of the court’s ruling.196 Often he would go further and explain that the judges had reached their decision because they had been impressed with the pleadings presented by the advocates, which would then be recounted in some detail, occasionally with an indication of which arguments in particular were found to be persuasive. But what the records never contain is a statement of the views expressed by the individual judges. Moreover, although the case reports compiled by some lords of session during the seventeenth century give an indication of the views held by the judges, the reports compiled between 1655 and 1659 do not. So far as the records and reports of the Interregnum court are concerned, the only reasoning that can be traced behind the decisions of the judges is in the pleadings of the advocates. In Scottish practice it was this reasoning that tended to be regarded as the reasoning of the court, as was indicated by a standard form of decreet which emphasised that the judges had been ‘weill and ryplie 193

State Papers of John Thurloe, vol 4, p 324. NAS, CS 15/284–98, consists of the processes from a relatively small number of the cases heard by the court. Even in the cases covered, the record seldom contains all the items listed here. 195 See generally Livingstone 1905, pp 85–6; Thomson 1922, pp 37–8; Cadell 1996, pp 106–7. 196 NAS, CS 7/557–607. Again, not all of the cases heard by the court resulted in the extraction of an act or decreet from the process. The only comprehensive guide to the business of the court is in the clerks’ minute books, CS 8/23–30, which contain no more than lists of the names of parties and the dates of hearings. 194

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124 The Interregnum Court advysed’ before making their decision, and it is this reasoning alone that can be expected to shed light on the meaning of the expression ‘the knowne statute law’. The most obvious use of the expression would have been to signify the law enacted by a legislator. Several examples may be given of debates on the effect of legislation. In one case a widow tried to obtain from the heir of her deceased husband the income of land that had been granted to her for her lifetime, only to be told by the heir that a deduction would first have to be made under the act ‘anent lyverentaris for payment of publict dewis’.197 The advocate who appeared on behalf of the heir argued that ‘all caices of heritores or lyfrenters ar comprehendit within the act qhich ar not expresly excluded’, on the ground that ubi lex non distinguit, nec nos non distinguere debemus. It was successfully replied, however, that ‘the law cannot be extendit to this caice’, in which the widow had been granted the liferent in fulfilment of a marriage contract. In another case an heir tried to obtain from his widowed mother the aliment required by an act passed in 1491 in cases where a vassal died before his heir reached the age of majority.198 Where this happened the use of the land reverted by the casualty of ward to the superior, subject to an obligation imposed by the act to make suitable provision for the sustenance of the heir if he had no other estate to support him. In this instance the land had simply been left to the widow in liferent, and the heir did have other land from which he received a large income. The widow’s advocate advised the court that ‘our statutes and acts of parliament have ever bein esteemed by the judges of the land to be stricti iuris, and therfor recipiunt interpretationem restrictivam, et non extenduntur ultra quam verba sonant, chiefelie ubi agitur de materia odiosa’. Although the heir’s advocate felt able to answer that ‘statutes and acts of parliament are to be extended a paritate rationis’, and that the act in question had previously been ‘extended from the case of wardators to the case of all aires, against all liferenters and conjunct fears’, he found it harder to establish that a ‘paritie of reasone’ should be recognised between an heir who lacked any other income and an heir who was heavily burdened with debt.199 The widow’s advocate replied that the court could not properly be expected to give to the already recognised extension ‘another favorable and extensive interpretatione, for though it be a tenet in law that leges recipiunt interpretationem extensivam in materia favorabili, yet it should be ane new coynd tenet in law to say that interpretatio legis extensiva recipit interpretationem extensivam’. As in the first case mentioned, it was thus insisted here that the judges were not at liberty to interpret statutes in any way they saw fit. In a later case, when an advocate tried to develop an argument from ‘the parity of 197 NAS, CS 7/581, ff 188v–202v; Acts of the Parliaments of Scotland, vol 6(1), pp 632–3. This was the act of 1646 cited in the popular epitome of Craig’s Ius feudale. 198 NLS, Adv MS 24.2.3(iii), ff 301r–3v; Acts of the Parliaments of Scotland, vol 2, pp 224–5. 199 For the extension of the act to cover cases of liferent see Gibson, Decisions of the Lords of Council and Session, p 573. For the possibility of arguing that an heir burdened with debts should have an action see Hope’s Major Practicks, vol 1, p 312. That the advocate who drafted these pleadings in 1653 was unaware of this possibility reinforces the impression that Hope’s Major Practicks, as well as Gibson’s reports, was not freely available before 1655.

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The Response of the Advocates 125 the reason of the act of Parliament anent registration of seisins’, it was answered generally that ‘acts of Parliament were stricti iuris, and could not be extended beyond the literal sense’.200 Elsewhere an advocate argued more particularly that a statute enacted by one of the Interregnum parliaments, ‘being both dubious, and against the common law, ought not to be extended’.201 The rule of interpretation that ‘statuts contrare to the commone law ar stricti iuris, and aucht not to be extended’ had been received into Scots law from the civil law.202 As Albericus de Rosate, a learned practitioner in Italy who had written a well-known book about local legislation in the fourteenth century, had observed, the word statutum had not been used by the Roman jurists but had found its way into the Corpus iuris civilis through the legislation of the medieval emperors.203 It had come to be widely used by writers on the civil law because most Italian cities had introduced written laws which could only have been called leges at the risk of confusion.204 Albericus himself had helped to revise the statutes of Bergamo around 1330, while Signorolus de Homodeis, whose discussion of statutory interpretation Albericus built upon in his influential work on the subject, had assisted with the revision of the statutes of Milan in 1351.205 Both writers had relied on a Digest text in which law was declared to be either ius commune or ius proprium to justify the enactment of statutes, which they defined as proper laws reduced to writing.206 In the Digest text the proper law referred to had been ius civile, contrasted with ius naturale et gentium, but another text dealing with a rule laid down specifically for the island of Crete implied that there could be local statutes contrasted with the civil law as common law.207 Albericus and Signorolus explained that statutes could receive an extensive or restrictive reading depending on whether they restated, supplemented or contradicted the civil law. They taught that ‘those statutes are stricti iuris which are contrary to the disposition of the common law’, that such statutes were not to be extended de similibus ad similia, and that ‘an omitted case should be left to the disposition of the common law’.208 ‘But those statutes that imitate completely the common law’, Albericus added, ‘or agree completely with the common law, I do not believe to be stricti iuris, but I say that

200

Decisions of the English Judges, p 20; Acts of the Parliaments of Scotland, vol 4, pp 545–7. Decisions of the English Judges, p 168; Acts and Ordinances of the Interregnum, vol 2, p 875. 202 Hope’s Major Practicks, vol 1, p 2. For the civilian theory see generally Thorne 1936, pp 454–8; Ullmann 1946, pp 112–22; Kelley 1990a, pp 132–7; Maclean 1992, pp 114–25; Robinson, Fergus and Gordon 2000, pp 68–9. 203 Tractatus illustrium iurisconsultorum, vol 2, f 2r. 204 Haskins 1927, pp 220–21; Van Caenegem 1981, pp 25–6; Berman 1983, pp 389–90; Bellomo 1995, pp 84–5; Watkin 1999, pp 95–6. The terms were not always used consistently, but in principle lex had force throughout the empire, statutum more locally. 205 Clarence Smith 1975, pp 79–80. Signorolus’ discussion was often attributed to Bartolus and is cited here from the edition tentatively included in Bartolus’ Opera (see vol 2(1), f 58r). For a lucid account of Signorolus’ work see Müller 1995. 206 Digest, 1.1.9; Tractatus illustrium iurisconsultorum, vol 2, f 2r; Bartolus, Opera, vol 2(1), f 57v. 207 Digest, 39.4.15. Signorolus’ discussion took the form of a repetitio or special lecture on this text. 208 Bartolus, Opera, vol 2(1), f 57v. 201

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126 The Interregnum Court they should be regulated according to the form of the common law’.209 These views were constantly reiterated by later writers on the civil law, who distinguished further between the extensive interpretation of favourable legislation and the restrictive interpretation of odious or penal legislation.210 By the seventeenth century much of the civilian thinking on statutory interpretation had been absorbed into English jurisprudence.211 According to Lord Ellesmere, ‘those statutes that come in encrese of the commen lawe’, together with ‘those statutes that doe confirme the commen lawe, or decyde a doubte at the commen lawe’, were to be construed as applying to all ‘such thinges as are in the lyke reason’, whereas a statute that ‘abridgethe the commen lawe’ was to be ‘taken strycte’.212 The contrast here was between the acts of the English parliaments and the law developed in the royal courts, but the distinction itself had been borrowed from the civil law, along with many other categories, terms and rules.213 When the author of a treatise on statutory interpretation attributed to another lord chancellor, Sir Christopher Hatton, noted that odia restringi convenit, whereas favores convenit ampliari, he was using the language of the law schools to make the commonplace observation that ‘Statutes Penal’ were to be ‘strictly taken’.214 His own view was that even penal statutes might in certain circumstances be ‘taken by Equity’, and here the language used by English lawyers was more distinctive. Civil lawyers had sometimes compared adherence to strictum ius with extensio a pari ratione aequitatis, but mostly they had referred to liberal interpretation as interpretatio extensiva or interpretatio benigniora.215 By contrast, English lawyers almost invariably referred to liberal interpretation as ‘Exposition by Equity’, an expression that had come into use at the end of the fourteenth century. In the sixteenth century Edmund Plowden had distinguished between two different ways in which statutes could be ‘taken by Equity’, one founded on Aristotle’s definition of the term, the other on Cicero’s.216 According to Aristotle, equity involved the correction of general laws when they failed to achieve their aims in particular cases, and in this sense judges excepted cases from the scope of statutes. According to 209 Tractatus illustrium iurisconsultorum, vol 2, f 2r. Albericus also made widespread use of the more standard phrase dispositio iuris communis, which appears as ‘the dispositioun of the commoun law’ in the Acts of the Parliaments of Scotland, vol 2, pp 360 and 487. 210 Tractatus illustrium iurisconsultorum, vol 2, ff 112v, 123r–4r and 132v (Baldus de Ubaldis), 170r (Albertus Brunus), 247v–8r (Georgius Natta), 288v–9r (Lancillotus Galliae), and 391 (Lanfrancus de Oriano); Tractatus universi iuris, vol 1, ff 193r, 194r and 201 (Stephanus de Federicis), and 313v and 320r (Petrus Andreas Gammarus). 211 Thorne 1942; Plucknett 1944; Holmes 1984; Baade 1994; Behrens 1999. 212 Discourse upon the Exposicion and Understandinge of Statutes, pp 143–7 and 159–60. 213 The maxim ubi lex non distinguit, nec nos non distinguere debemus, for instance, was mentioned in Coke’s account of the postnati case (Reports of Sir Edward Coke, pt 7(1), f 5v). 214 Treatise Concerning Statutes, pp 63–76. The wording in fact suggests canonist more than civilian influence. 215 Bartolus, Opera, vol 2(1), f 57v; Thorne 1942, p 49; Ullmann 1946, p 122; Robinson, Fergus and Gordon 2000, p 68. The ratio aequitatis and ratio stricti iuris had been contrasted in Code, 3.1.8. 216 Plowden, Commentaries, or Reports, vol 2, pp 465–8; Aristotle, Ethics, 1137b26–7; Cicero, Topica, 4.23. Plowden did not cite Cicero directly, but relied on a passage in the thirteenth-century treatise by Bracton, which was in turn based on the work of the glossator Azo.

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The Response of the Advocates 127 Cicero, equity involved treating like cases alike, and in this sense judges extended the scope of statutes to cover similar cases. As Plowden observed, ‘there is a great Diversity between these two Equities, for the one abridges the Letter, the other enlarges it, the one diminishes it, the other amplifies it, the one takes from the Letter, the other adds to it’. Against this background a possible explanation of the debate between the judges in the 1650s might be that it was concerned with statutory interpretation. It could be that the Scottish judges were prepared to accept the advice of the advocates that the acts of the parliaments of Scotland should in general be construed strictly, while their English colleagues viewed the instruction to apply equity and good conscience as an invitation to construe acts either restrictively or extensively, depending on the circumstances of each case. The Scots could have been pleading hard, as Broghill put it, for adherence to the known statute law in the face of a tendency on the part of the English judges to follow the equity of the statute. The problem with this explanation, however, is that it does not really square with Broghill’s understanding that the debate was essentially about the relationship between the laws of the two nations.217 On the Scottish side, although the insistence that the acts of parliament were stricti iuris would have discouraged the judges from interpreting them creatively, in accordance with their views of equity and good conscience, it would not have done much to discourage the English judges from determining issues in accordance with the assumptions of their law. Since the point of strict interpretation was to leave any casus omissus to the disposition of the common law, and since the English judges would have viewed their law as the common law, an insistence on strict interpretation would only have helped to preserve the local law to the extent that the issues arising before the court were governed by acts of parliament. In reality, relatively few cases turned on questions regulated by statute, and in fewer still do the records and reports contain evidence of debates on statutory interpretation. Furthermore, on the English side, although it was often stressed that statutes should be read in relation to the common law, more stress had come to be placed on a search for the intentions of the legislator.218 In the early modern period English writers generally took care to distinguish between the equity of the statute, meaning the aim as opposed to the letter of the law, and the equity of the chancellor, meaning the reason implicit in the common law or a standard outside the law.219 Clearly, turning to equity and good conscience would not have enabled the judges ‘to bringe the laws of Scotland to the laws of England’, as Broghill again put it, if what was involved was an attempt to give effect to the intentions of the Scottish legislator. A more plausible explanation of the debate between the judges is suggested by the report of an action raised by one of their number, Sir John Swinton of that ilk, who sought a declaration from his colleagues that the barony of Swinton included 217

See again State Papers of John Thurloe, vol 4, p 324. Thorne 1942, pp 59–68; Baker 1994, pp lix–lxii; Tubbs 2000, pp 116–28. 219 St German, Doctor and Student, p 105; Hake, Epieikeia, pp 7 and 49; Doddridge, English Lawyer, pp 210–11. 218

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128 The Interregnum Court a parcel of ground known as Threeplands.220 He was opposed by the laird of Wedderburn who claimed to be entitled, as heir to a neighbouring estate, to rights of common pasturage in Threeplands. On his behalf it was objected that the action ought not to be allowed to continue ‘because he is a minor, et minor non tenetur placitare super haereditate paterna’, a principle praised at the bar as ‘a very noble law of the nation in favour of minors, that they be not compelled to dispute their heritage before they come to their perfect age, and may know their own right’. On Swinton’s behalf it was replied that the principle was ‘a proper municipal custom of this nation; and so not to be extended any farther, than by law or custom it hath been formerly extended’. The principle was normally relied on in actions brought for the reduction of a minor’s rights of property, but here the action was for a declaration of the pursuer’s rights, and the defender made no claim to a right of property in Threeplands. Nevertheless, the defender’s advocate maintained that the principle was relevant, contending that ‘the clear words and sense, and also the reason of it, will give its genuine extension, so that it cannot be restricted, but that where the law or practique have restricted’. Although the principle was relied on ‘most ordinarily in reductions’, it had never been rejected ‘in a declarator’, which would in the end have had the same effect as a reduction of the rights of the defender. Moreover, ‘where the law excepts not, and the reason is the same, there we ought not to except; and therefore, seeing the commonty is heritage as well as property, and is oftentimes, and in this case, very considerable, the reason is alike, and the law alike for both’. To this the pursuer’s advocate responded that the principle had been denied application in some types of action, ‘and there is not one practique for it, where ever it was sustained in a declarator’. The court was being asked to extend a settled principle of law to a new case, which the pursuer’s advocate believed it should not do since the principle was a proper municipal law depriving litigants of their rights of action under the common law. The defender’s advocate believed on the contrary that it should be extended since distinctions were only to be drawn where they already formed part of the law. Both parties thus relied on familiar rules of statutory interpretation, yet at no point did either party refer to an act of parliament. Although the principle that minors should not be required to defend their rights in heritage had been enunciated in the old books and acts, both here and in many earlier cases it was treated as part of the ancient customary law of Scotland.221 It was noted in the last chapter that in the theory of the mos Italicus the customary law followed in each locality was to be given priority over the common law studied in the schools. However, because the customary laws of most cities in northern Italy had in fact been restated in writing, and because this left scope for 220

Decisions of the English Judges, pp 162, 189 and 191–2. Regiam maiestatem (Latin edn), pt 1, ff 89–90r, and pt 2, f 17r. The author of Regiam maiestatem had lifted his statement of the principle from Glanvill, Treatise on the Laws and Customs of the Realm of England, p 159, but this need not mean that it had not already been recognised in Scotland. For a convenient compilation of some of the decisions reported before the 1650s see Morison, Decisions of the Court of Session, vol 11, pp 9055–63, 9082–4, 9089–97 and 9104–6. 221

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The Response of the Advocates 129 restrictive interpretation in the light of the learned laws, the commentators had tended to regard all local laws as in essence statutory laws, whether or not they were reduced to writing.222 From their perspective, as one English writer observed, statutum et consuetudo pari passu ambulant, so that all sources of local law could be subjected to the same rules of interpretation.223 This seems to have been the shared assumption behind the reasoning in the action raised by Swinton, and it is not difficult to find evidence of the same assumption elsewhere. For instance, it can be identified behind an account of the legal system of Scotland prepared for an English audience by a Scottish writer during the union negotiations at the start of the century.224 The Scottish courts, the writer advised his readers, decided cases in accordance with ‘the municypall lawe, which is the Statutes of Parliament, and that faylinge they have recourse and doe decide accordinge to the ymeriall civill lawe’. On the one hand, this meant that recourse was only taken to the law that was in theory applicable throughout Europe if the local law was found to be insufficient to deal with a problem. On the other hand, it meant that the local law was believed to consist essentially of ‘Statutes of Parliament’, and therefore to be subject to the usual rules of statutory interpretation. The law of Scotland was conceived of as a lex municipalis, a written law to be construed narrowly in comparison with the common law. There are obvious connections between this conception of the law and the attempts lawyers made to establish in one way or another that the Scots did have an extensive corpus of written law on which the courts could base their decisions. While the attempts made by successive parliaments to have the law restated in a statutory code did not come to fruition, they do seem to have encouraged lawyers like Sir John Skene to produce new editions of written sources and to believe that these sources gave the law its essential character. It was Skene’s view, as was also noted in the last chapter, that awareness of the full extent of the written resources of the local law would prevent undue recourse to the learned laws. The relationship between the assumptions of the mos Italicus and the movement to codify the customary laws of northern France, which is thought to have influenced the appointment of the law reform commissions in Scotland, will be examined in the next chapter. It may be worth observing here, though, that Skene’s own views seem likely to have been informed by his experience as a student in Germany, where the laws of many cities and territories had been reduced to writing in the fifteenth and sixteenth centuries, often by learned jurists working on the Italian model.225 The effect of this local legislation had largely been to promote the reception of Roman law in Germany, partly by directly reforming the indigenous customs in accordance with civilian ideas, partly by making express provision for 222 Dahm 1972, p 311; Luig 1972, p 194; Coing 1973, p 513; Strauss 1986, p 90; Wieacker 1995, pp 57 and 101. 223 [Hatton], Treatise Concerning Statutes, p 81. 224 ‘Manner of Judicatores’, p 268. The origin and influence of this important but neglected document will be returned to in later chapters. 225 Strauss 1986, pp 85–95; Rowan 1987, pp 123–34; Wieacker 1995, pp 143–55.

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130 The Interregnum Court recourse to the civil law when new problems arose, and partly by transforming the customs into statuta which were then subjected to strict interpretation.226 To some extent, however, the codification of the local laws had helped to preserve them from replacement by Roman law, and this was especially true in Saxony, where Skene had studied.227 The law of Saxony was unusual because it had been described in some detail in a medieval book called the Sachsenspiegel.228 Although written by a lay judge as a guide to traditional practice, this book had been attributed to a legislative author and had been discussed in glosses and commentaries. The learned authors of the glosses and commentaries had extended their attention to customs developed independently of the book, with the result that the codification of Saxon law in 1572 had been able to take a peculiar form. Instead of providing a full restatement of the previously unwritten law of the area, the Saxon code had consisted of a series of agreements reached between local experts on questions about which they had previously failed to reach a consensus. Some of these experts had been Skene’s teachers at Wittenberg in the years preceding his admission to the bar in 1575, when he at once began to assist the reform commissioners in Scotland. It need not follow that his own approach to law reform was governed by an awareness of what had been happening in Saxony, but there are striking similarities between his attitude towards Scots law and his teachers’ attitude towards Saxon law. By arguing that the corpus of written law in Scotland should be taken to include the old books and acts, and by urging Scots lawyers to devote more time and attention to learning the local law, Skene had promoted a conception of a statutory and known lex municipalis that left limited scope for recourse to the common law, however that was understood. Although the acts of the parliaments of Scotland may not have provided answers to many of the questions raised before the Interregnum court, if the municipal law was understood in the broad way suggested by Skene many more questions might have been answered on the strength of local sources. Apart from anything else, Skene had included the ‘Decreites given bee the Lordes of the Sessioun’ in a catalogue of the ‘Buikes Contenand the Lawes of this Realme’ attached to his Lawes and Actes, which gave the impression that even the decisions of the courts could be treated as a form of written law.229 From this perspective, the known statute law would simply have been the local law as opposed to the common law, and the lawyers who were pleading hard to keep the court to the known statute law would have been resisting the inclination of the English judges to determine cases in accordance with their common law. It seems to have been this conception of the law of Scotland that the deputies of the burghs and shires had in mind when they asked to be ruled by ‘the knowne lawes and 226

Kunkel 1972, p 271; Strauss 1986, pp 89–90; Wieacker 1995, pp 101–2. Turpin 1968, p 173; Wieacker 1995, pp 78–9; Stein 1999, p 90. 228 Dawson 1968, pp 153–4; Watson 1984, pp 28–30; Robinson, Fergus and Gordon 2000, pp 190–91. 229 Lawes and Actes, sigg T3r–4r. Attitudes towards court decisions will be examined in later chapters. 227

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The Response of the Advocates 131 customes of this land’, without reference to ‘equity and good conscience’.230 It seems to have been the same conception that the advocates had in mind when they made reference in their pleadings throughout the 1650s to ‘the lawes and practique of this nation’, sometimes in explicit contrast to ‘the common law’, but seldom with any distinction being drawn between the law derived from statute or custom.231 In one case an argument presented in terms of ‘the lawes and practique of this realme’ was supported by a quotation from ‘the Law of Majesty’ (meaning Regiam maiestatem), and the passage quoted was then construed strictly in comparison with the civil law.232 In another case the judges were invited to decide the case ‘conforme to the lawes and constant practick of this natione, and namlie the first act of King James 3 his 8 parliament’.233 In this instance the law actually was statutory yet reference was made more widely to the laws and practick of the nation. Conversely, in other cases phrases like ‘the lawis and constitutiones of this nation’ or ‘the knawen lawes of this nation’ were used in relation both to statutory and customary sources.234 The advocates talked constantly of the laws and practicks of the nation, the laws and constitutions of the nation and the known laws of the nation when what they had in mind was a broad conception of the law as a lex municipalis that was by definition statutory. In some cases they challenged each other to substantiate their assertions by producing acts of parliament or previous decisions, but these cases were unusual and did not always result in a specific source being cited or the action failing. One advocate responded to a challenge by pointing out that ‘there are many things in practice for which there is neither written law nor decision, but consuetude’, making no attempt to produce any evidence of the customary practice he alleged.235 Another responded to a challenge by calling it ‘a shame for any advocat how old soever to call in question such an uncontraverted custome knowen to any who knowes any thing’.236 When another informed the court that ‘any rationall man’ was bound to agree with the opinion he was presenting, his opponent replied that he found it ‘strange how any that taks upon him the name of an advocat’ could hold such a view.237 The force of these statements was of course largely rhetorical, but it rested on an assumption that the law was what the advocates knew it to be. To some extent at least the known law was the law familiar to the experts who appeared before the court. Broghill was correct in saying that the Scots were pleading hard to keep the court to the known statute law if what this meant was that the advocates were constantly urging the court to follow the law and practick they knew about, which was 230

Cromwellian Union, p 40. See, eg, NAS, CS 7/557, ff 152r and 298v, CS 7/559, ff 126v and 344r, CS 7/562, ff 7v and 329r, CS 7/569, ff 83v and 109v, and CS 7/571, f 18v. Other examples of this standard usage may easily be found by opening any of the fifty volumes of the registers of acts and decreets for this period. 232 NAS, CS 7/569, ff 60r–3v. 233 NAS, CS 7/559, f 393r. 234 NAS, CS 7/557, f 242v, and CS 7/559, f 160r. 235 Decisions of the English Judges, p 22. 236 NAS, CS 7/573, f 107v. 237 NAS, CS 7/560, f 75v. 231

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132 The Interregnum Court what they often contrasted with the common law and interpreted narrowly in relation to the common law. He was correct too in saying that the Scots were troubled by the use of the terms equity and good conscience in the judges’ instructions. But he was wrong in saying that they were ‘much averse to that expression’ if he meant that the advocates were resolutely opposed to any attempt to turn from law to equity. The truth is that the advocates often encouraged the judges to decide cases in accordance with ‘all law, equitie and conscience’, ‘all law, equitie and reassoune’, ‘all law, justice and reassone’, or ‘all law, honor and conscience’.238 Generally the implication of these statements was that the law of Scotland was consistent with the dictates of equity and good conscience, but on some occasions the advocates recommended decisions in accordance with ‘equitie and reassone’ or with ‘equitie and conscience’ as an alternative to strictly legal decisions.239 Even in these cases, however, the advocates seldom made much effort to explain precisely how reason could be taken to dictate the decisions they recommended, and it was not their practice to draw attention to English law as an example of how equity and good conscience could be put into effect. They were not equipped to provide assistance of the kind Sir John Davies had provided to the English judges in Ireland, when he cited common law precedents as examples of decisions delivered in keeping with the law of reason, and they showed no interest in acquiring the expertise they lacked. The overwhelming impression received from a perusal of the records and reports of the Interregnum court is that the advocates continued to plead at the bar in the way they had done before the lords of session, who had also been invited in many cases to implement the ‘law and practick of this realm’, had sometimes been invited to follow ‘all Reason, Law and Conscience’, and had occasionally been invited to depart from the law when the decision it dictated would have been contrary to ‘all equity and reason’.240 The advocates may well have been averse to any suggestion that the expression equity and good conscience should be taken to signify the reason inherent in the law of England, but whether or not they were pursuing a deliberate policy of resistance to English influence on their law, by persisting in pleading at the bar as they had always done they effectively obstructed the assimilation of the laws of Scotland and England. Their most significant response to the presence of the English judges was simply to ignore their background in a different legal tradition.

Defending the ius antiquum When Davies cited common law precedents in Ireland as a means of showing that the Gaelic customs were unreasonable, he did more than was strictly required. His 238 See, eg, NAS, CS 7/559, ff 84r, 127v and 163v, CS 7/562, ff 8r and 279r, CS 7/566, ff 56v and 266v, and CS 7/569, ff 91v, 158r and 392. Again, examples could easily be multiplied. 239 See, eg, NAS, CS 7/557, ff 331v–3r, and CS 7/558, ff 20v–2r. 240 Morison, Decisions of the Court of Session, vol 19, p 16256; Gibson, Decisions of the Lords of Council and Session, pp 868–9; Brown, Supplement to the Dictionary of Decisions, vol 1, p 341.

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The Response of the Advocates 133 crucial argument had been that since the customs were part of ‘the common law of the Irishey before the conquest’, which had since been entirely replaced with ‘the common law of England’, they could not have been accommodated within the latter law as regional usages even if they had been considered reasonable.241 What Davies meant by the common law of Ireland was a body of learning passed down through generations of ‘brehons’ or jurists and recognised in all parts of the country.242 This law had finally been suppressed at the start of the reign of James I, after the Elizabethan conquest of Ireland, yet nothing similar was to be attempted in Scotland during the 1650s. One possible explanation is that English lawyers had been led to believe that there was ‘noe common lawe in Scotland’.243 The lawyer who made this statement shortly after James’ accession to the English throne, in the account of the Scottish legal system referred to above, had at once qualified it by adding that there were ‘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’. Nevertheless, his basic assertion that Scots law was contained in acts of parliament, supplemented by reference to the civil law, had been echoed in the king’s declaration to the English parliament in 1607, on advice from ‘the best Lawyers in Scotland’, that when they talked of ‘Fundamentall Lawes’ they were not thinking, ‘as you doe, of their Common Law, for they have none’.244 ‘Scotland hath no Common Law as here’, James had repeated, ‘but the Law they have is of three sorts’. To begin with, in relation to ‘Tenures, Wards and Liveries, Seigniories and Lands’, the Scots had copied much of their law from England, with the result that in this area they differed from the English only in ‘certaine termes’ they used. Elsewhere they relied mostly on ‘Statute lawes, which be their Acts of Parliament’, and otherwise they had learned from the French to make use of the civil law, not where they already had ‘a cleare solution in their owne Law’, but only in cases where ‘the Municipall Law is defective’. As the Scots ‘neither are subject to the Civill Lawe, nor yet have any olde Common Law of their owne, but such as in effect is borrowed from yours’, James had encouraged his English audience to believe that it would be a relatively easy task to draw the laws of Scotland and England together. He had expressed the hope that the opportunity would be taken to reform the common law of England, but his assumption had been that English law would be treated as the common law of Britain, with Scots law treated in the same way as the local customs of the counties and shires.245

241

Report of Cases and Matters in Law, pp 84 and 101–8. Binchy 1961; Patterson 1989; Simms 1990. 243 ‘Manner of Judicatores’, p 268. 244 Workes of the Most High and Mightie Prince, James, pp 520–22. For varying readings of this passage see Williamson 1979, pp 81–2; MacQueen 1995, pp 15–16; Burns 1996, pp 265–6. 245 Workes of the Most High and Mightie Prince, James, pp 511–13, and see too p 553. 242

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134 The Interregnum Court While James’ assumption may have been shared by the English judges who started to hear cases in Edinburgh in the summer of 1652, they were soon to discover that the Scottish advocates did not share his belief that they had no common law of their own.246 In January 1653 a widow brought an action for the recovery of the arrears of rent due from the tenant of a house in Kirkcaldy.247 She had become joint owner of the house with her husband under the terms of a marriage contract signed before their wedding in June 1645, just two months before her husband was killed in battle. The tenant’s advocate argued that ‘according to the commoun practick of this natione’ if a marriage was dissolved by the death of either spouse within a year and a day of its constitution, any alteration in the spouses’ property rights was rendered invalid, so that in this case the widow was not entitled to the rent from the house.248 The widow’s representative—Henry Whalley, the judge-advocate of the English army—responded by suggesting that a distinction ought to be drawn between ‘ordinarie death in tym of peace’, when the ‘law and practick alleadgit’ might reasonably be applied, and a case like the present in which ‘the husband is called foorth be the parlament of the land to fight against ane publick enemy’. The tenant’s advocate answered that the ‘fundamentall old law and custome’ he was referring to did not involve a ‘distinctione of dying in batell or bed’, and that the aim of the Scottish parliament in 1645 had been to encourage men to fight for their country, not to undermine an ‘unviolable and unreapelled law and custome of this natione’. The judges, however, were more impressed with Whalley’s submission that the widow’s action should be dealt with as an ‘extraordinarie cause’, silent enim leges inter arma, and that ‘no law, reasson nor conscience can mak her, after losse of her husband in the countreys service, to be thrust out of all she was provydit to by him after mariage’.249 The ordinary rule was therefore set aside, and evidence was invited to confirm that the husband had died in military service. Yet the mere fact that an ‘old fundamentall lawe’ was referred to here and in other cases challenged the assumption that the common law of England should be treated as the common law of Britain. If the advocates accepted that the known statute law needed to be interpreted narrowly in relation to the common law, they were able to resist the assumption that the common law must be the law of England by claiming that the title could as easily be applied to their own fundamental law. Whatever James and others may have found it convenient to tell their English audiences, the Scots had actually been in the habit of talking about their ius antiquum as their common law since the thirteenth century, especially in connection with questions of land tenure and succession.250 246 Evidence that at least one of the English judges did share James’ assumption will be presented in the next section of this chapter. 247 NAS, CS 7/562, ff 6r–9r. 248 Balfour, Practicks, vol 1, pp 95 and 100–1; Craig, Ius feudale, pp 307–8; Hope’s Major Practicks, vol 1, pp 138 and 141; Spotiswoode, Practicks, pp 155 and 159; Gibson, Decisions of the Lords of Council and Session, pp 692 and 732. The rule was generally believed to be of civilian or French origin. 249 Cicero, Pro Milone, 4.11. The judges who heard the case were Sir John Hope, George Smith, John March, Andrew Owen and Edward Moseley. 250 See especially Sellar 1988 and 1997.

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The Response of the Advocates 135 In the early years of the Interregnum this common law of Scotland had been under threat. In Ireland the effect of the suppression of the common law had been to deprive many people of their rights to land. Only those with titles recognised by and inherited under English law were allowed to retain their rights, and many of them were declared to be rebels and to have forfeited their estates.251 Protestant settlers were brought in to spread ‘civilisation’ among the ‘barbarous’ native population, who eventually rebelled in 1641. After the Cromwellian reconquest, even more land was declared to be forfeit and was settled on English soldiers and adventurers.252 Between 1652 and 1660 the settlers doubled the amount of land they held and the Irish Catholics were driven back into less than a third of the island, mostly in Connaught. In 1651, when the English parliament prepared to assert its ‘right’ or ‘title’ to the part of Scotland that Cromwell had just conquered, a similar policy of deprivation and settlement was contemplated, but in the end relatively little land was granted to English owners.253 Far from needing to be civilised, the Scots had participated in the settlement of Ulster, assisting with the implementation of a policy that had first been pursued in remote parts of the highlands and islands of their own country.254 The policy adopted by the English government in 1652 in relation to Scotland was to appeal to the ‘Vassels’ who occupied most of the land over the heads of the superiors who had misled them into fighting against their late allies, promising that if they submitted peaceably to rule from London they would ‘not only be pardoned for all Acts past, but be set free from their former dependencies and bondage-services’.255 Believing that the ordinary people had only been induced to fight for the king by their ‘dependency upon the Noble-men and Gentry’, the English government offered to grant them new rights over their lands, ‘under such easie Rents, and reasonable conditions’ as would make it possible ‘to live with a more comfortable subsistence then formerly, and like a free People, delivered (through Gods goodnesse) from their former slaveries, vassalage, and oppressions’. Although the Scots did not seem to have preserved Gaelic customs like those replaced in Ireland, and had instead developed forms of land tenure like those found in England, their law appeared to the English government to be in need of urgent and radical reform.256 Not surprisingly, some of the deputies appointed by the Scottish burghs and shires responded to the statement of policy issued in 1652 by asking that they might be left ‘in the enjoyment of theire owne lawes, in the freedomes of theire persons, and in the right and propertie of theire estates and goodes’.257 Those who travelled to London in the autumn of that year asked more specifically that ‘these 251

Beckett 1981, pp 13–81; Canny 1987, pp 150–87; Foster 1988, pp 3–78. Simington 1970; Bottigheimer 1971; Ellis 1975. 253 Journals of the House of Commons, vol 7, pp 14 and 22. 254 Perceval-Maxwell 1973; Gillespie 1985; Macinnes 1993. 255 Acts of the Parliaments of Scotland, vol 6(2), p 809; Nicoll, Diary of Public Transactions, pp 81–3; Cromwellian Union, pp xxi–xxiii. 256 For the extent to which there had in fact been Celtic influence on the common law of Scotland see Sellar 1989. 257 Cromwellian Union, pp 42, 44 and 128–9. 252

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136 The Interregnum Court who had formerly Rights from Kings, may be continued in their Possessions, till their Right be discussed before the Judge Ordinar’.258 They were invited by the committee appointed to consider the union question to explain to them ‘the nature of the vassalage and bondage tenures of the people of Scotland, the nature of all their duties, and what dependence the people there have upon their superiors’.259 It is not known what advice was received or what research was later conducted into the law of Scotland, but by the time the ordinance of union was promulgated by the protector in 1654 a more modest programme of reform had been adopted, though still one that involved some sweeping alterations in the law. The ordinance provided that with effect from 12 April 1654 ‘all Heritors, Proprietors and Possessors of Lands in Scotland’ would hold their lands from their superiors ‘by and under such yearly Rents, Boons, and Annual Services, as are mentioned or due by any Deeds, Patents, Charters or Enfeoffments now in being’, but without being bound by ‘any other Duty, Service, Vassallage or Demand whatsoever’.260 This meant that instead of landholders enjoying their estates under new grants from the government, as had originally been proposed, they would continue to hold their lands under grants from their superiors, except that no one could be bound any longer to provide military or related services. The ordinance went on to spell out that all landholders were to be ‘freed and discharged of, and from, all suits, and appearing at or in any their Lords or Superiors Courts’, that they were to be ‘freed and discharged of, and from, all Military service, and personal attendance upon their Lords or Superiors’, and that they were in future to be released from ‘all Casualties, of Ward Lands’. Three further ordinances passed on the same day provided for the erection of new baron courts in place of those of the feudal lords, for the granting of pardons to former rebels, and for the transfer of forfeited estates to trustees who would arrange for their settlement. When an attempt was made later in the year to convert the ordinance of union into an act of parliament, a bill was also introduced ‘for taking away the Tenure of Wards and Knights-Service in Scotland, and for changing the same into Free Blanch’.261 A further attempt to pass an act in 1656 ‘for taking away Wardships and Tenures in Scotland’ was coupled with an attempt to abolish similar vestiges of the old feudal system in England and Ireland. By the time these fruitless efforts at legislation were made the English government had recognised that it might benefit from preserving much of the existing land law of Scotland. In 1654 the ordinance of pardon and grace had stipulated that it must not be construed as validating ‘any Patent, Gift, or Grant made by the late King James, or the late King Charls, whereby any Rent or other Duty or Revenue belonging to the Crown of Scotland, hath contrary to the Law of Scotland been altered, changed, converted or diminished’.262 In March 1655 the new coun258 259 260 261 262

Journals of the House of Commons, vol 7, p 298. Calendar of State Papers (Domestic Series), 1649–60, vol 5, pp 131–2. Acts and Ordinances of the Interregnum, vol 2, pp 871–88. Journals of the House of Commons, vol 7, pp 407 and 426–7. Acts and Ordinances of the Interregnum, vol 2, p 883.

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The Response of the Advocates 137 cillors appointed to sit in Edinburgh were instructed ‘to take means to recover concealed revenue belonging to the Crown, archbishops, bishops, or deans and chapters’, and to ensure that ‘all sums are paid into the Exchequer’.263 On Broghill’s arrival as president of the council he told Cromwell that ‘much of the crowne land has bin alienated against the lawse of Scotland’, and that the council thought it expedient to establish a court of exchequer with ‘all power relating to the adjudicating of whatsoever concerns your highnes revenue (as they are assured ’tis now in England)’.264 He asked to be provided with a full account of ‘the powers and authoritye given unto the exchequer in England, by which (as to the judicial part therof) we desyre to regulate ourselves’, though he was also mindful that the council had been instructed to ensure that all judicial proceedings were consistent with the law of England ‘as far as the rules of the courts will permit’. On looking into the ‘knowne law of this nation’ he found that ‘severall statutes, which have bin from time to time made in that behalfe’, were inconsistent with each other. An act passed in 1633 had declared that ‘all causes concerning his Majesties propertie’ were to be debated before the lords of exchequer, while an act passed in 1640 had declared that ‘the validitie or invaliditie of infeftmentes of his highnes propertie’ was to be determined by the lords of session, and that the lords of exchequer were ‘only Judges to meteris concerneing the manageing of the kingis rentes and casualties’.265 Broghill observed that the act of 1633 ‘seemes to give the exchequer in Scotland as full a power as your councill heer would restore it to, or erect it with’, whereas the act of 1640 ‘does soe farr retrinch the powers thereof, as it hardly leaves the said exchequer any thing but a name’. All the same, he realised that in Scots law virtually all land belonged ultimately to the crown, so that the exchequer was in danger of being given jurisdiction over all disputes about land, and he recognised too that the rules of the courts were of vital significance in the law of Scotland, ‘as in the common law’.266 The council of state in London indicated that the act of 1640 should receive effect, and though an exchequer court began to sit again on the upper floor of the jamb in the Parliament House in January 1656, it was soon found that the most acceptable way to secure ‘a legal repossessing of the crowne of its antient patrimony’ was to raise actions before the supreme civil court.267 The reconstitution of that court in the winter of 1655 thus occurred at a significant moment in the development of English thinking on Scots law. The intention that the courts in Scotland should determine disputes in accordance with the law of England had been forcefully restated in the spring when the new council was appointed, but the constraint that the rules of the courts should be applied had also been spelled out, and it had been realised that the council might use the law 263

Calendar of State Papers (Domestic Series), 1649–60, vol 8, p 108. State Papers of John Thurloe, vol 4, pp 49, 56–7 and 105–6. 265 Acts of the Parliaments of Scotland, vol 5, pp 35 and 285. 266 State Papers of John Thurloe, vol 4, pp 328–9 and 407. 267 Calendar of State Papers (Domestic Series), 1649–60, vol 9, p 326; Nicoll, Diary of Public Transactions, pp 173 and 175–7; State Papers of John Thurloe, vol 6, pp 516–17, and vol 7, p 59. 264

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138 The Interregnum Court of Scotland to recover revenue that should previously have been available to the crown. If Broghill had spoken of the known statute law of Scotland in contrast to the common law of England, he had also acknowledged the importance of the system of tenure that had survived the ordinance of union and had been regarded for centuries as a central component of the common law of Scotland. This enabled the advocates to argue that English legislation should be construed narrowly in relation to the law of Scotland instead of Scottish legislation being construed narrowly in relation to the law of England, as an action brought by an heir who was refused entry to her deceased father’s estate illustrates.268 The superior pointed out that the land had been granted in ward tenure, that the pursuer had not yet reached the age of fourteen, and that in such circumstances it had always been held to be the right of the superior to earn income from the land until the heir was old enough to fulfil her obligations (notionally, at least, by marrying someone who seemed to the superior capable of providing military service). When the heir’s advocate drew the attention of the judges to ‘the act of union, ratified in parliament, whereby wards are taken away’, the superior’s advocate replied that ‘this being a private right of the people, and so ancient’, the alteration made in the law ‘should not be extended further than is expressed in the act’. The act had referred in general terms to the abolition of ‘all servitudes and grievous bondages’, and in more specific terms to the abolition of ‘the custody of the vassal’s person and minority, his obligation to follow his superior in war and peace, and his obligation to marry any wife his superior should please to offer’. It had not referred expressly to the abolition of the rule that during the time of the heir’s ‘inability to serve in his minority, the superior should have the profits of his lands’, which meant that this part of the ancient law had arguably survived. The heir’s advocate managed to persuade the court to the contrary that ‘the act doth not only expressly take away wards without limitation, but also, copulatively, all the casualties of wards and marriage’. To do so he argued that the superior’s right to the profits of the land had not arisen from ‘the ancient tenor and nature of feus’ but had ‘crept in by course of time, and the power of superiors’, in effect conceding that his opponent’s argument would have had some force if the right had formed part of the ancient or fundamental law of land tenure. By this stage even the council of state in London was prepared to concede that a dispute over the inheritance of land ought to be dealt with by the judges in Edinburgh according to ‘the common law of Scotland’.269 If this left room for the assumption that the common law of Scotland was basically the same as the common law of England, the fact remains that the Scottish advocates did not make a practice of referring to English sources in their pleadings. A possible exception occurred in July 1652, shortly after the Interregnum court commenced its sittings, when an Edinburgh merchant brought an action for the removal of a tenant from 268

Decisions of the English Judges, pp 204–5. Calendar of State Papers (Domestic Series), 1649–60, vol 11, pp 227–8. See too Marshall 2000, pp 27–31. 269

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The Response of the Advocates 139 a house he owned in Leith.270 The tenant’s advocate told the judges that his client had served the town faithfully for many years as a constable, that he had never failed to pay the rent demanded from him in the past, and that he was willing to pay as much rent as anyone else would in the future. In this case at least, given that Leith had been placed directly under military rule, the advocate believed that his client was entitled to the benefit of ‘a laudable custome in Ingland, observed be the deputie governore of Leith, that noe tennents are removed, they paying ther dewes’. The opinion was held among lawyers in Edinburgh that the military governors had by and large ‘proceidit moir equitablie and conscientiouslie in justice [than] our awin Scottis magistrates’, but the suggestion here may simply have been that the English custom was relevant because the case had been given an English dimension.271 In another action the pursuer’s advocate argued that ‘the law and constant custome of Ingland’ should be applied because the dispute had arisen from a bond subscribed in London.272 Although his opponent objected that ‘the defender knowis not what the law and custome of Ingland is’, here and in similar cases it was often concluded that English law was applicable, though not—and this is very important—invariably. Where both parties to an action were English, ‘knowing no other law’, it was argued that they were not bound by ‘a known law of this nation’, yet in this instance the court accepted the response that ‘being residenters and heritors in Scotland, they are obliged to know; and the ignorance of the law of Scotland cannot excuse them’.273 The reasoning in these cases was based on the writings of the Italian commentators, who had explained the relationship not only between the common law and the municipal law but also between different municipal laws, and had devised rules to resolve conflicts between different municipal laws.274 By treating the law of England as another municipal law, albeit one about which queries could be ‘referred to the English judges on their proper knowledge’, the advocates had indicated clearly that they did not regard it as the common law.275 They believed that their own ius antiquum was comparable to the law of England and no less entitled to respect as a kind of common law.

Redefining the ius commune Another explanation for the absence of any attempt simply to replace the common law of Scotland with the common law of England may have been the widespread view that the Scots had borrowed much of their law from England. That ‘the same law as well in Scotland as in England is holden to this daie’ was sometimes adduced as evidence of the feudal superiority of the English crown over Scotland.276 This 270 271 272 273 274 275 276

NAS, CS 7/557, ff 97v–9v. Nicoll, Diary of Public Transactions, p 65. NAS, CS 7/562, ff 337v–40r. Decisions of the English Judges, pp 74–5. Gibb 1928; Thorne 1962; Stein 1980. Decisions of the English Judges, p 68. Holinshed’s Chronicles, vol 1, pp 204–6.

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140 The Interregnum Court line of argument, which was otherwise supported by mythological accounts of the origins of the British monarchies and by claims that the kings of Scotland had sworn allegiance to the kings of England, was rehearsed in 1652 in a tract on The Antiquity of Englands Superiority over Scotland, though it had already been vigorously contested by Thomas Craig in a treatise De hominio, written shortly before the union of the crowns in 1603.277 More plausibly, recognition that the laws of Scotland and England were broadly similar had been taken to support the view of James VI, Francis Bacon and others that the laws of the recently united kingdoms could also be united, whether by treating the law already received into Scotland from England as the common law of Britain, or by developing a new common law on the foundations laid by the related histories of the kingdoms. Craig had also handled this theme in a treatise De unione regnorum Britanniae.278 He had presented detailed evidence of the similarities in substance between the two laws, especially on issues of land tenure and succession, drawing the conclusion that ‘at the present day there are no nations whose laws and institutions more closely correspond than England and Scotland’.279 Moreover, he had tried to show that ‘decisions at law are founded, on the whole, on the same practice in the two countries’. Reference was first made to any relevant statuta, interpreted restrictively if odious and extensively if favourable, ‘which is common to the civil law and to both nations’. English lawyers then turned to their common law, but Craig argued that the learned laws were actually common to both nations. Although it was normal for English lawyers to insist that all the principles and institutions of their law had been developed locally, it was obvious to anyone with a learned education that a great deal had been borrowed from the civil and canon laws, and even more from the feudal law. Craig was prepared to concede that the Scots had probably borrowed much of their law of land tenure and succession from the English, but he maintained that the English had received their law from the Normans and that it consisted largely of the feudal law which the French had found in Lombardy. This meant not only that ‘throughout Britain at the present time the law of heritable property is identical with, and its principles based on, the feudal code’, but also that any inconsistencies could be ironed out by going back to the learned origins of the laws. At least when he first wrote his tract, Craig could see no ‘reason to despair of the possibility of so harmonising the legal systems of the two peoples as to fashion one body of law applicable equally to both’. Much of the material for this argument had already been assembled in Craig’s Ius feudale, where comparisons were often made between the laws of the two kingdoms and where a lengthy historical introduction had traced the origins of both laws through France to Lombardy. After recounting the rise of the civil, canon and feudal laws on the Continent, Craig had devoted a chapter to explaining how the feudal law had been brought into England and how the English currently dealt 277 Axton 1977, pp 33–5; Galloway 1986, pp 11 and 51; Mason 1994, pp 184–5. Craig’s treatise, eventually translated and printed as Scotland’s Soveraignty Asserted, will be returned to later. 278 Levack 1987, pp 77–81; Burns 1996, pp 263–5; Wijffels 2002b, pp 332–7. 279 De unione regnorum Britanniae, pp 68–90 and 297–328 (translations sometimes altered).

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The Response of the Advocates 141 with legal problems.280 He had used linguistic and historical evidence to challenge the thesis advanced by some writers that the common law of England was older than the earliest historical record and had survived the Norman conquest.281 It seemed clear to Craig both that the law in England after the conquest was feudal and that there had been no trace of the feudal law there before the conquest. Turning to the current law he remarked that lawyers in England first sought solutions to problems in their statutes, which they interpreted like the civilians, and then resorted to their common law, which he illustrated with a series of axioms. ‘I have thus inserted these axioms’, he explained, ‘because they are for the most part consistent with our law, and so that it may easily appear to the enquirer that they are to a considerable extent derived from the feudal law’. The axioms, known to all the people of England, were supplemented with maxims known only to the expert lawyers who worked in the courts, ‘and these maxims are called customary law, since they are established by customs, and they savour constantly of the feudal law’. After statutes, the common law and these general customs, the English lawyers turned to the customs of particular localities, then to judicial precedents, and in harsh cases to the equity and conscience of the chancellor. It was through reading the reports of judicial precedents, Craig explained, that he had come to appreciate the considerable extent to which English lawyers did in fact make use of learned sources. Moving on in his next chapter to describe the arrival of the feudal law in Scotland, he took a more robust line than in his treatise on union, arguing that the feudal law had actually been adopted by the Scots directly from the French before the conquest of England.282 He argued that there were traces of it in some early statutes, that some feudal institutions had clearly been established in Scotland before England, and that in general the feudal law was preserved more purely in Scotland than in England, ‘as in streams of water, those that are nearer to the source or spring are on that account purer’. In any case, he believed it could be concluded that ‘today both nations use the same law’.283 Modern historians have found some merit in Craig’s claims about English law, not just in the emphasis he placed on the consequences of the Norman conquest but also in his insistence that English lawyers did make use of the learned laws.284 Craig was equally correct, however, in observing that the common lawyers often made a point of disguising their debt to foreign sources. Those writers trained in the inns of court who did not simply claim that Scots law was modelled on English law were inclined to be doubtful about the possibility of a closer union with the Scots because in ‘their lawe (which is chiefly the civill) they ar liker to Fraunce then 280

Ius feudale, pp 29–35. Pocock 1987, pp 42–5; Weston 1991, pp 381–4; Christianson 1993, pp 105–6. 282 Ius feudale, pp 35–7. 283 Craig proceeded at once to contest the inference drawn in the passage from Holinshed’s Chronicles cited in n 276 above that the kings of Scotland had submitted to the feudal superiority of the kings of England. As will be seen, this passage has caused considerable confusion. 284 Pawlisch 1985, pp 162–5; Pocock 1987, pp 84–8; Levack 1987, pp 79–81. For the influence of the learned laws on the common law see generally Helmholz 1990b; Donahue 1992; Seipp 1993. 281

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142 The Interregnum Court to England, holding almost no conformitye with us’.285 During the half century following the union of the crowns Sir Edward Coke drew the attention of his readers to the striking fact, as he perceived it, that ‘the laws of England are not derived from any forain law, either Canon, Civil, or other, but a speciall law appropriated to this Kingdom, and most accommodate and apt for the good government thereof’.286 He insisted that ‘forein precedents are not to be objected against us, because we are not subject to forein lawes’, and referred with approval to Sir John Fortescue’s argument in his fifteenth-century treatise De laudibus legum Angliae that ‘the customs of the English are not only good but the best’.287 In this widely read treatise Fortescue had given several examples of differences between the civil and common laws, among them the English refusal to introduce the learned concept of legitimation per subsequens matrimonium, expressed in the resounding and much quoted phrase nolumus leges Angliae mutari. Sir John Davies was one of many writers who cited this example of English resistance to learned influence.288 Another was John Selden, who knew both that English lawyers had used learned sources in the thirteenth century and that silent use was still made of the same sources, yet who drew the conclusion from his study of English legal history that learned influence had been decisively rejected in the fourteenth century and that the development of the common law had been largely indigenous.289 While lawyers like Coke, Davies and Selden were by no means ignorant of the learned laws, they liked to deny their practical relevance. A rather different view was taken by the civil lawyers who studied and taught at the two English universities in the seventeenth century. Between 1629 and 1636 Richard Zouch, the regius professor of civil law at Oxford—where John March may have been among his students—published a series of introductory books on the civil, canon and feudal laws in which he emphasised their relevance to local practice.290 He remarked in particular that the customs of Normandy ‘agree with ours to such an extent that it is called into doubt whether the Normans have borrowed their customs from the English or the English from the Normans’.291 Another of Zouch’s books, originally written ‘in the proper language of the CivillLaw, for the use of Students in that Profession’, was printed in the vernacular in 1652 so that ‘others also might discerne, that the study of that learning conduceth to the knowledge of some things, worthy of consideration’.292 In the following year the relevance of the civil law to local practice was stressed again in a treatise De usu et authoritate iuris civilis Romanorum by Arthur Duck, a civilian practi285 Jacobean Union, p 180. See further Galloway 1986, pp 38–41; Levack 1987, pp 88–91; Wijffels 2002b, pp 328–31. 286 Third Part of the Institutes, p 100. 287 Second Part of the Institutes, p 98; Reports of Sir Edward Coke, pt 3, f xiir, pt 6, f iv, and pt 8, p xiv; Fortescue, De laudibus legum Angliae, pp 40–1. 288 Le primer report des cases, f 2v. 289 Ad Fletam dissertatio, pp 148–9, 156–7 and 164–7. 290 Curtis 1959, p 160; Coquillette 1988, pp 175–6; Levack 1997, p 563. 291 Elementa iurisprudentiae, sig ¶3v. 292 Cases and Questions Resolved, sig p2v.

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The Response of the Advocates 143 tioner trained in Oxford.293 After explaining the general status of the civil law in Europe, Duck had proceeded to explain its particular relevance in different countries, including both England and Scotland.294 ‘That the Norman customs were mixed with the English through conquest’, he declared, ‘is transparently clear from their similarity in many points’. The civil law had been studied in the English universities since the twelfth century, and if the common lawyers had become resistant to civilian influence they had not managed to exclude it entirely. Glanvill, Bracton and the other medieval authors ‘were most expert in the civil law and drew a great deal from it in illustrating English law with clarifications and adornments’. Moreover, the writs used to initiate actions before the common law courts—‘the foundation of the laws of England’—had been framed in the chancery ‘by men expert in the laws of the Romans’, whose successors still made open use of learned sources in several other tribunals. Nevertheless, it was scarcely surprising that ‘this opinion has gathered strength among foreign people, that the English determine disputes from their municipal law alone, but the Scots, like the rest of the nations of Europe, employ the civil law’. Duck had found from his reading of several histories of Scotland, as well as from study of Skene’s books, that the Scots had their own municipal law and that ‘the laws and customs of the Scots mostly agree with the English’. Where the Scots differed from their neighbours was in being ready to acknowledge their historical debt to the civil law, in making a point of interpreting their law against the background of the civil law, and in turning openly to the civil law ‘where the municipal law is deficient and in omitted cases’. Similar views were expressed by civilians trained in Cambridge, usually at Trinity Hall, where Andrew Owen had spent the twenty years preceding his appointment to the bench in Edinburgh. In 1607 John Cowell, the regius professor of civil law in the university and the master of Trinity Hall, published a dictionary of English legal terms consciously modelled on the civilian books de verborum significatione.295 He told his readers that he was already well advanced with ‘a tract (de regulis iuris) wherein my intent is, by collating the cases of both lawes, to shewe, that they both be raised of one foundation, and differ more in language and termes then in substance’.296 This would reinforce Cowell’s argument, already presented in his Institutiones iuris Anglicani ad methodum et seriem Institutionum imperialium compositae et digestae, that if the civil and common laws were ‘reduced to one methode’ they might both be mastered more easily. The method he used there was borrowed from Justinian’s Institutes, though he also talked about reducing ‘the undigested mass’ of the common law ‘to the order of Justinian’s Digest’.297 Writing in 1605, he suggested that the king’s desire to unite 293

Coquillette 1988, pp 161–5; Wijffels 1990; Stein 2000. De usu et authoritate iuris civilis Romanorum, pp 124–58 and 161–6. 295 Simon 1968; Levack 1987, pp 82–4; Coquillette 1988, pp 79–94. 296 Interpreter, sig *3v. The treatise de regulis iuris, modelled on the Digest title following the one De verborum significatione, was never published and has not survived. For a set of lecture notes on the same title and apparently used at Trinity Hall in Owen’s time see Wijffels 1999, pp 36 and 41–2. 297 Institutiones iuris Anglicani, sigg A2–4. 294

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144 The Interregnum Court the laws of Scotland and England might best be pursued by recognising that English law was also based on the civil law, as he himself had done. ‘For after I had devoted some years to the comparison of these sciences’, he remarked, ‘I noted the same foundations of each, the same definitions and divisions of matters, clearly consistent rules, broadly similar decrees, differing only in a diversity of idiom and method, and that our common law (as we call it) is nothing other than a mixture of the Roman and feudal laws’. In 1651 Cowell’s treatise was reissued in a vernacular translation—‘not to let so choyse a method of our English Lawes lye obscured’—and in 1658 his dictionary was printed again, shortly after the appearance of another treatise by a Cambridge civilian, Robert Wiseman, who had been a fellow of Trinity Hall at the same time as Owen.298 Aware of the common assumption that ‘the Civil Law is a forreign Law, not ordained by the Legislative power and authority of this Nation’, Wiseman replied that historians had shown English law to be a ‘mixture and composition’ of foreign laws, that it would be mistaken to imagine that the civil law had been adopted by legislative authority in all the other nations of Europe, and that the English courts had as much need to refer to it in novel cases as those elsewhere.299 Wiseman recalled that when James I had encouraged his English parliament in 1607 to pursue a closer union with Scotland he had drawn attention to ‘the text it selfe’ and ‘the best approved Doctours and interpreters’ of the civil law, ‘which in the point of Conjunction of Nations should beare a great sway, it being the Law of Nations’.300 As James had just advised his audience that a legal union would provide a ‘faire occasion of amending and polishing your Lawes’, this observation had tended to undermine his efforts to reassure the English that their law would prevail in Britain.301 He appears at this point to have accepted that legal union would need to be postponed, as had Bacon and Craig.302 In a chapter that appears to have been added to Craig’s treatise on union in 1607, he had declared it essential ‘that each nation be governed in accordance 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 cases be determined in accordance with ancient practice and without appeal from the courts of one kingdom to those of the other’.303 ‘If these conditions are not observed’, Craig had come to believe, ‘the union will not be readily embraced by such as cannot patiently suffer their laws and customs to be altered’. Where once 298

Veall 1970, pp 109–10; Coquillette 1988, pp 166–74; Crawley 1992, pp 80–1. Law of Laws, pp 180–81. 300 Workes of the Most High and Mightie Prince, James, p 519; Wiseman, Law of Laws, p 134. 301 Workes of the Most High and Mightie Prince, James, p 512. 302 For the connection between the printed version of James’ address and the speech Bacon had made a few days earlier, and for the possibility of a connection between the project Bacon had outlined and Craig’s union treatise, see Galloway 1986, pp 117 and 147; and see too Jardine and Stewart 1998, pp 59–61 and 300. Another common lawyer who recognised the value of the learned laws was William Fulbeck, whose Parallele or Conference of the Civill Law, the Canon Law, and the Common Law of this Realme of England is discussed in Levack 1973, pp 136–7; Terrill 1981, pp 174–8; Coquillette 1988, pp 71–9. 303 De unione regnorum Britanniae, pp 197 and 465. For an alternative view of the dating see Galloway 1986, p 40. It will be explained later that this alternative view rests on a misconception. 299

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The Response of the Advocates 145 he had believed that the similarity between the laws of Scotland and England made closer assimilation a realistic goal, ‘thereby to promote the union of the two nations in one body politic’, he had come merely to believe that there was not ‘such a want of uniformity between the laws and customs of the two nations as to dissolve a contract of lasting friendship and reconciliation or to prevent the conclusion of such an agreement’. The quest for a legal union had been deferred in 1608 and revived only in the 1650s. By then Craig’s view that the laws were similar because of their shared foundations in the learned laws had been gaining ground. It had received support in books written by Zouche, Duck, Cowell and Wiseman as well as Craig—several of which were printed between 1651 and 1658—and while it had secured no known adherents among the common lawyers, it would have had obvious attractions for Scots lawyers.304 One way to resist recourse to the common law of England in the Scottish court might have been to point out that the Scots had a common law of their own, but another would have been to point out that the only law genuinely common to the whole of Britain was also common to the rest of Europe.

Promoting the translatio studii It seems surprising that Robert Burnet made scarcely anything of Craig’s observations on English law when he presented his edition of the Ius feudale to aspiring advocates in 1655. He mentioned in passing that in tracing Scots law back to the fountains of the civil and feudal laws Craig had ‘frequently made reference to English law, sometimes to French law, so that there are few nations in Europe, where the civil and feudal laws flourish, in which this book will not be useful’.305 He also mentioned in the course of a brief biographical sketch of the author that ‘in 1604, nominated by parliament and summoned by King James VI with thirty other leading men of the kingdom to cement the union of the kingdoms of Scotland and England, he gave many proofs of his rare and exquisite learning’, delighting those who witnessed his many exchanges with the learned men of England.306 Yet Burnet did not point out that Craig’s frequent remarks on English law would have made his book peculiarly useful to advocates who had to appear before judges trained in the inns of court, or that his account of the relationship between the laws of Scotland and England would have helped them to resist the easy assumption that English law should be treated as the common law of Britain. Instead he compared Craig’s book with the rest of the literature on Scots law produced in the preceding 304 It ought to be noted, however, that the important preface to Cowell’s Institutiones was not included in the English translation. As will be mentioned later, it was the Latin edition that Stair was familiar with. 305 Ius feudale, sig B1r. 306 According to Burnet, James was so impressed that he decided to confer a knighthood on Craig, only to discover that he would not accept one. Though writers later in the seventeenth century sometimes referred to Sir Thomas Craig, and though modern writers often refer to him in the same way, there is no contemporary evidence that he ever was knighted.

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146 The Interregnum Court seventy-five years and promised that it would help advocates to bridge the gap between their academic learning in the continental universities and their forensic practice in the College of Justice, where the judges had often turned to the ‘ratio iuris civilis’. This phrase was quite distinctive and possibly significant, for writers on Scots law normally referred more simply to judges having recourse to the civil law and used the word reason in conjunction with words like justice, equity and conscience. Since the judges in the Interregnum court were required to decide cases in accordance with ‘the laws of Scotland, equity and good conscience’, and since controversy had arisen over the apparent assumption of some judges that the last phrase should be taken to signify the reason implicit in the common law of England, Burnet’s point may have been that the reason implicit in the common law was actually, as Craig had shown, the reason of the civil law. Yet he did not say this clearly, but instead addressed aspiring advocates as if they were preparing for membership of the College of Justice in its traditional form, possibly in the knowledge that the major obstacle to assimilation of the laws had been the persistence of the advocates in pleading as they had always done. When Andrew Gilmour became the first new advocate to enter practice in the Interregnum court in 1652 he made no mention of his study at a continental university but simply informed the judges that for several years he had been ‘bred in companie with his brother Sir Johne Gilmor in knowledg of the municipall law and practique of this countrey’.307 It is not known how the other new advocates were admitted during the next two years, but when the record of admissions starts again in November 1654 intrants are found drawing attention to their academic qualifications in the traditional way.308 The terms of the last recorded admission suggest that the judges had begun to rely on the existing advocates to assess the fitness of new members of their society.309 Indeed, there is evidence that it was at this time that the Faculty of Advocates became more clearly defined as a learned society, possibly because the advocates envisaged themselves as the true remnant of the College of Justice.310 The academic significance of the terms faculty and college would not have been lost on the graduates at the bar, many of whom had studied abroad before giving proof of their ‘literature’ to the court. In their pleadings these advocates continued to make use of their learning. They often cited Roman law texts and the commentaries of the doctors, they made constant use of the concepts and vocabulary of the civil law, and they frequently interpreted the local law in the light of the civil law, which was typically referred to as the ‘comon law’.311 In some 307

NAS, CS 7/558, ff 20v–1r; and see too CS 12/1, 23 June 1652. NLS, Adv MS 25.2.5(i), ff 304r–24r, summarised in Cairns 1999, pp 38–40. Pinkerton 1976, p v, cites evidence that there were a hundred and thirty-eight advocates at the bar by the winter of 1655. Grant 1944 lists thirty-nine who were admitted between February 1648 and December 1655. 309 Before assigning an expectant ‘ane day for his lesson’, the judges asked the dean of faculty and his council to report ‘of his qualificationes’ (NLS, Adv MS 25.2.5(i), f 324r, and Cairns 1999, p 40). 310 Hannay 1933, pp 152–3; Pinkerton 1976, pp iii–vi; Cairns 1992c, p 502. 311 See, eg, NAS, CS 7/557, ff 101v, 103v–6r and 297v–9r, CS 7/559, ff 137r–8r and 204v–5r, CS 7/567, f 184, CS 7/569, ff 113v–14r, and CS 7/573, ff 45v–52v and 127v. Once again, it would be a simple matter to add further examples. 308

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The Response of the Advocates 147 cases advocates used their learning to support their exposition of ‘our law’, as when one quoted a text from Justinian’s Code to corroborate his statement that ‘be the comon law and law and practique of this natione, all bands, contracts, dispositiones, assignationes or other writts procured be the fraud and circumventione of the receaver were null and ought and should be reduced’.312 In another case, turning on the reading of the act of 1491 providing for the sustenance of heirs, after one advocate declared it a ‘wonder that anie that did know our law sould disput the difference betwixt wardator and lyfrenter’, the other declared it a ‘wonder that any that did either know the civill law or haid read the said act of parliament of King James the 4 could not find ane difference betwixt ane wardator and lyfrenter’.313 Sometimes advocates went beyond asserting the consistency of ‘the comon law and law and practise of this nation’ and stressed that both were consonant with ‘all law and reasone’.314 When one advocate tried to have a decreet reduced on the ground that his client was a minor who should not have been summoned to appear without a guardian, he complained that the decreet had been issued ‘against [the] common law and laudable law and custome of the nation’, insisted that a reduction was required by ‘all law, equitie and conscience’, and added that ‘as this is most consonant to all reasone and equitie, sua it is conforme to the law civill’.315 It was perhaps in anticipation of arguments like these that Andrew Owen—and less probably John March—had been appointed to the bench. The Scots were known to use learned sources in the same way as the English civilians in the courts they staffed. In reporting a leading case decided in 1591 Sir Edward Coke had maintained that the canon law applied in the ecclesiastical courts should be regarded as part of the law of England.316 Just as the Romans had borrowed some of their laws from the Athenians yet had named them ius civile Romanorum, and just as the Normans (in Coke’s view) had borrowed some of their laws from the English yet had named them les coutumes de Normandie, ‘so albeit the Kings of England derived their Ecclesiastical Laws from others, yet so many as were proved, approved and allowed here, by and with a general Consent, are aptly and rightly called, The King’s Ecclesiastical Laws of England’. It was ‘the common receaved Opinion in all our Books’, Coke had declared, that when cases were decided by judges sitting in church courts ‘the Judges of the Common Law ought to give Faith and Credit to their Sentence, and to allow it to be done according to the Ecclesiastical Law; for cuilibet in sua arte perito est credendum’. This line of argument had been rehearsed in Ireland by Sir John Davies, who had relied on Coke’s report in reminding the English judges there that in general ‘those canons which were received, accepted and used in any Christian realm or commonwealth, they, 312

NAS, CS 7/569, ff 108v–26r, citing Code, 4.44.2, from an edition cum notis Dionysii Gothofredi. NAS, CS 7/559, ff 203r–10r. The response, surprisingly enough, was made by Henry Whalley. 314 NAS, CS 7/571, ff 11r–19v. 315 NAS, CS 7/568, ff 174r–98v. 316 Reports of Sir Edward Coke, pt 5, ff i–xli. See generally Levack 1973, pp 145–6; Pawlisch 1985, pp 170–73; Cromartie 1995, pp 36–7. 313

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148 The Interregnum Court by such acceptation and usage, obtained the force of laws in such particular realm or state, and became part of the ecclesiastical laws of such nation’.317 He understood that the canon law had been ‘embraced, allowed and used’ in the church courts of England, much as the civil law had been ‘received and admitted’ in the English admiralty court, without the authority of the pope or emperor being recognised. The example of the handling of ‘Marine causes’ had also been given by John Selden when he argued that the civil law was only ever authoritative to the extent that it had been ‘received and establisht by Custome’.318 This had happened more often in some countries than in others, but essentially all countries were ‘governed by their owne common Laws’, into which the learned laws had been absorbed to a greater or lesser degree. Selden’s contention that ‘everie Christian State hath its own Common Laws, as this Kingdome hath’, was consistent with the view (of which he had been aware) that the Scots had a common law of their own. Skene is thought to have promoted this view when he presented James VI with his edition of ‘the laws of your ancestors, the kings of Scotland, collated by me, so far as it could be done, with the divine, civil and canon laws, and with the laws of your kingdom of England (so that the agreement between the laws of both kingdoms may be understood)’.319 In another preface, addressed to his professional readers, he had remarked similarly on the annotations he had drawn ‘from the civil, canon and Norman laws, and from the laws of the kingdom of England, with which ours to a large extent agree, so much so that anyone who understands these may to a large extent understand those’. The similarities between the laws of Scotland and England, illustrated most clearly by the parallels between Regiam maiestatem and the treatise attributed to Glanvill, were taken to demonstrate that the Scots as much as the English had a common law of their own. However, it was a law based largely on the civil, canon and feudal laws, as Skene had shown by identifying the ‘fontes’ of many rules and institutions in his notes.320 It may have been his view that the English were more indebted to the same sources than they cared to admit. Like Craig he had been appointed to the union commission of 1604, and he had completed his edition of the leges antiquae in 1607, two years after being called to the English bar.321 Like Craig he had promoted a view of Scots law that must have seemed peculiarly pertinent when the quest for a legal union was revived in the 1650s. Skene had demonstrated that the expert lawyer in Scotland needed to know both about the parts of the law that were the same as English law and about the learned sources from which much of the law was derived. He had shown how the common law of Scotland could be handled in relation to the common law of Europe, and hence 317

Report of Cases and Matters in Law, pp 185–229. Historie of Tithes, pp 477–81. 319 Regiam maiestatem (Latin edn), sigg A3v and 6r. For this reading see Sellar 1997, pp 159–60. 320 Duck, De usu et authoritate iuris civilis Romanorum, p 165, clearly alluding to Regiam maiestatem (Latin edn), pt 1, f 14r, observed: ‘John Skene testifies that the Scots borrowed their court procedure, formulas and most other things in their municipal law from the civil law, and almost all of his glosses on the statute law of the Scots are drawn from the civil law of the Romans’. 321 Brunton and Haig 1832, pp 232–4; Bedwell 1920, p 103; MacQueen 1994, p 391. 318

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The Response of the Advocates 149 that the expert lawyer in Scotland needed to share the qualifications of the expert lawyers who staffed the ecclesiastical, admiralty and other specialist courts in England.322 If Coke had been correct in saying that these iurisperiti were trusted by the common lawyers in their area of expertise then the best way to preserve Scots law might have been to uphold the distinctive traditions of the College of Justice as a centre of learning in the civil, canon and feudal laws. The problem with this response, however, was that the Interregnum court had been staffed with judges trained in the inns of court. The advocates may have liked to think of themselves as the true representatives of the College of Justice, as iurisperiti whose opinions on the law of Scotland ought to be trusted, but the contentious disputes they engaged in had to be determined by the judges. Especially after Owen and March had been removed from the bench in 1653, the question was not whether the common law judges should respect the decisions delivered by a specialist tribunal but whether they should themselves determine disputes in accordance with the law of Scotland or with the common law. The simplest response to this problem, as was suggested earlier in this section, was to reduce the scope for recourse to the common law by developing a stronger sense of the known statute law. Skene had shown how this could be done. In 1655 Burnet praised his achievement, and while he also recognised its limitations he led new advocates to believe that there were other books they might turn to for further information about the local law. He himself encouraged the close study of Craig’s Ius feudale, which other advocates epitomised in English. Andrew Gilmour compiled an index to the treatise and also facilitated citation of the legislation passed since Skene’s time by abridging the separately printed acts of parliament under standard headings.323 Thomas Wallace amalgamated the strictly statutory sources with Craig’s treatise and with the decisions reported by Gibson, Hope and Spotiswoode, whose practicks began to circulate freely after 1655. Gibson’s reports, soon to be conveniently summarised in a compendium written by George Lockhart, were found to be especially instructive and may have encouraged the anonymous reporter of the decisions of the Interregnum court to begin his collection.324 In some of his reports, notes were added on parallel or inconsistent reports by Gibson, or on views held by ‘Craig and Skene’, and advocates were shown to have referred to ‘the opinion of Craig’ or ‘the custom of the nation, as is expressed by Craig’.325 The books left by these earlier lawyers enabled advocates to substantiate their 322 For an account of the relativity of the concept of the common law, developed in relation to German legal history, see Whitman 1990, pp 3–40. 323 The alphabetical arrangement of the headings in the books by Gilmour, Wallace, Lockhart and some others may have been influenced by the example of Skene’s dictionary or of some earlier collections of case reports. It may also be significant, however, that while it was not normal for general surveys of Scots law to be structured in this way, there was a tradition in England of alphabetically arranged ‘abridgements’ of the law. See Simpson 1981, p 639; Birks 1997, p 176; Baker 2002, p 185. 324 Although the reference in Decisions of the English Judges, p 22, to Gibson, Decisions of the Lords of Council and Session, pp 588–9, suggests that Gibson’s practicks may not have been known to the advocate who appeared in the case reported in January 1656, it may already have been known to the reporter. 325 Decisions of the English Judges, pp 1, 15, 22, 82, 171–2 and 183–4.

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150 The Interregnum Court assertions of the law and practick of Scotland, and the new books by advocates like Gilmour, Wallace and Lockhart helped them to exploit the resources of Scots law more fully. One aim of the advocates who wrote in the late 1650s and early 1660s may well have been to increase awareness of the known statute law in the sense of the municipal law and so to reduce the scope for recourse to the common law. Yet even this response was problematic, for it was based on the assumption that the municipal law did need to be handled in relation to the common law. It was based on the assumptions of the mos Italicus that the local sources were statuta in need of strict interpretation and that all casus omissi must be left to the disposition of the common law. It no doubt helped to insist that the common law was the civil law, but however popular this view may have been among the civil lawyers it was not accepted by the common lawyers. Far from agreeing that their law needed to be handled in relation to the common law of Europe, most English lawyers believed that the learned laws could only be authoritative to the extent that they had been absorbed into the common law of England or of another state. It therefore helped to insist further that the Scots had a common law of their own and that it was largely derived from learned sources. Skene had in fact done a great deal to promote this view, for he had shown that the Scots had a body of law comparable to the common law of England and that much of it could be traced back to the civil law. He had talked about marrying the local with the learned laws and about studying the local law in the same way as the civil law, which seems indicative of an attitude less in keeping with the assumptions of the mos Italicus than with those of the early usus modernus Pandectarum. In this respect Skene’s German experience seems less relevant than the French experience shared by many other Scots lawyers, as the next chapter will seek to make clear.326 It was the French-trained jurist Craig who struck Burnet as having done most to trace the learned origins of the local law and to show how the local law could be married with the learned laws. What this may have meant will be considered closely in the next chapter, but it may be observed here that the claim Burnet made for Craig had special significance in the Interregnum setting. The timing of the publication of his edition of the Ius feudale was presumably connected with the expiration of the exclusive licence granted to Craig’s son and with his own son’s preparation for admission to the bar, but it may not have been entirely coincidental that the book came out just as the English government was recognising the need to have disputes over feudal tenure determined by the supreme civil court in accordance with the common law of Scotland. As Burnet saw it, Craig had tended to regard the feudal law not as a foreign source of solutions to problems that could not be solved locally but as one of the locally available sources. The learned authority of the feudal law, as a branch of the civil law, had been transferred from the continental law schools to the College of Justice and had been used by lawyers there in refining their own law. In England a similar transfer of learning appeared to have occurred so long before 326 It is significant that Luig 1972 begins his survey of institutional writing in Europe with France, and that Mohnhaupt 1979 begins his survey of the German marriage of theory with practice in 1650.

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The Reform of the Common Law 151 that lawyers felt able to pretend that their learning was indigenous and that they had no need to look beyond their own common law. The Scots were more willing to recognise their debt to continental learning and to make open use of the learned laws, but they were also able to claim that they had a common law of their own and that they had no need to construe their sources narrowly in relation to another common law. The possibility that Stair meant to follow Craig’s example by advancing this claim in his Institutions will be examined in the next chapter, after another possibility has been outlined.

THE REFORM OF THE COMMON LAW

March’s contribution to legal literature It was mentioned in passing in the last section that in 1607 James VI and I had called for the amending and polishing of the English common law before it was extended to Scotland, and that attempts to reform the Scottish law of land tenure in the later 1650s were coupled with attempts to effect similar reforms in England and Ireland. In this and other connections comparison has been made between English attitudes towards Scotland and Ireland, and this may usefully be taken further in relation to the subject of law reform.327 In 1650 Cromwell spoke of the reform of the law in Ireland serving as ‘a good precedent even to England it self’, claiming that after his reconquest of the island ‘Ireland was as a clean paper in that particular, and capable of being governed by such laws as should be found most agreeable to justice’, whereas in England, ‘we cannot mention the reformation of the law’ without the common lawyers complaining that ‘we design to destroy propriety’.328 Since no functioning judiciary had remained in Ireland, commissioners for the administration of justice had been appointed to sit in a new supreme court in Dublin, with instructions to provide expeditious, inexpensive and impartial adjudication and to iron out any remaining inconsistencies between Irish and English law. Instead of receiving fees from litigants these judges were to be paid salaries, and all proceedings before them were to be conducted in English, not in Law French or Latin. The procedure of the court was simplified and some parts of the law were reformed, particularly in relation to the recovery of unpaid debt, which was to be achieved by the seizure of the debtor’s property more than by the incarceration of his person. Cromwell was particularly impressed with the endeavours of John Cook, an English barrister who had written several pamphlets on the reform of the common law before being appointed to judicial office in Munster, where reform of the law of debt was pioneered, where the administration of justice in accordance with law and equity was unified, and where the local court, 327 Barnard 1975, pp 249–92, remains the classic study of the administration of justice in Interregnum Ireland. What follows in this paragraph is largely dependent on his discussion, in which the subject of law reform is given particular prominence. 328 Memoirs of Edmund Ludlow, vol 1, pp 246–7.

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152 The Interregnum Court ‘by proceeding in a summary and expeditious way, determined more causes in a week, than Westminster-Hall in a year’. Cook tried to test out in Ireland reforms that had been proposed but resisted in England in the late 1640s and which continued to be advocated there in the 1650s.329 In 1655, however, the Munster court was abolished and the old judicial offices were revived in Dublin. The emphasis then shifted to maintaining the traditional court system, the major problem being the reluctance of English lawyers to travel into Ireland to hold judicial office or to practise before the courts. By 1655 Cromwell himself had been persuaded that ‘our known laws settled amongst us’ were an essential bulwark of ‘liberty and property’.330 In Scotland as in Ireland the judicial system had broken down before the arrival of Cromwell’s army and in Scotland too the old judges were replaced by commissioners for the administration of justice. In Scotland it was announced in May 1652 that the new court would regulate the level of fees paid by litigants, that the judges and clerks would receive salaries from a central fund, and that legal documents would in future be valid only if written ‘in playne significant Englische language’.331 Swift, cheap and fair adjudication was promised.332 Although the local procedure was preserved, civil cases were already handled in a summary way—without questions of fact being put to a jury—and the Scottish judges were used to dealing with questions of law and equity together. Radical reform of the law of land tenure was proposed, but the advantages of preserving much of the current law had been recognised by 1655 when plans were drawn up for a revived court of exchequer. It was confirmed when this happened that the commissioners for the administration of justice were to enjoy the same jurisdiction as the lords of session, and it was recognised at the same time that swift adjudication would only be possible if more Scottish judges were appointed to dispatch justice in the outer house of the court in the traditional manner. The writers and advocates were then urged to adhere more strictly to conventional forms, the support staff in the court was increased to its previous size, and the fees charged to litigants were consequently raised. To a large extent the Scottish judicial system was revived in 1655, when the alternative of further reform was impeded by the lack of English lawyers. In all this there were clear parallels with the Irish experience, and two further similarities merit more detailed attention.333 The first is that in Scotland as in Ireland one of the judges appointed after the conquest was a barrister who had advocated reform of the common law. John March had published a political pamphlet in 1642, two parts of a treatise on Actions for Slaunder in 1647 and 1649, a volume of 329 Nourse 1959; Prall 1966; Cotterell 1968; Veall 1970; Matthews 1984. For a longer perspective see Shapiro 1975. 330 Writings and Speeches of Oliver Cromwell, vol 3, p 438. 331 Nicoll, Diary of Public Transactions, pp 96 and 103; Diary of Mr John Lamont, p 42; Diary of Sir Archibald Johnston of Wariston, 1650–54, p 161. 332 Scotland and the Commonwealth, p 43; Cromwellian Union, pp 180–81. 333 As was noted earlier, attention has focused here on the administration of civil as opposed to criminal justice. For further remarks on the reform of the Scottish system see Trevor-Roper 1972, pp 420–21.

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The Reform of the Common Law 153 Reports: or, New Cases in 1648, and a translation of Some New Cases, originally reported in Law French by Sir Robert Brooke, in 1651. In that year he also published a treatise on law reform dedicated to John Bradshaw, a senior member of Gray’s Inn, who had presided over the trial of the king in 1649 and who presided over the council of state in the early 1650s. It may be that Bradshaw responded by nominating March for appointment to the Scottish bench, for it is notable that all three of the barristers appointed at the time were from his inn. March is generally regarded as a moderate advocate of law reform in the sense that he recommended changes to the common law without questioning its basic utility or authority.334 Not surprisingly, the decisions he reported and digested in his Actions for Slaunder, Reports and Some New Cases provided a conventional depiction of English legal practice. In several decisions, for example, a distinction was drawn between the common law and the local customs of counties, cities and other areas.335 In one case, in which it was proved to be the custom of a manor that when land was allowed to fall into disrepair the landlord could seize animals belonging to the tenant or subtenant, it was objected that ‘the custom was not good, because it was unreasonable; for here the tenant offended, and the under-tenant is punished for it, which is against all reason’.336 The judges accepted the contrary argument that the custom was ‘very reasonable’ when viewed in the proper context of the common law, for it worked ‘in mitigation’ of the common law rule that a tenant should forfeit his land for waste.337 In another case it was acknowledged to be the custom of the city of London that anyone who was elected to serve as an alderman but refused to swear an oath of office could be sent to prison.338 A prisoner obtained a writ of habeas corpus and complained that the custom was ‘unreasonable, because it trencheth much upon the liberty of the subject, and against the statute of Magna Carta that the body of a Freeman should be imprisoned’.339 It was pointed out that Magna carta allowed imprisonment per legem terrae and that consuetudo loci est lex terrae. The judges decided that the imprisonment of reluctant aldermen was ‘a good custom, because that the ground of it is good and reasonable, which is the government of the city, for that totally depends upon the custom’. The reading of Magna carta seemed quite straightforward here, but there were other cases in which a distinction was made between ‘the Letter’ and ‘the Equity’ of a statute.340 An act that altered the course of the common law was to be ‘taken strictly according to the Letter’, whereas an act that followed the course of the common law could be interpreted more freely to give effect to ‘the meaning of the makers’. This equity was quite different from the equity of the chancellor. The common lawyers in the cases March dealt with maintained that ‘there is no remedy in equity against a statute’, and that in general aequitas sequitur legem, yet they also recognised that 334 335 336 337 338 339 340

Prall 1966, pp 58–60; Veall 1970, pp 98 and 117; Matthews 1984, p 232. Actions for Slaunder, pp 128–9; Reports, pp 28–30; Some New Cases, pp 74–5. Reports, pp 161–5. For the waste rule see Walker 1978. Reports, pp 179–91. For the protection of liberty see Baker 1995b. Reports, p 29; Some New Cases, pp 28, 140–41 and 155.

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154 The Interregnum Court a litigant who was likely to lose his case in a court of law might sometimes be justified in seeking to have it heard instead in a court of equity.341 It was the decisions of the courts of law that March concentrated on in his Reports, dealing mostly with cases decided in the three years before the outbreak of the English Civil War in 1642, though he also made observations on later developments and drew attention to relevant passages in the earlier reports of Coke, Davies and others, citing Coke’s collections simply as ‘the reports’.342 In publishing his own Reports in 1648 March could claim realistically to have dealt with New Cases, but when he published his version of Some New Cases in 1651 he was actually dealing with rather old cases. The book had been composed in 1578 by Richard Bellewe, who had extracted reports from Robert Brooke’s Graunde Abridgement, written before 1558, and had rearranged them in chronological order.343 March ‘methodised’ the reports by placing them again under headings arranged in alphabetical order, adding notes on other relevant reports. In translating the book into English he claimed to have followed an act of parliament passed in 1650 ‘for turning the Books of the Law, and all Proces and Proceedings in Courts of Justice, into English’, an act that appears to have prompted the translation of Cowell’s Institutiones and many other books as well.344 To this extent his revision of the book was an exercise in law reform, and there was also a reforming aspect to his Actions for Slaunder. In writing his reports he had become aware of the large number of actions for slander that were coming before the common law courts, yet he was also aware from his reading of the earlier reports that ‘these Actions were very rare in our old books, and such as were brought were for words of eminent slander, and of great importance’.345 He therefore tried to make this expanding area of the law intelligible by organising the cases under general rules, and he proposed an amendment to the law in an effort to exclude ‘frivolous actions’ from the courts. It could happen, he readily conceded, that a person would have no option but to defend his reputation by taking a slanderer to court, ‘but that a man should flee to the Law out of malice, and make the Courts of Justice maintainers of every small and vain brable, this seems to me utterly unlawfull and intollerable amongst Christians’. Authority for this position was cited both from the Bible and from Coke’s reports, in which the judges were said to have agreed that scandalous actions ‘should not be maintained by any strained construction or argument, nor any favour extended for supportation of them’.346 Fearing that strict interpretation of the emerging law would not be enough to restrain its growth, March recommended 341 Reports, pp 44–5, 88, 102–3, 106, 129 and 151–2. Some of these conventional ideas will be returned to in the final chapter below. 342 For this standard mode of citation see Baker 2002, p 183. 343 Winfield 1925, p 233–4; Beale 1926, p 287; Abbott 1973, pp 148 and 160. 344 Some New Cases, sig A4; Acts and Ordinances of the Interregnum, vol 2, p 455; Cowell, Institutes of the Laws of England, sig A2v. See too Veall 1970, p 192; Coquillette 1988, p 82; Seipp 1991, pp 70–1. 345 Actions for Slaunder, pp 1–7. For the development of the common law in this area, previously the domain of the ecclesiastical courts, see Kiralfy 1951, pp 117–19; Knafla 1977, pp 117–19 and 136–7; Matthews 1984, pp 232–8. 346 1 Corinthians 6.1–11; Reports of Sir Edward Coke, pt 4, f 15v. See too Baker 2002, pp 440–42.

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The Reform of the Common Law 155 the introduction of a statutory rule that ‘no words be actionable which do appear to have been spoken in choller and passion’. This recommendation was repeated in the treatise he devoted to the subject of law reform, which appeared in 1651 under the title Amicus reipublicae and the subtitle An Exact and Speedie Course to Justice and Right, and for Preventing and Determining Tedious Law-Suits. ‘I know that by this small work’, he remarked in a short preface, ‘I shall contract the odium and ill will of many of my profession, who will cast in my Teeth, that it is a bewraying of my own nest; and a flinging dirt into the faces of our great and learned Sages of the Law’.347 Although his proposal with regard to slander was arguably consistent with the mood of the judges, there was no denying that much of what he now intended to say was ‘against some ancient practices and proceedings, and against some principles of our Law’. There were bound to be readers who would have learned from the study of Coke’s works that contra negantem principia non est disputandum, and who would complain that the basic principles of the law were ‘of so high a nature they ought not to be discussed; especially having been ancient received uncontrolled Laws in all ages’.348 If it might perhaps have been answered to this that ‘a common error cannot make a Law, no more than custom against reason’, there were also bound to be readers who would have learned from the study of Coke’s works that qui rationem in omnibus quaerit, rationem confundit.349 March himself argued later in his book that a law must be taken to have been ‘made by very Sage and wise men; and therefore we ought to judge it to be made upon very good grounds and reasons’.350 In his preface, however, he warned that laws could not be considered obligatory if they were unreasonable, and that any law ‘must needs be suspected to be such, the reason whereof must not be inquired into’. Moreover, another sage of the law—Coke’s own preceptor Sir Thomas Littleton— had taught that per rationes pervenitur ad legitimam rationem.351 March took this to mean that ‘reasoning is the way to find out the legall reason’, and he identified two rational principles to weigh in the balance against rules of law, both of which had been approved in Coke’s works. The first was that all laws should promote ‘the common good and safety’, based on the maxim that salus populi est suprema lex, which March had relied on in his political pamphlet.352 The second was that interest 347

Amicus reipublicae, sigg A4r–B2r. Coke, First Part of the Institutes, ff 10v–11r, 67r and 343r. See too Fortescue, De laudibus legum Angliae, pp 22–3, where this doctrine was traced back to Aristotle, Topics, 100a30–b20. 349 Reports of Sir Edward Coke, pt 2, f 75r, apparently drawing in Digest, 1.3.21. In the Fourth Part of the Institutes, p 240, Coke had made the positive assertion that communis error facit ius, apparently drawing on Digest, 1.3.39. March, Amicus reipublicae, pp 30–1, took this to indicate that a custom could develop ‘in some County’ in ignorance of and contrary to ‘the Law of Man’, yet subject to the requirement that it be consistent with reason and divine law. See too Jolowicz 1957, p 27. 350 Amicus reipublicae, p 9. 351 Littleton’s Tenures, p 181. The first part of Coke’s Institutes was in the form of a commentary on Littleton’s book. 352 Argument or, Debate in Law, pp 41–3, where March noted the use of the maxim—derived, as was mentioned in the last chapter, from Cicero, De legibus, 3.3.8—in the Reports of Sir Edward Coke, pt 10, f 139v, and Davies, Report of Cases and Matters in Law, pp 88–9 (the test case on the validity of the Gaelic tenures). Cromartie 1999, p 115, locates March’s pamphlet in the setting of a political debate dominated by the assumptions of the common lawyers. 348

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156 The Interregnum Court reipublicae ut sit finis litium, and March both reproduced this maxim as a motto on his title page and quoted it again later in his book, maintaining that the law ‘which most avoids and provides against contentious Suits, and most indeavours the support of peace and quiet in a Common-wealth, is the best and most reasonable Law’.353 No one, he insisted, ‘more honours the Law than my self, which I take in the general, to be as just and as perfect as any humane Law in the World’. His point was merely that the common law might still be ‘the better for pruning, and cutting off the exuberant and unnecessary branches’. In the rest of his book March identified nineteen branches of the law that seemed to need attention. A typical chapter dealt with the question ‘whether collateral warranty stands with reason and conscience or no’.354 The question arose from a case described by Littleton in which land was held in fee tail by a tenant who discontinued the entail and whose brother granted a warranty to the new tenant that he would not enforce the entail.355 The rule was that if the brother died without issue, the son of the old tenant could not claim the land as heir in tail to his uncle since he was bound by the warranty his uncle had granted. March considered it inadequate to defend the rule as St German had done simply by stating that ‘it hathe ben of longe tyme taken for a pryncypall maxym of the lawe’, for he believed that little weight should be attached to ‘a Maxim without reason’.356 He noted that Coke had tried to provide ‘some reason for it’ by explaining that the uncle was presumed not to have disinherited his nephew without good cause and by saying that this was, contrary to the norm, an irrebuttable presumption.357 ‘But now’, March suggested, ‘let us examine the reason of my Lord Cook, and see whether it doth stand with conscience, reason, and the good of the Commonwealth’. The rule itself appeared unreasonable, ‘because the Uncle is a meer stranger, as to the Estate, and this is against the rule of Law, that Acts done by strangers should prejudice a third person’.358 Coke’s explanation in turn relied on what appeared to be an ‘unreasonable exception’ to the rule of law that presumptions were rebuttable, because many uncles might be found ‘who for a small sum of money, would not care to disinherit twenty Heirs’. The rule giving effect to collateral warranties was therefore inconsistent with other rules of law, and here, as in his preface and elsewhere, March skilfully exploited some settled rules as a means of exposing others to critical scrutiny. Where he would have caused greater alarm among his more conventional colleagues was in contending that some rules appeared unreasonable in comparison with ‘the Word of God’ or ‘the Civil Law’. If the Bible required any man who deliberately killed another to be put to death, could the law of England legitimately distinguish between cold-blooded murder 353 March quoted the maxim—apparently derived from Code, 3.1.13.pr—in Amicus reipublicae, p 77, in the course of a discussion of Coke, First Part of the Institutes, ff 303–4, where it was also quoted. 354 Amicus reipublicae, pp 68–74. 355 Littleton’s Tenures, pp 317–18. 356 St German, Doctor and Student, p 172; March, Amicus reipublicae, p 7. 357 First Part of the Institutes, f 373. 358 The rule that res inter alios actae alteri nocere non debent, already rehearsed in Amicus reipublicae, p 34, was derived from Code, 7.60.

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The Reform of the Common Law 157 and manslaughter, with the death penalty confined to the former case?359 Conversely, could the law of England legitimately impose the death penalty in cases of theft when this was done neither by divine law nor by the civil law?360 On the question that had become a shibboleth for the common lawyers—whether legitimation per subsequens matrimonium should be recognised—March took the view that ‘the Cannon and Civil Laws are most reasonable’.361 ‘I hope that a nolunt mutare’, he replied to the standard answer, ‘shall not make the Law one whit the more reasonable: it is not what we will not do, but what ought to be done, that ought to poize the judgement’. March was content to leave this and several other questions ‘to the consideration of our Sages’, but at other times he felt sure enough of his ground to propose immediate intervention by parliament. It seems to have been by legislative intervention that he hoped to have the law reformed, for he never expressly encouraged the judges to take matters into their own hands, and nor did he equate the equity administered in some courts with the external standards of reason and conscience he often referred to in his book (which he was careful never to label equity). In one chapter he asked ‘whether the High Court of Chancery, as the practice is there, be not a very great grievance and burthen to the commonwealth’, yet he at once stressed that he was not opposed to the exercise of an equitable jurisdiction as described by St German and Coke.362 ‘I know there is an absolute necessitie of it’, he reassured his readers, before adding that there were also notorious deficiencies in its present practice. One problem was that a huge backlog of unresolved cases had built up in the chancery, partly because ‘many Suits are commenced there upon a suggestion of Equity, meerly false, on purpose onely to hinder and delay the execution of Justice at the Common Law’. Another problem was that when suits were commenced at common law there sometimes had to be ‘a resort in matter of Equity from a Court of Law, to Chancery’. Since the suits were already being debated before competent judges, March wondered, ‘why may not the matter of Equity (if any) be determined by them without such further trouble or wheeling about, which is no small charge and expence to the people’? The predictable reply was that ‘this would be a total destruction of the Court of Chancery, and a gross confounding of Law and Equity’. March insisted that it would be neither, for two reasons. In the first place, it had to be borne in mind that there were ‘many cases, which are so meerly and absolutely equitable, that they have not the least relation to Law, nor can any action in such case be brought at Law’. These cases would have to be dealt with in the chancery, where no one could deny that the volume of 359

Amicus reipublicae, pp 121–5, citing Exodus 21.12. Amicus reipublicae, pp 105–12, relying for the civil law on Fortescue, De laudibus legum Angliae, pp 110–13, where naturally the contrary view was expressed. 361 Amicus reipublicae, pp 92–9, citing Fortescue, De laudibus legum Angliae, pp 92–5, and Coke, First Part of the Institutes, f 245r. ‘I attribute much of Honour and respect to my Lord Cook’, March had written in Amicus reipublicae, p 79, ‘yet I shall crave that freedom, to deliver what is truth’. 362 Amicus reipublicae, pp 55–67, citing St German, Doctor and Student, pp 104–10, and Coke, Fourth Part of the Institutes, pp 78–97. 360

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158 The Interregnum Court business was otherwise in need of ‘some abatement’. In the second place, ‘for the scruple of confusion’, March felt sure that ‘Judges of Law may as well judge of Equity, as Judges of Equity judge of Law’. Indeed, even though the early chancellors had been clerics, he believed that there were ‘none more proper Judges of Equity, then Judges of Law, nor can he be a competent Judge of Equity, that understands not the Law’.363 The complaint that law and equity would be confounded if common law judges were permitted to deal with questions of equity was based on a misunderstanding of the close relationship that already existed between the equity of the chancellor and the reason of the law. As these remarks indicate, March is rightly regarded as a moderate advocate of reform, one of several whose proposals were undermined by the radical demands of others in the next two years. In January 1652 the rump of the Long Parliament set up a committee to advise on the reform of the common law under the chairmanship of Matthew Hale, a barrister from Lincoln’s Inn.364 The committee drafted a series of sixteen bills for consideration, some short and specific, one long and wide ranging, which circulated inside and outside the house of commons under the title ‘The System of the Law’.365 Scarcely any progress had been made with the enactment of the bills when the Long Parliament was dissolved in April 1653, but a few were revived and turned into laws after Barebone’s Parliament began to meet in July of that year.366 A committee was appointed to advise on legal matters, and when it became apparent that it would be no more radical in its proposals than the committee chaired by Hale, a further committee was established ‘to consider of a new Body of the Law’.367 One member of this new committee, the lay preacher Samuel Highland, claimed that its concern was with ‘the intricacy, uncertainty, and incongruity in many things with the word of God, and right reason, in the Laws as they now are’, and that it aimed at ‘reducing the wholesome, just and good Laws, into a Body, from them that are useless, and out of date’.368 More precisely, the committee attempted to accomplish this aim ‘by reducing the severall Laws to their proper heads, to which they did belong: and so modelizing or imbodying of them, taking knowledge of the nature of them, and what the Law of God said in the case, and how agreeable to right reason they were’. However, contrary to Highland’s claim, it was widely believed that in the new committee ‘the Law was looked on as a noisome ruinous building, not capable of repair or 363 March confirmed his adherence to the conventional theory of equity expounded by St German when he said that ‘Equity must be observed in every general rule of the Laws of man’, that equity was ‘an exception of the Law of God, or the Law of reason, from the general rules of the Law of man’, and that this exception was ‘secretly understood in every general rule of every positive Law’. 364 Underdown 1971, pp 275–80; Worden 1974, pp 105–18 and 271–3; Cromartie 1995, pp 70–5. 365 Somers, Collection of Scarce and Valuable Tracts, vol 6, pp 177–245; Supply to a Draught of an Act or System Proposed, sig A2r; Philodemius, Seasonable Observations upon the Book Intituled a System of the Law, sig A4r. 366 Prall 1966, pp 79–98; Capp 1972, pp 157–71; Woolrych 1982, pp 262–73 and 290–98. 367 Journals of the House of Commons, vol 7, p 304. 368 Exact Relation of the Proceedings and Transactions of the Late Parliament, pp 15–18. This tract is ascribed to Highland by Woolrych 1965, p 503, on the basis of the argument advanced by Firth and adopted in Gardiner 1903, vol 2, pp 288–9.

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The Reform of the Common Law 159 alteration, but fit to be pulled down to the very ground’.369 ‘When the point of the Law came into consideration’, another member of the assembly recalled, ‘the one Party was for pruning away its exuberances and superfluities; the other, for a hewing down of the main Body’.370 As James Hope recalled, ‘the voteing a new body of the Law’ was condemned by many as a ‘brakeing in upon the proppertie of the people’ and was one of the main reasons why the more moderate members of Barebone’s Parliament engineered its dissolution in December 1653.371 The change in Cromwell’s attitude to law reform and the commitment of the Protectorate regime to the preservation of law, liberty and property were prompted by the realisation that the movement towards reform had encouraged religious zealots to call for government ‘by the judicial law of Moses, pro hinc et nunc, according to the wisdom of any man that would have interpreted the text, this way or that way’.372 The fear of arbitrary adjudication that lay behind this statement was on the face of it what troubled the deputies of the burghs and shires of Scotland when they complained in 1653 that the decisions of the courts should ‘not be left to men’s private judgments, by the generals of equity and good conscience’.373 Sent south to discuss the terms of the union, the deputies had asked to have their affairs governed by the law of Scotland ‘until a known law be established for governing Scotland and England united into one commonwealth’, or ‘whils a comon law be established for both nations’.374 The same desire had been stated again in the proposed amendment to the union bill that was put before Barebone’s Parliament later that year, specifying that any issue raised before the courts should be determined in accordance with the law of Scotland, ‘except when the same heerby is or shall be utherwayes provydit for by a new law, now or heerafter to be made by common consent in Parliament’.375 That a new law might be enacted, possibly in the form of a known or common law for the whole of Britain, was clearly recognised by the Scots who travelled to London and does not seem to have troubled them unduly. When James VI and I had urged the English parliament to reform their common law in 1607 he had asked: ‘who can blame Scotland to say, If you will take away our owne Lawes, I pray you give us better and clearer in place thereof?’.376 The opportunity to revise and restate the laws of England as a step towards the enactment of a common law for Britain had also been identified by Francis Bacon, an early and persistent advocate of law reform.377 In 1607 proposals for legal unification had been connected with proposals for law reform, and the 369

Confusion Confounded, pp 4–5. [Nedham], True State of the Case of the Commonwealth, pp 17–19. 371 ‘Diary of Sir James Hope, 1646–54’, p 165. 372 Somers, Collection of Scarce and Valuable Tracts, vol 6, p 277. 373 Acts of the Parliaments of Scotland, vol 6(2), p 804; Calendar of State Papers (Domestic Series), 1649–60, vol 5, pp 269–70. 374 EUL, La II 89, f 55r. 375 EUL, La I 290, f 9r. 376 Workes of the Most High and Mightie Prince, James, p 512. 377 For Bacon’s views on law reform and their later influence see especially Shapiro 1980. And see too Coquillette 1992, pp 99–117; Martin 1992, pp 106–29; Zagorin 1998, pp 193–203. 370

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160 The Interregnum Court same topics were connected again in 1653, when John Swinton was appointed to the committee of Barebone’s Parliament dealing with legal issues and James Hope was appointed to the committee on the new body of the law.378 It was apparently believed that members of the house with judicial experience in Scotland would have useful contributions to make to the work of these committees, perhaps because they were expected to provide a fresh perspective on the common law, or perhaps because the reformed common law was expected to apply in Scotland as well as England. In any case it seems clear that the prospect of a common law being enacted for both countries did not trouble the Scottish members. What they did claim to be troubled by was the prospect of the judges deciding cases on the basis neither of the existing law of Scotland nor of any new law for Britain but of their own notions of justice and fairness. If March’s books are any guide, there was in fact little prospect of the English judges interpreting the words ‘equity and good conscience’ in this way. March wished to see the common law reformed by reference to standards of reason and conscience external to its own resources, but he appears to have shared the widespread assumption that this was a matter for parliament. Under the Protectorate, even the prospect of parliamentary reform receded.

Providing for the recovery of unpaid debts The other similarity between the Irish and the Scottish experience of the Interregnum that deserves detailed attention is the reform of the law providing for the recovery of unpaid debts. It is known that this was one area in which significant alterations were made in the law of Scotland, and it has been suggested that March’s proposals for the reform of the common law of debt may have had some influence on both sides of the border.379 He had devoted one of the longer chapters in his Amicus reipublicae to an examination of the question ‘whether it be consonant to reason, conscience, or for the good of the commonwealth, to arrest mens persons, and to detain them in prison, for debt’.380 After explaining the origins of ‘the proces by way of Capias, or attaching of the person for debt’, he had gone on to outline the procedure he would have preferred to see in its place. Under this procedure the first step would have been for the debtor to be summoned to appear in a court, failing which judgment would have been given against him in absence. The next step would then have been to execute the judgment against the debtor, not by seizing his person but by seizing his estate, for March felt sure that seizing property was ‘the most rational, the readiest and best way for to get a satisfaction of the debt’. If the debtor had an estate then he could and should be made to use 378

Journals of the House of Commons, vol 7, pp 284 and 348. Dow 1979, pp 112–13, 120, 155–6, 182–3 and 259; Smith 1979, pp 124–34; Walker 1988–2004, vol 4, pp 155 and 159. See too Menarry 2005, though the argument presented is at times speculative and incoherent. 380 Amicus reipublicae, pp 35–54. 379

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The Reform of the Common Law 161 it to pay his creditors, whereas imprisonment, quite obviously, ‘renders a man utterly uncapable of ever giving satisfaction, for by this he is wholly deprived of all possible means of discharging his ingagements’. The only beneficiaries of the process of imprisonment were the baillifs, gaolers and other officers who implemented it, ‘the mala necessaria, the bloodsuckers, the leeches of the Commonwealth’. Imprisoning debtors was therefore ‘contrarie to reason and common policie’, and in March’s view it was also ‘unconscionable’. So far as he could see, ‘either the debtor hath an Estate, or he hath none’. If he had an estate then he should be compelled to pay, but if he had none then there could be nothing more ‘unjust, than to keep his body in prison’. The rule recognised in other areas of the law that lex non cogit ad impossibilia ought to be applied for the relief of debtors who were failing to do what they could not do.381 Any creditors who felt aggrieved should be reminded that as Christians they undertook in their prayers to forgive those who trespassed against them, and should be encouraged to think of their debtors as if they were ‘in bonds together with them’. March came to the conclusion that the law of debt was in manifest need of reform, as John Cook had done before going to Ireland and as many other writers were then doing.382 March maintained that imprisonment for debt was to be found ‘in few other places of the World’, but one of these was Scotland, where an unsatisfied creditor could first obtain from the court ‘letters of horning’—requiring the debtor to be denounced with three blasts of the horn as a rebel against the king’s authority— and could then obtain ‘letters of caption’—requiring the denounced rebel to be apprehended and imprisoned by royal officers.383 The alternative existed of obtaining ‘letters of poinding’—forcing the debtor to surrender his goods to the creditor—followed by ‘letters of apprising’—forcing the debtor to surrender his lands to the creditor—but creditors were not always prepared to receive property in lieu of payment, and when they were the results could be harsh if large estates were apprised for small sums. In the 1650s these procedures were causing serious difficulties. There had been a marked increase in the first half of the seventeenth century in noble indebtedness.384 The granting of loans at interest had become easier to arrange after the laws on usury were relaxed at the Reformation, the need for noblemen to borrow money had increased when the royal court moved south, and the prosperity of merchants in Edinburgh and other towns had created a surplus of funds that could be used to grant loans. After the turmoil of the 1640s, however, there was an acute shortage of money in the country, which meant both that the nobles had trouble paying their debts and that the merchants would have had trouble selling any items of property they received. As commander of the army of occupation in the early 1650s, Robert Lilburne was worried that the threat of 381

For the rule see English Reports, vol 80, pp 245–6. Prall 1966, pp 60–1 and 95–7; Veall 1970, pp 145–51; Matthews 1984, pp 166–8, 198–9 and 206–7. There is no obvious reason to suppose that March’s recommendations were especially influential. 383 Smith and Watson 1928, pp 574–5 and 580–82; Maxwell 1958a, pp 234–6; Walker 1988–2004, vol 4, pp 615–18. 384 On this topic see especially Brown 1989, revisited in Brown 2000, pp 92–109. 382

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162 The Interregnum Court horning and caption was driving many debtors to join the royalist opposition to the republican government.385 He first tried writing to the judges in Edinburgh to warn that specified debtors were in danger of taking an ‘extreeme course’ and to urge them ‘to dispense as much as may bee with the letter of the law’. He then wrote to the council of state warning of ‘many broken men and those of desperate fortunes running to the Hills daily’, reporting that he had written about these men to the judges, ‘who being tied uppe much to the letter of the law, leaves them in an unsatisfied condition’, and requesting the council ‘to give some direction in these cases’. In December 1653 he wrote to Cromwell warning that ‘the Court of Justice, through their strickt proceedeings, and through the scarcity of money here, drive many to desperate courses’. Henry Whalley, the judge-advocate, had told him that there were ‘35000 captions out against men’, and he considered it crucial that measures be introduced ‘to save men from being driven to extreamitie by Caption, and therby forc’t to fly to the Enemy’. In particular, he proposed that the judges be given authority ‘to allow considerable time for the payment of any summe adjudged to bee due, and to appoint the crediter to take land in satisfaction for the debt’. By January 1654 there were reports of ‘noe lesse then 44000 captions issued forth in those 2 last sessions’, and Lilburne wrote again to Cromwell begging ‘some remedy found out to mitigate the rigour of captions and law proceedinges’.386 When George Monck assumed command of the army of occupation in the spring of 1654 he saw the force of Lilburne’s position. ‘Some honest ingenious Scotchmen are of opinion’, he wrote to his superior officer, ‘that if the Judges had power to cause the creditours to bee satisfied with land where the party hath not money to pay, and that in case the land bee seised on for satisfaccion of debts, that then the persons may not be imprisoned, it would tend much to the quieting of the Countrey, and keepe many from taking desperate courses’. Whoever these honest ingenious Scotsmen may have been, the proposal Monck outlined appears to have originated in England, where Barebone’s Parliament had passed an act in October 1653 authorising courts throughout England and Wales to release prisoners who genuinely could not pay their debts and to require debtors to give satisfaction wherever possible from their estates. On 26 May 1654 the protector and council of state passed ‘An Ordinance for Relief of Debtors in Scotland in Some Cases of Extremity’.387 The commissioners for the administration of justice were ‘authorized and impowerd to moderate Decrees to be by them given out against such Debitors as shall manifestly appear to them not to bee able to procure money for paying such Debt, by allowing som fit and convenient time or dayes for payment of the said Debt’. If on the termination of the allotted periods the debtors still failed to satisfy their creditors, the commissioners were ‘to appoint and set out Lands of such Debtors, for satisfaction of the Debt’, and were ‘to declare the same 385

Scotland and the Commonwealth, pp 77, 239, 262–3, 266–7, 289 and 296. Scotland and the Protectorate, pp 15, 19 and 98. Calendar of State Papers (Domestic Series), 1649–60, vol 7, pp 77, 100 and 165; Acts and Ordinances of the Interregnum, vol 2, pp 898–9; Nicoll, Diary of Public Transactions, p 129; Acts of the Parliaments of Scotland, vol 6(2), p 822. 386 387

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The Reform of the Common Law 163 to bee enjoyed by such Creditors, and their heirs, or otherwise according to such Decree, in satisfaction and discharge of such Debt’. Like the English act, the Scottish ordinance was to be in force for one year. Monck wrote to the judges urging them to give the new legislation full effect, and when it expired in May 1655 he wrote to them again suggesting that they continue to give it effect.388 His suggestion was not followed during the summer session of 1655, and in the autumn the council of state received a petition from several debtors who complained that they were once more being ‘left to the full rigour of the law’.389 Mindful of Monck’s warnings that the severity of the law had ‘driven more people to quit their homes and join the enemy among the hills for protection, than has disaffection to the Government’, the council encouraged the protector ‘to allow some mitigation’. In the meantime, the new council in Edinburgh was advised to persuade creditors to accept settlements of claims along the lines of the expired ordinance, and was reminded that justice was meant to be administered in Scotland ‘according to the laws of England, as the judges and officers in the Court of Judicature are instructed’. Of course the judges were actually instructed to decide cases in accordance with the law of Scotland, equity and good conscience, but it has been seen that this last phrase was taken to justify the assimilation of the law of Scotland with the law of England, and authority to depart from the letter of the law had again been granted to courts in England and Wales when a modified version of the act for relief of debtors was passed as an ordinance in the previous year.390 This ordinance expired in October 1655, a month after the council of state issued its advice and a month before the Scottish court resumed its sittings. The military threat posed by the royalist opposition in Scotland had by this stage been dealt with, but on 21 February 1656, as the winter session of 1655 to 1656 came to an end, the council in London was reminded by a letter from the new council in Edinburgh ‘that the lawes of Scotland are very rigorous against Debitors, and that if they be left to their severity (specially since the late Warr hath occasioned soe great a want of money there) will necessarily ruyne many of them and their familyes’.391 Aware of the needs of debtors and creditors, the Scottish council, ‘after endevors to find an equitable expedient not unacceptable to either’, had devised a plan ‘for the releife of Debitors who are willing to satisfie their just debts, and for the Moderateing of the rigour of Compriseings and the severity of proceedings by Creditors against Debitors’. They proposed a scheme that would have allowed debtors to present the court with a list of their existing debts, to swear an oath that they lacked the money to pay the debts, and to declare that they were willing to surrender land to their creditors on a valuation arranged by the court. The court would have been authorised to grant the debtors a year in which to convey 388

Dow 1979, pp 155–6 and 182–3. Calendar of State Papers (Domestic Series), 1649–60, vol 8, p 319. 390 Acts and Ordinances of the Interregnum, vol 2, pp 911–15. 391 Acts of the Parliaments of Scotland, vol 6(2), p 759; Calendar of State Papers (Domestic Series), 1649–60, vol 9, pp 203, 224 and 274–5; Bibliography of Royal Proclamations of the Tudor and Stuart Sovereigns, vol 2, p 353. 389

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164 The Interregnum Court adequate tracts of land to their creditors, dividing the land between them where there were several creditors, and using land close to the creditors’ estates wherever possible. On 15 April 1656 the protector and council of state approved the scheme and ordered the Scottish council to issue a proclamation announcing its adoption for one year. A proclamation restating the order was duly made that month, it was supplemented with another proclamation by the Scottish council in May, and it was supplemented with an act of sederunt passed by the judges in June.392 After the start of the summer session the judges had realised that ‘many persones, be ressoun of thair present condition, and legall diligence ischued out aganes thame, cannot saiflie repair hither, and apeir befoir thame, for obtening the benefite of the said ordour’. Before obtaining protection from imprisonment a debtor had first to come to Edinburgh and expose himself to the risk of imprisonment, so the judges provided for any debtor to obtain in advance an act of court forbidding ‘all messengeris at airmes, and uther ministeris of justice, to truble the persone of him’. A register was opened to record the debts admitted under the scheme, and before the start of the winter session the judges announced that they would devote most of the month of November to hearing applications from debtors.393 Nevertheless, in January 1657 the council of state received a letter written on behalf of ‘many noblemen, gentlemen and citizens of Scotland’ complaining that ‘little or no progress’ had been made towards implementing the scheme ‘through an expectation that some alteration may be made by the Parliament in that matter’.394 Although little use had been made of the protector’s order in the summer session of 1656, it had been reported in early September that it ‘made much clamour’.395 At a meeting of the royal burghs a few days earlier notice had been taken of ‘the great danger, los, and prejudice which the whole natione, and particularlie the estait of burrowis, ar lik undoubtedlie to sustean if his Hienes lait act, entitulat “Ane Act in Favouris of Debitouris”, sall not be recalled or at leist much qualified’.396 The men elected to represent the burghs in the parliament of 1656 were instructed ‘to use all legall and lawfull meanes for recalling the said act’, and in particular were asked to take advice from the ‘best advocatis’ on how ‘to draw up ane petition to his Hienes counsall to hinder and stop the procedour of the saidis debitouris’. One of those elected to represent the burghs was himself an advocate, but nothing appears to have been done before the parliament opened on 17 September. After the judges announced that they would ‘spend the whole moneth of November nixt’ in hearing petitions from debtors, the burghs sent their representatives at Westminster ‘instructionis and reasones for stoping and hindering the procedour of the saidis judgis’. At the end of November the burgh council of Edinburgh, ‘taking to consideratioun the great danger that this brugh is in if the act in favoris of debitouris sall stand in force’, concluded that a fund would have 392 393 394 395 396

Nicoll, Diary of Public Transactions, p 180. Livingstone 1905, p 91; Nicoll, Diary of Public Transactions, p 184. Acts of the Parliaments of Scotland, vol 6(2), p 762. Baillie, Letters and Journals, vol 3, p 317. Records of the Convention of the Royal Burghs, vol 3, pp 492–32, 433–5 and 438–9.

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The Reform of the Common Law 165 to be raised ‘for prosecutioun of the bussines from all such nighbouris of this brugh as have money adebted to them be band’.397 Meanwhile the representatives at Westminster had tried to reach a settlement with the representatives of the debtors, had reviewed some proposed modifications to the current scheme, but had decided on ‘the advyce of certan lawers’ to break off the negotiations and await the parliament’s decision. On 22 January 1657, in response to the letter written on behalf of the debtors and aware that the scheme now had less than three months left to run, the council of state sent a letter to the judges in Edinburgh ‘to quicken them to the speedy and effectual execution thereof’. The burghs then agreed that if the judges showed any interest ‘in putting of the saidis actis betwixt debitor and creditor to any farder execution’, they would, ‘by the advyce of thair best laweris, mak appellatione frome them to the hie court of parliament’. The protector’s order expired on 14 April 1657, but for the next year the judges had to deal with suspensions of horning and caption granted under it. On 4 July 1657 they revived an act of sederunt passed by ‘their predicessors, the late Lords of sessione, to prevent and suppress the needless trouble and expenses of the people whereunto they are putt by cruell creditors against their debitors only out of malice and purpose to take unjust advantage of them’.398 The original design of the act had been to end ‘the great Abuse’ of creditors who reacted to suspensions by assigning their claims to others so that the assignees could force the debtors either to pay or to incur further ‘Charges and Expences’ in obtaining additional suspensions.399 By recalling that an act had already been passed providing for suspensions granted against creditors to be effective against their assignees, the judges prevented debtors who had obtained suspensions under the protector’s order from being pursued by new creditors without the benefit of the order. On 31 January 1658 they went even further, issuing detailed guidelines on how they would deal with suspensions obtained under the order and indicating that in view of the ‘universall penurie of money, quherby many persones are disabled to satisfie their creditors’, they would ‘in singular caices, where the debitor is not able to satisfie and the creditor is not in necessity’, grant further ‘suspensions of personall executione, for such tym as they shall finde expedient’.400 This was only to apply where a suspension had already been granted under the order and ‘untill farder course be taken theranent’, but the judges were at last showing some initiative, and they promised in addition ‘to offer a bill or act to be past in parliament’. Significantly, however, when the burghs proposed after the court stopped sitting in 1659 that the government be urged to revive the administration of justice, one of the reasons why this proposal was opposed by the nobility was their fear that they would again be exposed to the suits of their creditors without the benefit of any form of equitable relief.401 Despite repeated 397

Records of the Burgh of Edinburgh, vol 5, p 43. NLS, Adv MS 25.2.5(i), f 312. 399 Acts of Sederunt (1740), p 19. 400 NLS, Adv MS 25.2.5(i), ff 319v–21r. 401 Nicoll, Diary of Public Transactions, p 272; Pitilloch, ‘Scotland Mourning’, pp 8–9; Lauderdale Papers, vol 1, p 9. 398

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166 The Interregnum Court encouragement from the military and civil governors of Scotland, the commissioners for the administration of justice had proved reluctant to dispense with the letter of the law, to mitigate the rigour of captions, or to moderate their decrees.402 They had only ever acted on orders received from the protector and council of state, had expected the initiative to be taken by parliament, and had been slow to interpret the words equity and good conscience in their commissions as an invitation to follow their own notions of justice and fairness.

Lawrence’s recollections of his judicial experience One of the judges sent to Scotland in 1653 to replace March and Owen also acquired a reputation as a writer, though not until long after the Interregnum, when he published no more than a couple of broadsides in a dispute over land on the border of Dorset and Somerset. William Lawrence’s father had been granted a lease of a farm at Wraxall by Sir John Stawell, who afterwards served as a royalist commander during the Civil War.403 Near the end of the war in 1646 Stawell surrendered his command under the terms of the ‘Exeter Articles’, which allowed him to recover his liberty and estates on payment of a penalty. However, for refusing to recognise the authority of parliament he was charged with treason, and when his estates were advertised for sale in 1651 by trustees appointed by the Long Parliament, Lawrence took the opportunity to buy the freehold of the land he had inherited under lease.404 Two years later, after Stawell had negotiated his release from prison, he petitioned Barebone’s Parliament to respect the terms of the ‘Exeter Articles’ and restore his estates to him.405 The purchasers replied, the dispute was debated on several occasions during the summer, and commissioners appointed to review the articles of war found that Stawell was entitled to his property. Nevertheless, it was resolved by parliament that ‘the Purchasers of Sir John Stowell’s Estate shall quietly possess and enjoy the same, according to their several Contracts made with the Trustees’, and on 13 October 1653 an act was passed to this effect. In 1654 Stawell managed to reopen the debate.406 Replies were again received from the purchasers, among them the Petition of William Lawrence of 402 This is not to suggest that equitable decisions were never given in extreme or singular cases. See, eg, NAS, CS 7/557, ff 331v–3r, where ‘mitigatione of the rigour of creditors’ was granted in favour of a debtor who was ‘a verie poore man and alltogither deaff and had nothing whereupon to maintein himself, his wyf and bairnes, and was most willing, if God sould bless him with meanes, to satisfie his creditors’. It was alleged here to be the ‘daylie custome’ of the court to release ‘poore debtors’ from prison ‘out of clemencie and mercie’. 403 Stephen and Lee 1885–1901, vol 54, pp 120–21; Underdown 1973, pp 159–60; Woolrych 1982, pp 302–4. 404 Acts and Ordinances of the Interregnum, vol 2, pp 520–45. 405 Calendar of State Papers (Domestic Series), 1649–60, vol 5, p 351; Journals of the House of Commons, vol 7, pp 262, 296, 301, 310, 319, 328 and 334; Somers, Collection of Scarce and Valuable Tracts, vol 6, pp 32–6; Humble Remonstrance of Sir John Stawell. 406 Journals of the House of Commons, vol 7, pp 380–82 and 384; Calendar of State Papers (Domestic Series), 1649–60, vol 7, pp 162 and 168; Humble Petition of Sir John Stawell.

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The Reform of the Common Law 167 Edinburgh, and Reasons for the Establishment of Publike Sale, which was believed to have been written by the same author.407 Lawrence complained that he was bound to be at a disadvantage in a dispute at Westminster while ‘imployed in his Highnesse service in Scotland’, but he placed great faith in the act passed in 1653, ‘which if permitted to be questioned, there can be no end to controversie’. At the establishment of the Protectorate regime later in 1653, he emphasised, Cromwell had undertaken ‘to confirme the securing property, and to Governe therein according to the Laws, and Statutes, the benefit whereof your Petitioner doth claime’.408 Although Stawell was able to respond by pointing out that the protector had also undertaken to respect the articles of war, Lawrence succeeded in retaining the estate he had bought with parliamentary approval.409 Whether he was at this stage more generally committed to the security of property under established law or to the sovereign determination of disputes by parliament is hard to tell. Twenty-five years later, shortly before he died at Wraxall in 1681, Lawrence sent to the press the three works on which his posthumous reputation as ‘a man of parts and considerable reading’ rested.410 The largest was a treatise of over four hundred pages entitled Marriage by the Morall Law of God, which actually dealt more broadly with ‘Two Grand Questions concerning Marriage, Filiation, Aliment, and Succession’.411 The first question was ‘by what Law’ disputes in these areas should be governed, the second ‘by what Judg’ they should be determined. The answer to the first was hinted at in the title of the book and again in the preface, where Lawrence claimed that these areas had originally been governed everywhere by the moral law of God—the law of nature written in the hearts of men and restated in the Bible—until ‘the Devil and the Priest conspired together to set up the Golden calf of their Ceremonies’. The English Reformation had arisen from a dispute over marriage and Lawrence hoped that a new dispute over marriage might afford an opportunity ‘not only to break all the Reliques of the Chains, but to file off the Collars themselves, whereby the Bishop of Rome, and the Provincial Bishops, have long so garled the Necks of Princes and People through all Christendom’. Although it was believed at the end of the seventeenth century that Lawrence’s treatise had been ‘written upon a discontent arising from his wife (a red-hair’d buxom woman) whom he esteem’d dishonest to him’, this remark in the preface suggests that it had at least assumed a broader significance by the time it was printed in 1680.412 ‘By the Interruption of the Press’, he noted at the end, ‘I am compell’d to break off this Book abruptly’.413 An act of parliament requiring all 407

For the attribution see An Answer of the Purchasers of the Lands, Late of Sir John Stawell. Acts and Ordinances of the Interregnum, vol 2, pp 813–22. 409 Vindication of Sir John Stawells Remonstrance, pp 56–80. 410 Wood, Athenae Oxonienses, vol 4, cols 62–3. Lawrence is sometimes credited with the translation of Ferrante Pallavicino’s The Heavenly Divorce that appeared in 1679, but Aylmer 1961, pp xxi–xxii, argues persuasively that it was the work of another writer of the same name. 411 Marriage by the Morall Law of God, sig A2 and pp 1–2. 412 Wood, Athenae Oxonienses, vol 4, col 62. 413 Marriage by the Morall Law of God, p 422. On the interruption of the press see Crist 1979, and on the licensing system more generally see Feather 1988, pp 50–63. 408

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168 The Interregnum Court books published in England to be licensed had expired in 1679, leaving printers with greater freedom than they had enjoyed since the Interregnum. When books and pamphlets began to appear arguing that the king’s Catholic brother should be excluded from the succession to the throne in favour of his Protestant son, the illegitimate duke of Monmouth, a series of attempts was made to restore control over the presses, hampered by the strength of the growing opposition at Westminster. One of these attempts forced Lawrence to end his book on marriage when he was only half way through dealing with the second of the two questions he had raised, but in 1681 he was able to publish another book dealing with a third question. In his Right of Primogeniture he claimed to answer the question ‘who is next Lawful Heir to the Crown’ by deducing a further conclusion from those he had reached in his first book.414 As a pamphlet he published later in the same year confirms, at least one of his aims in writing these books had been to participate in the exclusion debate on the side of the duke of Monmouth.415 When properly judged, he insisted, Charles II’s relationship with his mistress Lucy Walter would be recognised as a valid marriage and their son would be recognised as the lawful heir to the throne. Although published twenty years after the Interregnum—when Stair’s treatise was printed rather than when it was written—Lawrence’s books are of interest for present purposes because they contain many retrospective reflections on his period of judicial service in Scotland. He was generally in favour of a closer union between England, Scotland and Ireland, believing that ‘the late Bloody Intestine Wars’ might have been avoided had James I’s proposals been followed through and that future conflict might be averted if the parliamentary union of the 1650s was reinstated.416 In the first half of the century a major obstacle to closer union had been the opposition of lawyers to ‘a Reformation of Laws for Britannia’, but Lawrence considered it sheer ‘Pedantry’ to complain that England and Scotland had different laws when all that was required to treat them as the laws of Great Britain was an alteration of ‘Style’.417 The alterations in procedure and substance that had in fact been made during the 1650s all struck him as being worthy of replication.418 The commissioners for the administration of justice had ‘found by experiment, that far more exact Justice was done by Salary, than ever any was done by Fees’, and he could see no reason for lawyers to employ the ‘Exotick Gibberish’ of Law French or Latin apart from a desire for ‘filthy Lucre’. It had been proved that fewer judges were required in the courts than were customarily appointed, ‘for there were but four English Judges sent into Scotland, and sometimes there were but three, and sometimes but two there, the other serving in Parliaments, as they fell out and occasion required, and we discharged all the offices of Lords of 414

Right of Primogeniture, sig A2. Furley 1957, p 21; Knights 1994, p 162; Nenner 1995, pp 138–40. 416 Marriage by the Morall Law of God, pp 335–45. 417 In 1604 it had been argued that a change in style would necessitate a change in the laws themselves (Galloway and Levack 1985, pp xx–xxii; Galloway 1986, pp 20–1; Levack 1987, pp 38–9). It is not clear whether Lawrence meant to dispute this point or to encourage a reformation of the laws. 418 Marriage by the Morall Law of God, pp 63, 254, 262–3, 275–6 and 282–3. 415

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The Reform of the Common Law 169 the Session, Lords of the Exchequer, and of the Justitiar General’. It seems that for Lawrence the Scottish judges had been subservient to the point of irrelevance, yet he did appreciate that it was certain features of the local court procedure that had enabled the English judges to function so effectively. ‘Now that which made it possible to us to Discharge so many Courts, Offices and Commissions’, he maintained, ‘was that we were saved the labour of having Causes tossed and tumbled from Chancery to Common Law, the Chancery and Common Law being there united, and Pleas of Equity admitted in the same Court, and there being no Juries in Civil Actions, the same Persons were Judges of Fact, Law and Equity’. This does not appear to have meant that the judges had felt free to depart from the letter of the law. Lawrence did not, for instance, think it right to imprison debtors, and he recalled that the judges had often been urged by the army commanders to be lenient, yet what he did not recall was any heed being paid to the requests the judges received.419 To answer the first of the questions he had raised Lawrence began by arguing, with reference to a wide range of sources, that disputes over marriage, paternity, aliment or succession ought not to be governed by the Mosaic, Islamic or pagan laws, or even by ‘the laws Civil, Canon, or Feudall’.420 Although the texts in the Corpus iuris civilis had ‘a multitude of excellent Laws of Nature scatter’d through the great Mass of them’, they were excessively numerous, ‘and the Evil Laws which increase it to that greatness in number, overwhelm and in Nature destroy and make useless the Good’. As for the texts in the Corpus iuris canonici, ‘they are likewise many of them wicked, and contrary to the Law of God’, while the law founded on the Libri feudorum was notorious for the ‘oppression and servitude in it’. Having expressed these views, Lawrence proceeded predictably to give a negative answer to the question raised in his next chapter, ‘Whether Marriage, Legitimation and Succession ought to be judged by Ecclesiastical Laws’.421 ‘No English lawyer can mention my Lord Coke without great honour’, he declared, ‘but how he came so biass’d as to endeavour to set up Papal and Episcopal Laws under the name of Regal, appears not’. What Coke had written about the canon law received in the church courts forming the king’s ecclesiastical laws of England seemed inconsistent with what he had written about the resistance of English law to foreign influence.422 Moreover, ‘that custom or use of Civil or Canon Laws or Precedents, doth not make [the] Civil or Canon Law the Law of England, appears by the use of Sentences of Philosophers, and Poets, and Precedents of Historians’. While these too appeared frequently in the records of the law, no one imagined that their use in legal argument made them ‘to be the Law of England, or obligatory to the people of England’. No one imagined that the teaching of a philosopher, poet or historian 419 The local practice of releasing ‘Prisoners that are Poor and unable to pay’ on grounds of ‘Humanity and Mercy’ was mentioned as something quite distinct from the proposed relief of noble debtors. 420 Ibid, pp 1–31. 421 Ibid, pp 31–64. 422 Reports of Sir Edward Coke, pt 3, f xiir, pt 5, ff i–xli, pt 6, f iv, and pt 8, p xiv.

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170 The Interregnum Court could form part of the law unless it was ‘selected from the rest, and inacted, or confirmed by Act of Parliament’, and Lawrence believed that by the same token the civil, canon and feudal laws had been taught in the universities only so that legislators could ‘make use thereof at their discretion’. A particular text extracted from the civil, canon or feudal laws might be found to be ‘conformable unto the Law of Nature’, but there was a vital difference between ‘a Right, and a Law: for a Right still without command respecteth nothing but that which is good and upright; but a Law importeth Commandment; for the Law is nothing else but the Commandment of a Soveraign’. Lawrence did go on to concede that laws could be established by custom, but he pointed out that a wicked custom, ‘being malus usus, is of it self void, and were it never so long used, can never grow to have the obligation of the Common Law, or to be thereby the Common Law’. In his next chapter he followed this up by arguing that issues of marriage, paternity, aliment or succession ought ‘not to be judged by such Laws of England, Scotland, or Ireland, as are Reliques of Popery, and contrary to the Laws of God’.423 He assumed here that England and Scotland had separate laws, and throughout his book he drew comparisons between the two systems, usually deriving his information on Scots law from the printed works of Skene and Craig, though also from later acts of the Scottish parliaments and in one instance from the unprinted practicks of Sir Robert Spotiswoode. However, he also gave the impression in this lengthy chapter that the laws of England and Scotland were related in much the same way as the laws of England and Ireland, and he frequently took issue with ‘the English and Scotish Ecclesiastical and Common Lawyers’ as if they were all concerned with the same law.424 At one point he tried to reconstruct from memory a case that had been heard by the Scottish court in February 1659, just days before it stopped sitting.425 The eldest daughter and heiress of the earl of Buccleuch had married a teenage boy who was far beneath her in status but had the merit of sharing her family name. The guardians of the heiress—led by Sir John Scot of Scotstarvit—objected that the marriage, although ‘consumated by the usual publick Ceremonies, and by carnal knowledg’, must be invalid since the bride was only eleven years old. The judges interrogated the heiress, who claimed to have married willingly and to be committed to her husband, then concluded that she must be considered free to marry someone else unless on reaching the age of twelve she chose to be married to the boy. ‘This Sentence was right’, Lawrence commented, ‘if you admit the Common Law, that great Popish Idol, which is worship’d through the three Kingdoms, to be the Law of God’. In his view, however, it had meant following ‘the wicked Canon Law’, which had here become the common law of both England and Scotland, in tempting the girl to desert her natural hus423

Marriage by the Morall Law of God, pp 64–130. The phrase is quoted from his Right of Primogeniture, p 107. 425 Marriage by the Morall Law of God, pp 91–3. For an illuminating discussion of this cause célèbre and its background see Lee 1996, pp 31–43. Though he did not say so, Lawrence must have known that the case was closely connected with his central concern, for in 1661 the girl it involved had died and her title and estates had been inherited by her sister, who in 1663 had married Monmouth. 424

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The Reform of the Common Law 171 band. In a later passage he referred again to ‘Law’ in the singular in taking issue with ‘the two famous Fathers of the Law of England and Scotland, Coke and Skene’, over the etymology and significance of the term bastard.426 By exposing the errors of these two authors, Lawrence asserted, ‘I shall answer all the Law of the highest repute in Great Britain, and with the same stroke overthrow all the Bastard-Law of Lawyers, and Bastard-Divinity of Bishops, in the three Kingdoms’. Coke and Skene had adopted the opinions of lawyers and legislators who had lived ‘in the times of the highest Popery and Superstition’, embracing the doctrine of the canon law ‘which punisheth the innocent Child before it can speak for the sin of the Parents’. Lawrence considered it ‘strange that Men who profess Law and Justice, should not be ashamed of so gross and repugnant absurdities’. As he confirmed in the final chapter of the first part of his book, he believed that the true measure of justice was the law of God and not any law of men, however commonly it might be approved. ‘Having before shewn unanswerable exceptions against the Ecclesistical Laws, by which Bishops pretend to judg’, Lawrence announced in opening the next part of his book, ‘I shall now propose exceptions Declinatory of the Authority and Jurisdiction usurped by them’.427 In the first part of his book he had objected especially to the law applied in the church courts of England, and in the second part his primary objective was to condemn the jurisdiction of the bishops, but in doing so he made it clear that he found the common law generally objectionable, and his intention was to contest the authority of civil as well as ecclesiastical courts. He complained that arguments about justice and fairness were ‘clean Excluded out of all Common Law Courts, because to Judg by Formalities is more profitable, and raises more Contentions than the Merit or Equity of the Cause’.428 The original writs on which the common law was based made the success or failure of actions depend on procedural formalities which lawyers had a vested interest in emphasising at the expense of the substantive merits of a case. ‘That there is an intolerable defect in Writs to supply Justice to the People appears in this’, Lawrence wrote, ‘that though all Originals come out of a Court which intitles it self a Court of Conscience and Equity, yet there is not one Writ or Remedy a particular Case of either’. No action initiated by a writ was ever handled as ‘a Case of Conscience or Equity arising from the Moral Law of God, but all fall down and worship the Themis or Great Idol of the Ceremonial Law of Man, of Livery and Seisin, Fines, Recoveries, Inrollments, Writings, Seals, Forms and Entries, Forms of Pleading, Forms of Words, Fictions, and the like, which are not able to give a Right to the least foot of Land or handful of Goods, nor any other Law than the Moral Law of God’. As Lawrence saw it, the problem was not simply that the common law courts used writs that were badly drafted, or that they handled them in an excessively technical manner. The problem was that ‘Writs are finite, and Cases of Equity 426 Marriage by the Morall Law of God, pp 145–56; Coke, First Part of the Institutes, f 244r; Skene, De verborum significatione, sig I2r. 427 Marriage by the Morall Law of God, p 137. 428 Ibid, pp 311–29.

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172 The Interregnum Court infinite, and not to be put in Writs, or written, except by God, in the Fleshly Tables of the Heart, and in the Spiritual Tables of the Soul it self, and Conscience’. Lawrence had been pleased to discover that the Scots had freed themselves from the constraints of a version of the writ system, and he remained impressed with the relative lack of technicality in their court procedure and their method of pleading. ‘I must acknowledg and testifie to the Honour of their Form of Judicial Proceedings’, he remarked at one point, adding shortly afterwards that their pleadings were ‘of excellent use’ and that their procedure demonstrated ‘the Prudence of that Noble Kingdom, where the People enjoy so great Justice with so little Cost and Contention’.429 Yet even the Scottish system struck him as being unduly formalistic. The purpose of the second part of his book was to show that disputes over marriage, paternity, aliment and succession should be judged neither by church courts according to ecclesiastical law, nor by civil courts according to the common law, but either by parents—where they concerned families—or by parliaments—where they concerned the three kingdoms—according to the moral law.430 It was clearly the moral law that Lawrence regarded as the only reliable guide to the handling of issues of equity and conscience, and he clearly wished these issues to be addressed directly and not from the peculiar perspective of the trained lawyer. It does not follow, however, that he must have read the words ‘equity and good conscience’ in the commission he received as a judge in Scotland as an invitation to decide cases on the basis of his understanding of the moral law. Objecting at one point to a defect in Scottish court procedure, he admitted that he had himself adhered to the procedure, partly because it was prescribed ‘by Act of Parliament made in time of Popery, which we had no power to alter’, and partly because he considered ‘that kind of Justice better than none at all’.431 His reminiscences of his time in Scotland give the impression that he had been used to applying the law of Scotland on the assumption that it had much in common with the law of England, and he was not averse to arguing like a lawyer. In his Right of Primogeniture he sought to demonstrate that Monmouth was entitled to the throne ‘both by the Law of God, and of the Land’, indicating in his preface that he would argue in the way that ‘Council’ argued in the courts.432 He began by rehearsing the terms of several statutes enacted by the parliaments of the three kingdoms and he devoted a great deal of his time to questions of statutory interpretation, distinguishing between the equity and the letter of acts and applying the familiar maxims that favores sunt ampliandi and ubi lex non distinguit, ibi nec nos distinguere debemus.433 At one point he referred to Skene’s notes on a Scottish statute, concluding from the perceived parallel with the treatise ascribed to 429

Marriage by the Morall Law of God, pp 283, 288 and 304. Right of Primogeniture, p 38. Since he had not completed his first book, his conclusion was never spelled out there, though it was adumbrated in the table of contents. 431 Marriage by the Morall Law of God, p 270. 432 Right of Primogeniture, sig A2v. 433 See, eg, ibid, pp 26 and 95. 430

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The Reform of the Common Law 173 Glanvill that it also recorded ‘the unquestionable Law of England’ and accepting Skene’s claim that it had in substance been lifted ‘out of the Civil Law’.434 What Lawrence did not spend much time on in his second book was the question of the inherent justice of primogeniture. He was aware that George Buchanan—‘the most Excellent Historian and Statist that ever writ in the Isle of Great Britain’— had described the rule of primogeniture as an expedient departure from the ‘Ancient Fundamental Laws’ of elective monarchy.435 In the pamphlet he published in 1681 Lawrence conceded that this was indeed the case and argued entirely in terms of ‘the Positive Laws of Great Britain’.436 If the moral law could be taken to establish that Monmouth was entitled to succeed to the throne, despite being illegitimate under the positive law of marriage, the positive law of succession could be taken to establish that he was entitled to succeed to the throne to the exclusion of his uncle.

Framing a book of equitable laws In 1681 Lawrence’s central aim was to persuade the parliament sitting at Westminster to enact a further positive law confirming Monmouth’s right to the throne. Whether or not he still believed that this right could be established on the basis of natural law, he had made it clear in his earlier book that he considered right and law to be distinct from each other. Questions of right were to be answered in accordance with the moral law, possibly as restated in the civil, canon and feudal laws, whereas questions of law were to be answered in accordance with the imperatives of sovereign legislators. Lawrence favoured the enactment of statutes by parliaments, but he also talked about courts of conscience and equity issuing decisions in accordance with the moral law of God. He appears to have shared the view expressed by Lord Ellesmere in the postnati case that judges sometimes needed to behave like legislators in fashioning solutions to new problems from natural equity.437 It does not seem to have been Lawrence’s view, however, that judges were actually in the habit of doing this. On the contrary, one of his complaints was that even the English judges who sat in specially designated courts of conscience and equity were inclined to follow the reason implicit in human law. In the early years of the Interregnum, radical advocates of law reform had often objected to the use of human law when a divine model was available in the Bible, but the effect of their objections had largely been to discourage even moderate law reform under the Protectorate. Moderate advocates of reform like March had criticised the procedural deficiencies of the chancery, but if anything their proposed response of having courts of law handle questions of equity would have had the 434

Ibid, ff 1r–2v, citing Regiam maiestatem (Latin edn), pt 1, ff 51v–2r. Right of Primogeniture, f 15r, citing Buchanan, History of Scotland, vol 1, pp 306–9. On attitudes towards elective monarchy in the exclusion debate see Nenner 1995, pp 104–5. 436 Two Great Questions, p 6. 437 Ellesmere, ‘Speech of the Lord Chancellor’, pp 215–27, 238–9 and 247–9. 435

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174 The Interregnum Court effect of making equity follow the common law more closely still. In Scotland, questions of equity had always been handled by a court of law, and it may be significant that Lawrence later found much to admire in the procedure of the session. More will be said about his views on Scottish court procedure in the final chapter of the present volume, where the relevance of the pleadings in which the advocates urged the judges to apply ‘equitie and conscience’ as opposed to ‘law and practique’ will also be examined further. But for the moment the most significant feature of Lawrence’s recollections would seem to be that he did not at any stage refer to the commissioners for the administration of justice as an example of judges who had decided cases in accordance with the moral law of God. Had the words ‘equity and good conscience’ in the judges’ commissions been construed as an invitation to decide cases on the basis of natural equity he would surely have pointed this out. Instead, he gave the impression that the judges had been slow to depart from the letter of the law of Scotland and that when they did consider the reason behind the law they assumed that it was at least similar to the reason implicit in the common law of England. The reluctance of the judges to depart from the letter of the law was consistent with the priorities of the Protectorate regime, but after the death of Cromwell in 1658 both moderate and radical proposals for law reform returned to the political agenda.438 In the following year a large number of pamphlets appeared urging the Long Parliament to adopt the proposals for reform that had been made when it last sat in the late 1640s and early 1650s.439 The fusion of law and equity was recommended again, as was the abolition of imprisonment for debt, the introduction of a system of land registration, the distribution of jurisdiction among tribunals in the counties of England and Wales, and in general the enactment of measures that would be ‘more agreeable to the rule of Scripture and to humanity, then the Law now in being’. Most writers recommended a simplification of the law, which seemed to have been complicated for the sole benefit of lawyers, ‘a Mercenary corrupt useless generation of Men, who are worse then the Egyptian caterpillars, for they devour not onely the green leaves, but hundreds of poor Widows, Fatherless [children], and Orphans’.440 Some writers went further and called for the ‘root and branch’ replacement of the existing law with ‘the Laws, Statutes, and Judgments ready offered them from God’, for they wondered ‘whether it be not better to be governed by a Law which every Child knowes, then by Laws which all the wise Lawyers, Serjeants and Judges of the Land know not’.441 ‘The written Word of God’, according to one of these writers, ‘is the perfect Systeme or Frame of Laws, to guide all the Moral actions of Man, either towards God or man: the Application whereof to every Case according to its circumstances, must be by the 438

Veall 1970, pp 95–6; Woolrych 1972, pp 193–5; Shapiro 1975, p 292. James Frese, Outcry and Just Appeal of the Inslaved People of England; William Gery, Proposals for Reformation of Abuses; George Gregorie, Bakers-Dozen of Plain Down-Right Queries; Honest Design; Long Parliament Work; Speculum libertatis Angliae, pp 10–13; Modest Plea, pp 73–5. 440 William Cole, Rod for the Lawyers, p 16. 441 Peter Chamberlin, Legislative Power in Problemes, pp 2–3. 439

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The Reform of the Common Law 175 wisdom and discretion of the Judges, guided by the light of Scriptures, and a pure Conscience’.442 Other writers, especially those who were lawyers, were more inclined to wonder ‘whether it would not be better to regulate the law in such proceedings as may appear oppressive, then by a sudden alteration of the whole, to amaze the Nation, and put them to great trouble to know how to gain their right’.443 One of these writers conceded that the moral law of God ‘should be the Land-mark, Rule, and End of all Laws’, but pointed out that the common law of England represented the gradual elaboration of divine law in relation to the peculiar circumstances of the English people, suggesting that what was required was the reduction of the law to the ‘very brief method’ proposed by Francis Bacon.444 A consolidated edition of the acts of parliament needed to be compiled, and the rest of the law needed to be set out in a book of ‘Institutions; a Treatise de regulis iuris; and a better book, de verborum significationibus’. The reduction of the law to a ‘Model’ also appealed to others, as did the creation of ‘one Law’ for the whole ‘Island of Great Britain’. Proposals for law reform and legal union were again considered together by the parliament at Westminster.445 The English interest in law reform, and particularly the interest in composing a new system or body of law, would have been easily understood in Scotland where, as has previously been noted, many attempts had been made to have a corpus iuris Scoticani drafted and enacted. The last attempt had in fact been made as recently as 1649, when a commission including James Hope and Archibald Johnston had been appointed by parliament with instructions to ‘collect, draw up and compyll ane formall modall and frame of a buik of Just and equitable lawis to be established and authorised’.446 There was nothing unusual about the instruction issued to the commissioners to examine ‘all the lawis, statutes and actis of parliament’, ‘all the consuetudes and practises of the kingdom whilk have had the force of lawis’, and ‘the Old registeris of the buik called Regiam maiestatem’, nor was it a departure from past experience for parliament to have envisaged the enactment of a ‘perpetuall Law in all tyme cumeing’ or a ‘perfyte rule for adminsitratioune of Justice in all causses befoir all Judicatories’. What was perhaps more novel was the call for ‘a constant, certane and knowne modell and frame of Law according to equitie and Justice’, for these words were enacted by a peculiarly radical assembly which passed several other acts for the express purpose of drawing the law of Scotland into line with the law of God.447 It was the same assembly that Sir John Scot had persuaded to pass an act in favour of the tenants of kirklands by arguing that their cause was well founded both in the existing law and in ‘good conscience and 442

John Eliot, Christian Commonwealth, p 35. Secret Word to the Wise, pp 3–4; Loyal Queries, p 4; Eight and Thirty Queries Propounded, p 7. 444 Vindication of the Laws of England, pp 4–6 and 12–14. Cf Shapiro 1980, pp 350–58. 445 Englands Safety in the Laws Supremacy, pp 16–17; Chaos: or, A Discourse wherein Is Presented a Frame of Government, p 5; EB, A Mite of Affection, p 10; Whitelocke, Memorials of the English Affairs, vol 4, pp 349 and 355; Journals of the House of Commons, vol 7, pp 734–6 and 744–5. 446 Acts of the Parliaments of Scotland, vol 6(2), pp 299–300. 447 Stevenson 1977, pp 129–45; Makey 1979, pp 75–81; Young 1996, pp 215–61. 443

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176 The Interregnum Court equitie’.448 Although he did not explain precisely what he meant by this expression, Scot would presumably have been thought to be using the distinction familiar to the 1649 parliament between ‘the Law and practik of this kingdome’ and ‘the Law of God’, or between ‘the Loveable constitutiounes received within this kingdome’ and ‘the will of God reveilled in his Word’.449 The devout members of the 1649 parliament legislated when they felt ‘convinced in their consciences from the word of God’ that they should do so, and they believed that decisions ought similarly to be delivered in the courts by ‘men of knowne affectioun unto and of approven integrity in the cause of God, and of a blameles and Christiane conversatioune’. James Hope and Archibald Johnston, and also Alexander Pearson and Alexander Brodie, had been among eight new judges and three new clerks installed in the session when legislation was passed for ‘purgeing the judicatories’ of members who could not be trusted to follow their consciences.450 Scot later claimed that the argument he had put forward in 1649 was consistent with the lesson Stair had presented before the lords of session in 1648, when he had invited the judges first to resolve the issue in terms of the law and then to consider it in terms of equity and expediency, as if it had never been considered before in a court of law. Stair had presented the lords of session with a reading of the Libri feudorum, backed up by learned references and a description of the customs of Scotland and France, but he had also drawn their attention to Aristotle’s natural philosophy and to Cicero’s maxim that salus populi est suprema lex. Having left his university office as a teacher of the arts just two years earlier, and having been in legal practice for just one disrupted year, he too had been appointed to the law reform commission of 1649, presumably on the strength of his philosophical expertise rather than his legal experience. The possible influence of this appointment on his later writing will be examined closely in the next volume in this series, but it should be recognised here that he may have been encouraged to write in the way that he did by the unfulfilled desire for ‘a buik of Just and equitable lawis’. At least at first glance, his method of writing bears some resemblance to the method adopted for the fashioning of a new body of law in Barebone’s Parliament, where the committee to which James Hope belonged was said to have proceeded by ‘reducing the severall Laws to their proper heads’ and by then ‘modelizing or imbodying’ them, ‘taking knowledge of the nature of them, and what the Law of God said in the case, and how agreeable to right reason they were’.451 That Stair’s book could occasionally have been called his ‘Systema iuris’ or ‘Body of the Scots Law’ suggests that he may have shared some of the assumptions and aspirations of the advocates of law reform in England during the Interregnum.452 Through his contact with Hope and Johnston, and with March and other English judges like 448 ‘Scotstarvet’s “Trew Relation”’, (1914–15), p 81. This is the only evidence that he used the phrase. 449 Acts of the Parliaments of Scotland, vol 6(2), pp 144, 161, 173 and 207. 450 For the court’s own endeavours to reform its practices at this point see Acts of Sederunt (1740), pp 20–5. 451 Exact Relation of the Proceedings and Transactions of the Late Parliament, p 17. 452 EUL, La III 417; AUL, MS 2097; NLS, Adv MS 24.4.1.

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The Reform of the Common Law 177 Lawrence, he would almost certainly have known about the proposals made in the late 1640s and revived in the late 1650s, when he started to work on his book. The revival of these proposals may possibly have encouraged him to return to the project initiated by the 1649 parliament in Scotland and to compare the established law with the word of God, using his philosophical learning as a means of filling out the detail of the law of nature and right reason restated in the Bible and thus showing how a body of just and equitable laws could be fashioned for Scotland. It is also possible that Stair was encouraged to write like this by his early reading on Scots law. Both in the lesson he delivered in 1648 and in the book he started to write around 1658, it has already been suggested, he followed the example of Craig in deducing all the topics he handled from their originals. Craig had explained in the long historical introduction to his Ius feudale how disputes that had at first been settled in accordance with ‘a sense of natural equity’ had gradually come to be governed by law, dealing in particular with the rise of the civil, canon and feudal laws and with the spread of the feudal law across Europe into England and Scotland. When he had turned at the end of his introduction to an account of the law currently in use in Scotland he had started by affirming that ius naturale should always have the ‘first place’ in any enquiry and that ‘against this law neither statute of the realm, nor prescription even for a very long time, nor custom has force’.453 Similarly he had observed that ius gentium, which was deduced from the innate precepts of ius naturale, was followed in disputes involving foreigners ‘notwithstanding any statute of the realm’, and in disputes involving Scots in the absence of ‘a special law or statute’. It was in these cases, he had earlier noted, that use was made in Scotland of the civil law as a ‘threshing floor of natural equity’, as a source of tried and tested solutions to problems which could be adopted wherever they were ‘congruous with the laws of nature and right reason’.454 Some interpreters have taken these remarks to indicate that Craig regarded the civil law as an instructive restatement of ius naturale et gentium, that he advocated use of the civil law a means of turning from law to natural equity, and that when he talked about the unification of the laws of Scotland and England through recourse to their shared origins what he had in mind was a return to the equitable foundations of all laws.455 It is not entirely clear how this should be understood. One possibility is that Craig is taken to have believed that the civil law was binding everywhere to the extent that it amounted to an accurate restatement of the laws of nature, though this would have depended on a theory of law that he nowhere spelled out. Another possibility is that Craig is taken to have shared the view eventually expressed by William Lawrence that the civil law was at most a guide to natural equity as opposed to law and that it could only ever be binding to the extent that it was endorsed in the decrees of a sovereign legislator. This was not a view that emerged for the first time in the 1680s. Lawrence seems then to have been 453 Ius feudale, pp 37–8. Comparison should be made with the significantly different discussion of the sources of Scots law in Craig’s De unione regnorum Britanniae, pp 84–90 and 320–28. 454 Ius feudale, pp 10–11. 455 Levack 1987, pp 79–80, and 1994, pp 217–18; Cairns 1995, pp 253–4, and 1997, pp 200–03.

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178 The Interregnum Court influenced by a book published in 1618 by John Selden in which it was observed that the civil law was seldom cited for its ‘governing autoritie’ but was used as a source of ‘reason and example’, like the writings of historians, philosophers and poets.456 Selden’s discussion of the authority of the civil law was well known in England and was directly challenged by Robert Wiseman in the book he wrote on The Excellency of the Civil Law in the late 1650s.457 Wiseman began by restating accurately Selden’s contention that in most of the countries of Europe the civil law was considered to have effect ‘as Reason, not as an introduced Law; and no farther as reason, then as Kings, Rulers, and Commonwealths will have it to prevaile within their severall Territories’. It was of course true, Wiseman readily acknowledged, that the sovereign authority of the Roman emperors and their supposed successors was irrelevant in much of Europe, and that the civil law was in most places no more than a guide to the interpretation of existing laws and the solution of new problems, followed especially by those who had studied law in the universities before they entered practice in the local courts. Yet this at least meant that the civil law was regarded as a reliable restatement of ‘the Law of Nations or common reason’ and that it had ‘grown into a common profession in this Westerne World’. If Selden had rightly observed that lawyers followed the civil law when interpreting existing laws and in solving new problems non vi necessitatis sed vi rationis, it could surely be added that this was something that ‘neither common reason nor other humane learning would enable them to do’. Arguments based on the texts of the Corpus iuris civilis were not like arguments based on the writings of historians, philosophers and poets, for when lawyers turned to these texts they did so ‘rather then to be without any Law at all, and to be subject to the mischiefs of arbitrariness, folly, and violence’. In dealing with difficult questions lawyers turned to the civil law as a kind of law, binding only for its reason, yet binding nonetheless. Wiseman went on to explain that ‘though it be nothing else but reason, that does render a man capable and fitting to discuss and pronounce upon such questions, yet it is not the vulgar and common reason that nature does bestow upon every man: but is that reason which is gotten by art and study of the Law and the rules and principles of justice, and which is improved and inlightned by a continual use, and a long experience’. It was in similar terms that Edward Coke had contrasted the ‘artificial reason’ of the common lawyers with the ‘natural reason’ or ‘natural equity’ of other men, relying on the Aristotelian assumption that cuilibet in sua arte perito est credendum to justify his conviction that new problems could and should be solved in accordance with the law.458 As Wiseman was aware, Coke had also relied on this Aristotelian assumption to justify acceptance of the canon law 456

Historie of Tithes, pp 477–81. This line of argument will be examined further below. Law of Laws, pp 138–48. Although Levack 1973, p 146, has a point in commenting on Wiseman’s reading of Selden that he ‘accepted his theory’, this tends to conceal the crucial difference between their positions. Wiseman’s intention, quite plainly, was to take issue with Selden. 458 Reports of Sir Edward Coke, pt 7(1), ff 3–4; First Part of the Institutes, f 97v; English Reports, vol 77, p 1343. 457

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The Reform of the Common Law 179 doctrines received into the practice of the ecclesiastical courts, which seemed to mean that the learning of any body of expert lawyers could be considered to carry its own authority and to enjoy the force of law. Wiseman agreed with Coke that new problems should not be solved by reference to ‘ordinary reason’, but he was not prepared to agree that there was sufficient ‘artificial reason’ among the common lawyers to deal with every case. In his view, the learning required to deal with all the new problems that came before the courts was ‘to be found no where but in students, practisers and Judges of the Civil law onely’. Coke was by no means unusual in claiming that the artificial reason of the common lawyers could solve every problem, and still less was he unusual in regarding the law of England as consisting primarily of the ‘common erudition’ of his profession.459 He was not alone either in recognising that other bodies of legal experts had formed their own traditions of learning. John Davies, as already noted, regarded the learning of the brehons as the common law of Ireland, and although it was sometimes stated that the Scots had no comparable tradition of learning, even those who made such statements tended to qualify them by adding that they had many ancient laws with ‘noe particuler warrant’ beyond their ‘havinge bene acknowledged as infallible and allowed customes and consuetudes’.460 The advocates who appeared before the English judges were not inclined to support their references to these laws by producing evidence of customary practices or previous decisions but by insisting that they were known to every lawyer as ‘Axioms never contraverted uppon’. In expressing surprise that doubts should be raised about any ‘uncontraverted custome knowen to any who knowes any thing’ the advocates assumed that the law was to some extent located in the collective memory of their profession.461 They regarded themselves as masters of a body of learning that was partly peculiar to Scotland and partly cosmopolitan, for as one advocate indicated in his pleadings, to ‘know our law’ it was necessary to ‘know the civill law’.462 It was this point that Robert Burnet sought to emphasise in his preface to Craig’s Ius feudale. He concluded his remarks by reminding his readers that ‘the Christian advocate and jurist’ would not pursue the rewards of ‘filthy lucre’ but would endeavour to secure ‘the testimony of a good conscience’ through the cultivation of ‘justice and equity’.463 Far from encouraging advocates to ground their pleadings on natural equity instead of law, however, Burnet recommended the reading of Craig’s treatise precisely because it showed how the learned sources could be used to extend the known law and to limit the need for recourse to natural equity. According to Burnet, Craig had shown how it was possible to turn arbitria into genuine iudicia by recognising the civil, canon and feudal laws as constituent components of the law of Scotland, and on this reading he had taken the same view of 459 Dawson 1968, pp 63–4; Ives 1983, pp 160–61; Baker 1986b, pp 280–81; Seipp 1991, pp 62–3; Tubbs 2000, pp 110–11. 460 ‘Manner of Judicatores’, p 268. 461 NAS, CS 7/557, f 107v. 462 NAS, CS 7/559, f 208r. 463 Ius feudale, sig B2r.

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180 The Interregnum Court the learned laws as Wiseman.464 This view differed from the view eventually taken by Lawrence and earlier expressed by Selden, but to judge from Lawrence’s reflections on his period of service in Scotland it was a view widely held in the 1650s when Stair’s thinking on Scots law was taking shape. Lawrence had no doubt that the Scots like the English had a common law. He assumed that the law of Scotland was broadly similar to the law of England, recognised that in some areas at least the common laws of Britain were derived from learned sources, and regarded authors like Skene and Craig as reliable guides to the learning that formed part of the law. The question for this book is whether Stair aimed to win recognition as a similar guide and to use the learning of his profession as a means of consolidating the law of Scotland.

464 This is of course itself no more than a reading of Burnet’s reading. It differs from the interpretation in Cairns 2000, p 105, assuming that that is meant to be consistent with Cairns 1995, pp 253–4, and 1997, pp 200–3. While the possibility that Stair’s aim was to produce a body of just and equitable laws for Scotland will be largely neglected until the next volume in this series, more will be said in the later chapters of this book about the different ways in which Craig’s account of the relationship between law and equity could be construed.

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3 The Court of Law

W

HEN ADVOCATES PRESENTED pleadings before the lords of session or the commissioners for the administration of justice they often drew attention to the old books and acts of the law, to later acts of the Scottish parliaments, to the acts of sederunt passed by the judges, to earlier decisions of the court, or to the customs of the realm. Consideration will be given to the significance and relative status of these sources in later chapters of this book, but clearly the law of Scotland was taken to be contained in them.1 To the extent that the lords of session or the commissioners for the administration of justice decided cases on the basis of these sources they would have been thought to function as a court of law. The question considered in this chapter is to what extent the judges would have been thought to function as a court of law when they determined disputes in accordance with other sources. In the last two chapters it has been seen that at least some advocates and judges regarded the civil, canon and feudal laws as in some way constituting sources of law in Scotland, whereas some writers believed that these laws provided no more than guidance on the implementation of natural equity. Particular attention has been paid to Robert Burnet’s reading of Thomas Craig’s Ius feudale as a treatise in which prospective advocates would learn how to use their knowledge of the learned laws to supplement the local sources of the law, and it has been asked whether Stair’s aim in writing could have been to emulate Craig as a learned author on the law of Scotland. This question is addressed directly in the second section of this chapter, and it is then asked in the third how Stair’s aims related to those of Sir Thomas Hope of Craighall, the other advocate credited by Burnet with writing a treatise. Burnet also made reference in this connection to the practicks of Sir Alexander Gibson of Durie, but since Gibson had actually produced a collection of case reports, consideration of his work will be postponed until the next chapter, where case reporting will be dealt with more generally. The first section of this chapter instead examines the work of the other author Burnet probably would have mentioned had he known of his practicks. Like Hope, Sir Robert Spotiswoode of Pentland had coupled his reports of judicial decisions with excerpts drawn from other sources. Questions that will need to be asked in the next chapter about the purpose and practice of case 1 Even those who were sceptical about the authority of the old books were generally prepared to use them as some kind of record of the law. The dispute was over where exactly the authority of the law they contained should be located.

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182 The Court of Law reporting begin to arise here, but the question addressed directly is whether Spotiswoode would have believed he was still writing about Scots law when he turned to learned sources.

THE TRANSFER OF LEARNED AUTHORITY

Spotiswoode’s life and work Born in 1596, Robert Spotiswoode was the second son of one eminent churchman and the grandson of two others.2 His paternal grandfather had been the superintendant of Lothian in the presbyterian church established after the Reformation, and his maternal grandfather was to be appointed bishop of Ross when James VI began to reintroduce episcopacy in the Scottish church in 1600. His father was soon to emerge as a leading light of the episcopal movement, as archbishop of Glasgow from 1603 and archbishop of St Andrews from 1615. While his father held office in Glasgow, Spotiswoode was an arts student at the university there, matriculating in 1608 and graduating in 1612, at the exceptionally early age of sixteen.3 In the following year he matriculated at Exeter College, Oxford, where he studied briefly under John Prideaux, a theologian who was afterwards to become the regius professor of divinity in the university and the bishop of Worcester.4 By the end of 1613 Spotiswoode was on the Continent where he was to continue his studies for nine years, mostly in France, ‘under the direction of the best Masters’, though also in Italy and Germany, still pursuing an interest in theology but also applying himself ‘to the study of the Laws Civil and Canon’. In 1622, when he returned to Scotland by way of the royal court at Whitehall, he so impressed the king with his ‘great wisdome and knowledge in the Laws’ that he was at once appointed an extraordinary lord of session and a privy councillor.5 That he was appointed directly to the bench ‘as a just Reward to his Studies’ and in due recognition of his ‘Learning and Knowledge of the Laws’ was first asserted within a decade of his death and was then repeated by all his early biographers, who felt confident in affirming that he was ‘remarkable for his knowledge of things both human and divine’ (which is how iuris prudentia had been defined by the Roman jurists).6 His father had vacated his place as an extraordinary lord to make way for 2 Spotiswoode, Practicks of the Laws of Scotland, pp iii–iv; Forbes, Journal of the Session, p xxiv; Spottiswoode Miscellany, vol 1, p 7; Brunton and Haig 1832, pp 266–9; Stephen and Lee 1885–1901, vol 53, pp 416–17; Barry and Hall 1997, pp 11–17. 3 Munimenta alme universitatis Glasguensis, vol 3, pp 11 and 67. Most students, like Stair less than ten years later, entered the university at fifteen or sixteen and graduated at nineteen or twenty. 4 Wood, Athenae Oxonienses, vol 3, cols 265–73, and Fasti Oxonienses, col 355. 5 EUL, La III 528, pp 11 and 33; Register of the Privy Council, vol 12, p 790, and vol 13, pp 8–9; Spotiswoode, History of the Church of Scotland, sig A2v. 6 The biographical note attached to his father’s history of the Scottish church was published in 1655. The third quotation here is from Wishart, Memoirs of James, Marquis of Montrose, p 171 (for the Roman definition see the Digest, 1.1.10.2, and Institutes, 1.1.1). Wishart’s panegyric was originally printed in De rebus auspiciis serenissimi et potentissimi Caroli, pp 218–22, in 1647, just a year after

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The Transfer of Learned Authority 183 him and had provided him with an estate at New Abbey, partly so that he could have a title like the other lords and partly because it was expected that ‘the Supreme Judges should have a competent Estate to avoid the Suspicion of Bribery and undecent Practices’.7 In 1579 an act of parliament had been passed requiring the king to nominate to ordinary places in the court men who had not only a proper ‘undirstanding of the lawes’, but also a ‘sufficient leving of thair awin’ to be free from the temptation to take ‘buddis, brybis, guidis and gear’ from litigants.8 In 1592 another act had been passed reaffirming the terms of the 1579 act and adding that the persons nominated should be at least twenty-five years old. In 1605 James VI had agreed that he should if possible nominate ‘ancient, wise and learned advocates’, except that he could nominate substantial landowners ‘provyding they be utherwayes knawin and tried to be sufficientlie qualifeit in learning, wisdome and goode conversatioune’.9 That Spotiswoode was not subjected to any trial of his learning and other qualifications is not significant, for trials tended to be neglected and he had not in any case been nominated to an ordinary place. What may be significant is that efforts had been made to ensure that he could have been nominated to an ordinary place had one been available. It is possible that he had been preparing for a judicial career for many years and had returned to Scotland on reaching his twenty-fifth year with this prospect in mind. Four years later Spotiswoode did become an ordinary lord of session when Charles I set about reforming the court. Rumours that the king meant to alter the composition of the bench began to circulate shortly after his accession.10 When a convention of the estates met in the autumn of 1625 he gave no notice of his intentions, but he did invite the assembled representatives of the nobility, church, burghs and shires to enact new regulations requiring the lords of session to travel decorously to court on horseback, forbidding litigants from appearing in Edinburgh with threatening bands of retainers, and banning the soliciting of judges by lawyers and litigants.11 In response the estates observed that the first proposal was impracticable, that the second was inappropriate, and that the third was unnecessary since the lords of session had already issued an act of sederunt against soliciting. What troubled the estates more was the rumoured alteration in the composition of the bench, on which they hoped they would be consulted before any action was taken. Charles instead called the conference at Whitehall in Spotiswoode’s death; an English translation appeared in 1649 as The History of the Kings Majesties Affaires in Scotland, pp 170–74, and was reprinted in 1652. For further claims about Spotiswoode’s extensive learning see Wood, Athenae Oxonienses, vol 3, col 270; Forbes, Journal of the Session, p xxv; Spottiswoode Miscellany, vol 1, p 217. 7 Spotiswoode, Practicks of the Laws of Scotland, p iv. Spotiswoode was later to surrender his estate at New Abbey to the crown, instead taking his title from an estate he had acquired at Dunipace; later still he was to sell this estate and take his title from one he had acquired at Pentland. 8 Acts of the Parliaments of Scotland, vol 3, pp 153 and 569. 9 Hannay 1933, pp 121–3. 10 Acts of the Parliaments of Scotland, vol 5, p 184; Register of the Privy Council, 2nd ser, vol 1, p 650; Report on the Manuscripts of the Earls of Mar and Kellie, pp 132–3. 11 Register of the Privy Council, 2nd ser, vol 1, pp 156–7; Acts of the Parliaments of Scotland, vol 5, pp 176 and 183–7.

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184 The Court of Law January 1626 at which Sir John Scot argued that the judicial appointments made by James VI had lapsed on his death and that the new king could make new appointments durante beneplacito.12 It was by no means clear to all the participants in the debate that Scot had won the argument, but four days later Charles wrote to five of the judges asking them to surrender their places because they were either noblemen or officers of state.13 The then earl of Melrose resigned his place as president of the court, Sir James Skene of Curriehill—the son of Sir John Skene and an ordinary lord—was promoted to the presidency, and on 14 February 1626 Spotiswoode was appointed to the vacant place among the ordinary lords, surrendering at the same time his place in the privy council. In June 1626 the king wrote to the lords of session asking them to record in the books of the court that they now held their places by revocable royal grant, and a week later he wrote to them again proposing that the president search the records for any ‘actes and ordinances that doeth concerne expeditione of justice, or ordring of the housse of Sessione’, that in doing so he ‘make a note of all actes that concerns the presentations and admissions of the Lordes of Session’, and that he advise the king on the revision and reinforcement of the acts identified.14 The second letter was thought to have been written on the advice of Skene, who was blamed when the proposals it contained were ‘crushte in peices’ by those judges who feared that their places were in danger. It was also thought that the proposals amounted to ‘nothing ells bot matters of mooneshyne to his Majesty’, yet in November Charles wrote once more to the judges with detailed instructions on the handling of business in the session, asking the president to explain his intentions more fully.15 One ordinary lord who seems to have had no difficulty in understanding the king’s intentions was Spotiswoode, who not only preserved among his papers copies of the 1626 instructions and the 1592 act on judicial appointments, but also made a well-known address to the advocates in which he rehearsed many of the points made in the instructions.16 Each year the advocates were required to renew their oaths of office as members of the court. Spotiswoode believed that more should be made of these previously perfunctory occasions and that while it would be tiresome for someone to read through all the regulations of the court, someone ought at least to remind the advocates of the main rules they were promising to observe. He therefore reviewed the contents of several acts of sederunt requiring the expeditious handling of processes, the punctual and regular attendance of advocates in court, and their orderly presentation of concise and relevant pleadings at the bar.

12 ‘Scotstarvet’s “Trew Relation” ’, (1914), pp 164–91; Report on the Manuscripts of the Earls of Mar and Kellie, pp 133–46; McNeill 1958, pp 137 and 142–3; Lee 1985, pp 22–4; Donald 1990, pp 21–3. 13 Stirling’s Register of Royal Letters, vol 1, pp 13–16; Register of the Privy Council, 2nd ser, vol 1, pp 220–21 and 234–6. 14 Balfour, Historical Works, vol 2, pp 136–8; Stirling’s Register of Royal Letters, vol 1, p 46. 15 Balfour, Historical Works, vol 2, pp 147–51; Stirling’s Register of Royal Letters, vol 1, pp 91–2. 16 Spotiswoode, Practicks of the Laws of Scotland, pp iv–vii and 365–8; Spottiswoode Miscellany, vol 1, pp 185–96. Spotiswoode made his address in the form in which it was preserved before the summer session of 1633, but he may well have made a similar address on other occasions.

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The Transfer of Learned Authority 185 Other documents preserved among Spotiswoode’s papers provide further evidence of his interest in the practice of the court. That he made a copy of a letter sent to the lords of session by James VI in 1593, recommending the election of Alexander Seton as their president, may perhaps be attributed to self-interest, for after Skene’s death in 1633 Spotiswoode was himself elected president in compliance with a letter received from Charles I, who claimed to be following his father’s example in writing.17 It may be that Spotiswoode preserved the earlier letter as a defence of his own election, but he had no obvious motive beyond a genuine interest in the practice and history of the court for preserving a collection of notes on ‘some things extracted out of the books of decreets and acts that are kept in the Castle of Edinburgh, for informing of the manner of justice administrat in civil causes, before the erecting of the College of Justice’.18 Spotiswoode had worked his way through several volumes of the old registers of acts and decreets, making notes on who the judges were, where they sat and how disputes were handled before them, as well as on incidental points to do with coinage and land tenure. He had also made notes on a few decisions, but none of these was included in the book eventually printed as his Practicks, which dealt only with cases decided after the foundation of the College of Justice. The earliest case cited was decided in 1541, and altogether Spotiswoode dealt with over a hundred and thirty cases decided before he joined the court. Mostly he cited just a couple of cases from each year, and never more than ten, with the exception of thirty-seven decided in 1583. It was in this year that Sir James Balfour of Pittendreich had died, according to Habakkuk Bisset while still busily gathering material for his practicks.19 In 1622, the year of Spotiswoode’s appointment as an extraordinary lord of session, and again in 1626, when he became an ordinary lord, Bisset attempted to have his own collection of materials printed. As was noted in an earlier chapter, he tried to emphasise the connection between the book he had written and his earlier association with Sir James Balfour and Sir John Skene. In doing so he suggested that a printed edition of his book might be supplemented with material gathered by Skene ‘beand in his sones handis’, and with one of the copies of Balfour’s practicks ‘in my Lord Curriehill or his brother Mr Johnis handis’. It seems possible that Spotiswoode became aware of Bisset’s proposals through his connection with Sir James Skene. He may have taken the view that Bisset’s book was inadequate as a continuation of the works of Balfour and Skene and he may have decided to write his own continuation of Balfour’s practicks, starting at the year in which Balfour was believed to have stopped working. That Spotiswoode may have sensed a need for a continuation of Balfour’s practicks in 1622 or 1626 seems plausible enough. Although he was apparently 17 Spotiswoode, Practicks of the Laws of Scotland, pp 366–7; Stirling’s Register of Royal Letters, vol 2, p 690. 18 Spotiswoode, Practicks of the Laws of Scotland, pp 360–62; Acta dominorum concilii, 1496–1501, pp xcviii–c; Murray 1993, pp xvi–xvii. 19 Rolment of Courtis, vol 2, pp 274–6; Register of the Privy Council, 2nd ser, vol 8, p 368; McNeill 1962, pp xxxii–xxxiv; Hamilton-Grierson 1920, pp xxii–xxiii; Walker 1985, p 42.

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186 The Court of Law well versed in the learned laws when he returned to Scotland, he can have known scarcely anything about the practice of the court he was joining. He clearly did develop a keen interest in the practice of the court and he may well have done so, given that he seems to have been intent on pursuing a career on the bench, as soon as he arrived in Edinburgh. An inquiry then into the literature on the local law would have revealed that Balfour was the last writer to have attempted a synthesis of the decisions of the session and other sources. The decisions he cited had apparently been extracted by someone else from the registers of acts and decreets, and Spotiswoode may have abandoned an initial attempt to carry the work of synthesis forward from 1583 when he discovered that Balfour had not in fact cited any decision delivered after 1579, the year in which the collection he used was completed.20 Instead Spotiswoode made limited reference to cases decided before he joined the court and concentrated more on reporting decisions for which he bore some responsibility. He dealt with five or six decisions from each of his first two years on the bench and with more than ten from every other year until 1637, reporting over six hundred and sixty cases in total with a peak of a hundred and twenty-seven in 1628. It was in this year that Charles I made his first attempt to have the law reformed into a body, and Spotiswoode was among those appointed to the commission renewed by the estates in 1630 and 1633. He preserved a copy of the directions issued in 1630 among his papers, and he also drafted a series of proposals for legislative reform which may have been designed to satisfy the desire of the 1633 parliament for advice about ‘all such lawes and actes of parliament quhilks ar unclear and doubtsome in the selff and may receave divers interpretationes, and quhilk hes beine drawen in questioun befor the lords of sessioun’.21 However, although Spotiswoode may well have known about the connection between the earlier law reform commissions and the works of Balfour, Skene and Bisset, he does not appear to have started his own work in response to the revival of interest in law reform. By 1628 he had already made notes on more than a hundred and seventy cases that he had been involved in deciding, probably when they were heard. Moreover, whereas Hope had drawn his major practicks together in 1633, Spotiswoode continued to gather materials for his collection until the spring of 1637. Why he stopped reporting decisions then is easily explained. During the course of the summer session of 1637 the introduction of a new liturgy in the church provoked riots throughout Scotland, starting with the famous disturbance at St Giles Cathedral, adjacent to the Parliament House.22 As opposition to royal policy strengthened, it was announced that the judges would sit for the time being outside Edinburgh, but in fact no business was handled in the court during the

20 For this collection see Gordon 1995 and 2002. As Tait 1823, p 500, noted, most of Spotiswoode’s observations on older cases were derived from previous reports. This point will be returned to later. 21 Spotiswoode, Practicks of the Laws of Scotland, pp 362–5 and 368–70; Acts of the Parliaments of Scotland, vol 5, pp 46–7. 22 Stevenson 1972b, pp 227–9; Makey 1979, pp 16–25; Lee 1985, pp 204–16.

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The Transfer of Learned Authority 187 winter of 1637 to 1638. In December Spotiswoode travelled to the royal court to discuss, among other things, ‘the settleing of the Session’.23 In February and March he sat with the rest of the judges in Stirling, without actually hearing any cases, and in April and May he visited the king again at Whitehall. When it was announced on 30 June 1638 that the session would return to Edinburgh, an attempt was made to have Spotiswoode and another judge, Sir John Hay of Lands and Barro, excluded from the court on charges of ‘brybry and corruptione’.24 Their accusers failed to produce any evidence to support the charges, which appear to have been a device used to promote opposition based on two other concerns.25 In the first place, it was feared that cases brought before the court were likely to be decided in the royal interest so long as it was presided over by the son of the archbishop of St Andrews—who was himself entitled to sit in the court as chancellor of Scotland—and while the president could count on the support of Hay, to whom he was closely related ‘in blood and inward familiaritie’. In the second place, Spotiswoode had caused great annoyance by his visits to Whitehall, where he was thought to have acted as ‘an agent for the Bishops’, to have distracted and confused Charles with ‘pestiferous directiones and wrong informationes’, and to have proved ‘a very ill instrument betwixt the King and his subjects’ and ‘a great incendiarie, in stirring up our Soveraigne’. Nonetheless, in July 1638 and during the winter of 1638 to 1639 he was able to sit in the court once more, though in an increasingly hostile atmosphere. On 22 March 1639 he withdrew from the court, a day before its members were required to sign the National Covenant, and shortly afterwards he followed his father into exile in England, in order ‘to escape violence’.26 Although he never sat in the session again, he continued to hold office as its president for the next two years while he attended the king. Whether he spent time in working on the notes he had been compiling on the practice of the court before the troubles is uncertain but not unlikely. At this stage he would presumably have hoped to resume his judicial duties in more settled times, for he was still in his forties and it was not yet clear that the king was about to face armed resistance in all his kingdoms. It would certainly help to explain why no one in the College of Justice appears to have known anything about Spotiswoode’s book until

23 Baillie, Letters and Journals, vol 1, pp 47–8 and 75–6; Rothes, Relation of Proceedings Concerning the Affairs of the Kirk, p 53; Diary of Sir Archibald Johnston of Wariston, 1632–39, p 332. 24 Rothes, Relation of Proceedings Concerning the Affairs of the Kirk, pp 157 and 171–3; Diary of Sir Archibald Johnston of Wariston, 1632–39, pp 359–61; Gordon, History of Scots Affairs, vol 1, pp 74–5; [Balcanquhal], Large Declaration Concerning the Late Tumults, pp 92–5; Baillie, Letters and Journals, vol 1, pp 93–4. On Hay see Inglis 1917–18. 25 Spotiswoode was certainly in financial difficulty—Acts of the Parliaments of Scotland, vol 6(1), p 228; Register of the Privy Council, 2nd ser, vol 5, p 524; Baillie, Letters and Journals, vol 1, pp 75–6— but as [Balcanquhal], Large Declaration Concerning the Late Tumults, p 95, remarked, had evidence of impropriety been available it would surely have been produced by those who regarded Spotiswoode and Hay as ‘sworne enemies to their Covenant’ and as ‘procurers and abettors of the pretended Innovations’. 26 Memoirs of Henry Guthry, p 55; Diary of the Public Correspondence of Sir Thomas Hope, p 87; Acts of Sederunt (1740), p 12.

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188 The Court of Law the late 1650s—when one of his sons had joined the bar—if it was put together after he had left the country.27 In 1641 the king’s Scottish troubles looked to have been resolved when he made a number of concessions to the covenanters in the treaty of London.28 The covenanters claimed to have no quarrel with him personally but instead criticised those who had provided him with ‘evil counsel’. Spotiswoode was one of those criticised and was asked to return to Scotland to give an account of his behaviour.29 He was one of ‘fyve principall incendiareis’ who were ordered to appear before parliament in August 1641 and who were excluded from the benefit of an act of oblivion passed later in the same month.30 Although he maintained that he had been ‘attending his Majestie these many monethes bygone’ merely in connection with his ‘private affaires’, he was ordered to be imprisoned until trial and was only released after the king’s arrival in Edinburgh on promising to return when summoned.31 After Charles conceded in November that the appointment of judges should in future be a matter for parliament, Spotiswoode was removed from the session, along with Sir John Hay, Sir William Elphinstone and Sir Patrick Nisbet (the father of the advocate John Nisbet), all of whom ‘had adhered to the king’.32 Spotiswoode, Hay and several other ‘plotters, devyseris and machinatoris of courses aganes the publict well’ were committed to trial in January 1642, subject to an agreement with the king that they would not in the end be punished.33 Having been condemned, Spotiswoode returned later that year to the royal court, which was moved to Oxford after the outbreak of the English Civil War, and for the last four years of his life he was actively involved in politics.34 In 1643 he was appointed secretary of state for Scotland, and in this capacity he made a final visit to Scotland in 1645 to deliver a commission to the marquis of Montrose as captain general and deputy governor of the northern kingdom.35 Captured after Montrose’s defeat at Philiphaugh, Spotiswoode was tried, convicted and executed 27 Grant 1944, p 197. It may also be recalled that Burnet—who was to recommend the printing of the book by Spotiswoode’s father in 1655—withdrew from practice at the same time. It is worth noting too that Spotiswoode made use in compiling his Practicks, pp 159, 205, 213, 309 and 339, of books by John Cowell and William Fulbeck on the relationship between the civil law and the common law of England, and by the civil lawyer Henry Swinburne on the treatment of wills in the church courts of England. For Cowell and Fulbeck see the last chapter, and for Swinburne see Derrett 1973. 28 Stevenson 1973, pp 214–23; Donald 1990, pp 272–319; Russell 1991, pp 303–29. 29 Acts of the Parliaments of Scotland, vol 5, pp 344 and 348; Register of the Privy Council, 2nd ser, vol 7, pp 510–12; Balfour, Historical Works, vol 2, p 378. 30 Acts of the Parliaments of Scotland, vol 5, pp 350–51 and 377–9; Balfour, Historical Works, vol 3, p 24; Spalding, History of the Troubles, vol 1, pp 331 and 334. 31 Acts of the Parliaments of Scotland, vol 5, pp 360 and 485; Spalding, History of the Troubles, vol 1, pp 337, 353 and 355; Memoirs of Henry Guthry, p 99. 32 Acts of the Parliaments of Scotland, vol 5, pp 354–5; Balfour, Historical Works, vol 3, pp 152–3; Memoirs of Henry Guthry, p 104. 33 Acts of the Parliaments of Scotland, vol 5, pp 493–4; Spalding, History of the Troubles, vol 2, pp 8 and 40. 34 Baillie, Letters and Journals, vol 2, p 125; Memoirs of Henry Guthry, p 128; NLS, MS 2933, ff 20–3. 35 Wishart, Memoirs of James, Marquis of Montrose, pp 138–40; Memoirs of Henry Guthry, pp 197 and 202.

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The Transfer of Learned Authority 189 for treason at St Andrews in January 1646.36 Another of those executed admitted his faults and was likened to ‘the penitent Malefactor converted to Christ at the time of his death’, whereas Spotiswoode was likened to ‘the other thiefe that died rayling on Christ’.37 More specifically he was said to have gone to his death ‘raging and railing against Christ’s honest and faithful ministers and his covenanted people’, consumed to the last with ‘malice against the Cause and Covenant’. Royalist observers complained instead of the ‘officious impertinence’ of the covenanters, who had prevented Spotiswoode from speaking on the scaffold but not from providing one final manifestation of his ‘usual firmness and dignity’.38 They preferred to remember ‘a myld man, weill beloved of many’, and ‘a great ornament to his Nation’. Sixty years after Spotiswoode’s death his grandson, the editor of the printed version of his Practicks, found among his papers some of the pleadings presented at his trial.39 Because the pleadings were written in Spotiswoode’s own hand his grandson assumed that he must have composed them himself, ‘tho absent from his Library’, which he took to mean that they provided cogent proof of his ‘great Knowledge in the Laws’. In reality Spotiswoode must at least have received some assistance from John Nisbet, the advocate who represented him in court, though how far either accused or counsel may be taken to have held the views expressed is open to question. The argument that came closest to succeeding was that Spotiswoode had been given quarter when he was captured and that ‘by the law and receaved custome of all nations, wher warre is not turned in downericht boucherie, ther be iura belli, held sacred and inviolable, wherof the mayne one is captivis parcendum’.40 The ‘right of quarters’ was recognised by all civilised nations, ancient and modern, was approved in the Bible, and was ‘founded not onely upon common equitie, bot upon the speciall equitie of ane expresse pactione wher ane capitulatioune is made’. Although part of ‘the commone law of nations’, it was not ‘limited to the case of a nationall or forraine [conflict], bot hath place in omni bello, whether forraine or intestine’. Spotiswoode’s claim was to have been captured in the course of a civil war, but his accusers convinced the court that ‘the defence of Quarters was not relevant’ in a case of treason against the state. Their claim was that Spotiswoode was guilty of treason by ‘the common Law, Law of Nations, Laws and Acts of Parliament, and Practick of this Kingdom; and by all 36 Acts of the Parliaments of Scotland, vol 6(1), p 205; Gordon, Short Abridgement of Britane’s Distemper, p 168; Wishart, Memoirs of James, Marquis of Montrose, pp 166–7. 37 Luke 23.39–43; Treason and Rebellion against Their Native Country Justly Rewarded, sigg B1 and B3; Life of Mr Robert Blair, pp 179–80. For evidence that this was not an entirely new complaint, see Rothes, Relation of Proceedings Concerning the Affairs of the Kirk, p 173. 38 Wishart, Memoirs of James, Marquis of Montrose, pp 169–72; Memoirs of Henry Guthry, pp 210–11; Spalding, History of the Troubles, vol 1, p 179; Spottiswoode Miscellany, vol 1, pp 7 and 13; Scot, Staggering State of the Scots Statesmen, pp 22–3; Burnet, Memoirs of the Lives and Actions of James and William, Dukes of Hamilton and Castleherald, p 57. 39 Spotiswoode, Practicks of the Laws of Scotland, p xxxviii; see now NLS, MSS 3582, ff 3–38, and 3583. On John Spotiswoode see Cairns 1992a. 40 Miscellany of the Maitland Club, vol 2(2), pp 448–56; Treason and Rebellion against Their Native Country Justly Rewarded, sig A2; Balfour, Historical Works, vol 3, pp 355, 357 and 360–63.

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190 The Court of Law Justice, Reason, Equity and Conscience’.41 Particular emphasis was placed on an act passed in 1584, making it an offence to diminish the power and authority of the estates, and another passed in 1644, making it an offence to take up arms against the kingdom and estates.42 It was argued for the defence that the former act had been found to apply only to a particular problem by James VI, ‘who knew best what was meant thereby’, and that the latter act could not apply since Spotiswoode had not actually been in arms when he was taken. The court preferred to believe that ‘the Parliament are the best Judges and Interpreters of the Acts of Parliament, and of the extent of the Sense and meaning therof’, that the former act was best construed as applying to the case in hand, and that to be taken in battle was tantamount to being taken in arms. It was also argued for the defence that the charge against Spotiswoode must be irrelevant ‘in so far as it is founded upon the common Law of Nations, Equity, Reason and Conscience’. Reference was made to a text from the Digest indicating that penalties should not be inflicted without warning, and to two earlier acts of parliament declaring that the king’s subjects were to be ruled by his laws alone.43 ‘And it were absurd’, it was pointed out, ‘that the Subjects of this Kingdom, who cannot in reason be obliged to obey Laws but in quantum sunt notificatae, should be judged by Laws, which they neither know, nor can know’. Since the court was satisfied that the acts cited by the prosecution were applicable, this argument proved to be irrelevant, but it raises questions that are relevant for present purposes. Was it only in criminal cases (or perhaps only in his own) that Spotiswoode believed allegations should always be ‘authorized by positive Laws and Statutes’? If the Scots were supposed to be governed by the king’s laws alone, what force was the reference to the Digest meant to have? And was it not indeed absurd to argue ‘in reason’ that a dispute could not be regulated by reason? A possible explanation is that Spotiswoode took the reason of the civil law to form part of the ‘Practick of this Kingdom’.

Combining theory with practice The efforts Spotiswoode made on his return to Scotland to learn about the practick of the kingdom will be examined further in due course, but first attention must be paid to the preparation for judicial office he had received on the Continent. If he had studied mostly at universities in France, it cannot now be discovered precisely where because matriculation records were seldom preserved in these universities during the first half of the seventeenth century.44 According to his grandson, while he was abroad he had collected ‘Books of Law and Theology of the best editions’, and with his father he had formed an extensive library of manuscript and printed 41 42 43 44

Spotiswoode, Practicks of the Laws of Scotland, pp ix–xxxvi. Acts of the Parliaments of Scotland, vol 3, p 293, and vol 6(1), p 104. Digest, 50.16.131.1; Acts of the Parliaments of Scotland, vol 2, pp 9 and 244. Kagan 1975, p 39; Brockliss 1978, pp 508–9; Tucker 2001, pp 21–4.

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The Transfer of Learned Authority 191 books.45 Following his father’s death, however, the library was broken up, so that the only guide now available to his reading is the use he made of books on the civil and canon laws in composing his own book on Scots law. As might have been expected, he referred quite often to the works of humanist jurists like Franciscus Duarenus, Iacobus Cuiacius and Antonius Contius, all of whom had taught at the University of Bourges in the latter half of the sixteenth century, and he referred more frequently still to a commentary on Justinian’s Institutes by Ioachimus Mynsingerus in which the opinions of humanist jurists had been reported.46 Spotiswoode clearly regarded Cuiacius in particular as a great authority on Roman law—he also drew attention to his ‘Romanist’ treatment of the question ‘de feudorum origine’—but like Mynsingerus he does not appear to have been especially interested in questions of history or philology.47 Like Mynsingerus he cited works in the mos Gallicus alongside such typically mos Italicus works as the commentaria of Bartolus and the consilia of Ioannes Petrus Surdus.48 He always referred to the part of Mynsingerus’ book that was concerned with the title of the Institutes ‘de actionibus’, and he referred with similar frequency to a much older commentary on the same title by Petrus Iacobus de Aureliaco, who had taught at the University of Montpellier in the early fourteenth century.49 The book printed as Petri Iacobi practica aurea libellorum had been formed around draft statements of claim, as had the Practica nova iudicialis composed a century later at the University of Pavia by Ioannes Petrus de Ferrariis, to which Spotiswoode also made repeated reference.50 Although these books sometimes provided information on ‘libelli consuetudine approbati’, they were mostly concerned with the learned procedure that had been adopted in courts throughout Europe.51 They would therefore have been of particular interest to students intent on entering forensic practice. Of equal or greater interest to Spotiswoode were several books written by lawyers practising in the French courts who had tried to connect their academic learning with their handling of the local law. The earliest of these was the 45

Spotiswoode, Practicks of the Laws of Scotland, p iv. Michaud 1843, vol 23, pp 544–5; Kelley 1970a, pp 103–25; Rowan 1987, p 84. For references to these and some other humanist authors see the printed edition of Spotiswoode’s practicks, pp 5, 14, 72, 81–2, 109, 131–2, 181, 183–4, 225, 237, 241, 275, 307–10, 318 and 346. 47 Kelley 1964a, p 219; Pocock 1987, pp 72–7; Cairns 1989a, pp 81–2. It should be noted though that the views of humanist jurists were not actually reported in any of the passages from Mynsingerus’ book cited by Spotiswoode (ie Apotelesma, sive corpus perfectum scholorium ad quatuor libros Institutionum, pp 311–12, 315–18 and 327). 48 The authors cited by Mynsingerus are conveniently listed in the edition of his Apotelesma published at Basle in 1584 at sigg a4v–5r. For Spotiswoode’s citation of the works of Bartolus and Surdus see his Practicks, pp 14, 29, 182, 185, 251 and 354. He also cited other mos Italicus works indirectly. 49 Thomas Diplovatatius, ‘Liber de claris iurisconsultis’, p 194; Grand 1918, pp 68–72; Engelmann 1928, p 905; Rigaudiere 1992, pp 161–2; Fowler-Magerl 1994, p 90. For Spotiswoode’s citation of Iacobus’ commentary see his Practicks, pp 7, 39, 236, 241, 245 and 310. 50 Diplovatatius, ‘Liber de claris iurisconsultis’, pp 326–8; Clarence Smith 1975, p 92; FowlerMagerl 1994, p 73. For Spotiswoode’s citation of the Practica Papiensis, as Petrus’ book was commonly known, see his Practicks, pp 6–7, 83, 123, 246 and 302–3. 51 More will be said about this learned procedure in a later chapter. It cannot really be claimed, as in Smith 1959b, p 38, that Spotiswoode had himself written a manual on procedure. 46

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192 The Court of Law Decisiones parlamenti Delphinatus of Guy Pape, who had studied at the law schools of Montpellier, Pavia and Turin before entering practice in Grenoble as an advocate (and from 1444 to 1461 a judge) in a court reconstituted in 1451 as the parlement of Dauphiné.52 In a preface attached to his book—which was first printed in 1490 and had been reissued in over twenty editions by the time Spotiswoode returned to Scotland—Pape explained that he had written about the decisions of the parlement ‘in the manner of quaestiones, by following the pattern of the decisions of the court of the Roman rota’.53 Unlike courts in the north of Italy, where lay judges had tended to base their decisions on consilia obtained from local academics, the papal rota had been staffed with learned lawyers who had explained their own reasoning in the disputational style of the consilia relied on elsewhere.54 Reports of these reasoned decisions had been in circulation since the fourteenth century, and Pape had tried to imitate their style in reporting the decisions of the court at Grenoble, despite the fact that the judges of the French parlements, like those of most European courts, never explained the motives behind their rulings. One of the reports referred to by Spotiswoode, to take an example, involved a demand for payment of a debt more than thirty years after it had been incurred.55 The debtor had omitted to enter the defence of prescription that was available to him, which raised the question ‘whether a judge may supply and admit prescription if it is not pleaded’. The court had given a negative answer, and Pape tried to justify its decision by citing texts from the Corpus iuris, glosses on the texts and the opinions of Italian commentators. In another report mentioned by Spotiswoode, Pape dealt with a question that had been raised by the facts of a case but not in the end decided by the court because the parties had made nothing of it.56 He recalled that there had once been ‘a great dispute about this question between Bulgarus and Martinus’, two of the glossators, and after relating the terms of their dispute he pointed out that most later commentators, as well as the decisions of other courts, supported the opinion of Martinus, though another view had recently been put forward. ‘But I, Guy Pape’, he concluded, ‘adhere to the opinion of Martinus, Iacobus de Aretina, Raynerius, Petrus, Cinus, Bartolus and Baldus and their followers, whose opinion is the more common and so should be followed in judging’. In another report cited by Spotiswoode he made no more reference to the facts of the case or the decision of the court than to say that two brothers had disagreed about how a common inheritance should be divided up between them.57 Instead of describing what happened in the case, Pape assembled learned authorities on either side of the issue, gave his own opinion, and observed that the view he favoured was consistent with ‘the inveterate custom of this country’. Another report cited by Spotiswoode was typical in saying nothing at all about 52 Chabrand 1912, pp 13–38; Naz 1935–65, vol 5, cols 1009–10; Dawson 1968, pp 278–9; Clarence Smith 1975, p 110; Hilaire and Bloch 1989, pp 66–7. 53 Decisiones parlamenti Delphinatus, p 7. 54 Gorla 1970; Baker 1986c; Dolezalek 1989. 55 Decisiones parlamenti Delphinatus, pp 349–51; Spotiswoode, Practicks, p 237. 56 Decisiones parlamenti Delphinatus, pp 540–42; Spotiswoode, Practicks, pp 12–13. 57 Decisiones parlamenti Delphinatus, pp 417–18; Spotiswoode, Practicks, p 7.

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The Transfer of Learned Authority 193 a decision, for it has been calculated that Pape actually referred to decided cases in well under a quarter of the quaestiones he dealt with.58 When he claimed in his preface to have written for the assistance of his own fallible memory and ‘the memory of those who may wish in the future to read this book’, he clearly did not mean that he had set out to facilitate the accurate recollection of earlier cases.59 As he revealed by inviting his readers to judge whether his book was ‘not sufficiently in harmony with the civil and canon law’, his aim had been to augment the learned memory of the practitioners he addressed. A similar collection of reports to which Spotiswoode also made reference had been put together in the early sixteenth century by Nicolas Bohier, who had taught briefly at the University of Bourges, had gone into practice as an advocate there, and in 1515 had become a senior judge in the parlement of Bordeaux.60 In his Decisiones supremi senatus Burdegalensis—first published posthumously in 1544 and a dozen times since before 1622—he also addressed the question ‘whether a judge may admit and supply a defence of prescription not advanced or alleged by a party’.61 He expressed surprise that Pape had failed to mention several authorities supporting the view he favoured, he amassed further authorities on the other side of the issue, and eventually he confirmed that the parlement of Bordeaux had been correct in deciding a case in the same way as the parlement at Grenoble. All this was typical. Bohier’s approach was to begin each report by identifying the ‘quaestio’ raised by the case and to provide an account of the ‘decisio’ by citing a huge number of texts, glosses and commentaries on either side of the question, mentioning the actual decision of the court only in passing if at all. As his reference to Pape’s book indicates, he sometimes mentioned reports of decisions delivered in other courts, particularly the parlement of Dauphiné, the Roman rota and the supreme court of Naples (which also issued its rulings without relying on advice from a university).62 But as the Consilia often printed with his Decisiones indicates, Bohier’s aim in writing as a judge was to provide retrospectively the sort of reasoning on the questions raised by cases that he had provided prospectively when writing as a professor. In one of his early counsels he had written that while the custom of Berry, and particularly of Bourges at its centre, ‘ought to be strictly interpreted, yet the words ought to be extended and understood broadly so that the common law is infringed as little as possible’.63 He had made the same remark in a learned commentary he wrote on that custom, the first of its kind to be published, where he had also said that ‘there should be no departure from the

58

Decisiones parlamenti Delphinatus, p 557; Spotiswoode, Practicks, p 237; Chabrand 1912, p 45. Decisiones parlamenti Delphinatus, pp 7–8. 60 Boscheron des Portes 1877, vol 1, p 40; Prevost 1933–2000, vol 6, col 782; Dawson 1968, p 305; Reulos 1976, pp 607–8; Guyon 2002, pp 57–9 and 66–71; Martinage 2002, pp 318–20. 61 Decisiones Burdegalenses, pp 680–82; Spotiswoode, Practicks, p 237. 62 For comparison of the Neapolitan court with the courts of northern Italy see Dawson 1968, pp 144–5. Spotiswoode, Practicks, pp 250–51, made an isolated reference to the Neapolitan reports used by Bohier; for his citation of works on the canon law administered in the rota see pp 194 and 231. 63 Decisiones Burdegalenses, p 802. 59

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194 The Court of Law common opinion of the doctors’.64 These traditional assumptions were expressed again in a commentary on the custom of Burgundy first published by Barthélemy de Chasseneuz in 1517, a decade after he entered practice at the bar.65 Having studied at the universities of Bologna, Turin and Pavia, Chasseneuz also believed that ‘a statute or custom ought to be so interpreted that the common law is infringed as little as possible’, and after rehearsing the opinion of Bartolus, Baldus and others in one passage he observed: ‘And that is the common opinion, from which one may not depart’.66 At another point he explained how a question had been treated in the parlement of Dijon and added: ‘And so it ought not to be disputed further, since the decision of the court has the force of law’. This was not, however, how he usually dealt with decisions. In a passage cited by Spotiswoode, for instance, he raised doubts about the validity of one ruling because it was inconsistent with learned authority.67 Although the authorities generally cited by Bohier and Chasseneuz were the texts, glosses and commentaries of the civil and canon laws, they did occasionally mention the views of humanist jurists, and Chasseneuz also mentioned a wide range of literary, historical and philosophical sources. These sources were given greater prominence in a collection of reports compiled at the end of the sixteenth century by Anne Robert, an advocate in the parlement of Paris.68 In one of several passages from his book to which Spotiswoode made reference, Robert presented a series of essays on topics connected with church pensions, noting relevant decisions of the court in the course of a discussion based on canonist and classical sources and hence relating noster usus forensis to the dispositio iuris canonici.69 But this passage was not typical. In another of the passages cited by Spotiswoode mention was similarly made of opinions expressed by Baldus and Pape (regarded as another doctor iuris), and elsewhere the views of civilian and canonist authors were sometimes cited, but overwhelmingly Robert’s references were to the original texts of Roman law and—a great deal more frequently—to other ancient sources.70 Moreover, these sources were usually cited in the course of detailed reports of clearly identified cases. Although Robert included a few other essays in his book, his normal approach was to begin each chapter by describing the facts of a case, then to present at length a reconstructed version of the arguments advanced for each party, and finally to give a succinct statement of the court’s ruling. For instance, in his first chapter he began by explaining that a testator had made so many bequests for pious causes and to the poor that when he died there was nothing left to be inherited by his surviving father, who consequently challenged the 64

Consuetudines civitatum et provinciarum Galliae, pp 26, 102 and 115. Michaud 1843, vol 7, pp 699–700; Prevost 1933–2000, vol 8, cols 714–15; Burns 1991, p 668. Consuetudines ducatus Burgundiae, cols 183, 734 and 736. 67 Spotiswoode, Practicks, p 78; Consuetudines ducatus Burgundiae, col 336. 68 Gaudry 1864–5, vol 1, pp 491–2; Dawson 1968, p 304; Popoff 1996, pp 845–6. 69 Rerum iudicatarum libri iv, pt 1, ff 37r–50r; Spotiswoode, Practicks, pp 227–8. Robert’s book was first published in 1596 and had been reissued nine times by 1622. It dealt with decisions delivered by the parlement between 1570 and 1596. 70 Rerum iudicatarum libri iv, pt 1, ff 157v–65r (and 15r); Spotiswoode, Practicks, p 337. 65 66

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The Transfer of Learned Authority 195 will.71 Robert then recounted the arguments advanced both contra patrem and pro patre, based exclusively on ancient sources, and ended by observing that on 12 February 1583 ‘the senate awarded a lawful portion in the son’s goods to the father’, who was identified as Pierre La Ferrier. In this and another case referred to by Spotiswoode it was argued that a response to a problem that would have been reasonable in the context of Roman law would not necessarily have remained so reasonable in the context of French law, with the implication that the court must work out for itself what reason required.72 In his second chapter, which was cited twice by Spotiswoode, Robert started by saying that Titius, the father of Maevia, had promised a dowry of a thousand aurei to Seius but had refused to pay more than five hundred on the ground that Seius had secretly undertaken to demand only half.73 Robert then presented at length the arguments advanced pro Titio, followed by those advanced pro Seio, again with exclusive reference to ancient sources, then stated that the parlement had declared the whole sum due, identifying in the margin the parties, their advocates and the date of the ruling. He sometimes remarked that he was dealing in reports like these with quaestiones disputatae, but his reports were strikingly different in style and substance from those written earlier by Pape and Bohier.74 Robert seems to have been less interested in weighing the expert opinions available on either side of an issue than in celebrating the eloquence of the advocates who argued in utramque partem.75 He seems to have been less interested in participating from a practitioner’s perspective in the learned discourse of the schools than in providing from an advocate’s perspective a record of the decisions delivered by the court, which he constantly referred to as res iudicatae or senatusconsulta. The significance of these Roman law concepts, and also of the related concepts of disputatio fori and responsa prudentium, will be considered further in the next chapter. Spotiswoode made greater use of Robert’s book than of those by Pape, Bohier and Chasseneuz, but the French book he referred to most frequently—three times as often as any other foreign book—was the Recueil d’arrests notables des cours souveraines de France written by Jean Papon, a royal judge in a lower court in Forez.76 Papon’s book was first printed in 1556 and had been reissued fourteen times by 1622, though it seems that Spotiswoode made use of a Latin translation published in 1624, after he had returned to Scotland.77 Both the original and the translation 71

Rerum iudicatarum libri iv, pt 1, ff 1r–3v; Spotiswoode, Practicks, p 312. Rerum iudicatarum libri iv, pt 1, ff 50r–4v; Spotiswoode, Practicks, p 212. 73 Rerum iudicatarum libri iv, pt 1, ff 4r–8v; Spotiswoode, Practicks, pp 212 and 249. 74 See, eg, Rerum iudicatarum libri iv, pt 2, f 35v, where Robert followed up a report with a note about ‘alia quaestio in eodem Senatu non minus controversa disputatione agitata’. 75 The reading in Gaudry 1864–5, vol 1, pp 491–2, seems in this respect preferable to that in Chêne 1982, pp 220–21. 76 Michaud 1843, vol 32, p 104; Aubert 1890, pp 500–01; Dawson 1968, pp 303–4. [See too Martinage 2004, to which access was gained only after this book was written.] 77 Compare Spotiswoode, Practicks, pp 13, 76, 119–20, 216 and 349, with Papon, Decisiones et res iudicatae, pp 173–4, 231, 238 and 360. Although Spotiswoode could already have been acquainted with Papon’s book, it may be significant that he also seems to have used Latin editions of the books by Pape and Robert when French translations were available. 72

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196 The Court of Law consisted of discrete paragraphs which were listed under titles and were concerned mostly with decisions delivered by the parlements and other courts during the previous two and a half centuries. Papon drew material from the works of Pape, Bohier ‘et autres hommes de bonne doctrine’, but he tried so far as possible to identify the actual cases they had dealt with.78 The style of his reports varied considerably.79 Sometimes he identified a vetus quaestio or vetus controversia, listed the texts, glosses and commentaries assembled by learned men on either side, then indicated which solution the French courts tended to favour by giving the dates of relevant cases.80 Sometimes he outlined the facts of a case, summarised the arguments advanced for the pursuer, the replies entered for the defender and any answers to the replies, often with citation of learned authority, then noted briefly the court’s decision, remarking on whether it was consistent with expert opinion.81 More often he began by enunciating a proposition of law, adduced learned authority to back it up, then observed that a case had been decided accordingly on a specified date.82 As an alternative he sometimes enunciated a proposition of law, observed that a case had been decided accordingly and then adduced learned authority, and not infrequently he simply observed that a case had been decided in accordance with a proposition.83 On the other hand, in one of the passages referred to by Spotiswoode he gave an account of the civil and canon laws and then, instead of citing a decision, noted that an opinion expressed by Baldus had been adopted by the advocate Jean Imbert in his Enchiridion ou brief recueil du droict escript, gardé et observé ou abrogé en France.84 There are also passages in which Papon said little about decisions but branched out to compare ‘the general custom of France’ or ‘the general observance of this kingdom’ with the civil and canon laws, drawing on the works of Imbert, Chasseneuz and others.85 Papon gave some indication of his purpose in reporting decisions when he observed that in certain circumstances a ruling by a sovereign court could establish ‘a fixed and perpetual law’.86 He evidently believed that judicial decisions could have some force as precedents, yet what he encouraged his readers to examine especially were not the rulings as such but ‘the reasons and singular doctrine’ behind them. It has been promised already that the purposes of case reporting will 78 Recueil d’arrests notables, sig E4r. Papon’s ‘Prologue au lecteur’ was not included in the edition of the translation used here, but there was another entitled Corpus iuris Francici. 79 The variation does not appear to have been connected either with the dates of the decisions or with the sources of his material. It may also be noted that while the passages referred to below are those referred to by Spotiswoode, they seem to be quite representative of the book as a whole. 80 Decisiones et res iudicatae, pp 204 and 360; Spotiswoode, Practicks, pp 13 and 95. 81 Decisiones et res iudicatae, pp 189–90 and 196; Spotiswoode, Practicks, pp 79 and 224–5. There was a significant difference between these reports of disputational exchanges at the bar and Robert’s reconstructions of orations presented for one party or the other. 82 Decisiones et res iudicatae, pp 183, 200–02 and 231; Spotiswoode, Practicks, pp 14, 76 and 175. 83 Decisiones et res iudicatae, pp 173, 216, 231 and 238; Spotiswoode, Practicks, pp 119–20, 173–4, 185 and 349. 84 Decisiones et res iudicatae, p 232; Spotiswoode, Practicks, p 5. 85 Decisiones et res iudicatae, pp 199 and 653; Spotiswoode, Practicks, pp 78 and 126 (and for one more, but obscure, reference to Papon’s book see p 227). 86 Decisiones et res iudicatae, p 144; Recueil d’arrests notables, sig E4.

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The Transfer of Learned Authority 197 be examined in the next chapter, but what may be noted here is that Papon’s intentions would have been clear enough to anyone who read his report of a notorious case in which a royal nominee was excluded from judicial office, at least if the reader was aware of the current thinking of advocates and judges.87 The nominee was refused admission to the parlement of Paris because he was not sufficiently familiar either with the learned laws or with forensic practice, and Papon explained in his report that just as the enactment of the XII Tables in ancient Rome had created a need for juristic interpretation, so the growth of interpretation had created a need for its forensic application, which he took to show that all judges must be well versed in both theoria and praxis.88 These themes had been explored at greater length in the years immediately preceding the publication of his book by Pierre Rebuffi, a former professor of the civil and canon laws at Poitiers and Bourges who had continued to teach in Paris while practising at the bar there.89 In a preface to the second of three volumes of Commentaria in constitutiones seu ordinationes regias he had published between 1549 and 1554, Rebuffi had likened his pioneering work on French law to the Tripertita of Sextus Aelius, an early Roman jurist who was believed to have produced an account of the law enacted in the XII Tables, of the interpretation of that law, and of the forms of action used to give it effect.90 In the long Digest text in which Pomponius had written about Aelius, he too had explained how the enactment of the XII Tables had resulted in disputatio fori and hence both in interpretation on the basis of prudentium auctoritas and in the framing of legis actiones. Rebuffi identified the XII Tables with the ordinances he reproduced in his book, the interpretation of the jurists with his own commentary on the ordinances, and the forms of action with the forensic praxis he described in his commentary. In a preface to his third volume he contrasted praxis with theoria in the light of Aristotle’s distinction between practical and speculative wisdom.91 The Greek philosophers, he insisted, would never have regarded jurisprudence as anything other than a practical discipline, but as Pomponius had again explained—in relating the tale of another early jurist’s criticism of the orator Servius Sulpicius for knowing no law—a division between the theory and practice of the law had developed in Rome.92 This division had survived into the later civil law, but it was one that Rebuffi was eager to break down, as apparently was Papon, who identified Rebuffi as one of the ‘men of sound doctrine’ in whose footsteps he meant to follow. Another of those named was Jean Imbert, who had written about the same themes at the same time as Rebuffi.93 In a preface to his 87 Decisiones et res iudicatae, pp 176–7. On the requirements for admission to judicial office in the parlement of Paris—nominees needed to be at least twenty-five years old, to have a degree in law, and to have practised at the bar—see Shennan 1998, pp 135–7. For the incident Papon was dealing with see Aubert 1894, vol 1, p 78, or Maugis 1913–14, vol 1, p 72. 88 For the lois, interprétation et pratique trichotomy see too Recueil d’arrests notables, sig D4v. 89 Michaud 1843, vol 35, p 292; Naz 1935–65, vol 7, cols 475–7; Burns 1991, p 691. 90 Commentaria in constitutiones seu ordinationes regias, p 310; Digest, 1.2.2.4–6 and 38. 91 Commentaria in constitutiones seu ordinationes regias, pp 581–2; Ethics, 1140a24–41b23. 92 Digest, 1.2.2.43. 93 Fournel 1813, vol 2, p 288; Minier 1854, pp 588–9; Viollet 1905, pp 212–13.

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198 The Court of Law Institutions forenses, ou practique judiciaire, printed in 1554, Imbert had observed that while Sulpicius was certainly deficient in knowing no law, it would have been equally deficient for a French advocate to know only the civil law.94 In this work on court procedure the expression practique judiciaire retained much the same meaning as the expression practica iudicialis had when applied to the works of Petrus Iacobus or Ioannes Petrus, but a broader usage was also beginning to emerge.95 In his Enchiridion Imbert again promoted the ideal of the advocate who was ‘bien sçavans, tant en Droict qu’en Practique’, but in comparing ‘la theorique commune de droict’ with ‘nostre Practique de France’ in this book he was concerned with the substance of the law.96 His concern was with how far Roman law was put into practice in France rather than with the practicalities of how the law was given effect. It has already been mentioned that Charles Loyseau, who practised in the parlement of Paris in the late sixteenth and early seventeenth centuries, drew the same distinction between the theory of Roman law and the practice of French law.97 He wrote of the need ‘to marry (marier) law with practice’ and ‘to combine (conjoindre) Roman law with ours’, making repeated reference to Horace’s epistle on the art of poetry in which iunctura had been recommended as a literary exercise.98 It is thought that Horace’s advice lay behind the concept of belle conjointure that seems to have informed the works of poets in medieval France, who endeavoured to combine their writing with authoritative texts in a way that might encourage readers to credit them with authority of their own and so give rise to an authoritative French literature.99 Loyseau was not alone among the writers on French law in the sixteenth and early seventeenth centuries in using this literary term or the metaphorical imagery of marriage. Pierre Rebuffi received poetic tributes acknowledging that ‘with your new art you combine praxis with law’ and that ‘the French laws were silent, remote in a shady forest, until you took care to combine them with the imperial’.100 Jean Imbert was praised as ‘one of the most judicious and learned men of his age, not only in theory but also in judicial practice, having married the two together through such a firm and tight union, drawn from the civil and canon laws, that the one cannot exist or subsist without the other’.101 Laurent Bouchel, who practised at the bar in Paris at the same time as Loyseau, 94 Institutions forenses, sigg Bb2r–3r. Imbert’s book had already been published in Latin, possibly as early as 1538, but the preface referred to here appeared in his own translation, which does not seem to have been printed before 1554. A vernacular paraphrase had been published by someone else in 1545, which may explain why an earlier date is sometimes mentioned. 95 See on this point Hilaire, Turlan and Villey 1976, pp 370–74; and see too Tardif 1883. 96 Enchiridion, ff 1v, 39v, 42v, 45v, 55r and 56v. Further examples may easily be found. 97 Michaud 1843, vol 25, pp 386–7; Lloyd 1981, pp 53–4, and 1994, pp xi–xiv; Baumgartner 1995, p 307. 98 Oeuvres de Maistre Charles Loyseau, pt 4, p 1; Horace, Ars poetica, 17–18 and 240–43. The edition of Loyseau’s works used here replaces conjoindre with joindre and mêler. This is rather unhelpful, for while the sense remains the same, the context is obscured. 99 Nitze 1954; Freeman 1979; Laurie 1984; Huot 1987; Kelly 1992. 100 Commentaria in constitutiones seu ordinationes regias, pp 311 and 584. 101 Enchiridion, sig A3v.

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The Transfer of Learned Authority 199 similarly praised those who had ‘married the new French jurisprudence, which we call practique, with that which is the most fair in all antiquity’.102 Bernard Automne, an advocate in the parlement of Bordeaux who published editions of Imbert’s books in the early seventeenth century, was also praised for combining law and practice effectively in his own Conference du droict françois avec le droit romain.103 His discrete paragraphs based on the learned literature, royal ordinances, reports of decisions and the works of fellow practitioners were reminiscent in style of Papon’s book, except that Papon had concentrated more on the reports of decisions. By sometimes drawing attention to the learned authority on the questions raised in the courts, sometimes emphasising instead what the courts had determined, and sometimes balancing doctrine and decisions more evenly, he too had combined the learned and local laws effectively. He had woven them together to form a seamless tapestry depicting Roman law, French law or both indistinctly. As Loyseau clearly knew, quite apart from enabling writers to acquire authority for themselves, the exercise of conjointure had served the purpose in medieval writing of promoting a translatio studii from Italy to France. Loyseau spoke about the ancient transfer of learning from Athens to Rome—again encouraged by Horace—as a model for the later transfer of legal authority from Rome to Paris.104 Rebuffi made reference to the same model in a preface to his first volume of commentaries on the royal ordinances, and Louis Le Caron, an advocate in the parlement of Paris in the generation preceding Loyseau’s, described in a preface to a commentary he produced on the custom of Paris how that city, ‘the first of France and indeed of Europe, succeeded ancient Rome in all its grandeur and admirable preeminence’.105 Papon also handled this topic in a preface to his reports, describing both the establishment of the French universities as centres of learning in law and the development of the parlement of Paris as a forum in which theoria could be combined with praxis.106 Rather ironically, the medieval notion of a translatio studii had been revived in the early sixteenth century by humanist scholars who wished to claim that ancient literature was more faithfully studied in France than in Italy.107 What legal practitioners wished to claim was that the discipline of law was more reliably handled in the French courts than in the Italian universities. While Pape and Bohier had tried to write like Italian professors and so to share in their authority, Papon and his contemporaries had tried to relocate authority in the courts of Paris and the provinces. Robert may be thought to have taken this process a stage further at the close of the sixteenth century by dispensing to a large extent 102 La bibliotheque ou thresor du droict français, sig A4r. On Bouchel see Michaud 1843, vol 5, p 165; Gaudry 1864–5, vol 2, p 53; Prevost 1933–2000, vol 6, col 1195. 103 Conference du droict françois avec le droit romain, sig E3v. On Automne see Michaud 1843, vol 2, p 482; Prevost 1933–2000, vol 4, col 744; Guyon 2002, pp 61–2 and 71–4. 104 Oeuvres de Maistre Charles Loyseau, pt 4, p 1; Horace, Epistles, 2.1.156–67. 105 Rebuffi, Commentaria in constitutiones seu ordinationes regias, p 3; Le Caron, Coustume de la ville, prevosté et vicomté de Paris, sigg A1–E1r; Kelley 1976, p 39, and 1981, p 137. For Le Caron see Foisil 1977, pp 222–4; Burns 1991, p 681; Roelker 1996, pp 32–3. 106 Recueil d’arrests notables, sigg D3v–E4v. 107 Simone 1969, pp 84–7; Kelley 1970a, pp 50, 60 and 282–3; McNeil 1975, pp 32–4.

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200 The Court of Law with the authority of the professors, but it will be suggested below that he was actually pursuing a different line of thought, connected with the emphasis that was increasingly placed on the sovereign authority of the courts. By contrast, when writers used the techniques of conjointure to promote a translatio studii—even if they also emphasised the sovereign authority of the courts or talked in addition of a translatio imperii—their aim was to elevate the expert opinion of forensic practitioners to the status of an independent source of law. Bernard Automne, writing shortly after Robert, promised in the long title of his book to explain how the civil law had been ‘confirmed, interpreted and abrogated by royal ordinances, decisions of sovereign courts and the authority of the greatest practitioners of France’. As he later explained, he recognised ‘the authority of all sorts of authors’ but attached special importance to ‘the authority of the most learned practitioners’.108 Laurent Bouchel indicated in the long title of his book that he saw no great difference between doctrine and decisions or between the learning of the schools and the practice of the courts, promising that he would deal with issues that had been ‘elucidated and resolved by the exposition, treatises and decisions of the most celebrated jurists, the French practitioners and the rulings of the sovereign courts’.109 Louis Le Caron tried to find the law in ordinances and decisions but also to identify the ‘common opinion’ held among both ‘the interpreters of Roman law’ and ‘the interpreters of the customs of France’, or the ‘more probable opinion’ held among both ‘the Italian doctors’ and ‘our practitioners’.110 Over half a century earlier Jean Imbert had already been treating the opinions of ‘learned judges’ and ‘famous advocates’ as a source of law.111 By the time Spotiswoode studied in France, the transfer of learned authority from the schools to the courts had already been accomplished there.112

Spotiswoode’s use of his sources When Spotiswoode’s book was prepared for the press in the early eighteenth century it was taken to consist merely of ‘a Collection of materials for a Pandect of the Scots Law [that] the Author intended, and wou’d have finish’d, had not the Civil Wars, and his untimely Death marr’d so good an Undertaking’.113 The belief that he had left ‘but Notes in order to some greater Work’ was restated a few years later, has been restated more recently, and may be thought to receive support from the 108

Conference du droict françois avec le droit romain, sig I1r. For Bouchel’s understanding of the term practicien see his Bibliotheque, vol 1, p 455. 110 Coustume de la ville, prevosté et vicomté de Paris, pp 26, 164, 347 and 527–8. 111 Enchiridion, ff 38v–9v. 112 A caveat should be entered here. The reading of the French books just presented is not based on a thorough and comprehensive study of the texts and contexts of French jurisprudence, which differs in scale from Scottish jurisprudence to about the same degree as the geography of France differs from that of Scotland. The aim has rather been to form the sort of impression that might have been formed by a Scottish student in France who dipped into the literature of French law in his spare time, as Spotiswoode appears to have done. 113 Spotiswoode, Practicks of the Laws of Scotland, sig B1r. 109

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The Transfer of Learned Authority 201 variations in structure and content between the surviving manuscripts (none of which is in the author’s hand) and the printed edition.114 While the chapters or titles of most of the manuscripts are arranged like those of the printed edition in an alphabetical order, three manuscripts are not arranged alphabetically, no manuscript has precisely the same arrangement as the printed edition, and there is evidence that the earliest manuscript was put into an alphabetical order—or more accurately, orders—by its transcriber. Working at a time when alphabetical arrangement had just come into vogue among Scots lawyers, John Thomson started the copy he made in 1657 with a long series of titles in alphabetical order, then added a second series of titles omitted from the first run, and then added an alphabetical table of contents covering both series, giving the distinct impression that he had started with an unsuccessful attempt at alphabetical rearrangement.115 His copy includes a few passages that cannot be found in the corresponding titles of the printed edition, which in turn includes passages that cannot be found in his copy though they can be found in other copies, which in turn omit other passages included in the printed edition.116 As a record of what Spotiswoode actually wrote the printed Practicks must clearly be used with caution, but in general the same material can be found in all the versions of the text, which have it in common that they consist of discrete paragraphs ordered under titles. As the example of the books published in France by Papon and Automne shows, the fragmentary character of these paragraphs need not mean that the writer was merely working towards a more coherent treatment of the law. It may have been Spotiswoode’s intention to produce a book in precisely the style in which it has survived, especially if his original reason for writing was to satisfy the perceived need for a continuation of the work of James Balfour, who had also presented his material in discrete paragraphs ordered under titles. Spotiswoode made frequent reference to Balfour’s book, followed his example in presenting notes on decisions alongside notes drawn from other sources of law, and used many of the same headings, as one copyist emphasised by providing cross-references to parallel titles in Balfour’s book.117 It has already been suggested that Spotiswoode may have taken notes on an exceptionally large number of cases decided in 1583 because that was the year in which Balfour was thought to have stopped working.

114 Forbes, Journal of the Session, p xxv; McKechnie 1936, p 36; NLS, Adv MSS 24.1.9 and 24.6.4–8, and MS 2712; GUL, Murray 519 and (with some modification) Gen 1470. 115 The notes Thomson extracted from Spotiswoode’s book in ML, SR175/187632 were also arranged alphabetically, but neither in the order of the copy he had made three years earlier in NLS, MS 2712 nor in that of the printed edition. Although it has been suggested that the trend towards alphabetical arrangement may have been inspired by the English abridgements, it ought to be noted that some of the works by French practitioners, including Bouchel and Automne, were arranged in the same way. 116 In some instances the omissions appear to have been quite deliberate. The transcriber of NLS, Adv MS 24.6.8, for example, routinely replaced extracts from Craig’s Ius feudale with references to the omitted passages in Burnet’s edition. The transcriber of GUL, Murray 519 left out a great deal, but sometimes he left a blank space for a passage to be filled in later. 117 NLS, Adv MS 24.6.7.

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202 The Court of Law Some manuscripts indicate that these notes were derived from the reports written by Alexander Colvil, and many of them are indeed strikingly similar in their terms to his reports.118 An ordinary lord of session between 1575 and 1597, Colvil had produced a record of the court’s rulings running chronologically from the early 1570s to the early 1590s, maintaining a fairly consistent approach throughout the period.119 In a typical report to which Spotiswoode made reference Colvil started by remarking that when an action was raised before the court in November 1583 to have a tenant removed from a mill, it was claimed that ownership of the land had been granted to the defender by the pursuer’s father.120 It was answered that the claim was irrelevant since the parties to the action had entered into a lease, but was then insisted for the defender that the lease was irrelevant given his ownership of the land. To this it was successfully replied, ‘partim ab advocatis, partim inter dominos ipsos’, that by the common law, as spelled out in a text from Justinian’s Code, a tenant coul be required to withdraw from land and take the initiative in raising an action to establish his ownership.121 In another dispute determined in the same year a landowner sought to have tenants removed from land she had inherited from her husband.122 The tenants pointed out that the inheritance had been conditional on her not making use of her husband’s goods, alleged that she had in fact done so, and brought witnesses to court to substantiate their allegation. At this point the pursuer’s advocate complained that witnesses could not be heard since another court had already found that she had made no significant use of her husband’s goods. When it was then objected that ‘the daily practick’ did not permit a new plea to be entered at this stage of the process, it was answered, ‘partly by the advocates at the bar, and partly among the Lords themselves’, that this plea amounted to an exceptio rei iudicatae, a Roman defence which according to ‘the doctors’ ought always to be admissible. The lords decided nonetheless to follow their normal practice, ‘licet nonnulli in contraria fuerunt opinione’. This last remark gave the impression that at least some judges, with the assistance of some advocates, were making an effort to bring the local practice into 118 See, eg, NLS, Adv MS 24.6.4, ff 11r, 33r, 44r, 67r and 114r, Adv MS 24.6.7, pp 27, 94, 124, 175 and 280–81, and Adv MS 24.6.8, pp 36, 221, 369, 492 and 534; Spotiswoode, Practicks of the Laws of Scotland, pp 92, 162, 197, 218, 242, 266 and 307; Morison, Decisions of the Court of Session, vol 5, pp 3607–8, vol 8, p 6275, vol 14, p 12125, vol 15, p 12509, vol 16, p 13495, and vol 17, pp 14540–41 and 14987. 119 It is often stated that Colvil’s reports cover the period from 1570 to 1584—Tytler 1823, p 267; Tait 1823, p 499; Brunton and Haig 1832, p 162; Stephen and Lee 1885–1901, vol 11, p 418; Walker 1985, p 87—perhaps on the evidence of the copy in NLS, Adv MS 24.1.4, which runs no further than 1584, or perhaps in reliance on Forbes, Journal of the Session, p xxvi, where these dates are given. However, as McKechnie 1936, p 30, recognised, other copies do run further. The copyists of Spotiswoode’s book had no hesitation in identifying Colvil’s work as the source of some of his notes on decisions from the early 1590s (see, for example, NLS, Adv MS 24.6.4, ff 11v, 116r and 202, Adv MS 24.6.7, pp 95 and 171, and Adv MS 24.6.8, pp 37, 484 and 513). Colvil, it may be noted, was the brother of the great-grandfather of the supposed plaintiff in the postnati case. 120 Morison, Decisions of the Court of Session, vol 8, p 6425; Spotiswoode, Practicks of the Laws of Scotland, p 277. 121 Code, 4.65.25. 122 Morison, Decisions of the Court of Session, vol 14, p 12047; Spotiswoode, Practicks of the Laws of Scotland, p 197.

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The Transfer of Learned Authority 203 line with the learned laws, and it was an impression Colvil contrived to reinforce throughout his reports. Invariably dealing with actual cases, and mostly summarising the argumentative exchanges he had heard in the court, he often drew attention to the civilian and canonist texts and the glosses and commentaries that had been cited at the bar or noted on the bench, moving freely between local and learned terminology and between English and Latin. In all this his reports had much in common with those compiled earlier in the sixteenth century by John Sinclair and Richard Maitland, which were sometimes copied and bound to form a sequence with his.123 Sinclair’s reports of decisions delivered in the 1540s had given a particularly firm impression of a learned tribunal at work.124 Spotiswoode seems to have made use of all these reports, with significant consequences.125 For example, in Balfour’s Practicks there is a quite typical paragraph saying: ‘Gif ane man, throw just feir and dredour, gevis ane discharge of renunciatioun, he may at his awin plesour seik restitutioun be way of actioun or exceptioun. 4 Decemb. 1546, The tenentis of Cokburnspeth contra Home’.126 Sinclair had reported the same case—in which the defender had obtained a promise not to sue from the pursuer by extortion—but in giving an account of the facts and the arguments advanced by the advocates he had made it clear that what was at issue was whether only the actio quod metus causa had been received into Scots law from Roman law or also the exceptio metus.127 By sticking closely to Sinclair’s report, Spotiswoode revealed that the lords of session had recognised the general relevance in Scotland of the Digest titles on these remedies.128 Elsewhere he did not invariably reproduce the learned citations found in the reports of Sinclair, Maitland and Colvil, but by often doing so he drew attention to a feature of the court’s work that was largely concealed in Balfour’s book. Moreover, in writing his own reports of cases heard in the 1620s and 1630s he often followed the example of Colvil and his predecessors by providing an account of the facts and issues, of the arguments advanced at the bar, and of any opinions expressed on the bench.129 123

For surviving examples see NLS, Adv MSS 22.3.4 and 24.1.4–5. The learned aspect of Sinclair’s book is helpfully explored in a working edition accessible at www. uni.leipzig.de/~jurarom/scotland/dat/sinclair. The flavour of the reports is well conveyed in Murray 1980 and Dolezalek 2002. For Maitland see www.special.lib.gla.ac.uk/teach/scotslaw/ practiques. 125 Although references to the reports of Sinclair and Maitland have not been found in the manuscripts of Spotiswoode’s book, there are again striking similarities between some of their reports and some of his notes of sixteenth-century decisions. For examples of similarities with Sinclair’s reports see below. For examples of similarities with Maitland’s reports see Spotiswoode, Practicks of the Laws of Scotland, pp 84, 282 and 284; Morison, Decisions of the Court of Session, vol 4, p 3082, vol 9, pp 7253–4, and vol 16, p 13807. 126 Practicks, vol 1, p 182. 127 Morison, Decisions of the Court of Session, vol 4, p 2724; www.uni.leipzig.de/~jurarom/scotland/dat/sinclair, n 399. 128 Spotiswoode, Practicks of the Laws of Scotland, p 109; Digest, 4.2 and 44.4. For further examples of Spotiswoode’s preference for Sinclair’s reports over Balfour’s see his Practicks, pp 165, 211 and 230; Balfour, Practicks, vol 2, pp 333 and 472; www.uni.leipzig.de/~jurarom/scotland/dat/sinclair, nn 403, 417 and 449. 129 Spotiswoode had little to say about cases heard between 1593 and 1622. He does not appear to have had access to a set of reports from the period. 124

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204 The Court of Law There was rather less reference to the texts, glosses and commentaries of the civil and canon laws in his own reports than in those he borrowed from the sixteenthcentury judges, but he too recorded the express citation of the Digest or ‘the Doctors’ along with clear allusions to learned sources.130 In reporting one case he explained what the court had decided before adding, ‘and this was judg’d conform to the common Law. L. 19. ff. de minor. 25 annis’.131 In dealing with another case he identified the question raised between the parties, observed that the court had not in the end been required to deliver a decision, then explained how the question might have been answered under Roman law.132 On the other hand, he often described no more than the facts and decisions of the cases he reported, saying nothing about the arguments advanced, and he was also prepared both to borrow reports from Balfour and to imitate his style of reporting.133 He was as ready as Papon had been to vary the style of his reports, and he came close to Papon’s preferred style when he began a report with a statement of the rule adopted in ‘our Practick’, provided justification from a relevant ‘textus’, and finally mentioned a case in which the rule had been applied in 1627.134 The combination exemplified in this report of a rule of law stated in English with a justification expressed in Latin frequently recurred in Spotiswoode’s writing. Balfour had occasionally reported cases in the same way, and in doing so had come as close as he ever did to citing learned authority, but he had invariably concluded his paragraphs with a clear reference to a decision, to one of the old books or to an act of parliament. Spotiswoode was often a great deal more vague. For instance, in his Practicks there is a paragraph saying: ‘Ejection and Contravention may be both pursued upon one Deed, quia tendunt ad diversa, et diversos habent effectus, sicut in furto datur actio furti ad poenam, et condictio furtiva ad rem furtivam repetendam. 1585’.135 The point here was that where someone who had guaranteed that he would obey the law wrongfully ejected another from his land, the victim could seek redress both for being ejected and for the contravention of the guarantee, for the same reason that in Roman law a victim of theft had been able to recover both a penalty for the theft and compensation for the loss of his belongings.136 The addition of the date 1585 to Spotiswoode’s paragraph may appear to indicate that he had abstracted a rule from a case reported more fully by Colvil, but a corresponding decision cannot be found in Colvil’s collection, and at the time Spotiswoode was sitting in the session Sir Thomas Hope felt able to 130 See, eg, Spotiswoode, Practicks, pp 22 (where an advocate alluded clearly to Digest, 50. 17.10), 71, 86–7, 171 and 306. 131 Spotiswoode, Practicks, p 300, citing Digest, 4.4.19. 132 Spotiswoode, Practicks, p 21, citing Digest, 18.4.4–5. 133 For examples see Spotiswoode, Practicks, pp 32, 76, 112, 136 and 148, in comparison with Gibson, Decisions of the Lords of Council and Session, pp 181, 216, 260, 281 and 530–31. 134 Spotiswoode, Practicks, p 155. It is not clear which text he had in mind, but for the civilian maxim he quoted and the texts that were commonly believed to support it see Regulae utriusque iuris tam civilis quam pontificii, vol 1, pp 69–70. 135 Spotiswoode, Practicks, p 5. 136 Digest, 13.1.7.1; Institutes, 4.1.19.

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The Transfer of Learned Authority 205 express the opposite view without qualification.137 Whatever the date attached to Spotiswoode’s paragraph may have signified, he seems to have been expressing the view he favoured on the strength of a comparison with the civil law, suggesting not that the Scots could be taken to have adopted a provision of the civil law but that the reasoning he wanted them to follow would be validated by the parallel reasoning of the Roman jurists on a different subject. In another obscure paragraph, in which he stated that ‘Servitudes of Fewel and Pasturage in other Mens Ground must be proven by Writ: Quia consuetudo etiam ad mille annos non inducit servitutem’, Spotiswoode seems to have been using his academic learning in another way.138 Although no date was given, his statement in this instance does appear to have had some connection with a decision of the court, for in 1542, when a miller’s claim that neighbouring farmers were obliged to grind their corn at his mill was rejected because he had failed to produce a document establishing the obligation, Sinclair had explained that this was held ‘quia ex actu mere voluntario etiam per centum annos non inducitur consuetudo, nec alteri ius acquiritur, and sua iura haec incorporalia et servitutes non possunt sine titulo possideri’.139 The court had been understandably reluctant to conclude from the mere fact that farmers were in the habit of taking their corn to the same mill that they were obliged to do so, and Balfour had taken the decision to establish a clear rule in relation to ‘thirlit multuris’.140 But Sinclair had spoken of servitudes more generally, and Spotiswoode wished to extend the rule to the case of owners who habitually allowed their neighbours to gather fuel or pasture animals on their land. There was an obvious difference, recognised by the Roman jurists, between a positive duty to do something and a negative duty to allow someone else to do something.141 In Rome duties of the latter type had been taken to arise from longi temporis consuetudo or longa consuetudo, the consensus among the Italian commentators had been that servitudes could be created prescriptively, and the Scottish court had reached a similar conclusion on more than one occasion.142 Balfour had reported a decision made in 1552 to admit oral evidence of the long enjoyment of a benefit from neighbouring land, a report that Hope was to incorporate into his major practicks, presumably in the knowledge that it had been reinforced by a decision made in 1623 and reported by both Haddington and Gibson.143 Spotiswoode must also have been aware of these decisions, but as he made clear later in the same title, he knew that a statute had been passed at the end of the Roman republic abolishing the prescriptive acquisition of servitudes, and that the rights later acquired by 137 NLS, Adv MS 24.1.5, pp 401–5; Hope’s Major Practicks, vol 2, p 195. Much later, Stair wrote in his Institutions, 4.48.9, that while in principle the remedies were concurrent, in practice the pursuer was forced to choose between them. 138 Spotiswoode, Practicks, p 307. 139 www.uni.leipzig.de/~jurarom/scotland/dat/sinclair, n 173. 140 Balfour, Practicks, vol 2, p 495. 141 Digest, 8.1.15.1. 142 Code, 3.34.1; Digest, 39.3.1.23 (inter alia); Bartolus, Opera, vol 1(1), f 184, and vol 2(1), f 45r; Baldus, Commentaria super Codicem, vol 1, ff 189–90r; Paulus Castrensis, Opera, vol 1(1), f 207. 143 Balfour, Practicks, vol 2, p 356; Hope’s Major Practicks, vol 1, p 249; Morison, Decisions of the Court of Session, vol 13, p 10880; Gibson, Decisions of the Lords of Council and Session, p 67.

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206 The Court of Law longa consuetudo were described as ‘quasi-servitudes’.144 His aim in the earlier paragraph may have been to undermine the authority of the Italian commentators by paying greater attention to the historical development of Roman law and thus to encourage his Scottish colleagues to reconsider their position on the issue of prescriptive acquisition.145 These were by no means the only paragraphs in his Practicks in which Spotiswoode presented brief propositions of law without identifying a source. To judge from those in which a clear reference was added some were abstracted from decisions of the court and others from academic texts, and some may also have been drawn from the works of French practitioners. One proposition was certainly quoted from a report by Papon, with the omission of the learned justification and case citation that had accompanied it in the original.146 There may have been other unattributed quotations like this, though in general Spotiswoode presented the material he had taken from French practitioners at greater length. For example, one paragraph consisted first of a direct quotation and then of a paraphrase of the extended summary Papon had made of the discussion he in turn had found in Pape’s reports of the old dispute between Bulgarus and Martinus, to which a note was added on recent French decisions.147 The relevance of this for Scots lawyers was not spelled out, but elsewhere Spotiswoode sometimes made his purpose clear, for instance in reworking Robert’s report of a case in which a widow had failed in an attempt to be recognised as the guardian of her son.148 Attention had been drawn to Roman legislation enabling widows to serve as guardians in certain circumstances, but it had been accepted that this reflected legislation enabling widows to inherit the estates of their children, and that previous decisions had correctly rejected the Roman approach because French widows did not usually enjoy similar rights of succession.149 Spotiswoode paraphrased the explanation of the Roman approach and went on: ‘This reason lacks force with us because mothers do not succeed much to the goods of their children, which is also so among the French’. He then noted that the Roman approach had been rejected in several French cases, but he made nothing of the other arguments reported by Robert, and neither here nor anywhere else did he reproduce the copious references to literary, historical and philosophical sources found in Robert’s reports. What he did sometimes reproduce in his extended excerpts from the works of foreign practitioners were their references to the texts, glosses and commentaries of the civil and canon laws, with the result that these excerpts were similar to the longer passages he incorporated into his book from the works of university professors. They were also similar to the passages he copied out of Craig’s Ius feudale, the source he drew from 144

Spotiswoode, Practicks, p 310; Digest, 39.3.1.23 and 41.3.4.28. He may have been influenced by reading Cuiacius, Opera, vol 2, cols 399–403. It is worth looking too at how this title ends in his Practicks, for it may have been deliberately designed to leave the issue open. 146 Papon, Decisiones et res iudicatae, p 231; Spotiswoode, Practicks, p 76. 147 Papon, Decisiones et res iudicatae, p 360; Spotiswoode, Practicks, pp 12–13. 148 Robert, Rerum iudicatarum libri iv, pt 1, ff 50v–4v; Spotiswoode, Practicks, p 212. 149 Digest, 38.17; Code, 5.35 and 6.56; Institutes, 3.3. 145

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The Transfer of Learned Authority 207 most often. The passages from Craig’s treatise, which often ran for several pages at a time or occupied the whole of titles, were mostly reproduced verbatim, though there were occasional adjustments to bring his treatment of the law up to date.150 It was a measure of Spotiswoode’s respect for the Ius feudale that he followed up one report by explaining how ‘Craig’s Opinion may be reconciled with the Lords Decision’.151 The more extensive and discursive passages in Spotiswoode’s book, like the shorter statements of rules and opinions, were sometimes presented without any reference to a source.152 The title ‘De praescriptione et usucapione’, for example, opened with over two pages of unattributed notes on the acquisition or loss of rights by lapse of time.153 Like a briefer passage later in the title, these notes were written in Latin and dealt with the handling of prescription (mostly positive) in the civil and canon laws, with a brief glance at French practice. The source was certainly not Craig, whose account of the handling of prescription in the feudal law was referred to later in the title, along with passages from the works of Petrus Iacobus and Cuiacius, and of Pape and Bohier. In the rest of the title Spotiswoode presented reports of Scottish cases, sometimes giving no more than a brief outline of the facts and decisions, at other times summarising the arguments advanced at the bar. Several cases involved debate about the interpretation of acts of parliament, which were fundamental to the local law in this area, yet the acts were neither reproduced nor even cited directly in the title.154 One of the most striking features of Spotiswoode’s book is indeed its general lack of reference to the acts of the Scottish parliaments or the old books of the law. If this explains why he seldom made reference to the works published by Skene, it also means that his book was in the end significantly different from Balfour’s. In his title ‘Anent prescriptioun’, for example, Balfour had made reference, though writing before the major enactments of 1594 and 1617, to several acts from the fifteenth and sixteenth centuries alongside his reports of cases.155 In other titles it was the old books he had cited as the source of basic rules to which the rules abstracted from cases were then added, and it may have been a desire to work primarily from the acts and books that had inclined him to present the law as a body of rules. To some extent Spotiswoode may have shared this inclination, for he did copy rules out of Balfour’s book, he did abstract rules himself from later cases and he did often state the law in the form of rules or propositions. For further evidence of sixteenth-century decisions, however, he had turned to the reports by Sinclair, Maitland and Colvil, and he appears 150 Compare, for instance, Spotiswoode, Practicks, pp 9–10, 11–12, 61–2, 132–3, 138–9 and 181–2, with Craig, Ius feudale, pp 34, 61–2, 188, 254–6, 335–6 and 379. The slight variations that will be found may actually have been between the manuscript Spotiswoode used and the printed edition. 151 Spotiswoode, Practicks, pp 95–6; Craig, Ius feudale, p 264. 152 Although in the printed edition some passages are placed in quotation marks, this does not appear to bear any relation to the use Spotiswoode made of his sources. 153 Spotiswoode, Practicks, pp 233–8. 154 Millar 1898, pp 392–4; Black 1931, pp 26–8; Walker 1988–2004, vol 4, p 758; Johnston 1999a, pp 6–8; Carey Miller 2000, pp 289–92. 155 Balfour, Practicks, vol 1, pp 146–8.

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208 The Court of Law to have learned from these writers to present the law in the form not so much of settled rules as of a continuing argument or debate. As reference had been made by these writers to the literature he had become familiar with during his foreign travels, it must have seemed natural enough to make use of the same literature in writing his own book, especially when he discovered that extensive use had already been made of continental literature by another Scottish writer. It may have been Balfour’s example that Spotiswoode had followed in writing discrete paragraphs to be ordered under titles, but it was Craig’s example that he appears to have followed in trying to provide his titles with a basis in learned rather than legislative authority. In style his book may have belonged in the same genre as Balfour’s practicks, but in substance it had more in common with the treatise written by Craig.

Making sense of Spotiswoode’s practicks Spotiswoode’s book has tended to be neglected by modern students of Scots law, perhaps because they have had difficulty in understanding the purpose of much of the material it contains. As a store of judicial precedents it has been ransacked like other records of the early decisions of the session, and rightly or wrongly modern lawyers have felt able to interpret Spotiswoode’s reports in the same way as those composed more recently.156 But what is to be made of the rest of the material in his book? What weight is to be attached to statements made without a clear reference to a decision? Is it to be assumed that Spotiswoode simply omitted to attach a reference? If he cited a book written by someone else, is there any point in reading his book when the original may be consulted? If the original was a treatise on the civil law, or if an unattributed passage was concerned with the civil law, may it safely be ignored by a student whose interest is in Scots law? And what relevance were books dealing with foreign law or the decisions of foreign courts meant to have in Scotland? So many questions remain that it may be tempting to accept after all the view formed at the start of the eighteenth century that Spotiswoode had merely gathered together some rough notes for a more coherent book he intended to write. It is hard to go far beyond speculating on when, why and how he wrote his book, though examination of his sources and of the use he made of them can be illuminating, and more could certainly be done in this direction.157 For the time being, however, what matters is not so much what Spotiswoode himself intended as what intentions his first readers would have imputed to him. In previous chapters it was suggested that his practicks began to be read publicly in the late 1650s, when Robert Burnet encouraged advocates to investigate the sources and literature of their law, and when the danger that the law of Scotland would be treated as a regional custom accommodated within the common law of England gave advocates particular cause to consider the relationship between their 156

Cf McKechnie 1936, p 36. [See too Cairns 2004, pp 159–67, to which access was gained only after this book was written. The views expressed in this article about Craig are of course contested here.] 157

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The Transfer of Learned Authority 209 law and the ius commune of Europe. Burnet led his readers to believe that there were books about the local law still in the hands of their writers’ families, and though he does not appear to have been aware of the existence of Spotiswoode’s book, he would surely have welcomed its discovery.158 It seems likely that Burnet would have regarded Spotiswoode as someone who had tried to follow Craig’s example by writing about the local law as a learned author, and who had thus tried to import learned authority into Scots law from the civil law. Whether it had been Spotiswoode’s original intention to fashion his materials into a more coherent treatise or to leave them in the discrete paragraphs in which they have survived, the ordering of notes and quotations under standardised headings is bound to bring to mind the commonplace books that were widely used throughout Renaissance Europe.159 Regarded as a humanist innovation, these books were designed to provide their compilers with ready access to the authoritative sources they digested, and there clearly must have been some connection between their popularity in the sixteenth and seventeenth centuries and the appearance in Scotland at the same time of the practicks genre.160 Yet it is well known that there was nothing new about the use of structured notebooks to assist the memory.161 More generally the compilation of materials drawn from a variety of sources was a widespread medieval practice, and in a crucial respect Spotiswoode’s approach to compilation seems more medieval than modern.162 In the commonplace books of the Renaissance the aim was to collect materials drawn from sources of acknowledged authority, whereas Spotiswoode seems to have followed the medieval practice of combining excerpts from authoritative sources with materials of more doubtful origin. By excerpting suitable material from the works of continental professors, and by sometimes suggesting learned solutions to problems raised before the Scottish court, he showed that he had some expertise in the civil, canon and feudal laws. Alongside these excerpts and discussions he placed reports of Scottish cases in which varying degrees of reference had been made to learned sources, connecting the decisions of the session with the learned authority of the professors’ books rather than with the legislative authority of the old books of Scots law, as Balfour had done. That it was often unclear whether Spotiswoode’s concise propositions of law were based on decisions or doctrine, and whether he had elsewhere quoted others or inserted his own work, may not 158 As a reminder of the narrow world in which the advocates lived and worked it may be noted that in 1662 Alexander Spotiswoode, who had been trying to recover New Abbey from the crown since his father had never been paid for it, was compensated with land confiscated from Burnet’s brother-in-law, Archibald Johnston (Register of the Great Seal, vol 11, pp 158–9). The land included a ‘great tenement or lodging called the tenement of Mr Thomas Craig’, a residence on the High Street that would have suited Alexander Spotiswoode’s requirements as an advocate as it had suited Craig’s or Johnston’s before him. It was Alexander Spotiswoode’s son who later edited the Practicks. 159 Blair 1992; Beal 1993; Crane 1993; Meynell 1993; Moss 1996. 160 More will be said about this later, particularly in another volume in this series. 161 Blair 1992, p 541; Crane 1993, p 202; Moss 1996, pp 43–4. 162 For the medieval practice of compilation see generally Parkes 1976; Minnis 1979; Hathaway 1989. For the connection between the ideas of compilatio, conjointure and translatio studii see Huot 1987.

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210 The Court of Law have been a defect so much as a technique of composition. Along with his constant alternation between quotation and paraphrase, and between use of English and Latin or the technical terms of the local and learned laws, the vagueness of some of his attributions may have been designed to blend the practice of the session into the learning of the schools. To those familiar with French literature and law it might have seemed that be had performed a valuable exercise in the conjointure or mariage of the local and learned laws. It has been mentioned already, and will be remarked on again, that at the turn of the fifteenth and sixteenth centuries French jurists like Pape, Bohier and Chasseneuz had attempted to connect the practice of the parlements with the doctrine of the schools by adopting the precepts of the mos Italicus. The same approach had been taken at about the same time in Germany, and it seems to have been favoured in Scotland by judges like Sinclair, Maitland and Colvil. It was suggested earlier that mos Italicus assumptions continued to inform the thinking of at least some Scottish jurists at the start of the seventeenth century, and traces of mos Italicus thinking have even been found in the records of the Interregnum court. In France, however, as will be explained further later in this chapter, a different approach had been taken by jurists working in the late sixteenth and early seventeenth centuries, and it is this approach that seems to have influenced Spotiswoode. The new approach was sometimes justified by reference to the old literary motif of the transfer of learning from Athens to Rome and from Rome to Paris, and in fact it involved the use of equally old techniques associated with the literary motif. As a leading student of the medieval practice of translatio has put it, writers intent on transferring learning from one place to another—not necessarily from Italy to France—would try in various ways first to connect material from an established culture with material from a culture they wished to promote, and then to displace the authority of the established culture in a way that would leave the authority itself to be taken over by the emerging culture.163 More will be said in due course about some of the ways in which French jurists tried to achieve this aggressive mode of transfer, but it may be noted at once that several of Spotiswoode’s practices may have served the same purpose. His frequent shifts from quotation to paraphrase, from Latin to English, and from the vocabulary of the learned laws to local vocabulary, while serving to connect the local with the learned laws also had the effect of rendering the learned laws less relevant. The use of earlier reports of cases and of their style in reporting later cases gave a clearer impression of the session as a learned tribunal than Balfour’s practicks had done, yet the use of Balfour’s style in other reports, and the gradual reduction in the level of reference to learned sources in the reports borrowed from the sixteenth-century judges and in Spotiswoode’s own reports, also gave a sense of decreasing relevance. So did pointing out that provisions of Roman law were not suited to adoption in Scotland any more than in France, while identifying changes in Roman law tended to show how 163

here.

Copeland 1991. This book has been found particularly helpful in forming the thesis presented

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The Transfer of Learned Authority 211 mos Gallicus professors had undermined the authority of their mos Italicus counterparts and had left the solution of practical problems to the courts.164 It may not be going too far to suggest that the relationship between the practicks of Sinclair and Spotiswoode was similar to the relationship between the reports of Pape and Papon. All four books were concerned with the connection between the learning of the schools and the practice of the courts, but whereas Sinclair and Pape had sought to draw the decisions of the courts into the discourse of the schools, Spotiswoode and Papon attempted to transfer authority from the schools to the courts. In doing so they both made extensive use of learned sources, but what they were moving towards was a position in which practitioners would be able to write with authority about their own sources. In England practitioners appeared to have reached this position long before, which may have encouraged some advocates in the Interregnum court to present the transfer of learning to the College of Justice as a fait accompli. This appears to have been the aim of one of Spotiswoode’s earliest readers, Thomas Wallace of Craigie.165 His ‘Law Repertorie’, it may be recalled, consisted largely of propositions of law extracted from the practicks of Gibson, sometimes those of Hope or Haddington, and less often those of Balfour or Spotiswoode. Wallace’s ordering of these propositions in discrete paragraphs listed under familiar titles meant that his book was similar in style to the practicks of Balfour and Spotiswoode, though in always reducing the reports he cited to abstract rules he seems especially to have followed the style favoured by Balfour. It was also Balfour’s style he followed in including rules drawn from acts of parliament and the old books and in excluding material drawn directly from learned sources. Some of his notes on cases, it is true, contained indirect references to learned sources, as when he stated that ‘possessors may defend ther possessione and resist the force and violence of him that would eject them, quia vim vi repellere licet cum moderamine inculpatae tutelae’.166 The explanation provided here was drawn from Roman law and was also provided in the report by Hope that Wallace cited as his source, as it had already been provided in the report by Balfour that Hope had in turn cited.167 Occasionally Wallace made his own observations on the learned laws, as when he remarked that a decision reported by Gibson was ‘inconsistant with that common maxime, that matrimonium debet esse liberum’.168 It has been pointed out already that discussion of the learned laws can be found in some of the notes Wallace took from Craig’s treatise, as when he 164 As the titles of their books often indicate, writers like Imbert and Automne had shown some interest in the rejection of provisions of the civil law in France. For a book from the same period devoted to the subject see Philibert Bugnyon, Legum in omnibus Galliae praetoriis abrogatarum libri tres. For another possible example of Spotiswoode’s use of humanist learning to displace civilian authority and to make way for local reappraisal see his Practicks, p 255, and Mackenzie Stuart 1958, p 251. 165 Although Wallace clearly completed his book in the early 1660s, there is at least a hint in his title on ‘arrestment’ that he had started in the late 1650s. See, eg, NLS, Adv MS 24.3.2, p 53. 166 Ibid, p 140. 167 Digest, 9.2.4–5.pr, 9.2.45.4, 43.16.1.27 and 48.8.9; Hope’s Major Practicks, vol 2, p 91; Balfour, Practicks, vol 2, pp 472–3. 168 NLS, Adv MS 24.3.2, p 236; Gibson, Decisions, p 474; Code, 8.38.2.

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212 The Court of Law described how it was ‘disputed among the doctors’ whether a vassal would be liable to the casualty of disclamation only if his failure to acknowledge his superior occurred in a courtroom.169 It would be fair to say that there was considerably more reference to the learned laws in Wallace’s book than in Balfour’s, yet what remains striking is that there was a great deal less than in Spotiswoode’s. If Wallace’s consistent policy of beginning his titles wherever possible with Latin summaries of passages from Craig’s treatise meant that his book was in the end more similar in substance to Spotiswoode’s than to Balfour’s, this was not because it resulted in extensive reference to learned sources. Rather, the significance of Craig’s treatise from Wallace’s point of view appears to have been that it showed how the opinions of a learned practitioner could help to shape the local law. Wallace sometimes reported ‘Craigs opinion’ alongside decisions, he sometimes took decisions to serve as evidence of ‘the opinion of most of our lawyers’ or ‘the common opinione’ of the court, he sometimes extracted ‘the opinione of our lawyers’ from the books they had written, and he frequently expressed ‘my opinion’ or ‘our opinion’ on difficult questions.170 Although the opinions he identified and expressed in his book were sometimes derived in a quite obvious way from the theory of the schools, it was the fact that they were held by practitioners in the session that mattered to Wallace.171 What seems to have been assumed here is that the authority of the learned laws had been absorbed into the local law, not in the sense that the judges were obliged to adopt the civilian or canonist solution to any new problem that might arise, but in the sense that a solution commonly approved among the lawyers in the session, possibly but not necessarily on the basis of their academic learning, would be authoritative and thus a properly legal solution. Whether this assumption was shared by writers like Andrew Gilmour and George Lockhart, who occasionally expressed opinions in the books they wrote about the acts of parliament and the decisions of the session, is hard to tell, but it does seem to have been shared by the writer of the popular epitome of Craig’s Ius feudale ascribed to John Nisbet.172 Given the nature of this book, much of it inevitably involved an abbreviated review of ‘the opinion of the interpreters of the feudall law’, ‘the comon opinion of the doctors of the law’, or ‘the comon opinion of the lawers’.173 But the writer of the epitome was particularly interested in Craig’s attempt to explain how ‘the feudall law’ or ‘comon law’ could be handled in relation to ‘our practique’ or ‘coustume’, and in the many passages where he found that Craig’s discussion of the learned 169

NLS, Adv MS 24.3.2, pp 128–9; Craig, Ius feudale, p 356. NLS, Adv MS 24.3.2, pp 16–17, 33, 69, 74, 85, 105–6, 234, 245, 262, 292, 358, 362, 380, 393–4 and 399. 171 See again, eg, ibid, p 24, where Wallace justified a preference for a decision reported in Hope’s Major Practicks, vol 1, p 311, over another reported in Gibson, Decisions, pp 595–6, on the strength of Digest, 29.2.20.pr, and a maxim included in Regulae utriusque iuris tam civilis quam pontificii, vol 1, p 635. 172 See, eg, NLS, Adv MS 25.5.3, ff 95r, 119v and 125v, Adv MS 25.6.13, ff 15r and 46v, and MS 2695, pp 214 and 311. 173 NLS, Adv MS 25.6.1, pp 55, 63, 114, 141, 147, 184, 187, 190–92, 208–9, 213, 230–32, 237, 252, 325, 327, 348 and 372. 170

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The Transfer of Learned Authority 213 laws ‘tend[ed] not much to our purpose’ he referred the reader to ‘the authors principall book’ and moved on to the next relevant passage. Mostly the writer gave a bold statement of what obtained in ‘our practise’, perhaps as it had been ‘practised’ in a case before the session or—as he put it more precisely—as it had been ‘found by our practise according to the lords decision’. Sometimes he noted that an issue remained ‘uncertain’ because ‘it hath not bein practised here’ or because ‘the lords decisiones in this matter hath bein various’, sometimes he noted that ‘the author leaves it dubious’, and sometimes he revealed that he expected such issues to be ‘clearly decyded by the author’. The writer referred frequently to ‘the authors opinion’, sometimes along with the views of ‘our lawers’ more generally, and he occasionally encouraged his readers to examine ‘Skene his Treatise de verborum significatione’ or ‘Hopes Institutiones’. It seems that he too was ready to treat the opinions of practitioners as a source of law. As the next section of this chapter will show, there is some evidence that Stair may also have been prepared to attribute authority to his colleagues in the session, but by comparison with the other advocates writing in the late 1650s he seems to have been rather more cautious. In a long title on ‘Conventional Obligations’, for example, he made scarcely any reference to the views of local practitioners but made a great deal of reference to the learned laws.174 He began by explaining that although the Romans had only enforced agreements that fell into recognised categories of contract, most modern nations were inclined to enforce any agreements that were intended to be binding. He pointed out that this made it unnecessary ‘to trace the many subtilties and differences amongst Pactions and Contracts in the Roman Law’, yet the rest of his title consisted of a series of comparisons between ‘the Civil Law’ and ‘our Custome’.175 The broad outline of the discussion was taken from Roman law, and when a difficult ‘question’ was identified it was handled with reference to the texts and commentaries of the civil law.176 Sometimes Stair was able to identify the opinion held by ‘most Interpreters’ or ‘the common opinion of all’, sometimes he could only cite the opinions of particular jurists, and sometimes he had to admit that ‘the Doctors are of divers opinions’. Where opinions differed he sometimes sought to decide for himself which was the ‘more probable’, taking due account of ‘Authority’ but above all considering the ‘Equity’ of the solutions proposed, and even where ‘most of the Doctors’ were in agreement he sometimes offered his own opinion to the contrary, especially if he was able to cite a maxim ‘which the Doctors acknowledge’. It has been shown that Stair borrowed some of his references to the opinions of the doctors from books by other jurists and that much of his treatment of the law of contract is distinctly reminiscent of discussions in treatises by well-known writers on the continental ius commune.177 This has 174 Institutions, 10/1.1.10–17. On this title (which was broken into several titles in the second edition) see Mackenzie Stuart 1958, pp 253–5; Smith 1958c, pp 145–7; Sellar 2000, pp 253–7. 175 Institutions, 10.10/1.10.10. 176 See, eg, ibid, 10.14/1.10.14, 10.17–18/1.11.1–2, 10.34/1.12.7, 10.37/1.12.10, 10.54/1.13.8, 10.65/1.14.3, 10.69/1.14.7 and 10.71/1.15.2. 177 Mackenzie Stuart 1958, p 258; Gordon 1985, pp 573–4 and 578–82; Richter 2001, pp 221–2.

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214 The Court of Law troubled modern readers, but it was quite consistent with the practice of medieval authors. By blending material from these treatises into his own discussion Stair could have been seeking to demonstrate that he was capable of extending civilian learning into a new field. In an earlier title he announced that his approach would be to ‘interweave the Civil Law and our Customes, that it may appear how far they do agree, and differ, and how they do quadrat to the Law of Nature’.178 This describes quite neatly his approach to writing about the law of contract, for as well as showing how far the law of Scotland followed the pattern of the civil law in this area, Stair also emphasised the differences between the local and learned laws and argued that learned solutions to problems must be rejected where they seemed inconsistent with the requirements of natural law. Like Spotiswoode, he may have been keen not only to establish his credentials as a learned author and to connect the local with the learned laws, but also to diminish the status of the learned laws as a source of mandatory solutions to problems and to make room for the more local development of expertise, though unlike some of his contemporaries in the session he seems to have considered it premature to present the transfer of learning to the court as a fait accompli and to have felt the need to continue writing in the same vein as Spotiswoode. The editor of Spotiswoode’s Practicks drew attention to Stair’s ‘frequent citing’ of the collection when he made his suggestion about his grandfather gathering no more than rough notes for a digest of the law, and if his perception of his grandfather as a forerunner of Stair may help to explain why he made his suggestion, it also raises the question whether Stair would have regarded himself as Spotiswoode’s heir.179 The suggestion made in previous chapters was that Stair may have tried not so much to go beyond Spotiswoode as to go back to Craig, and this is important since he lacked the French experience that would have enabled many other lawyers in Scotland to understand what Spotiswoode had tried to accomplish.180 The suggestion made so far in this chapter is that advocates trained in France would have been inclined to read Spotiswoode’s book as a further attempt to promote the transfer of learning identified in Burnet’s preface to Craig’s Ius feudale. Although the earlier attempt to transfer learning from the universities to the courts in France has not received much attention from historians of French law, it was advertised boldly in the titles and prefaces attached to many books and would have had obvious significance for students who were not yet taught to assume that all law must have its origins in the exercise of legislative authority. While the frequent allusions to a transfer of learning from Rome to Paris would have had limited significance for Scottish students—there was of course no proposal at this stage that Edinburgh might be taken to have replaced 178 Institutions, 6.4/1.6.4. In Roman law, it may be worth noting, the interweaving (intexere) of thread into cloth was a way of acquiring ownership of the thread. See Institutes, 2.1.26. 179 Spotiswoode, Practicks of the Laws of Scotland, sig B1r. As well as citing Spotiswoode’s reports, Stair also referred to his opinions on the law at Institutions, 13.46/2.3.46 and 28.2/3.6.2. 180 Stair referred to the works on the customs and constitutions of France by Bohier, Chasseneuz and Rebuffi at Institutions, 4.3/1.4.12 and 10.11/1.10.11, but Gordon 1985, pp 579–82, shows that these references were probably borrowed from other writers.

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The Appropriation of the Common Law 215 Paris as the cultural capital of Europe and the Athens of the north—what would have struck a familiar chord was the idea that learned authority could be appropriated by an emerging culture.181

THE APPROPRIATION OF THE COMMON LAW

Stair’s debt to Craig’s Ius feudale When Stair began to deal with land tenure in the thirteenth title of the original draft of his book he explained how his handling of the subject would relate to Craig’s.182 ‘Our Learned Countrey-man, Mr. Thomas Craig Advocat’, he remarked, ‘hath largely and learnedly handled the Feudal Rights of this and other Nations, in his Book de Feudis; and therefore, we shall only follow closely, what since his time by Statute or Custom hath been cleared or altered in Feudal Rights: and so much only of the Rights themselves as must necessarly be introductory to our fixed Customs’. What this meant was that Stair would concentrate on providing an abridgement of the statutes enacted since Craig’s time and a compendium of the more recent decisions delivered by the lords of session, dealing only in outline with the learned background to the development of the local law. His discussion of the feudal law certainly was concise by comparison with Craig’s, to which he referred expressly from time to time and to which he was clearly indebted at other times.183 It would be going too far to say that Stair based his account of recent developments in land law on an epitome of Craig’s treatise, for much of his discussion of the feudal law was his own and the material he adopted from Craig was integrated into a coherent account which owed little in its structure to the Ius feudale. In this he differed from Wallace, yet like Wallace, and Spotiswoode before him, Stair accepted that Craig had laid the essential foundations for any discussion of land tenure in Scotland. Craig had shown how land tenure could be handled in terms of ‘Feudal Rights’, which squared neatly with Stair’s professed aim to deal in the three parts of his book with the constitution, conveyance and cognition of rights.184 After dealing in the opening titles of the first part with the personal rights people could enjoy in virtue of duties owed to them by others, Stair had turned in 181 For the importance of this idea in Scottish culture see Machan 1990 and 1992; Pinti 1993; Watson 1994; Ives and Parkinson 1999; McKim 2001. 182 NLS, Adv MS 25.1.10, 13.1, and Institutions, 13.3/2.3.3. The text was altered here in 1681. 183 Compare, for example, Ius feudale, pp 58–61 and 184–96, with Institutions, 13.30–40, 43 and 75–80/ 2.3.31–40, 43 and 75–80. It has already been mentioned that Stair used a manuscript copy of Craig’s treatise in preparing the lesson he delivered as an intrant to the bar. It is possible that in writing his Institutions he continued to use this manuscript, for whereas Wallace, Gilmour and others referred to Burnet’s printed edition of the Ius feudale by page numbers, Stair cited Craig’s ‘Book de feudis’ by book and chapter numbers, sometimes adding something like ‘near the beginning’, ‘§. ult.’ or ‘§. 6’. See too Halliday 1981, pp 139–40. 184 As was noted earlier, Burnet had stressed in the long title of his edition of the Ius feudale that it was concerned with the ‘consuetudines feudales & praediorum iura, quae in Scotia, Anglia, & plerisque Galliae locis obtinent’. For Stair’s intentions see again Institutions, 1.22/1.1.23.

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216 The Court of Law his twelfth title to the real rights people could enjoy directly over things.185 He had distinguished there between rights of common ownership, possession, private property, servitude and pledge, and had at once provided an account of the first two types of right and of private property so far as it related to movable things.186 He had then started in his thirteenth title to provide an account of private property in relation to land and other immovable things, before proceeding in the remaining titles of the first part of his book to deal with the rights of servitude and security over land and with the loss of real rights.187 In all these titles on rights over land he made frequent reference to Craig’s treatise.188 In the second part of his book, in which he dealt with the conveyance of rights first between the living and then from the dead, Stair again used Craig’s treatise in writing about rights over land. At the start of his discussion of the conveyance of rights from the dead he explained that since ‘Succession to Defuncts, is the most Important Title in Law’, and since ‘the Channel of Succession is with us divided in two currents’, one dealing with immovable rights and the other with movable rights, he would devote an introductory title to exploring the origin and nature of succession generally before he considered separately the conveyance of land to heirs and of goods to executors.189 In the next few paragraphs he traced ‘the Natural course of Succession’ and showed from the law of Moses how God, ‘by his Positive Law, altered the effect of Equitie, and of his Moral Law, in succession’. He then summarised briefly ‘the order of Succession in the Civil Law’, distinguishing between ‘the Ancient Law of the twelve Tables’, the ‘Honorarie Law’ or ‘Praetorian Law’, also called the ‘Midle Law’, and the ‘Imperial Law’, as provided ‘especially in the Novel Constitutions of Justinian’. ‘But while the Roman Empire, and Laws were trampled down, by the Northern Nations’, he went on, ‘the Feudal Law arose, and doth yet continue with the Civill Law of the Romans, and other Nations, by which there is a great distinction introduced’. It was the history of European law that explained why there were two separate currents of succession, one flowing from the civil law and the other from the feudal law. Stair dealt next with the ‘Common Feudal Customes’, but observed that ‘the Feudal Customs are locall, and it is hard to find a common rule therein for Succession, which is variable, according to the diversity of place’. He was particularly anxious to explain how ‘the Prerogative of Primogeniture’ had arisen, for it was contrary to the terms both of the Libri feudo185 As Stair put it at ibid, 12.pr/2.1.pr, just as a personal right was ‘a power of exacting from persons that which is due, so a right real is a power of disposal of things, in their Substance, Fruits, or use’. 186 The clearest statement of the classification of real rights is at ibid, 12.28/2.1.28. 187 In NLS, Adv MS 25.1.10, 12.49 (and also in other manuscripts), Stair explained why he had dealt with the rights of servitude and pledge only in relation to land: ‘The last two reall rights ar servitude and pledge, but becaus ther is no servitude of movables, and the impledging therof hath sufficientlie been spoken to amongst contracts, so that what remaines of both is only in relatione to immovables and heritable rights, we shal leave them to that place’. This passage was omitted from the printed editions, but Stair’s explanation of why common ownership was dealt with in relation to movable things alone did survive as Institutions, 13.3/2.3.3. 188 The penultimate title, on negative prescription, was the exception, for it dealt with movable things. 189 Ibid, 26.pr/3.4.pr. Stair dealt with natural and divine law at 26.1–14/3.4.1–14, the civil law at 26.15–19/3.4.15–19, the feudal law at 26.20–22/3.4.20–22, and Scots law at 26.23–35/3.4.23–35.

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The Appropriation of the Common Law 217 rum and of the rest of the Corpus iuris, yet was a ‘common Custome’ adopted ‘in England, France and most other Nations’.190 After spending some time in an attempt to justify primogeniture Stair came finally to the law of Scotland where, he remarked, the rules on succession to movable things were ‘near to the Course of Natural Succession, and to the Civil Law of the Romans’, while the rules on succession to immovable things were nearer ‘to the Recent Feudal Customs, of most Nations, whereby Primogeniture is established, for the Honour and Preservation of Noble Families, and in them, for the good and safetie of their Kings and Countryes’. Having thus introduced Scots law by tracing its historical origins, Stair proceeded to examine its provisions in detail. This was the approach he had taken in addressing the lords of session before his admission to the bar, it was the approach announced in the title given to his book in 1681, and it was in fact how he tended to write. His account of the creation of feudal rights over land had been preceded in his twelfth title by a more general account of the creation of real rights under natural law, divine law and the civil law, broadly similar in pattern to the much shorter account he had provided in his lesson, and he had already accounted for the various personal rights in a similar way in the earlier titles of his book. Although in his introductory title on succession Stair made no explicit reference to Craig’s treatise before the closing paragraphs on the law of Scotland, he does seem to have been influenced by Craig in writing the earlier passages. In the first of a series of titles in the Ius feudale devoted to the subject of succession Craig had taken time at the outset to establish that rights of inheritance arose ‘ex aequitate naturali’.191 He had drawn attention to the care of other living things for their offspring, to the provisions of the law of Moses relating to succession and to those of the XII Tables, ‘from which it is sufficiently apparent what the succession regime of the Romans was, and of the Greeks, from whom the Roman laws flowed down’. After explaining the significance of the term heir and distinguishing between the modes of inheritance he meant to deal with, Craig had undertaken to consider in order ‘first, who are called to the succession by divine law or the Mosaic law (which is earlier than all other laws); then, what the laws of the XII Tables (which merit the name of the most ancient law of the Romans) prescribe in succession; thirdly, what their middle law maintained; fourthly, what the imperial constitutions ordained; finally, what the feudal law instructs on this question, and what is in use from our law and our customs and those of the English, who agree with us in almost all things’. This was indeed the pattern Craig had tried to follow in his next few titles, where he often commented on similarities between divine law and the law of the XII Tables, at least as it was adjusted by the praetors during the period of the media iurisprudentia.192 The regime introduced in Justinian’s Novels seemed 190

On the customs of other nations Stair referred to Petrus Gudelinus, De iure novissimo, pp 74–8. Ius feudale, pp 224–35. 192 Gordon 1985, pp 581–2, deals with Stair’s unacknowledged debts to both Craig and Gudelinus. It may be noted that while Gudelinus mentioned the ‘lex duodecim tabularum’ and ‘ius praetorium’ as background to the ‘novissima Iustinianaea constitutio’ with which he was primarily concerned, he did not talk of a middle law or cover the same sweep of legal history as Stair and Craig. 191

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218 The Court of Law to Craig to be less consistent with divine law, and the feudal regime less consistent still, though he believed that the primogeniturae praerogativa could be traced back to the law of Moses and that its introduction was justified by the need to preserve the dignity of families and to provide for the defence of kingdoms. Although this prerogative did not form part of the law handled in the Libri feudorum, Craig had stressed repeatedly that ‘feudal rights are diverse or local’. Stair seems clearly to have drawn his remarks on the diversity of feudal customs from Craig, and he seems generally to have learned from Craig’s treatment of succession to approach the law of Scotland from a historical angle.193 Craig’s treatment of succession was peculiar in the extent of its attention to divine law and in the clarity of its focus on distinct periods of historical development, but since he tried throughout his book to present Scots law against the background of the learned laws and the customs of other nations, his titles on succession could have been read as an especially illuminating example of his method.194 Stair’s introductory title on succession was also peculiar in the clarity of its focus on the different stages of development, but he tried throughout his book to relate Scots law both to the learned laws and the customs of other nations and to natural equity and divine law. In doing so he may simply have been trying to extend Craig’s method to other parts of the local law.195 The foundation of Stair’s approach was laid in the first title of his book, in which he began by examining the various forms of divine and human law. The paragraphs on divine law will be examined in detail in the next volume in this series, but it needs to be noted here that Stair moved from discussion of ius naturale through discussion of ius gentium to discussion of ius civile.196 Although the third term was the name given to ‘the Law of each Society of People under the same Soveraign Authority’, it was of course applied especially to ‘the Civil Law of the Roman Commonwealth, or Empyre, as the most excellent’, and Stair thought it appropriate to spend some time in outlining the history of this law ‘because of that Affinity that the Law of Scotland hath with it, as have also the Laws and Customes of the Chief Nations’. ‘The Romans’, he began, ‘were first Governed by Kings who gave them Laws’, but since these laws were later repudiated along with the monarchy ‘there was no fixed, nor written Law among the Romans’ until commissioners were sent to the Greek cities ‘to understand the Laws of these Commonwealths, and thence to frame a Model of Government, and Laws for the Roman State’. The result was the enactment of ‘the Law of the twelve Tables’, which proved to be ‘so acceptable and satisfactory to the Romans’ that it constituted (as Livy had famously observed) ‘the Foundation and Principles of all that great Body of Law, 193

Institutions, 26.20/3.4.20, should be compared in particular with Ius feudale, p 242. Craig’s reason for tracing the right of succession back to divine and natural law was presumably that he had already written at length on the topic in his treatise Concerning the Right of Succession to the Kingdom of England, pp 96–130. See his Ius feudale, p 225, and also Allen 1928, pp 257 and 262; McIlwaine 1965, p xciii; Nenner 1995, pp 31–2. This point will be returned to below. 195 The method was less clear but still discernible in the titles in which Stair tried to interweave the civil law with Scots law. Craig’s views on natural law will be returned to in later volumes in this series. 196 Institutions, 1.3–11/1.1.3–12. On the relationship between Stair’s handling of these concepts and the discussion in Justinian’s Institutes see Watson 2002. 194

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The Appropriation of the Common Law 219 which afterwards they had; all which was ordered to that Ancient Law, as Extensions and Limitations of it’.197 Stair went on to explain how these modifications were made in the earlier centuries ‘by the Plebiscita Laws, Inacted by the Suffrage of the People, or by the Senatus Consulta, or by the Edicts of the Pretor, or by the Responses of the Jurisprudents, who were authorized to give answer in dubious Cases’, and in the later centuries, ‘when the Soveraign Power was devolved upon the Emperour[s,] by their Edicts, Rescripts and Decrees’. Eventually the effect of these modifications was that ‘the Roman Law increased unto so great a bulk, that there were thousands of Books of Law, in which the Brevity and Perspicuity of the twelve Tables was then lost’. It was for this reason that Justinian had finally ordered the Digest, Code and Institutes to be compiled in the sixth century, to which the nine collations of his Novels were added. Shortly afterwards, however, ‘the Roman Empire being opprest by the Irruption of the Gothes and Longobards, the Roman Law did also lye under Ashes above the space of five hundred years, until a new shape of the Roman Empyre, being set up in Germany, Lotharius the Emperour, who flourished in the eleventh Century, did again revive and restore the Roman Law’. From then on the civil law ‘was every where Taught in the Schools, and inlarged with more vast heaps of Commentaries and Treatises, then were these of the Ancient Lawers, though not claiming the like Authority’. In his next paragraph Stair went back to the sixth century to remark briefly on how ‘in the Interim, did the Feudal Law or Customs take rise among the Longobards, and other Nations, who having expulsed out of Italy the Roman Empyre, were willing to change their Barbarity, and to be successours to the Romans in Seats and Civility’.198 The Lombards had found that it would help to secure their conquests if they ‘gave out all their Lands to their Soldiers and Assecls, as Benefices to them for their Service and Assistance in their Wars’. Their example, Stair then observed, ‘and the new Interest it afforded to Soveraigns, to have all their Territories to hold of themselves; and most of their Subjects by that new relation, to become their Feudatars and Vassals, hath given the Feudal Law wings, whereby it hath spread it self over most of the World’. In the paragraph following this Stair added that ‘in the declining also of the Roman Empyre, the Bishop of Rome having mounted himself unto the Imperial Eminence of Universal Bishop, did in imitation of the Emperour cause compile the Canon Law’.199 To begin with the Decretum was put together ‘by Gratian the Monk, out of the Fathers, Doctors and Councils, though much thrown and vitiat towards the Interests and Errours of the Roman Church’, and then the Decretales was compiled ‘out of the Decretal Epistles of the Popes’ by Gregory IX (in the Liber extra) and supplemented by 197 Ab urbe condita, 3.34. For recent introductions to the sources and history of Roman law see Kunkel 1973; Tellegen-Couperus 1993; Robinson 1997. 198 Institutions, 1.12/1.1.13. For recent introductions to the history of the feudal law see Berman 1983, pp 295–315; Van Caenegem 1988, pp 198–210; Robinson, Fergus and Gordon 2000, pp 26–41. 199 Institutions, 1.13/1.1.14. In the first edition the words cause and compile are capitalised and divided by a comma, but the reading given here is supported by the manuscripts.

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220 The Court of Law Boniface VIII (in the Liber sextus).200 Stair believed that the Decretum had been put together ‘out of the Sentences of the Fathers, Doctors and Councils’ in imitation of Justinian’s Digest, that the Decretales (including the sixth book) had been assembled ‘out of the Rescripts of the Popes’ in imitation of the Code, and that it was in order to extend this parallel that further decretals had been collected in the Clementines and Extravagantes in imitation of the Novels. Until the imperial pretensions of the popes were challenged at the time of the Reformation, he next noted, the canon law regulated not only ‘all persons and things, belonging to the Roman Church’, but also ‘all things that may relate to Pious Uses, or which may be claimed to be under the protection of his Holiness, as Orphans, the Wills of Defuncts, the matter of Marriage and Divorce, all which he had obtained to be exempted from the Civil Authority of these Soveraigns who were devoted to that See’. As already mentioned, Stair restated the view that feudal tenure was first developed among the northern nations that invaded Italy in his introductory title on succession, and by then he had already returned to the theme at the beginning of his discussion of the constitution of feudal rights.201 He wrote there again about ‘the Roman Empyre in Italy, being long opprest, and at length supprest by the Inundation of the Longobards and other barbarous Nations, who seated themselves there, and divided these beautiful Countreys amongst their Captains’. It was the Lombards and other northern nations, not the Romans as had once been supposed, who were ‘the authors of this new Right’, which naturally they designated with ‘a new and barbarous name, Feudum, which the Germans call Fiff, and we with the English call a Fee’. The classical etymology that Stair had still accepted when he joined the bar was quietly abandoned here, though he continued to maintain that the feudal law had some connection with the civil law.202 ‘By the Irruption which happened in the sixth Century’, he pointed out, ‘the Civil Law was sopit for five hundred years, [but] it was revived in the eleventh Century, and did take in with it the Feudal Customes, which have been propagat through the most civil Nations in the World’. The feudal system of landholding was partly adopted in other nations ‘for strengthning them towards War’, but above all it was introduced ‘because Soveraigns had thereby a new interest over their Subjects and Inferiors’. As Stair had explained in the lesson he delivered as a prospective advocate, the rulers who already enjoyed the empire of jurisdiction had been eager to acquire in addition the dominion of superiority, by which their subjects would be vassals, ‘acknowledging them as their Lords, Superiours, and Paramount in their Lands and Heritages, which are all derived, mediatly or immediately from the Soveraign authority, as the common and supream Superior of all the Subjects, who have no more then the right of unfixed Moveables’. As Stair now explained, the 200 For recent introductions to the sources and history of the medieval and early modern canon law see Van de Wiel 1991; Brundage 1995; Helmholz 1996. 201 Institutions, 13.1–2 and 26.19/2.3.1–2 and 3.4.19. 202 What was also new and quite inaccurate was the suggestion that the Scots generally used the English term fee. Perhaps the term had been used more freely during the 1650s.

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The Appropriation of the Common Law 221 adoption of feudal tenure also resulted in an alteration of the system of jurisdiction, ‘whereby not only the Soveraign power, but all Superiours do by the advice and assistance of their Vassals, who are called Peers of their Court, order and determine all things, not only relating to themselves and their Vassals, but to all others who are locally within their Territories’. Just as rights in land descended from rulers to their immediate or mediate vassals, so too did rights to hold courts and administer justice. Stair believed that ‘no Nation is more exact in this then Scotland’, for it was ‘as Feudaters of the King’ that the nobility and representatives of the burghs and shires, and sometimes of the church, assembled in the Scottish parliaments.203 When Stair revised his book for the press, twenty years after all the passages quoted above were written, he gave an indication here of the source of his information about legal history. In the next paragraph, in which he had explained how his book should be read in relation to the Ius feudale, he added that Craig had ‘very well observed the origin and nature of Feudal Rights, and the Customs of Italy where they began, and of France and England, whence they were derived to us’.204 Craig had devoted one early title of his book to refuting ‘the opinion of those who deduce the origin of the feudal law from the ancient law of the Romans’, and another to establishing that it originated instead in ‘the practice and custom of the most savage nations that had swept into the Roman world from the north’.205 It was among these nations, he later argued, that the term feudum had been coined, though different terms were used in the different parts of Europe to which the feudal law later spread. As was mentioned in the last chapter, Craig devoted further titles to describing the spread of the feudal law through France to Britain, and began with a series of titles on the origins of law in general and of the civil, canon and feudal laws in particular. Stair would have read in these titles about how, after the expulsion of the Roman kings, ‘the people began to be governed more by uncertain right and custom than by any fixed law’, about how the XII Tables were enacted as ‘the source and origin of all law’, and about how ‘first plebiscita, and later senatusconsulta, and soon praetorium ius, were introduced as a means of assisting or correcting that ancient law’. He would have read about the authorising of responsa prudentium, ‘though the creation of new law was the province of the emperors alone’, about the accumulation of the infinita iurisconsultorum volumina, and about the steps taken by Justinian to reduce the law again to manageable proportions. Stair made an inaccurate paraphrase of the next passage in Craig’s book, on the loss and recovery of the civil law in the West, and he appears to have adopted Craig’s warning that lawyers were again in danger of being overwhelmed ‘by an excessive accumulation 203 It would seem from the way in which Stair talked about feudal jurisdiction as an active right that he wrote at least this part of his discussion after the Restoration parliament assembled in 1661. In fact, his account of feudal jurisdiction does look as if it was inserted into a discussion focused on tenure. The discussion is more coherent if the second paragraph and the first sentence of the third are omitted. 204 Ibid, 13.3/2.3.3. 205 Ius feudale, pp 18–25. After an opening title ‘De origine iuris in genere’, Craig had dealt with the history of the civil and canon laws at pp 7–18. He returned to the etymology of the term feudum at pp 40–1, after recounting the spread of the feudal law across Europe into Britain.

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222 The Court of Law of learned men and their books’.206 In his next title he would have read about the occupation of the vacant ‘seat of empire at Rome’ by the pope and about the extensive jurisdiction exercised by the church. He would have read about the compilation of the Decretum ‘from the sometimes violently distorted opinions of the fathers and of the later doctors and popes and finally of the councils’, and about the various collections formed ‘from the decretal epistles of the popes’, and he would also have encountered the idea that while ‘the Decretum was written on an analogy with the Digest’, the Decretales ‘was composed in imitation of Justinian’s Code’. If it was Craig’s example, especially in the series of titles he wrote on succession, that appears to have inspired Stair to adopt a historical approach to writing about the law of Scotland, it was Craig’s earlier series of titles on legal history, written as an introduction to his whole book, that appears to have provided Stair with a foundation for his approach.

Craig’s understanding of learned authority The purpose of Craig’s introductory titles de origine iuris was not merely to provide a historical framework for his discussion of land law but was also to explain the status of the learned laws in Scotland. In his first title he described generally the origins of societies, governments and laws, observing that ancient peoples had appointed rulers to lead them in war and to settle their disputes ex naturalis aequitatis ratione, that ius gentium had emerged among those appointed as an extension of ius naturale, and that no more than mores had emerged locally to constrain their judgments.207 It was when those appointed to govern were found to lack integrity that people realised how much better it would be to have their disputes settled ‘from specific statutes and written law than from the will of one man’. According to Plutarch this transition from arbitria to iudicia was first made possible by the intervention of Prometheus in Egypt, and while this was pure mythology Plutarch had at least appreciated, like Plato before him, that written laws had been introduced to human society through divine intervention.208 Others had recognised that ‘it was Moses who first produced written laws’, writing as God’s amanuensis. Further legislation had followed elsewhere, and Craig spent some time in describing the laws introduced by Lycurgus in Sparta—‘albeit they were never compre206 That Stair paraphrased Craig in his historical paragraph on the civil law was demonstrated in a paper circulated privately in the summer of 1995. The same point has since been noted in Cairns 1997, pp 204–5, where some of the parallel passages have helpfully been quoted. Peter Stein’s stimulating comments on the 1995 paper are gratefully acknowledged, along with David Johnston’s generous encouragement at a difficult time. 207 Ius feudale, pp 1–7. This title will again be studied more closely in later volumes in this series, but it may be noted here that Craig’s line of argument was common among humanist authors. There is no obvious reason for supposing, as Cairns 1997, pp 201–2, does, that Craig’s understanding of the law of nature and its relationship with human law was ‘essentially Thomist’. 208 Plato, Laws, 624a–25a. It is not clear what Craig’s reference to Plutarch was based on, but perhaps he was half remembering Plato’s Protagoras, 320c–23a, where it was said that Hermes was sent to teach men justice after Prometheus’ gifts of fire and the arts had proved inadequate.

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The Appropriation of the Common Law 223 hended in writing’—and by Draco and Solon in Athens. ‘Plutarch asserts’, he went on, ‘that Solon visited Egypt and received his laws thence, so that Greece owed not only its philosophy but also its system of governing the state to the Egyptians’.209 The idea that Greek philosophy was derived through a Hermetic tradition from divine intervention in Egypt, supplementary to the contemporaneous revelation in Israel, had underpinned the resurgence of interest in Plato’s thought during the Renaissance, and it was easily connected with the history of law since a text at the start of the Decretum had included Hermes Trismegistus in a catalogue of early legislators, after Moses and before Solon and Lycurgus.210 Craig pointed out that the Egyptians and Israelites had been neighbours, argued that the Egyptians must surely have adopted their laws from Israel, and concluded that ‘the system of all laws and of governing the state ought thus to be ascribed to God and his amanuensis Moses, from whom too the rest of the most excellent legislators in their states, drawing from the fountain of the law, channelled down to themselves its springs and streams’. Moving on like the text in the Decretum to deal with the emergence of law in early Rome, Craig made his observations on the rejection of the monarchy and its laws, on how the Romans found themselves again governed only under ius incertum et consuetudo, and on how they finally established leges certae as a foundation for all their later jurisprudence and legislation by drawing the provisions of their XII Tables from the laws of Athens and Sparta.211 After writing at some length about the later history of Roman law, both in antiquity and after the twelfth-century revival, Craig went on to write about the authority of the civil law in his own time, basing his discussion on a passage from the Six livres de la république by the French practitioner Jean Bodin.212 In the course of presenting what quickly became a classic account of the concept of sovereignty, Bodin had considered how far the rulers and peoples of Europe were bound by the civil law. He had shown that the kings of France and Spain had often been at pains to emphasise that the civil law was not binding in their countries and had insisted that ‘Baldus is mistaken, when hee writeth the Italians to bee bound to the Roman lawes; but the French no otherwise than so farre as they should seeme unto them to agree with equitie and reason’. In an attempt to explain what kind of authority might be imputed to judicial decisions, Baldus had made the distinction referred to in a frequently cited passage in his commentary on Justinian’s Code, contrasting the necessary authority imputed to the civil law texts in Italy with the probable authority they were generally believed to enjoy in France.213 Bodin had insisted 209 Plutarch’s Lives, vol 1, p 477, actually indicates that Solon visited Egypt after issuing his laws, but see too Aristotle, Constitution of Athens, 11, where the same point is made in terms that are echoed in Plutarch’s Lives, vol 1, pp 407 and also 477. At the earlier point Plutarch was concerned with Solon’s travels before he issued his laws. 210 Decretum, 7.1. For the Hermetic tradition in the Renaissance see Kristeller 1990, pp 98–9; Pumfrey 1991, pp 58–9; Copenhaver and Schmitt 1992, pp 146–8. 211 Ius feudale, pp 7–8. In the Decretum text the laws of Solon were singled out as the source. 212 Ius feudale, 10–11; Six Bookes of a Commonweal, pp 107–9. For brief biographical notes on Bodin see Burns 1991, p 663; Franklin 1992, pp ix–xii; Blair 1997, pp 9–11. 213 Commentaria super Codicem, vol 4, f 44.

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224 The Court of Law that the civil law texts could not as such enjoy the authority of law in Italy or France, for although they had often been used in solving legal problems, especially in Italy and Spain, and also in the south of France, it had to be realised that ‘law is nothing els but the commaundement of a soveraigne’. It has already been seen that William Lawrence was later to quote these words—from the English translation used here—along with Bodin’s further remark that ‘there is much difference betwixt a right, and a law: for a right still without commaund respecteth nothing but that which is good and upright; but a law importeth a commaundement’. As John Selden also insisted, it was one thing to recognise that the civil law contained a valuable store of solutions to legal problems, often admirable for their equity and reason, but it was quite another to conclude that the solutions proposed should be considered authoritative. According to Bodin’s doctrine of sovereignty, the solutions proposed could only be legally binding if they had been endorsed by a legislative sovereign, and it would then have been his endorsement that made them binding, not their equity and reason. For adherents to this doctrine, nothing could be considered legally binding on the basis of learned authority alone, and Bodin maintained that the legislative authority of the Roman emperors was no longer relevant. Given that Craig made use of much of the material presented in Bodin’s discussion of this point, it is striking that he did not mention his insistence on the exercise of sovereignty in all law making. He did contrast Baldus’ understanding of the authority of the civil law in France with the opinion that ‘the French are not bound by the Roman and canon laws unless they become laws of the realm of France’, but he seems to have been thinking less of Bodin’s new doctrine of sovereignty than of a much older doctrine developed by French jurists in connection with the canon law. Craig attributed the view to Guy Pape, who was regarded (then as now) as a Bartolist.214 He referred to Pape’s opinion again in his next chapter when he observed that the Regulae cancellariae, a collection of decrees governing the practice of the papal curia, was authoritative in France only to the extent that some of its provisions had been formally approved there.215 What he had in mind was evidently the Gallican doctrine, enunciated in the Pragmatic Sanction of Bourges in 1438, that the French church was subject to papal authority in matters of theology and discipline but was bound by papal decrees regulating administration only to the extent that they had been locally approved.216 Craig went on at this point to observe that the decisions of the rota had ‘no more authority as law or res iudicata than the determinations of the Parisian senate or the senate of Toulouse or of similar senates’, explaining that while they did ‘not have force as canons’ they were relevant ‘because of the great authority of the very grave men who make up the auditors of the rota’. He thus imputed to the decisions of the rota, parlements and similar courts the kind of authority that the French, according to Baldus, imputed 214

See, eg, Tractatus illustrium iurisconsultorum, vol 3(2), f 70r. Ius feudale, p 15, with reference to Ludovicus Gomesius, Commentaria in Regulas cancellariae, ff 8–16r, where the authority of the decrees was taken to be established by decisions of the rota. 216 On the changing status of the Regulae cancellariae in France see Naz 1935–65, vol 7, col 540. 215

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The Appropriation of the Common Law 225 to the civil law texts, and in the preceding chapter he distinguished clearly between Baldus’ opinion that the Italians imputed necessary authority to the Corpus iuris civilis, the Gallican opinion that the civil and canon law texts could only be authoritative if approved locally, and Baldus’ opinion that the French imputed probable authority to the texts. Craig clearly believed that these distinctions made sense, though he found the Gallican opinion hard to reconcile with the fact that the civil law was applied, as Bodin himself had pointed out, in the south of France. It was on the basis of these distinctions that he proceeded to say that the Scots were ‘bound by the laws of the Romans to the extent that they are in agreement with the laws of nature and right reason’, and to explain how the lords of session had managed to bring civilian learning into Scotland in the absence of active law schools. Craig ended his title on the canon law by observing that even after the Reformation it retained considerable authority in Scotland, so much so that it was still followed in preference to the civil law, and he began his next title by warning that he was going to make a stronger claim for the authority of the feudal law.217 First he would spend five more titles in exploring the history of feudal tenure and the feudal law, beginning by tracing the origins of tenure back to a peculiarly northern form of servitude, which the Roman jurists had identified as an institution of ius gentium.218 ‘But initially this law was vague and uncertain’, he remarked, ‘nor was it confined within specific grounds or limits, yet custom served in place of the rule and bond of all law’.219 If it needed to be asked how the emerging law of land tenure had first been stabilised and reduced to writing, Craig thought there was ‘nothing more certain than that it first arose from the constitutions of Charlemagne and the emperors who followed him into Cisalpine Gaul (which is of course transalpine to us), which today we call Lombardy, and soon spread to Transalpine Gaul’. Craig was convinced that many constitutions had been enacted to regulate feudal tenure between the reigns of Charlemagne in the ninth century and Frederick I in the twelfth, when Obertus de Orto and Gerardus Niger had written the opinions that were later assembled with imperial constitutions in the Libri feudorum. It seemed remarkable to Craig that ‘this written law’ had been recognised throughout Europe as an authoritative statement of ‘the universal law of the feus’, for it consisted largely of the reflections of ‘private men’ on a Milanese variant of the feudal law, and legislative authority (as Bodin had insisted) ‘is counted among the prerogatives of the sovereign’.220 It was indeed Craig’s understanding that ‘the Digest itself, although it consists of the opinions of the most learned and memorable men, nonetheless does not receive its force and power from the authority of Ulpian, Scaevola and Paul, but from the emperor Justinian himself and his edict, which is actually prefixed to the Digest’. He found it hard to see how the force of law could be ascribed to the Decretum unless on the rather dubious supposition that it too had been formally enacted by the twelfth-century pope Eugenius III, and he 217 218 219 220

Ius feudale, p 18. Digest, 1.1.4, and Institutes, 1.2.2. Ius feudale, pp 25–9. Six Bookes of a Commonweal, pp 159–60.

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226 The Court of Law argued that ‘the same should be thought in relation to the Libri feudorum, that it did not draw its authority from Gerardus or Obertus but from imperial constitutions’. He suspected that the opinions of Gerardus and Obertus were in reality notes on the application of unspecified constitutions, and that ‘certain constitutions also appeared—though they perished with many others—which supplied strength and dignity to these books, for the emperors would not have suffered them to be lectured on in the schools or to be followed in judgments unless they had imputed strength and authority to them’. ‘Let anyone who wants to understand more about the authority of these books’, Craig ended, ‘read Baldus in the preface to his work on the feus and Franciscus Curtius in the first title of the first part of his, with whom almost all the doctors concur’, adding that the books ‘have deservedly furnished themselves with the force of statute and the authority of law from the consent of almost all nations’, and that the doctors would not have written commentaries on them ‘unless they had believed that these books had the authority of law or statute, for they would otherwise have laboured in vain’. As the points Craig made here had no basis in his previous discussion, the sources he cited in their support will need to be examined briefly. In the preface to his influential commentary on the feudal law Baldus had addressed the question whether the Libri feudorum should be considered an authentic component of the Corpus iuris civilis, ‘lest I should appear to be labouring over a transitory work and over obscurities’.221 He was aware that some commentators were doubtful about the inclusion of the books among the Novels, for they seemed to lack a suitable ‘order of composition or compilation’ and they contained things that were not ‘of the nature of true law’ or were ‘contrary to the essence of law, which ought to be fair’. To these commentators it appeared unlikely that ‘Obertus de Orto or Gerardus, the writers and narrators of this work and the arbiters of some doubtful questions, had the authority to legislate, which is not presumed to be given if it is not proved’. It could be demanded that proof be produced in the form of ‘public documentation’, and it could be argued that ‘those masters of the feus did not claim at any stage to have authority, so that their interpretation is probable and not necessary’. ‘Nor may it be asserted’, Baldus had to concede, ‘that this law is a customary law, because customs are local and do not bind others’. Nevertheless, Baldus believed that the Libri feudorum was ‘on the contrary authentic, solemn and worthy of observation’, and to establish this he began by noting that ‘many leaders of the glossators made glosses on the book and formed most useful treatises on it’. He identified some of the authors he had in mind and said something about their work before adding that ‘some decretals follow the imperial statutes placed in this volume’. If it was hard to imagine ‘what approval could be greater than that of the popes’, the fundamental point remained that the Libri feudorum owed its status to the twelfth- and thirteenth-century emperors. Baldus maintained that Frederick II had sent the materials gathered by Obertus and Gerardus to the doctors ‘so that they might adjust them as separate 221

In usus feudorum commentaria, ff 1–2.

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The Appropriation of the Common Law 227 texts under suitable titles’, that it was the glossator Hugolinus who had ‘put the Libri feudorum and all the constitutions of Frederick I and Frederick II, and some enactments of the emperor Conrad, after the ninth collation’, and that all this had ‘proceeded and the work been approved by the order of the emperor’. On this basis, he concluded, the Libri feudorum could be considered an authentic component of the Corpus iuris civilis. It therefore had the same necessary authority as the rest of the Roman law texts, in contrast to the probable authority of the commentaries written about the texts. In the early sixteenth century Franciscus Curtius, a professor of the civil law at the University of Pavia, returned to the question ‘whether the Libri feudorum is authentic’ at the start of the treatise he wrote on the feudal law.222 ‘Lest we should labour over a transitory work’, he explained, ‘the first quaestio of the first part is to ask whether the whole Libri feudorum is authentic and adducible for the decision of cases’. There was no difficulty so far as the imperial constitutions it contained were concerned, ‘but for the most part there are present decisions of Obertus de Orto and Gerardus Niger, who were mere doctors and whose authority is therefore not necessary but only probable to the extent that they were moved by good reason’.223 Like Baldus, Curtius was aware of the problems raised by the impossibility of proving ‘that the aforesaid Obertus and Gerardus, who were the compilers of this book, had authority to legislate’, and by the fact that ‘the customs incorporated in this book seem local rather than universal’. The Libri feudorum was arguably like the Decretum, ‘in which there are incorporated many decisions of Gratian which are authoritative only to the extent that they are discovered by reason, and so we say that so far as the decisions of Gratian are not discovered by reason they are accounted dross, because the authority to legislate is lacking’. Curtius mentioned Baldus’ response to these problems but did not find it satisfactory, fearing that it would be too easily challenged in the course of disputation. Though it was true that ‘many decretals of the popes seemed to follow the feudal decisions described in this volume’, it might easily be replied that just ‘because some decisions of this book are approved through decretals it does not follow that the whole book is consequently approved’. As for the argument founded on imperial approval, the difficulty remained that no direct evidence had been produced to show that the Libri feudorum had been sanctioned in the same way as the Digest. Curtius suggested that a prescriptive claim might be made out and he then developed a further line of argument based on Julian’s seminal discussion of customary law.224 Recalling that the authority of legislation was said there to rest on the same iudicium populi that might be exercised immediately in the creation of a custom, Curtius argued that ‘those feudal customs reduced to writing and confirmed by the tacit consent of the people will obtain the force of statute’. The text had prescribed the investigation in stages of leges scriptae, mores et consuetudo and ius quo 222 223

Tractatus illustrium iurisconsultorum, vol 10(2), ff 43v–4v. Curtius referred to Gerardus Gagapistus, assuming that he was the same person as Gerardus

Niger. 224

Digest, 1.3.32.

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228 The Court of Law urbs Roma utitur. Curtius maintained that the law observed in the city of Rome was ‘the particular custom of the city’, a local custom that might be turned to in other localities as a last resort because of the special position of Rome as the caput of the empire and the communis patria of all Roman citizens. This particular custom of the city was not to be confused with ‘the general custom of the Romans’, which Julian had included in his first category of leges scriptae. The general custom had received popular approval throughout the empire and had thus acquired the force of statute, and so had the feudal customs by being adopted throughout Europe. It followed that there was no strength in the objection that Obertus and Gerardus had dealt with the customs of just one locality, ‘because although they were local to start with yet they were later reduced to writing, and being universally confirmed by the tacit consent of the people they ought to be regarded as universal’. The Libri feudorum could thus be regarded as an authentic component of the written law of the empire. After drawing the attention of his readers to these learned defences of the universal authority of the feudal law, and after spending most of his next two titles in describing the spread of the feudal law from France to Britain, Craig finally returned to the claim he wished to make for the authority of the feudal law in Scotland.225 Warning that he meant to write here for the particular benefit of his younger readers, he introduced the review of the sources of Scots law to which reference has already been made by going back to the Roman distinction between ius naturale, ius gentium and ius civile. It was here that he made the observations quoted earlier about the priority of ius naturale et gentium, though whether he meant anything more by this than Sir John Davies meant when he told the judges in Ireland about a law of reason above all positive laws must be doubtful, for he proceeded at once to present a guide to legal research from which all reference to natural equity was excluded. In Scotland as in England, he explained, lawyers confronted with difficult questions were expected to examine in the first place the written law of the kingdom. Because he did not ascribe statutory force to the acts of the privy council or conventions of the estates or to the old books, Craig had to admit that ‘there is barely any written ius proprium among us (if we take ius proprium strictly) apart from what we call acts of parliament’. Where no answer could be found in these acts, lawyers were expected to turn in the second place to ‘the custom applied in lines of decisions, which we call praxis’. Although he had just shown that custom was historically ‘prior to written law’, now that written law had been established the best view of custom was as ‘the interpreter of law’, and Craig believed that it could be helpful in some cases to consider ‘what is done in such circumstances in neighbouring nations’. If an answer could not be obtained even by analogy from these sources, ‘and if a decision of that case is found in the feudal law, the feudal law should be preferred to the canon law or to Roman law’. The explanation was that ‘if we extend the term ius proprium more widely it is possible to call this the proper law of this kingdom, for all the law we use on a daily basis in 225

Ius feudale, pp 37–40.

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The Appropriation of the Common Law 229 court and every custom and practice flows down from its spring and fount, and if any doubt should arise the origins ought always to be sought so that what is fair may be discerned from them’. Finally, Craig advised that if an answer could be found ‘neither in the acts of parliament, nor in judicial custom, nor in the feudal law, recourse should be had to the civil law’, except that where the canon law differed it ought to be preferred. The progression recommended here was clearly from ius proprium to ius commune, but since the progression proceeded no further, ius civile had taken the place of ius naturale et gentium as ius commune. The central claim Craig wished to make, as he had indicated at the beginning of his historical account of feudal tenure and the law that had developed around it, was that ‘this feudal law is the proper and peculiar law of this realm of ours’. What he meant by this, however, is by no means transparent. In reviewing the sources of Scots law he applied the term proper law to the acts of parliament, either as ius proprium scriptum or simply as ius proprium in opposition to consuetudo. When ordering the sources, he maintained, ‘we assign the third place, after custom, to the written feudal law’. As a kind of proper law the ius feudale scriptum thus supplemented the local ius scriptum and helped the Scots to escape the endemic vagueness of customary law, which in the earlier titles had been associated more with the uncertain application of natural equity than with the introduction of fixed laws. Craig had drawn attention repeatedly to the need eventually felt in every society to replace ius incertum with leges certae, he had emphasised the part played by legislators in the creation of the civil and canon laws, and he had argued that the feudal law should also be viewed as a body of enacted law. He had argued that the Libri feudorum must have received statutory approval from the medieval emperors and had encouraged his readers to pursue this argument further in the opening pages of Baldus’ highly respected commentary. He could therefore have been claiming that the exercise of legislative authority by the Scottish parliaments had been preceded by an exercise of legislative authority by the German emperors, that the Scots consequently had at their disposal a great deal more ius proprium scriptum than at first sight appeared, and that the law of Scotland was (as he put it in his preface) far less ‘vague and uncertain’ than people imagined.226 Yet there were serious problems with this line of argument, so serious indeed that it is hard to believe that Craig meant his book to be read in this way. For one thing, he had also encouraged his readers to study the opening pages of Curtius’ treatise on the feudal law, where the weaknesses of the argument he had borrowed from Baldus were exposed. More importantly, what Baldus had been trying to show was that the feudal law could be regarded in the same way as he understood the civil law to be regarded in Italy, as a body of law that was necessarily binding by virtue of the legislative authority of the emperors.227 But Craig neither believed himself nor could have expected his readers to believe that the Scots were necessarily obliged 226

Ibid, sig A3. For Baldus’ understanding of the authority of the civil law in Italy see Canning 1987, pp 148–51. For background on another source borrowed by Craig from Bodin see Montagu 1994. 227

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230 The Court of Law by the legislative authority of the emperors.228 As he made clear in relation to Bodin’s discussion of sovereignty, it was his understanding that the civil law itself lacked necessary force in Scotland. Although he had not described the civil and canon laws as iura propria, the difference between them and the feudal law could not have been that the feudal law alone had been enacted as ius scriptum, for the civil and canon laws were more easily attributed to the legislative authority of the emperors and popes.229 It could not have been plausibly suggested that the feudal law was to be regarded as ius proprium scriptum on the basis of statutory approval it had received from the emperors. It could perhaps have been suggested more plausibly that the feudal law was to be regarded in this way on the basis of statutory approval it had received from a Scottish legislator. It was shortly before he reviewed the sources of Scots law that Craig made the response already mentioned to the argument that since the laws of land tenure and succession were similar on either side of the border the kings of Scotland must at some time have submitted to the authority of the English crown.230 With specific reference to this line of argument, Craig insisted that it was essential to remember ‘the difference between a right and a law, for while the Scots happen to apply the same ius as the English yet they do not apply the same leges, because laws are made by magistrates or a superior and bind subjects, but right arises from nature’. By ius he meant here ius naturale et gentium, ‘which is common to almost all nations, like some innate sense of equity ruling in the minds of men’. Lex, by contrast, ‘is introduced either from pressing need or by the consent of the people or by perpetual custom’, and there could be leges communes, as distinct from ius commune, only in the sense in which the Regulae cancellariae was common to France and other countries. At this point Craig was clearly making use of Bodin’s concept of sovereignty, and as already mentioned several times some recent historians have identified the concept of sovereignty as the key to his whole handling of the law of Scotland.231 Not unreasonably, they believe that Craig regarded the learned laws as a guide to natural equity, that he distinguished between these laws as a form of ius and the positive law of Scotland as a body of leges, and that where acts of parliament were lacking he thought the decisions of the session could be resorted to as an authoritative source of customary law. Much the same view was taken by the writer of the epitome acquired by Robert Ker in 1656, who reduced Craig’s list of the sources of Scots law to just three categories, with attention paid first to ‘our acts of parliament’, then to ‘the pretick or unwritten comone lawe, which is grounded for the most pairt upon the lawe of the 228

This point is made with characteristic vigour in Watson 1991, p 246. Since the Reformation, of course, the legislation of the popes had ceased to have necessary effect in Scotland. Craig liked to claim that the Scots like the French had always resisted papal authority. 230 Ius feudale, p 37; Holinshed’s Chronicles, vol 1, pp 204–6. 231 Levack 1987, pp 79–80, and 1994, pp 217–18 and 228–30; Cairns, Fergus and MacQueen 1990, pp 65–7; Cairns 1995, pp 253–4, and 1997, pp 200–3; MacQueen 1995, pp 14–15. In synthesising and summarising the views stated by different writers at different times there is a risk in what follows of oversimplification, so the passages cited here should be consulted directly. MacQueen 2003, p 24, appears to be moving in a different direction. 229

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The Appropriation of the Common Law 231 Lombarts’, and finally to the civil law, unless contradicted by the canon law, ‘as the great fountain of all morall knowledg’.232 On this reading Craig called the feudal law ius proprium because it had been approved in the decisions that gave rise to most of the local law. Yet this reading too is open to serious objections. One is that while Craig associated custom with law in the passage in which he disputed the assertion of English sovereignty over Scotland, elsewhere he routinely associated custom with ius incertum in contrast to leges certae. Far from suggesting that the feudal law could be regarded as ius proprium scriptum on the basis of its approval in the customary law of Scotland, it was precisely because so much of Scots law was customary and uncertain that he saw the need to draw from the feudal law as a form of ius scriptum. One way of responding to the perceived vagueness of Scots law might have been to suggest that the decisions of the session could be envisaged as a source of written law, but it seems unlikely that Craig ascribed any greater authority to the decisions of the Scottish court than he did to those of the rota or the parlements of Paris and Toulouse or of ‘similar senates’. Furthermore, what he actually said was not that the lawyer in Scotland could seek answers to his questions in the feudal law to the extent that it had been approved in the decisions of the session, but that he could seek answers in the feudal law when the decisions of the session failed to provide assistance. A modification of this reading which would make better sense of Craig’s position is that he was saying not so much that the lawyer in Scotland could seek assistance from the feudal law to the extent that it had been approved in the decisions of the session as that he could seek assistance from the feudal law because it had been approved in the decisions of the session. This modified reading would owe less to Bodin’s concept of sovereignty than to Curtius’ argument that the authority of the feudal law rested on its customary approval throughout Europe, and Craig certainly believed, and wished his readers to believe, that the Scots had taken part in the process of customary approval. If it seems strange to suppose that Craig’s understanding of the authority of the feudal law could have been based on an argument that he never expounded at length or even summarised briefly but merely mentioned obliquely by citing another book, a possible explanation is that he did not wish to detract from the written quality of the feudal law by talking about its customary approval, which could easily have been misunderstood. After all, Curtius’ intention had not been to claim that the feudal law consisted only of local customs but had been to contend that the universality of the written feudal law could be confirmed from its customary recognition. Like Baldus he had been intent on establishing that the feudal law was an authentic component of the civil law, albeit a peculiarly ambiguous component. As Craig observed, most learned lawyers would have concurred with Curtius at least in concluding that the feudal law was common to all nations as well as proper to each one.233 In his own way Curtius had defended the theory of Baldus and his followers that since the feudal 232 233

NLS, MS 5437, f 1. See again the examples cited in ch 1 n 81 above. Others will be added below.

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232 The Court of Law law comprised consuetudines generales as well as leges imperatorum it was to be examined next after any speciales consuetudines locorum and before the rest of the leges Romanorum. Curtius had also expressed the standard view that where ‘on feudal matters the canon law departs from the civil law, the canon law should be applied’.234 From Craig’s Scottish perspective, what must have seemed significant about Curtius’ argument was the support it gave to the conventional ordering of the sources of law. Craig found it convenient to rehearse the arguments of Baldus and others about the exercise of legislative authority by both emperors and popes, but whether the Libri feudorum had really been enacted scarcely mattered when neither emperors nor popes enjoyed authority in Scotland. It may have helped in emphasising the written quality of the feudal law to conflate legislative with learned authority, but ultimately it was learned authority that Craig took to explain the relevance of the feudal law in Scotland. Like Baldus and Curtius he viewed the feudal law as part of the civil law, but he made it clear that he considered the civil law to be effective in Scotland in the way that it was taken by Baldus to be effective in France, as a body of learning with probable rather than necessary authority.235 This probable authority was by no means trivial. If the learned laws were to receive effect in Scotland only to the extent that they were perceived to be in agreement with divine or natural law, it was Craig’s conviction that they generally would be perceived to agree with equity. He had explained how the Romans had drawn their law through Greece and Egypt from the divine fountainhead opened in Israel, he had accordingly presented the civil law as a source from which equitable solutions to problems could be drawn, and he had used the language of springs and fountains again in advising that solutions to problems that could not be solved from statute or custom should first be sought in the feudal law. It was the same language that he later used in his series of titles on succession when he worked in historical order through the law of Moses, the civil law—starting with the XII Tables, which he said was as near a record as existed of the Greek laws— and the feudal law, before turning finally to the local sources. It is crucial to note that when Craig advised novice lawyers on how to find answers to the questions they encountered in practice he told them to proceed in reverse historical order. He did not make a legal version of the religious reformers’ plea for a return ad fontes but on the contrary urged his readers to work back gradually towards the divine source of all law by looking first at the most immediate source. He told them, in other words, to bear in mind the position of Scots law in a common tradition of enquiry and to approach problems in a traditional way. He offered reassurance that the tradition of enquiry would provide solutions to problems, for he did not end by suggesting that his readers might eventually have to examine natural equity itself. The learned tradition of enquiry provided solutions based on 234

Tractatus illustrium iurisconsultorum, vol 10(2), f 61r. It needs to be remembered that Craig did not accept Bodin’s criticism of Baldus’ distinction but on the contrary adopted the distinction as described by Bodin. It is all too easily assumed that because Craig cited Bodin as his source he accepted his reasoning. As was shown above, this was not the case. 235

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The Appropriation of the Common Law 233 written law rather than unwritten right, though not because it made use of laws enacted by emperors or popes who enjoyed legislative authority in Scotland, nor because it used laws that had been specifically or generally endorsed by a Scottish legislator. What mattered about the use of learned sources in the session was that it could be taken to represent a transfer of learned authority from the Continent to Scotland. What mattered about the customary approval of the feudal law was that it showed how learned authority could be absorbed into the local law. In his Ars poetica Horace had warned that ‘it is difficult to say common things properly’, adding that a publica materies might become privati iuris if the poet did not slavishly adopt the common source verbum verbo.236 Scholars have differed about Horace’s intentions here, but one interpretation has been that he used the technical language of Roman law to indicate that there were ways of transforming a res communis or res publica into a res propria.237 Cicero had provided the classic example of how this might be done by explaining that a seat occupied in a public theatre, while in theory belonging to every citizen in common, would in practice be appropriated by the individual who sat there for the duration of the performance.238 Applying this line of thought to the distinction between ius commune and ius proprium, it was possible to hold that learned authority, while remaining in theory common, could in practice be appropriated locally provided it was not adhered to unthinkingly. As Craig lost no opportunity to stress, the feudal law was conventionally considered to be both common and proper because although it had been approved throughout Europe, its application varied from place to place.

Craig’s use of his sources Craig’s historical introduction took up fewer than forty pages in the printed edition of his book, leaving more than three hundred pages for its implications to be worked out and exemplified. In his next title he set out his views on the etymology and meaning of the term feudum, described the essential, natural and accidental conditions of a feu, and listed some interpretative rules that he advised his readers to bear in mind. One of these was the point already made that the written law had to be studied in conjunction with the mos regionis since, ‘as Baldus says, feudal customs are local, for among the Insubres or Lombards, where the foundations of the feudal law were first laid, where feus at least started their growth, the conditions of feus varied from place to place’.239 Another rule prescribed by Baldus was that copies and editions of the texts had to be carefully compared with one another, ‘for it is quite obvious to anyone who has spent time on these books that many entries appear in some books which are lacking from the Libri feudorum in common use, 236

Ars poetica, 128–35. Brink 1971, pp 432–40; Copeland 1991, pp 169–78; Eden 2001, pp 160–63. Another reading will be returned to later. 238 De finibus, 3.20.67. 239 Ius feudale, pp 50–1. For Baldus views see In usus feudorum, ff 2v, 4v, 30 and 93r. 237

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234 The Court of Law and in particular many appear among the new and more recent constitutions which do not have equal force with the feudal law either in court or in the schools’. A third rule was that ‘wherever a feudal case arises which is not determined expressly in the Libri feudorum, the civil law or law of the Romans is to be followed in its decision, though feudal decisions, in contrast, have no relevance except in relation to feus’. The movement from the local customary law through the written feudal law to the civil law was thus a movement towards increasingly general law, which is one reason why the canon law was placed ahead of the civil law, another being that later law was taken to derogate from earlier law.240 In the theory of the mos Italicus, as already noted, the particular law of each place was supposed to derogate as little as possible from the general law and cases that were not expressly determined by the particular law were to be left to the disposition of the general law. Craig gestured towards these precepts but did not apply them rigorously in his book. Near the end he considered how far an imperial constitution prohibiting the unauthorised alienation of a feu by a vassal had been put into practice, reminding his readers again that attention must be paid to ‘the custom of the area in which the thing is done since almost all feus are local and the custom of the area forms a rule for them, though when alienation is permitted by a statute or custom that statute or custom is to be taken strictly’.241 This was as close as he came to enunciating clearly the precept that the local sources must be construed narrowly, and what he actually went on to say was that the alienation of feus was permitted in France ‘without distinction or discrimination’, that the imperial constitution had not been ‘observed in Germany itself’, and that in Scotland only the alienation of feus granted for military service was prohibited and then only if ‘a larger part is alienated than is kept’.242 It was the constitution that was restricted to its terms here and little was left to the disposition of the feudal law. Craig sometimes talked of issues being resolved locally ex iuris communis dispositione or secundum iuris civilis dispositionem, but it is hard to find any instance in his book of the learned laws being taken to provide a decisive solution to an issue left unresolved by the local law.243 Craig often discussed the textus ipse of the feudal law, together with the texts of the civil and canon laws, and he sometimes emphasised further the legislative authority of the emperors and popes and defended the Libri feudorum against its 240 For Baldus’ general views on these points see Canning 1987, p 149. Another of Craig’s rules was that enquiry should start at an even more particular level with the terms agreed between the superior and vassal. 241 Ius feudale, p 346; Libri feudorum, 2.54(55). 242 In Lord Clyde’s translation of Craig’s treatise the words ‘stricte accipiendum est’ are rendered ‘must be strictly followed’. This may not be accurate, but it has the merit of making sense of the argument. Although too loose to be relied on, this translation has been found helpful in exploring the later titles of Craig’s work, not least because it includes references to some of his likely sources. 243 Even when he wrote, at Ius feudale, p 274, that ‘since we lack any proper law on this disinheritance [of disrespectful children], recourse must be had to the feudal law’, the point he proceeded to make was that the feudal law offered no reason not to follow the ordinary rules of succession. It was thus the established rules of Scots law that were to govern the case. Again, this is as close as Craig came to stating or applying the rule that a casus omissus should be governed by the common law.

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The Appropriation of the Common Law 235 detractors.244 As one of his interpretative rules revealed, however, he took the text to be defined by its common use in the courts and universities of Europe. He spent a great deal of time in reviewing the comments and opinions of the doctores, especially the feudistae or iuris feudalis interpretes. In particular, he often described how the texts had given rise to a quaestio that had formed the subject of ‘a disputation among the feudists’ or had been ‘very keenly contested between the doctors’ or had been ‘very gravely debated among the canonists’.245 Although he did not accumulate arguments and authorities on either side of questions in the scholastic fashion, but preferred to write in the more elegant style of the humanists, he frequently did summarise the arguments advanced on either side in his own way, often observing that they had been advanced by large numbers of highly respected authors. An example arose from a text in the Libri feudorum stating that ‘investiture is indeed properly called possession’, for since other texts talked of a superior being forced ‘to put the person who was invested into possession of the feu’ it was not easy to see how investiture could have been equated with possession.246 As Craig noted, the question was not of purely theoretical significance because a superior might invest two vassals successively in a feu and allow the second to enter the land, leaving the first to argue before a court that he had already acquired the feu.247 As he also noted, some authors, such as the humanist jurist Eguinarius Baro, maintained that investiture was the granting of possession, while others, such as Iacobus Cuiacius, one of Baro’s colleagues at the University of Bourges, maintained that investiture gave the vassal only a claim to possession, and a third view had even been added by Franciscus Duarenus, another professor at Bourges, who regarded investiture as one of a series of steps to be taken between the contractual agreement to confer a feu and the fulfilment of the contract by the granting of control to the vassal.248 Craig started by examining ‘the opinion of those who distinguish investiture from possession’, outlining the main arguments advanced by Cuiacius and the like minded jurists he had followed. ‘Yet all these notwithstanding’, he continued, ‘others of no less dignity and number think that the said investiture is properly identified with possession, and think that it is the same as proper investiture, which we call sasine, real and actual possession’. Baro and the celebres feudistae he agreed with, ‘lest they should seem inferior to their 244 See, eg, Ius feudale, pp 173, 179–80 and 209–11. For the criticisms of the Libri feudorum by the humanists see Kelley 1964a, p 211. 245 For these phrases, the significance of which will be explained shortly, see, eg, Ius feudale, pp 101, 136, 151, 178 and 230. 246 Libri feudorum, 1.4, 2.2, 2.7.1 and 2.26.15. 247 Ius feudale, pp 133–8. As Gordon 1970, pp 196–9 and 202–5, explains, the civilian glossators and commentators assumed that investiture must relate in some way to the Roman concept of traditio, involving the delivery of physical control, and that the acquisition of feus must be governed by the civilian maxim traditionibus non nudis pactis dominia rerum transferuntur. 248 Baro, Opera omnia, vol 2, pp 357–9; Cuiacius, Opera, vol 3, col 1806; Duarenus, Opera omnia, p 1504. For brief biographical notes on Baro see Michaud 1843, vol 3, p 126; Prevost 1933–2000, vol 5, col 520; Burns 1991, p 660. Edward Henryson—who, it may be recalled, taught at Bourges before his return to Scotland at the end of the 1550s—wrote a treatise in defence of Baro’s teaching on the subject of jurisdiction. See Tytler 1823, pp 271–2; McCrie 1899, p 460; Durkan 1978, p 3.

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236 The Court of Law adversaries, evade their objections with another distinction’, arguing that when the texts talked of investiture creating a duty to confer possession they meant investiture in an improper sense. Aware that there were ‘very acute and learned protagonists’ on either side of the issue, Craig argued that Baro’s position was more consistent with Scottish practice and that investiture in its original and proper sense involved a direct grant of physical control over land. He had found this question particularly difficult ‘since both sides have very weighty protagonists’, but elsewhere he found it easier to identify either the communis opinio feudistarum or at least the opinion held by the maxima pars, melior pars or sanior pars of the doctors.249 Unlike some writers on the feudal law, however, he did not at any point in his book enunciate or propose the application of the precept that ‘the common opinion ought to be observed as a rule in judging’.250 The feudist who wrote the words quoted here added the warning that any judge who disregarded the established doctrine of the schools would himself be liable to action in syndicatu, meaning action before one of the courts set up in northern Italy to review the conduct of magistrates.251 Elsewhere judges did not run the same risk of personal liability, but as was observed in the last section of this chapter, the precepts of the mos Italicus were often willingly embraced by lawyers in the south of Italy, Germany and France. As was also observed, during the sixteenth century the precepts were rejected by writers on French law who sought to transfer authority from the universities to the courts, and as the next chapter will explain further some of these writers tried to show how responsibility for the refinement of the law had been taken over by courts whose decisions could be seen as determinations of expert disputations. It may therefore be significant that when Craig wrote about the decisions of the session he usually did so in the same language that he used when writing about the disputes of the doctors. He wrote about quaestiones being ‘very keenly contested in the senate’ or being ‘gravely debated’ in actions ‘with many arguments on either side’.252 He recalled that one issue had been ‘learnedly disputed in the senate by Sir David McGill, the king’s advocate’, and that others had been debated there by McGill or his elder brother James, vir in usu forensi maximus.253 When on another occasion ‘a question was debated in the senate between William Oliphant, a very acute man and most expert in our national law, and me’, it was afterwards further debated between them ‘privately in conversation’.254 In other passages Craig reported private conversations without any mention of a decided case, as when he recalled that ‘a question was once moved between William Oliphant and Alexander King, advocates most expert in our national law, and me’, going on to rehearse the arguments advanced on either 249

See, eg, Ius feudale, pp 53, 85, 99, 114, 124–5, 137, 162, 213, 242, 316 and 347. Tractatus universi iuris, vol 13, f 37r (Laurentius Sylvanus). 251 Dawson 1968, pp 134–8; Waley 1988, pp 40–5; Robinson, Fergus and Gordon 2000, pp 110–12. 252 See, for instance, Ius feudale, pp 67, 83, 92, 124, 149, 193, 220, 239, 245, 279, 306–8, 330 and 370. 253 Ibid, pp 121, 173 and 319. On the McGill brothers see Tytler 1823, pp 144–6; Brunton and Haig 1832, pp 179–81; Omond 1883–1914, vol 1, pp 42–60. 254 Ius feudale, p 279. Oliphant was mentioned earlier as the author of a lost collection of practicks. 250

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The Appropriation of the Common Law 237 side in the way that he often did in writing about court cases.255 Private conversations apud viros nostri fori et rerum nostrarum peritissimos were sometimes initiated by a consultatio, and Craig thought it relevant to record some of the responsa that he and other consultants had made to the enquiries they received from clients.256 When he recorded an opinion expressed by the advocate John Sharp he described him as ‘a very learned man and very experienced in our law’, echoing clearly his description of the French practitioner Pierre Rebuffi.257 The views stated by practitioners, whether in the course of forensic disputes or in private conversations or in books they wrote, were of great interest to Craig, and even when he wrote about the decisions of the session it was not necessarily the decisions as such that interested him.258 He thought it worthwhile to mention cases that had been settled out of court, and in contesting one widely held view he mentioned a recent case only because it had revealed that ‘many men of high repute are inclined towards this opinion’.259 At some places Craig did attach more importance to what the court had decided. In mentioning cases that had been settled he tended to express regret that issues had been left undetermined, and elsewhere he expressed reluctance to commit himself to a point of view in the absence of a decision.260 ‘Since I never heard anything decided among us in relation to this question I am forced to be doubtful’, he wrote at one stage, giving the impression that it would have been otherwise had there been a decision.261 ‘Yet all doubt is excluded by two sentences or decisions pronounced by the senate’, he wrote at another, appearing to confirm the impression. ‘Inferior judges are not permitted to introduce law or custom contrary to express rules of law, nor can their sentences have the force of custom’, he wrote again, implying that some judges could make law. He appeared to follow this implication through when he wrote about the lords of session delivering a decision that was ‘hereafter to be observed as law’, about cases ‘pending before the senate, the outcome of which will serve as law’, and about a ruling contrary to the existing law being effective on the civilian assumption that posteriora derogant prioribus.262 Craig was quite prepared to be as assertive of the authority of the session as many French writers had been of the authority of their parlements, whose decisions he sometimes mentioned, in one instance with explicit reference to the reports written by Jean Papon.263 Yet he made it clear in his historical introduction that he understood the decisions of these courts to enjoy merely probable authority, like the decisions of the rota, and the claim he then made for the session 255

Ibid, pp 61, 145–6, 235, 245 and 382. On King, an author on sea law, see McMillan 1936, p 331. See, for instance, Ius feudale, pp 177 and 358. 257 Ibid, pp 58 and 140. On Sharp see Sanderson 1987, pp 22–33. 258 For further examples, including references to books by Balfour and Skene, see Ius feudale, pp 54, 62, 111, 151, 164, 182, 192–3, 258–9, 264 and 358. See too Smith 1915, pp 281–2. 259 Ius feudale, pp 193, 239 and 324. See too Finlay 2004, pp 323–4. 260 Ius feudale, pp 59, 96, 155, 161 and 194. 261 For the examples that follow, many of which are cited as evidence in Cairns, Fergus and MacQueen 1990, pp 65–6, see Ius feudale, pp 118, 189, 193–4, 235 and 306. 262 For the roots of the assumption see Digest, 1.4.4. 263 Ius feudale, pp 178, 191, 244 and 258. 256

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238 The Court of Law was that consuetudo could emerge from its praxis through res perpetuo iudicata. Again, these are concepts that will need to be explored fully in the next chapter, but the obvious point may be made here that they differ from the concept of senatusconsulta as a form of legislation. As the term indicates, senatusconsulta had at first provided no more than advice to officials who sometimes tried to pass legislation through assemblies or comitia, which is what Craig seems to have had in mind when he spoke of the Scottish senatus referring a question ad comitia regni publica in the belief that it was parliament’s function to make law.264 Although he sometimes talked of decisions being observed pro lege, at other times he referred to them as exempla that might eventually form the basis of consuetudo.265 In order for this to happen lawyers had first to identify and appraise the ratio that seemed to lie behind them, and Craig himself was not slow to criticise cases or to argue that a decision made sense only in the light of the particular circumstances of the case. If he moved in dealing with decisions from the intrinsic authority of opinions towards the extrinsic authority of legislation this may only have been by treating the sentences of the session as a peculiarly potent form of opinion. Since the session was a collegiate court, he maintained, ‘what the maior pars does the whole court is said to do’, which meant that a version of the well-known slogan opinio rotae facit communem opinionem could have been used in Scotland.266 By comparison with most writers on Scots law Craig did not often refer to decisions in his book. In over three hundred closely printed pages he cited fewer than a hundred cases specifically by naming the parties, only once indicating that he might have been working from the records or reports by adding the precise date of the decision. Less often he referred vaguely to an issue having been determined by the court, and usually he introduced his comments on cases by saying something like ‘I remember hearing a question contested’ or ‘I recall, when as a young man I started to frequent the court, a very grave question arising’. Whatever significance the decisions of the session may have had in shaping the law, they were significant in Craig’s book primarily because they had helped to shape his understanding of the law, and in this respect they were no more significant than the literature on the learned laws. His professed method was to write about the ius feudale commune before turning to usus noster, but sometimes he found it convenient to weave the two together, and even when he wrote about them in historical order he sometimes made use of learned sources in working out solutions to local problems and vice versa, as when he relied on Scottish practice in clarifying the relationship between investiture and possession.267 The often repeated justification for alter264 Ius feudale, p 67. For brief accounts of the changing nature of senatusconsulta see Kunkel 1973, pp 125–7; Tellegen-Couperus 1993, pp 85–6; Robinson 1997, pp 32–4. 265 Ius feudale, pp 165, 167, 171, 179–80, 192, 239 and 319–20. It had of course been Julian’s claim in Digest, 1.3.32, that inveterata consuetudo pro lege non immerito custoditur. How this related to the statement in Code, 7.45.13, that non exemplis sed legibus iudicandum est will again be returned to in the next chapter. 266 Ius feudale, p 91. For the canonist slogan and its significance see Dolezalek 1989, p 81. 267 Ius feudale, p 338. As Robertson 1974 and Cairns 1988 show, Craig’s reference to local practice in discussing the common law of investiture confused both his contemporary and his later readers.

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The Appropriation of the Common Law 239 nating between the learned sources and Scottish practice was that ‘this feudal law, as I advised at the outset, is local, and the nations of Europe transferred to themselves parts of it as each seemed more advantageous to them, and in effect softened it with diverse applications’.268 In this fashion the feudal law had become both common to the whole of Europe and proper to each nation, which meant, on the one hand, that the written law could be instructive even in relation to institutions that had been uniquely developed in Scotland, like the casualty of non-entry (a penalty imposed on a vassal’s heir who failed to have the investiture renewed by the superior).269 On the other hand, Craig was at pains to emphasise that in calling the feudal law ius proprium he did not mean to imply that the written law should be applied indiscriminately in Scotland, for even in Lombardy, where the feudal law was most obviously proper, the various cities ‘disagree frequently among themselves about very grave questions and arguments’.270 It was possible to talk of the common feudal law being appropriated locally because it was regarded less as a body of directly applicable rules than as a tradition of enquiry that had been pursued in various ways in various places. What was appropriated was not so much the rules stated in the texts of the Libri feudorum as the learned authority of the civil lawyers who had applied their expertise to the texts. It was this authority that Craig was mostly concerned with in his book, both as it was exercised by learned feudists and as it was exercised by local experts. When he wrote about usus noster he sometimes cited the decisions of the session or described the practices of landholders, but generally he identified the local law with what ‘our lawyers hold’.271 There is thus a great deal to be said for Robert Burnet’s reading of the Ius feudale. By alternating between accounts of the learned and local laws, not always with a clear distinction between them, Craig had not only shown how the feudal law could be used to elucidate the law of land tenure and succession in Scotland but had also shown, as Burnet was especially eager to emphasise, how the authority of the civil law could be used to consolidate the law of Scotland. Craig had depicted the civil law as a spring or fountain from which natural equity could be drawn into Scotland and had explained how the clerically trained judges in the early session had been able to develop the ius proprium of Scotland in relation to the ius commune of Europe. The reports compiled by John Sinclair before the Reformation, with their explicit acceptance of the precept that casus omissus remanet in dispositione iuris communis, confirm that this transfer of learning had indeed continued after the creation of the College of Justice, as Craig claimed that it had.272 However, in claiming that the feudal law was the ius proprium of Scotland Craig was drawing attention to a more aggressive type of translatio studii. In Horace’s terms the communia of the feudal law could be thought to have been 268 269 270 271 272

Ius feudale, p 217. Ibid, pp 275 and 358. Ibid, p 230. See, eg, ibid, pp 125–7, where usus noster meant what plerique or nostri putant. Murray 1980, p 101; Cairns 1997, p 198; Dolezalek 2002, pp 52–3.

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240 The Court of Law handled proprie because each nation had gone beyond adopting rules from the Libri feudorum and had adapted them to its own needs. Legal scholars recognised that this was how the feudal law had been handled in Europe, and literary scholars recognised that what Horace had been recommending was the appropriation of authority through distinctive use of commonly approved sources. They believed too that Horace had written about the same process on a national scale when he made his celebrated claim that ‘captive Greece captured the savage victor and brought the arts into rustic Latium’.273 There was a trace of this notion of the cultural conquest of the military conqueror in Craig’s description of the northern nations learning to create land rights in Italy, and there was more than a trace of the notion in Stair’s comment that the northern nations exchanged their barbarity for the seats and civility of the Romans. Craig wrote further about how Charlemagne had adopted the feudal law after conquering Lombardy, and about how Frederick I had adopted the works of Obertus and Gerardus after recapturing Milan. On this basis he felt justified in ascribing legislative authority to the Libri feudorum, but what made better sense in Scotland, especially after the Reformation, was the underlying theme of the recurring transfer of learned authority. By talking repeatedly of the transfer of law from Israel through Egypt, Greece, Rome, northern Italy and France to Britain, and by making it clear that he was thinking of the transfer of the reason inherent in the European legal tradition, Craig indicated that the Scots could develop their law without either bowing submissively to the legislative authority of emperors and popes or adhering blindly to the common opinions of the professors. They could satisfy their desire for written law by developing a body of learning in the minds of their own practitioners, for in doing so they would be using learned authority appropriated from the civil law. Stair’s rejection of Craig’s central claim That Stair was heavily influenced by his reading of the Ius feudale was shown earlier. Not only did he rely on Craig for his understanding of European legal history but he did so as a means of establishing a foundation for the method of writing that he seems to have modelled on Craig’s. He attempted as Craig had done to deduce the rules and institutions of the law of Scotland from their originals and in doing so he made use of Craig’s imagery of springs and fountains to describe the channelling down of natural equity through legal sources. It therefore comes as something of a surprise to find that he expressly rejected Craig’s central claim for the authority of the feudal law.274 In a paragraph in his introductory title devoted to discussion of the sources of Scots law—a paragraph that will be the focus of attention in the middle section of the fifth chapter below—Stair insisted that it was ‘not to be thought, that the Feudal Law is our proper Law, as Craig relates’. In this passage he based his opposition on ‘there being scarce any thing as a Common, 273 274

Epistles, 2.1.156–7. Institutions, 1.15/1.1.16. Craig confirmed the centrality of his claim at Ius feudale, p 123.

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The Appropriation of the Common Law 241 Feudal Law’, pointing out that ‘it is Local and Customary to every place, and doth not extend to the half of our Rights’. Craig would undoubtedly have agreed that the feudal law was local and customary, and he would probably have granted (whatever his editor may have thought) that it covered only some of the areas lawyers had to work in, but he would have wished to challenge the inference that there scarcely was a common feudal law. At the beginning of his account of land law Stair shed more light on what he meant by this.275 After summarising Craig’s views on the origins of feudal tenure and the etymology of the word feudum and its derivatives, he warned that in this area ‘there was no common written Law, but the several Provinces had their diverse Customes, as they thought most suitable to the nature of this Right, and their own utility’. What he objected to was the idea that there could be a common feudal law in the sense of a written law, and to put the matter beyond doubt he added that ‘these Books annexed to the Civil Law, called Libri Feudorum, though they have great respect amongst Lawers, yet they are but the observations of privat persons, and so not a written publick Law’. Stair seems to have accepted neither the argument that the feudal texts had been clothed with legislative authority by the medieval emperors, nor the argument that they had furnished themselves with the force of statute and the authority of law. He maintained that there was ‘no common written Law’, regardless of the respect the Libri feudorum had received from lawyers. In preparing the lesson he delivered before his admission to the bar Stair claimed to have studied the works of Baldus and Curtius as well as Craig.276 He may at this early stage in his career have been more struck with Curtius’ doubts about Baldus’ defence of the authority of the Libri feudorum than he felt able to admit, for a decade later he seemed to confirm that he had doubts about Curtius’ alternative defence, which would have made it hard for him to justify presenting a lesson on the feudal law as evidence of proficiency in the civil law. It was suggested earlier that he may also have read the influential treatment of the authority of the feudal law published by Charles Dumoulin in 1539 and again in 1558. An advocate in the parlement of Paris, Dumoulin had addressed the question commonly raised by the feudists ‘whether the Libri feudorum has the force and authority of law, which they usually phrase, whether it is authentic’, in a preface attached to a commentary he wrote in two parts on the custom of Paris, as codified in 1510.277 Announcing at once that he considered the inclusion of the Libri feudorum in the Corpus iuris civilis to be ‘ridiculous’, he nevertheless recognised that since this was a ‘new opinion’ a more measured response was required. He believed that there were really three distinct questions to be addressed, and began by asking whether the Libri feudorum could originally have been written as an authentic code of law. To this the answer had to be in the negative, ‘because it is established that it was compiled and put 275

Institutions, 13.1/2.3.1. ‘Scotstarvet’s “Trew Relation”’, (1915–16), pp 387 and 389. 277 Commentarii in Parisienses consuetudines, pt 1, pp 24–5. For biographical accounts of Dumoulin see Michaud 1843, vol 11, pp 557–9; Prevost 1933–2000, vol 12, cols 242–5; Naz 1935–65, vol 5, cols 41–51; Kelley 1966, pp 352–9; Thireau 1980, pp 23–58. 276

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242 The Court of Law together by Obertus de Orto, who was an advocate or solicitor in the Milanese court’ and as such ‘was merely a private citizen, working without the public authority of the prince or people’. It was a different question to ask whether the Libri feudorum enjoyed ‘the force and effect of approbation’. To this a more positive answer could be given, ‘and in this respect it can now be called authentic, not strictly or from its origin, on account of the deficiency of the author—for authenticus or in Greek authentikos is properly synonymous with what is authorised by the author whom the Greeks call the authentes, that is, the author or lord or leader—but when the term is taken broadly and retrospectively it is called authentic’.278 Both these questions had to be distinguished from the question whether the law stated in the Libri feudorum was authoritative. The claim made by Baldus and most of the feudists that the texts had been annexed to the Novels on the orders of Frederick II ‘was not to be believed’.279 The claim less often made that the texts had been ‘received and approved in use by everyone’ was also to be treated with suspicion, for ‘just as in the time of Obertus and before him the use of feus varied from place to place, so it continued and still does today’.280 It could hardly be claimed that common approval of the law stated in the texts had turned the custom of one locality into ‘the general custom or common feudal law’ when there had never in fact been any such approval. Although some elements of the law stated in the Libri feudorum had been adopted in some places, Dumoulin concluded, ‘I do not admit that it is the general or common law of the feus everywhere, but only that it is law where and to the extent that it is known to be received into use’. Early in the next century another of the authors whose books on the feudal law Stair read, the Louvain professor Petrus Gudelinus, was able to summarise briefly the current state of the debate over the authority of the Libri feudorum.281 Reminding his readers that ‘the question is whether it ought to be regarded as written and common law, and whether its authority ought to be followed everywhere, like that of the other books of the civil law’, he explained that ‘Charles Dumoulin, whose opinion was also held by a few of the older authors, denies it, yet the common and more widely held and what is more the safer opinion is to the contrary: namely, that this book was in effect silently approved by emperors, because beyond the memory of man it has been expounded in public schools no less than the books of Justinian and it has been cited and admitted in judicial proceedings’.282 Stair spoke out boldly against the prevailing opinion, but why he 278 That Dumoulin was eager both to contest and in some sense to recognise the authority of the feudal law was important, as the next section of this chapter will explain. 279 The Novels, it needs to be appreciated, were often referred to as the Authenticum in the belief that a version of the text had been formally promulgated as law by Justinian. 280 Dumoulin did not refer to Curtius’ developed account of this line of argument but to a much shorter statement by Ioannes Baptista Caccialupus, which can be found in Tractatus universi iuris, vol 13, f 2r. 281 Gudelinus, De iure feudorum, p 3; Stair, Institutions, 14.18/2.4.18; Gordon 1985, p 580. 282 Although commonly credited with undermining the foundations of feudist doctrine, Dumoulin was himself regarded as an accomplished commentator on the feudal law. Gudelinus cited his work at De iure feudorum, pp 9–10, 13, 42, 45, 78, 82, 134–5, 142, 147–8, 155, 157–8, 160–62, 213, 225–7, 231, 244 and 268, and not only for the information it contained on French law.

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The Appropriation of the Common Law 243 did so requires careful scrutiny. He mentioned Gudelinus’ book as a guide to ‘the common Feudal Customs’, and he used the same expression—or in one instance, ‘the common Feudal Law’—in several other passages, sometimes with clear reference to the law stated in the Libri feudorum.283 At one point he took time to explain how a notorious inconsistency in the texts could be handled.284 In discussing the prohibition on alienation of a feu by a vassal, Craig had paused to examine a ‘grave and doubtful question’ that had arisen from an apparent contradiction between the texts stating the prohibition and others permitting subinfeudation, which was sometimes equated with alienation.285 The glossators had tied themselves in knots in seeking to reconcile these texts, but the standard response among the commentators was simply to declare that a subfeu was a lease and to argue that a lease did not genuinely amount to alienation so long as the relationship between the superior and the vassal or between the superior and the land was not affected. Although Craig had qualms about this (since he considered a lease to be a sort of feu), he advised its acceptance as the best response available, not least because in Scotland subinfeudation had been encouraged by statute and had been extensively used to replace tenancy agreements.286 Stair took Craig’s advice, which is not in itself surprising, but what does seem odd is that he took time at all to deal with ‘the Antinomy in the Feudal Law’. He began by saying that to resolve ‘this difficulty, it must be remembered, that feudalia are localia, regulable according to the custom of the several places, and according to the Nature of Feudal-rights, and common Feudal-customs, where special customs are not’. This meant that there was no difficulty to be resolved ‘in France, or most places in Germany, where alienation of Fees many ways is allowed’, and that the difficulty arose only ‘in Italy and other Countreys, where the common Feudal Customs rule ordinarly according to the Feudal-books’. By going on to show how the texts could be reconciled Stair seemed to imply that Scotland, where alienation was to some degree prohibited, was among the countries that followed the Libri feudorum. It is however possible that he regarded Scotland as a country ‘where alienation of Fees many ways is allowed’, and there are certainly other passages in his book where ‘the common Feudal Customs’ were not those described in the texts but those commonly found in Scotland, France and other neighbouring nations.287 An example is a passage dealing with the casualty of relief, a payment due from the heir of a vassal to the superior on renewal of the investiture.288 Stair observed that the topic was ‘generally treated upon by the Feudists’, but he knew that it was not rooted in the texts and so could not have used the expression ‘the common 283 Stair, Institutions, 13.51/2.3.51, 14.18/2.4.18, 21.11/2.11.11, 21.14/2.11.14, 14.37 and 26.19/3.4.19; Gudelinus, De iure feudorum, p 157. Stair also referred here to a commentary on the feudal law by Henricus Zoesius, who taught with Gudelinus at Louvain. 284 Institutions, 21.13/2.11.13, referring to Craig, Ius feudale, p 343. 285 Libri feudorum, 1.5.4, 2.3.pr, 2.9.pr, 12(13).pr, 34.3, 52.1.pr and 54(55).pr–1. 286 Grant 1930, pp 265–70; Nicholson 1973, pp 6–8; Lythe 1977, pp 67–8; Wormald 1981, pp 52–4; Sanderson 1982, pp 64–7, and 2002, p 19; Whyte 1995, pp 88–91; Macdougall 1997, pp 160–61. 287 Institutions, 26.22/3.4.22, 26.25/3.4.25 and 26.34/3.4.34; and see too 13.34/2.3.34. 288 Ibid, 14.26–7/2.4.26–7.

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244 The Court of Law Feudal Customs’ here with reference to the law described in the Libri feudorum. He remarked that the casualty had been traced back by Cuiacius to a constitution enacted by the Byzantine emperor Leo VI at the close of the ninth century, observed that in ‘most of the Feudal Customs’ it had been extended from heirs to the purchasers of feus, and commented in some detail on ‘the Customs of England and France ’.289 He explained that he had ‘the more largely considered the rise and Customs of Nations concerning relief’ because in practice disputes about payments were almost always settled between the parties, ‘and there is scarce a contraversie or decision, observed about it by any since the Institution of the Colledge of Justice, so that we must rest in the common custom used betwixt Superior and Vassal, the Nature of this Casuality, and the opinions of some few of our Lawyers who have written upon it’. It was the opinions of the local lawyers that Stair proceeded to review, observing that Craig had rightly opposed ‘the common opinion of Lawyers at that time’, that his alternative view had been ‘generally acknowledged’ since, and that Sir Thomas Hope in particular was ‘of the same Opinion’.290 In other passages Stair often mentioned the opinions of Craig, Hope, Skene and Spotiswoode, together with those of ‘the Lawers’ they mentioned.291 When he reported in one of his titles about servitudes that ‘the question useth to be moved here, Whether the owner of the servient Tenement be oblieged to uphold or repair his Tenement, that it may be sufficient to support the dominant Tenement’, he added that ‘there are opinions of the learned and probable reasons upon both parts’.292 Occasionally he made reference to ‘the opinion of the Feudists’ or ‘the opinion of the Canonists’, though usually when it had been approved by Craig, whose handling of issues was often taken to clarify the local law.293 On the question whether a tutor could grant a lease of a pupil’s land, for example, Stair was content to say that Craig ‘moveth and removeth this doubt’, and in other cases too he considered it sufficient to observe that Craig ‘very fitly moveth and solveth this question’, or that he had discussed a standard issue ‘which he determineth in the affirmative, with good reason’.294 As this last phrase indicates, Stair did not adopt Craig’s opinions without reflection. ‘Craig hath largely & learnedly Treated of the feudal Delinquencies’, he observed at one point, adding that he had adduced ‘the Feudal Customes of the neighbouring Nations, and the Opinions of many learned Feudists thereupon’, and 289

Stair’s note about Cuiacius was clearly drawn from Craig, Ius feudale, pp 291–2, which he did cite. Minor Practicks (1734), p 197. Stair’s handling of land law issues was therefore different from his handling of questions on contract law. As he indicated at the outset, this could to some extent have been because in relation to contract law he was having to break new ground himself. 291 See, for examples on issues of land tenure and succession, Institutions, 13.46/2.3.46, 13.74/2.3.74, 13.77/2.3.77, 13.80/2.3.80, 14.23/2.4.23–5, 14.28/2.4.28, 14.35, 14.36/2.4.36, 14.41, 15.11/2.5.11, 16.19/2.6.19, 21.30/2.11.30 and 27.10/3.5.10. 292 Ibid, 17.6/2.7.6. Stair proceeded to outline some of the probable reasons he had in mind in civilian language but without identifying the learned authors he was thinking of. He made it clear that his practical concern was with the tall tenements raised on either side of the High Street in Edinburgh. 293 Ibid, 13.58/2.3.58, 21.11/2.11.11, 21.19/2.11.19, 21.22/2.11.22 and 25.42/3.3.42. 294 Ibid, 19.3/2.9.3, 20.12/2.10.12, 21.6/2.11.6 and 21.7/2.11.7; cf Ius feudale, pp 171–2, 204, 315–16 and 323–5. 290

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The Appropriation of the Common Law 245 had proceeded to ‘give his own opinion, how far these or the like would be sustained with us’.295 This was another area in which cases were seldom taken through the courts, ‘so that we are yet much left to infer the Feudal Delinquencies, resolutive of Infeftments from the nature of these Rights’. However, it seemed to Stair that while Craig had ‘not gone near the length of Forraign Feudists, in assigning the specialities resolving Fees; yet if we should go his length, there would be found few unquarrellable Rights of Superiority, or Property in the Kingdom’. The danger in theorising about the nature of feudal rights was that it might easily become detached from reality, and Stair believed that Craig’s elaborate account of the offences giving rise to forfeiture of a feu was impractical. Indeed he believed that the lack of litigation could be taken to limit rather than create the need for theorising about rights, arguing that since superiors were not constantly bringing actions against their vassals, ‘the general acquiescence of the Nation must make these Delinquencies resolutive of Infeftments, much narrower’. In a similar passage he noted first how Craig ‘affirmeth that it was doubtful in his time, whether Ascendants could succeed in heritable Rights, and that he heard the opinion of some learned men in the contrary, and that he had not found the Lords decide in it, and that it is contrare to the Feudal Law, and also to his own opinion’.296 Stair maintained that ‘the Custom and common opinion since, is for Ascendants’, emphasising that the common opinion was ‘more conform to equity, and the Law of nature, which in Dubio ought to take place’, and deducing the custom from the fact that no one was known to have ‘attempted to exclude a father, by the Fathers Collateralls’. ‘And though there had been no Decision upon it’, he continued, ‘neither have their been upon many other uncontraverted Customs, especially in Succession, but the acquiescence of all Parties, having interest in matters of so great moment, is a strong evidence of the Nationall consent by Custom’.297 The same argument was used again elsewhere, and it may have underpinned at least some of Stair’s more imprecise statements that opinions expressed by Craig needed to be rejected because ‘Custome since hath cleared the contrary’.298 Sometimes he meant the custom of landholders in a more positive sense, as when he contested Craig’s claim that all fortified buildings, since they were built for the defence of the realm, must belong to the king by pointing out that in the past some had been built for ‘private safety against Robbers, Plunderers, or flying Parties’, and that in ‘recent Custom’ many houses had been built with turrets ‘rather for Ornament then for Strength’.299 Sometimes he meant a custom established by the decisions of the 295

Institutions, 21.31/2.11.31; cf Ius feudale, p 374. Institutions, 26.35/3.4.35; cf Ius feudale, p 235. Stair did not think it necessary to say much about ‘the alledged opposition of the Feudall Law’ since ‘it hath been oft times said, it is Local’. 297 In fact Stair was able to cite a decision in a 1627 case, delivered in favour of Robert Burnet no less; see Hope’s Major Practicks, vol 1, p 295; Family of Burnett of Leys, p 133; Foxcroft 1904, p 317. 298 Institutions, 13.45/2.3.45, 13.46/2.3.46, 27.47/3.5.47. 299 Ibid, 13.66/2.3.66; cf Ius feudale, pp 184–5. As a landholder in the south west Stair knew what he was talking about here. For an attack made on the tower house he had acquired in Wigtonshire see the Correspondence of Sir Patrick Waus, vol 1, pp 46–7, 51–3 and 55–7. For a recent study that tends to support Stair’s explanation of the survival of the castellated style, used at his own house in Ayrshire, see McKean 2001. 296

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246 The Court of Law courts, as when he rejected Craig’s opinion ‘that naked Pactions were not effectual with us, and that a Charter was but a naked Paction’, on the basis of ‘our constant Custome allowing all Pactions and Promises to be effectual’.300 Stair not infrequently explained how Craig had answered a question only to add that ‘the course of Decision since his time hath cleared the Contrair’, or that ‘so far as I can understand by former Decisions, it hath not yet been determined’.301 When he revised his manuscript for the press in 1681 he added a passage warning that it should not ‘be thought strange, if the Feudal Customs as they are now settled, do much differ from what Craig did observe’, for Craig had been able to cite relatively few decisions and many had since been reported, both before the Interregnum and after the Restoration, ‘by which most of the Feudal Questions are determined’.302 As a result, ‘these things which Craig could but conjecture from the Nature of the Feudal Rights, the Customs of neighbouring Nations, and the opinion of Feudists, are now commonly known, and come to a fixed Custom’. The significance Stair attached to the decisions of the lords of session will be considered further in the next two chapters, but it may be asked here what he meant by saying that in the absence of decisions ‘Craig could but conjecture’. As a technical term used among philosophers the word conjecture signified probable rather than necessary reasoning, and it would have been natural enough for Stair as a former teacher of philosophy to use the word in this technical sense.303 If so his point would have been that Craig was only able to draw inferences from the nature of feudal rights—albeit sustained by comparisons with the laws of neighbouring nations and the opinions of other feudists—by probable reasoning, and that these inferences could in consequence have had no more than probable authority. His point could have been to contrast the probable authority of Craig’s opinions with the necessary authority of the session’s decisions or the customs they established, or it could have been to contrast the merely probable authority of Craig’s singular opinions with the virtually necessary authority of the customs that were ‘commonly known’. Either way, Stair would not have been saying anything that Craig would have found objectionable, for Craig never suggested that the opinions he expressed could definitively state the law. By handling questions with learned authority he had shown that they could be answered legally as opposed to morally and had contributed towards the development of a body of learned doctrine among Scots lawyers, but he had not been able to settle the law himself, even when his views were consistent with the common opinions of the feudists. Yet if this was also Stair’s understanding of the situation, as there seems good reason to suppose, it remains problematic that he rejected the central claim Craig made for the authority of the feudal law. His purpose in doing so needs further investigation.

300

Institutions, 13.46; cf Ius feudale, p 158. On this custom see Mackenzie Stuart 1958, pp 250–53. Institutions, 14.22/2.4.22, 14.34/2.4.34, 16.17/2.6.17, 16.19/2.16.19, 24.44/3.2.45 and 26.31/3.4.31. Ibid, 13.3/2.3.3. 303 For the standard philosophical usage and its widespread adoption in other fields see Patey 1984, pp 47–9. An alternative interpretation will be suggested at the end of the next section. 301

302

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The Reform of the Proper Law 247

THE REFORM OF THE PROPER LAW

Hope’s doubt about Craig’s claim So far it has been seen that Craig’s claim for the appropriation of the common feudal law in Scotland was expressly rejected by Stair and was misconceived by the writer of the epitome of the Ius feudale acquired by Robert Ker in 1656. Not surprisingly, the claim was reproduced more accurately in the popular epitome ascribed to John Nisbet, where Craig’s ranking of the sources of Scots law was summarised faithfully.304 The writer observed that after ius naturale et gentium, ‘our wryten law hath the first place, and in effect we have no proper wryten law except the acts of parliament (our proper municipall or civill law) and how oft any difficulty occurs they are first to be searched out’. Next he observed that ‘wher the wryten law is deficent we have recourse, in the second place, in things decyded in lyke manner of before, which we call practique’, adding that ‘in matter of practise ther is also some respect to be had to the coustumes of neigbour nations’. Only then did the writer observe that ‘in the thrid place after our owne wryten law and practise wee have recourse to the Lombard or feudall law which is called ius feudale scriptum’. This law was ‘preferred both to the civill and cannon laws’ and was aptly called ‘the proper law of this kingdome (if the name of proper law may be largly extended) since the haill law and practise we now use hath flowed from the springs and grounds therof’. Only as a last resort would use be made of the civil law ‘as the great fountaine of morall law out of which almost all the civilized nations of the world supply the defect of their owne municipall laws’, and even then priority would be accorded in any case of conflict to the canon law, ‘especialy in ecclesiastick busines and matters of conscience, scandel or kirk affairs’. All this was closely based on Craig’s text, though the writer took greater liberty in restating Craig’s later rule of interpretation that ‘where there occurres ane cause that is not expressly decyded in the bookes de iure feudali, recourse is to be had to the civill law for the decision therof, for ius feudale hath no place but in matters of lands and heretages’.305 Even greater liberty was taken by Thomas Wallace, who transformed this rule of interpretation into the proposition that ‘every custom is stricti iuris, and the feudal customs have no place except in feudal matters’.306 Wallace was like his teacher Stair in wishing to emphasise the customary character of the feudal law and the limits to its sphere of influence, yet this did not lead him to reject Craig’s central claim in the way that Stair was doing. In a title devoted to general remarks on ‘Ius’, Wallace began by summarising Craig’s comments on the authority of the civil and canon laws then proceeded to declare that ‘the feudal law, within its own field, is to be preferred to all others, and truly it is the proper 304 NLS, Adv MS 25.6.1, ff 8–9. As was noted earlier, the author of the ‘Treatise anent the Scotts Law in Civills’, possibly Nisbet again, said that land tenure was regulated in Scotland by the feudal law. 305 NLS, Adv MS 25.6.1, p 25. 306 NLS, Adv MS 24.3.2, pp 99 and 216.

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248 The Court of Law law of Scotland on immoveable things’.307 Stair may not have been alone among the new writers of the early 1660s in wishing to emphasise that the feudal law was customary and limited in relevance, but he was alone in refusing to accept Craig’s central claim for the appropriation of the common feudal law. Among the older writers whose works were recovered in the later 1650s, Sir Robert Spotiswoode seems to have been influenced by Craig’s method of relating the local to the learned laws, but he did not at any stage review Craig’s account of the sources of law. Sir Thomas Hope, on the other hand, opened the book that came to be known as his major practicks with a title ‘De iure quo utimur’ in which he reproduced excerpts from Craig’s treatise.308 To begin with he quoted the observation from Craig’s title on the history of the civil law about the Scots being bound by the laws of the Romans to the extent that they were consistent with the laws of nature and right reason, adding at once the similar observation from his title on the arrival of the feudal law in Scotland about the need for answers to novel questions to be drawn from the civil law. Having leapt forward to the end of Craig’s discussion of the sources of Scots law, Hope then went back to its beginning and abstracted Craig’s comments more systematically and thoroughly. He quoted the comment about the acts of parliament being the only local source of written law, together with the explanation that acts of the privy council or of conventions of the estates did not have legal force. As ius regni proprium, Hope went on, the acts of parliament took the first place in any enquiry, followed by the custom or praxis established in decisions. Several comments were then reproduced indicating that custom must always be treated as subordinate to statute and that in the absence of an express custom a solution might be devised by analogous reasoning. Finally, Hope quoted Craig as saying that in the absence of written law or custom recourse should be taken to the civil law, unless it had been superseded by the canon law, and what Craig had said in his title on the history of the canon law about its continuing significance in Scotland was reproduced in Hope’s later title ‘Of Kirks and Kirkmen’.309 In his earlier title Hope had already presented a fairly comprehensive summary of Craig’s views on the sources of Scots law, yet with two glaring omissions. In the first place, although he had reproduced Craig’s claim that the acts of parliament were the only written law in Scotland, with the explanation that acts of council or conventions lacked statutory force, he had not mentioned Craig’s vigorous attack on the authority of the old books. In the second place, although he had reproduced Craig’s observations on the authority of the civil and canon laws in Scotland, including those he had made in previous titles, he had not 307 In an earlier title (at p 92 in the copy cited) Wallace drew attention to an act of sederunt passed on 28 December 1596 in which the lords of session announced that they would ‘follow the decision of the common law in all feus’ and that their act would be ‘inviolably observed in all tyme comeing’. This act does not seem to have featured prominently in the thinking of Craig or anyone else. 308 Hope’s Major Practicks, vol 1, pp 1–2. Given what was said in the first chapter, it is clear that the printed edition of Hope’s book can be no more reliable than the printed edition of Spotiswoode’s as a guide to what the author himself wrote and in what order. Again, though, the concern here is with how the book would have been read in the middle of the seventeenth century. 309 Ibid, vol 1, p 19.

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The Reform of the Proper Law 249 mentioned Craig’s central claim for the authority of the feudal law. Given that his summary had been thorough, systematic and otherwise comprehensive, these omissions seem to have been deliberate, and they may have been connected. Shortly after summarising Craig’s views, Hope observed that the parliament of 1426 had established ‘a commissione for reformeing of Regiam maiestatem and Quoniam attachiamenta, quhilk proves that they have the auctority of lawes’.310 This was the line of argument that Sir John Skene had pursued in his editions of the old books after Craig had exploded the myth of their promulgation as statute by David I. ‘The book called Regiam maiestatem’, Hope proceeded to explain, ‘is evinced to have bein maid be auctority of the prince, at the leist is approven and authorised be the estaits, in swa far as ther ar many acts of parliament that hes reference to it’. He listed some of the fifteenth-century acts printed by Skene, added that he had found further references in the unprinted registers, and later returned to the act of the 1578 parliament instructing Craig and other commissioners ‘to visit the auld lawes and to report their proceiding to the king and estaits to the effect the samen may be established as perpetuall lawes in tyme comeing’. Hope was aware, however, that Skene’s claim about the statutory approval of the old books was also open to objection since it could be argued that they ‘ar not authorised, nor of force ad ligandum subditos, becaus the acts forsaids doe not authorise nor approve the haill book bot allanerlie such places therof as the saids acts ar relative to’. Moreover, since some acts instructed the commissioners appointed to revise and reform the old books so that they could be authorised as law, ‘it appeirs and followes that they wer not authorised befoir thes acts; and we never find that they wer authorised be any act’. No reform commission had ever completed the task assigned to it, and although Hope attached some importance to the act ordering the printing of Skene’s editions of the old books, this did not relieve him entirely of his doubts about their authority. These doubts were presumably connected with his own membership of the series of commissions appointed between 1628 and 1633 to reform the law. As already noted, the king, the privy council, a convention of the estates and a parliament had all encouraged Hope and others ‘to reid, recognosce and consider the haill lawes, statuites and actes of parliament of the said kingdome, alsweill printed as unprinted, togider with the customes and consuetudes of the said kingdome quhilks ar and have beine observit as lawes’.311 Since the aim of these commissions was to accomplish at last the task of producing a restatement of the law fit for enactment by parliament, and since the commissioners were required to examine Regiam maiestatem merely as ‘ane record of the auncient lawes and customes’, it would have been difficult for Hope to insist without qualification that the old books had already received statutory approval. He did not make reference to these commissions in his major practicks, nor to the act of 1633 licensing the printing of Craig’s treatise after he and other lawyers had revised it. While he may have envisaged his major practicks as an alternative to the 310

Ibid, vol 1, pp 2–6. Register of the Privy Council, 2nd ser, vol 4, pp 137–9; Acts of the Parliaments of Scotland, vol 5, pp 46–7. 311

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250 The Court of Law proposed restatement of the law, in much the same way as Craig’s Ius feudale may have been regarded as an alternative to the statutory restatement proposed in 1578, he was clearly reluctant to follow Craig’s example in dismissing Skene’s view of the old books and acts as the foundation of the law. In his later titles Hope cited the old books and acts frequently but ambiguously. As Balfour had done, he tried so far as possible to start his treatment of the topics he dealt with by assembling quotations from and references to Regiam maiestatem, Quoniam attachiamenta and the other medieval sources.312 These passages were often followed by material extracted from Balfour’s own practicks, which tends to suggest that Hope, like Spotiswoode, was intent on bringing Balfour’s work up to date, except that Hope, unlike Spotiswoode, was prepared to take Balfour’s approach of building on statutory foundations. After gathering material from the old books and acts, Balfour’s practicks and in many titles from other sources, Hope generally brought together abstracts of all the relevant acts of parliament passed in the previous two hundred years, both printed and unprinted, followed by abstracts of any relevant acts of council or session, and by case reports or ‘practicae observationes’.313 Although it was the case reports that took up most space in his book and were most often referred to by Stair and other writers at the close of the 1650s, it is clear that in Hope’s own reckoning they were of secondary importance to the statutory material preceding them. It is equally clear, however, that not all the material preceding them was written in the statutory sense, for between the passages drawn from the old books and—in separately headed sections—the abstracts of the acts of parliament, council and session, Hope inserted the excerpts he had taken not only from Balfour’s practicks but also from Craig’s treatise and from other books, such as Skene’s De verborum significatione.314 It was at this point that his son, known in the session as Lord Kerse, added notes from his father’s minor practicks and other papers, as well as notes of his own devising, and it was at this point too that attention was occasionally drawn to the texts and commentaries of the civil and canon laws and to the opinions of other Scots lawyers.315 If it was the major practicks that Burnet had in mind when he credited Hope, unlike Balfour, with writing a treatise, it must have been these passages that informed his judgment. Hope may have followed Balfour’s example in trying to start his titles with material drawn from the old books, but he had placed this material alongside excerpts drawn from other authors and had only rarely referred to the old books and acts in the sections devoted to the acts of parliament.316 Consequently, while 312 Hope’s Major Practicks, vol 1, pp 35, 73, 103–7, 109, 157, 175, 199, 214, 227, 238, 250, 255, 265, 285, 289, 303 and 319, and vol 2, pp 1, 6, 10, 28, 32, 38, 42, 46, 48, 51, 59, 64, 69, 80, 89–90, 116, 119, 150, 170, 181, 188, 192, 194, 235, 237, 244, 246–7, 252, 285, 289–90, 292, 295–6 and 302. 313 On the arrangement of Hope’s material see too Clyde 1937, pp xvi–xvii. 314 The acts of council or session also occupied an ambiguous place between the acts of parliament and the case notes. More will be said about how this material was collected in the next chapter. 315 Although a guide to Lord Kerse’s additions was attached to NLS, Adv MS 6.1.2, and although Lauder, Historical Notices, vol 1, pp 21–2, indicates that advocates were sometimes able to understand the relationship between the text and additions, some readers assumed that the whole book was written by Kerse, and others may have made the opposite assumption. See again Clyde 1937, pp xxiv–xxvi. 316 See, for instance, Hope’s Major Practicks, vol 1, pp 177 and 294, and vol 2, pp 43 and 56.

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The Reform of the Proper Law 251 he differed from Spotiswoode in including material from the medieval sources and the later acts of parliament, he also seems like Spotiswoode to have aimed at a treatment of the law based less on legislative than on learned authority. In Hope’s major practicks the difference between legislative and learned authority was obscured, and perhaps deliberately, for it meant that he was able to connect his observations on the practice of the session with law that could have been taken in one sense or another to be written. In conflating legislative and learned authority Hope may well have been influenced by his reading of Craig’s book, which he seems to have used more freely than Skene’s dictionary or annotations. An example is his handling of the question, already alluded to, whether a feu could ever be inherited by a father from his son. A passage extracted from Regiam maiestatem declared that ‘the right lyne faylzieing, the brother succeids; and [if] ther be no brother the sister succeeds; and after their deceas the bairns or airs; efter them the father’s brothers and their children hes the right of successione, and last the father’s sisters and their children’.317 Skene had concluded from this passage that ‘be the auld Civill Law of this Realme, there is na richt of succession in the richt line ascendent’, and that ‘all succession, is either in the richt line descendent, or in the line collaterall’.318 Hope, however, did not refer to Skene’s commentary on the text but to Craig’s rather different handling of the question.319 He too had cited the passage from Regiam maiestatem (which he called at this point ius nostrum scriptum) but he had dismissed it as being unhelpful in answering what he took to be the crucial issue, namely, whether the Scots had accepted the view stated in the Libri feudorum that ‘the nature of succession to a feu is such that ascendants do not succeed, for instance a father to a son’.320 As was mentioned earlier, Craig claimed to have been taught by his preceptors at the bar that the Scots had accepted this view, though a few attempts had since been made to alter it. Hope’s response was to complain that it was Craig who had called into doubt a well established rule that ‘if there are no descendants, the father succeeds to the son de iure scripto’, for it had often been found that the passage from Regiam maiestatem left room for the father to succeed when there were ‘noe brothers or sisters to exclude him’. Hope believed like Craig that the law had developed through interpretation of ius scriptum, but whereas Craig had been keen to consider the local understanding of the written law of the feus, Hope preferred to concentrate on the conventional reading of the old books. Elsewhere he occasionally reproduced Craig’s comparisons between ius nostrum and ius feudale (or in one instance commune feudorum ius), but in general his interest was either in what Craig had written about the law of Scotland or in what he had written about the feudal law as a branch of the civil law.321 His handling of the question of 317 Ibid, vol 1, p 303; Regiam maiestatem (Latin edn), pt 1, f 52r; cf [Glanvill], Laws and Customs of the Realm of England, p 79. 318 De verborum significatione, p 51. 319 Hope’s Major Practicks, vol 1, p 291; Craig, Ius feudale, p 235. 320 Libri feudorum, 2.50. 321 Hope’s Major Practicks, vol 1, pp 148–50, 260 and 305.

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252 The Court of Law succession by ascendants formed part of an unusual discussion in which he used the subtitles ‘Generales regulae successionum de iure Romano’ and ‘De iure nostro’ to organise his excerpts from Craig’s treatise.322 It was of course on this topic that Craig had distinguished most clearly between the different stages of the historical development of the law, progressing through distinct periods of Roman history to the medieval feudal law and thence to Scots law. In contrast, Hope dealt with the feudal law in passing under his subtitle de iure Romano, and dealt with succession by fathers to their sons de iure scripto under his subtitle de iure nostro. Although he sometimes progressed historically in his handling of Scots law from the ‘auld lawes’ to the rules currently in force, what he meant by the ‘auld lawes’ were those described in the old books and acts or those that had been followed ‘of old’ or ‘in all tyms past’.323 These laws he described at various places as the ius antiquum, ‘the fundamentall lawes’, and ‘the comon law’.324 Hope’s use of the last phrase is suggestive of a parallel between, on the one side, his reluctance to reject the authority of the old books and to regard the feudal law as the proper law of Scotland and, on the other side, Charles Dumoulin’s refusal to recognise the written feudal law as the common law of France. After challenging the authority of the Libri feudorum at the start of his commentary on the custom of Paris, Dumoulin had gone on to explain how he thought feudal issues ought to be handled, contesting the conventional doctrine, lately restated by Nicolas Bohier in his commentary on the custom of Berry and by Barthélemy de Chasseneuz in his commentary on the custom of Burgundy, that consideration should be given first to the local custom, then to the written law of the feus and then to the civil law.325 He agreed that consideration must be given first to the local custom, and also that as a last resort recourse might be taken to the civil law, provided its relevance was properly understood.326 ‘There is nothing more inept’, he insisted, ‘than that which certain inexperienced young men, recently returned from the schools, adduce from the scholastic reasoning of the Italian doctors: namely, that statutes ought to be construed strictly and literally so that they cause less disturbance to the common law, to which there should always be recourse in a matter of doubt and according to which that ought to be explained’. He resisted the tendency of writers like Bohier and Chasseneuz to treat the local customs of France like Italian statuta, pointing out that there was a vital difference between the position of the civil law in France and in Italy. He maintained that in France, ‘we borrow from the Roman written law because it is found to be both consonant with equity and apt and suitable to the business it deals with, not because we were ever subject to the great Justinian or his successors’. The civil law was common 322

Hope’s Major Practicks, vol 1, pp 290–94. Ibid, vol 1, pp 1, 7, 79, 285 and 319, and vol 2, pp 1, 10, 46, 51, 90, 116 and 247. 324 Ibid, vol 1, pp 8, 79, 98 (cf Sellar 2000, p 264) and 243. 325 Dumoulin, Commentarii in Parisienses consuetudines, pt 1, pp 26–7; [for Bohier], Consuetudines civitatum et provinciarum Galliae, pt 1, p 64; Chasseneuz, Consuetudines ducatus Burgundiae, col 452. On Dumoulin’s argument see especially Thireau 1980, pp 95–100. 326 Like Craig (see n 240 above), Dumoulin actually advised that the terms agreed between the parties should be examined first. 323

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The Reform of the Proper Law 253 only in a residual sense, and the customs were not to be contrasted with it as iura municipalia. No doubt aware of the practice of some medieval writers on the French customs—who like their English counterparts had borrowed concepts and categories from the civil law, including the classification of laws as common or proper—Dumoulin claimed that the custom of each province constituted its common law and that many customary rules were common to several provinces.327 In the south, where the civil law had largely been received into the local customs, it had thus become the common law in more than a residual sense, but in the north the common law remained distinct from the civil law. The correct procedure in solving problems there was to examine first the local custom, then the ius commune et generale observed in most northern provinces, together especially with the customs of the neighbouring provinces, and only as a last resort to receive help from ‘the Roman common law redacted under the great Justinian, to the extent that it agrees with reason and is not repugnant to the received customs’. Nevertheless, Dumoulin conceded that it could be helpful in handling the local customs to cite the civil law ‘for annotation or confirmation of antiquity, but not for decision’, and his own handling of the custom of Paris was shot through with references to the texts, glosses and commentaries of the feudal law.328 It has often been observed that Dumoulin, despite his forthright rejection of the mos Italicus assumptions shared by some of his colleagues, was himself inclined to write in a Bartolist style.329 What is not routinely remarked on is his skilful manipulation of the mos Italicus assumptions to make room for the development of French law. That he began to deal with the custom of Paris in a book dedicated to feudal issues and that he did so in the style of a learned feudist is highly significant, for it was the feudal law that was taken in the schools to be both learned and local, both written and customary, both common and proper. Because it had this inherently bifacial nature the feudal law was allocated a place in the conventional structuring of legal research on the dividing line between the local law and the common law. Dumoulin was no more eager than Bohier or Chasseneuz to challenge this structural assumption. Rather, his aim was to challenge the claim of the written law of the feus to occupy the place that it did while preserving the place itself to be occupied by a different body of law. His aim, in other words, was to displace the feudal law in a way that would enable its learned authority to be appropriated by French law. Some support for the claim that the French had a learned, written and common law of their own was available in medieval works on the local customs, and more was becoming available through the continuing work on the redaction of the customs. Less progress had been made in Scotland towards codifying the proper law, but the old books had been produced in the same period and milieu as the medieval works on French and English law, and the Scots had also taken to 327

On the medieval practice see Petot 1960. See, eg, Commentarii in Parisienses consuetudines, pt 1, pp 45, 71, 80, 148, 168, 198, 240, 251, 274, 321, 358, 382, 411, 434, 477, 531, 556, 577, 630, 639, 698 and 715. 329 Olivier-Martin 1925, p 15; Naz 1935–65, vol 5, cols 54–5; Thireau 1980, pp 100–7 and 181–7. 328

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254 The Court of Law calling the provisions they contained their common law.330 The way to replicate Dumoulin’s argument in Scotland would therefore have been to deny that the law contained in the books of the feus could be common as well as proper while maintaining that the law contained in the old books and acts was the common law of Scotland. Hope seems to have moved in this direction, though only tentatively. An obvious reason for his hesitation was the strength of Craig’s argument both for accepting that the feudal law was common as well as proper and for rejecting the view that the old books and acts contained the common law of Scotland. Craig’s argument was essentially the same as Dumoulin’s. He too manipulated the assumptions of the schools, though in a less forthright and ambitious manner. He too accepted that legal research should begin with the local sources and conclude with the learned sources on a model based on Julian’s discussion of customary law in the Digest. He believed that the civil law enjoyed the same kind of residual authority in Scotland as Dumoulin had taken it to enjoy in the north of France, and he agreed with Dumoulin that most feudal issues could be resolved locally without recourse to the civil law. He agreed that the traditional handling of feudal issues had been as much local as common, but whereas Dumoulin had felt able to take the ambitious step of asserting that the local law was the common law, Craig felt constrained to acknowledge that it was the written law of the feus that was being appropriated locally in Scotland. He was not satisfied that the Scots had sufficient written law of their own to make a more ambitious claim, largely because he was reluctant to regard the old books and acts as an authoritative source of law. Hope appreciated his concerns, provided an account of both sides of the dispute over the authority of the old books and acts in the opening title of his major practicks, and refrained from openly rejecting Craig’s claim for the feudal law there. His silence on the subject may have been eloquent enough, however, and it may have encouraged Stair to reject Craig’s claim more openly in his Institutions. Stair certainly recognised that there was a link between rejecting Craig’s claim for the feudal law and accepting Skene’s claim for the old books and acts, for immediately after rejecting Craig’s claim he turned to his observations on the authority of Regiam maiestatem.331 Yet the point Stair made was that ‘Craig doth very well observe, near that place, that these Books called Regiam maiestatem, are no part of our Law’, and he added at once, in response to Skene’s later line of argument, that while the books were ‘mentioned, to be revised and reformed with our former ancient Laws, Par. 1425. cap. 54. Par. 1487. cap. 115. yet these do not acknowledge them, as already become our Laws; but as such, as by alteration thereof, may become our Law’. Hope’s influence may perhaps be detected here, but Stair was certainly not following his tentative lead in rejecting Craig’s claim for the feudal law in order to make way for a reaffirmation of the authority of the old books and acts as a written statement of the common law of Scotland. Stair’s purpose in rejecting Craig’s claim remains unclear. 330 331

Cooper 1947, pp 41–3; Van Dievoet 1986, pp 22–3; Harding 1984 2002, p 91. Institutions, 1.15/1.1.16.

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The Reform of the Proper Law 255 Comparing the laws of neighbouring nations It was noted earlier that Hope sometimes included references to continental sources in the opening sections of his titles and that of these the most frequently cited by far was the Commentaires sur la coustume reformée du pays et duché de Normandie written by Jacques Godefroy, an advocate who practised in the Norman courts until his death in 1624.332 The other sources referred to were mostly the works of the Italian doctors, and, like the references to the texts the doctors commented on, these citations seem to have been added by Hope’s son. The references to Godefroy’s book were therefore as exceptional as they were relatively frequent, and it may be instructive to ask why they were included. A possible explanation is that Hope was conscious of the similarities between the law reform movements in Scotland and France and was drawing attention to a work on one of the reformed customs of France that happened to have appeared in 1626, at about the time he seems to have started gathering material together for his own book. He may simply have been acknowledging a debt to one of the writers who had shaped his thinking as a participant in the law reform programme of the late 1620s and early 1630s, and to some extent this may indeed be part of the explanation. What it fails to account for, however, is Hope’s tendency to cite Godefroy’s commentary as if it had some bearing on the law of Scotland. In fact, all the references included in the printed edition of the major practicks were to just two parts of Godefroy’s book, one dealing with jurisdictional issues and the other with questions of ecclesiastical administration, both areas in which lawyers throughout Europe had tended to rely on the same learned sources.333 For example, Hope twice quoted Godefroy’s comment that ‘justice always pleads for the absent party, absentia partis praesentia Dei repletur, and it is necessary to have more regard to the equity of the claim than to the negligence of the defender’, which had been based on two extracts from the Digest.334 The fact remains, however, that Godefroy had commented on the custom of Normandy, and that although he had often made use of the texts and commentaries of the civil and canon laws, he had also made extensive use of French sources, including the ordinances glossed by Rebuffi and the decisions reported by Pape, Robert and Papon, as well as the books written by authors like Bohier, Dumoulin, Imbert and Le Caron. Moreover, Hope’s first reference was to a passage in which Godefroy had talked about the right asserted by the French church to elect bishops without interference from Rome.335 This had been one of the Gallican liberties enunciated in the Pragmatic Sanction of Bourges, 332 On this Jacques Godefroy, not to be confused with the more famous Genevan professor of the same name, see Michaud 1843, vol 17, p 48. 333 Hope’s Major Practicks, vol 1, pp 18, 21 and 219, and vol 2, pp 60, 67, 73, 220–22, 253 and 286; Commentaires sur la coustume reformée de Normandie, pt 1, pp 18–54 and 60–73. 334 Hope’s Major Practicks, vol 2, pp 67 and 253; Godefroy, Commentaires sur la coustume reformée de Normandie, pt 1, p 46; Digest, 5.2.8.14 and 21.2.85. 335 Hope’s Major Practicks, vol 1, p 18; Commentaires sur la coustume reformée de Normandie, pt 1, p 60.

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256 The Court of Law and as Craig had repeatedly pointed out, the resistance of the French to papal interference in church administration had resulted in a robust rejection of the direct effect of papal decrees like those in the Regulae cancellariae.336 Craig had argued, and Hope had accepted, that the canon law continued to be respected in Scotland for its intrinsic equity and reason, and this view was generally accepted.337 But Craig had also declared repeatedly that even before the Reformation the Scots had been like the French in resisting papal domination, and the general view appears to have been that the canon law might still be followed ‘as it was allowed and restrained in Scotland’.338 It could not have been taken for granted that remarks on ecclesiastical administration in Normandy would be relevant in Scotland. Another possible explanation for Hope’s frequent use of Godefroy’s commentary is suggested by several statements already quoted from Skene’s Latin edition of the old books and acts. On his title page Skene advertised the annotations he had ‘confirmed by the authority of the civil, canon and Norman laws’, in the preface addressed to the king he spoke of his collation of Scots law ‘with the divine, civil and canon laws, and with the laws of your kingdom of England’, and in a second preface, addressed to his professional readers, he boasted again of the annotations he had drawn ‘from the civil, canon and Norman laws, and from the laws of the kingdom of England, with which ours to a large extent agree’.339 In all of these statements he seems studiously to have avoided using the standard trichotomy of the learned laws as civil, canon or feudal. It has been supposed that ius Nortmannicum was Skene’s way of referring to the feudal law, and in his annotations he did sometimes make reference to the Libri feudorum and its glosses and commentaries, or to the communis opinio feudistarum.340 However, without exception he used the expression ius Nortmannicum in a different sense. Commenting at one point on the institution of courtesy—the right of a widower to occupy and profit from land that had belonged to his wife for the remainder of his life—Skene observed that it was ‘unknown to other nations and known only to the Scots, English and Normans’.341 He directed his readers for more information to his dictionary of legal terms, but what he had written there was actually that the institution was ‘not universally keiped, or used in uther Cuntries; and therefore it is called Curialitas Scotiae, the curtesie of Scotland, and in the laws of England lex 336 The Pragmatic Sanction had actually disputed the right of the French king as much as the pope to be involved in the election of bishops, but in practice the emphasis had been on resisting ultramontane pressure. See Salmon 1975, pp 79–80; Baumgartner 1995, pp 40–1; Knecht 2001, pp 68–9. 337 Craig, Ius feudale, p 40; Hope’s Major Practicks, vol 1, p 2; Spotiswoode, Practicks of the Laws of Scotland, p 87; NLS, Adv MS 24.3.2, p 216; Stair, Institutions, 1.13/1.1.14 and 1.15/1.1.16. 338 Craig, Ius feudale, pp 13, 16 and 90; Decisions of the English Judges, pp 85–6. It may of course be significant that this line of argument was pursued before English judges, for it may be squared with the argument in Selden, Historie of Tithes, pp 477–81, which has been shown to have some validity in Helmholz 2001. It was also argued that the canon law was relevant in this case because it was ‘in vigour’ when the rights at issue were first created. For this point see too Stair, Institutions, 4.1.61. 339 Regiam maiestatem (Latin edn), sigg A1r, 3v and 6r. 340 See, eg, Sellar 1997, p 160, and Regiam maiestatem (Latin edn), pt 1, ff 65–8. 341 Ibid, pt 1, f 64r.

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The Reform of the Proper Law 257 Angliae, or the curtesie of England, within the quhilk twa Realmes, and nane uther, this law is in use.’342 It seems likely that he had learned of the Norman version of courtesy during the decade between the publication of his dictionary and of his editions of the old books from Craig, who had written in his Ius feudale that ‘the English speak of the courtesy of England as if it has place among the English alone, but they are mistaken since there is also a place for this courtesy among both us and the Normans’.343 This was one of many passages in his treatise in which Craig had reinforced the observation made in his historical introduction that the law of England remained broadly similar to the law of Normandy, which he took to be proof that the feudal law had been brought to England by the Norman conquerors.344 In this passage he advised his readers to look for further evidence in a recent commentary on the custom of Normandy by Guillaume Terrien, a judge in Dieppe, advice that Skene appears to have taken since all the references to ius Nortmannicum in his annotations were in fact references to the discussion of Norman law in this book.345 Terrien had commented on a compilation called the Grand coutumier, one of the works on French custom produced in the same period and milieu as Regiam maiestatem, and his book had been published just before the process of reforming the custom of Normandy got under way.346 If Hope had learned from Skene to examine the law of Normandy along with the civil and canon laws, he may also have thought it appropriate to make use of a commentary on the current law. This would not have made much sense if the sole purpose of examining the law of Normandy had been to identify the historical origins of English institutions, but Craig had recommended the study of Norman law for various reasons. In his account of the Scottish institution of courtesy he had found it relevant to mention the current rule in Normandy that a widower who remarried would lose the right to his first wife’s land, while in his account of the corresponding institution of terce—the right of a widow to enjoy a third of her former husband’s estate—he had found it relevant to mention the long established rule in Normandy that she had no claim over land acquired after the marriage.347 The significance of the latter rule was that it revealed the true source of a rule stated in ius nostrum vetus, meaning Regiam maiestatem, which was not observed in Scottish practice.348 Another provision of ius nostrum scriptum, again meaning the old books, enabled a widow to secure rights of terce over land that had been promised to her husband in a marriage contract but never conveyed to him.349 Craig considered this provision 342

De verborum significatione, p 41 (punctuation, capitalisation and italicisation slightly altered). Ius feudale, p 312. See too Craig’s De unione regnorum Britanniae, pp 82 and 317. 344 Ius feudale, p 32. 345 Regiam maiestatem (Latin edn), pt 1, ff 10r, 47r, 61v, 96v and 103r; Commentaires du droict civil tant public que privé, observé au pays et duché de Normandie, pp 22–3, 461–3, 492–4 and 496–8. It may be that Skene was influenced generally by his reading of Terrien’s book, for at least initially his annotated version of the old books was similar in style to the commentaries on the French customs. 346 Besnier 1935, pp 152–7; Sheridan 1955, pp 1141–3; Caswell and Sipkov 1977, pp 34–5. 347 Ius feudale, pp 309 and 313. 348 Regiam maiestatem (Latin edn), pt 1, f 39r. 349 Ibid, pt 1, f 42r. 343

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258 The Court of Law equitable, and while he knew of no decision confirming that it formed part of Scots law, he felt satisfied that it did since it was also found in ius Anglorum et Normannicum. Many other rules and institutions were common to Scotland, England and Normandy, of which primogeniture was the obvious example, though like terce it was also found elsewhere.350 Craig often argued that when ius proprium was lacking the Scots ought to follow the example of English, Norman or French law, despite the opposition he had encountered among other advocates to his proposed appropriations of regulae communes.351 His arguments were consistent with the advice he had given to novice advocates that in seeking solutions to problems in the indigenous materials, before turning to the feudal law, ‘what is observed in such a situation in neighbouring nations (provided they use the same law) should not be neglected, and recourse should sometimes be taken to their customs when we lack a proper law and custom’.352 The key to understanding this advice is to notice its location in a discussion modelled (as has already been pointed out) on Julian’s discussion of customary law in the Digest.353 Julian had advised that solutions to problems should be sought first in leges scriptae, next in mores et consuetudo, then in quod proximum et consequens ei est, and lastly in ius quo urbs Roma utitur. The third expression was normally taken to mean that new problems should if possible be solved from the local sources by analogous reasoning, and Craig did encourage the extension of statutory and customary rules ad similia. In France, however, the expression had been taken to justify recourse to les coutumes des provinces les plus proches, and it has been plausibly suggested that Craig proceeded at this point to encourage the examination of neighbouring laws under the influence of the French commentators on customary law.354 Where the French commentators had talked about turning from one local custom to those of neighbouring provinces, Craig talked about turning from the law of Scotland to the laws of England, Normandy and other parts of France, believing that these areas would often be found to share regulae communes with Scotland. Craig’s willingness to turn to the laws of neighbouring nations sheds some light on his willingness to refer to the old books and acts as ius nostrum scriptum, notwithstanding his refusal to recognise their authority and his insistence that the only native written law was to be found in the acts of parliament.355 A possible cause of this inconsistency, it has been suggested, is that he may have written most of his treatise before he discovered, when a new edition of the treatise ascribed to Glanvill drew attention to the parallel passages in Regiam maiestatem, that the Scottish book had been largely copied from an English source.356 This does seem 350

Ius feudale, p 231. See, eg, ibid, pp 178, 180, 245, 250 and 297. Ibid, pp 39–40. 353 Digest, 1.3.32. 354 See, eg, Etienne Pasquier, L’interprétation des Institutes de Justinian, pp 29–30, together with Smith 1915, p 293. In fact this interpretation was neither new nor peculiarly French. 355 For further examples see Ius feudale, pp 187, 208, 213, 215, 295, 303, 307 and 357. 356 MacQueen 1994, pp 388–9, where it is pointed out that Craig did not draw attention to the parallels with the English treatise in his tract De unione regnorum Britanniae, which may have been 351 352

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The Reform of the Proper Law 259 possible so far as Craig’s complaint about the theft of Regiam maiestatem is concerned, but there are sceptical comments on the authority of the old books and acts scattered throughout the Ius feudale, and if a sufficiently thorough revision had been made of an earlier draft for all these comments to be added, it would seem strange for the more favourable statements not to have been removed or modified at the same time. Another suggestion is that the inconsistencies in Craig’s treatise are more apparent than real since he never relied on the old books and acts as such but rather relied on them to the extent that they had been approved by popular or forensic usage.357 This suggestion also has some plausibility, for although Craig did not accept that the medieval sources had arisen from an exercise of sovereign authority by a public legislator, there are hints in his book that he may have believed it possible for sovereign authority to be exercised in other ways. For example, in explaining how the institution of tailzie (or entail) had been carried from Normandy into England and had then been adopted in Scotland, he cited a decision of the session as confirmation that it had been ‘received by the public consent of the whole kingdom’ and so had become ius commune patriae.358 It might thus have been possible, by a similar manifestation of public consent, for the medieval sources to have been received as law and to have become, in a sense, the written law of Scotland without being enacted or approved by statute. That there are difficulties with the idea that Craig regarded the decisions of the session as sovereign decrees has already been pointed out, however, and there are also difficulties with the idea that he was willing to attribute sovereignty to the Scottish people.359 A more serious problem with this suggestion is that he often referred to the old books and acts as ius nostrum scriptum when he was unable to cite a decision or any other evidence of the reception of the provision under discussion. Sometimes the point he made was that a rule stated in the written law was not observed in practice and was ‘therefore likely to have been drawn from England’.360 In passages like these he regarded the absence of customary usage as evidence that the old books and acts were inauthentic, took the parallel with English and Norman law to explain the source of confusion, and can only have used the term ius nostrum scriptum because it was a conventional and convenient label for the medieval sources. More problematic are the passages in which he was unable to produce evidence of judicial or customary approval yet took the parallel with English and Norman law to show that a provision in the old books and acts should be accepted as a genuine part of Scots law. One example was

written before the edition of the English treatise referred to came out in 1604. This edition was printed with an abbreviated version of St German’s Doctor and Student and might have served as a convenient handbook for judges sent into Scotland to decide cases according to the law of Scotland, equity and good conscience. 357 Cairns, Fergus and MacQueen 1990, pp 63–4; Levack 1994, p 218; MacQueen 1995, pp 17–18. 358 Ius feudale, p 249. 359 Allen 1928, pp 256–60; Eccleshall 1978, pp 88–9; Nenner 1995, pp 43–4. 360 Ius feudale, p 290, and see again the example from p 309 mentioned in the last paragraph; for these examples cf Regiam maiestatem (Latin edn), pt 1, ff 39r and 69.

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260 The Court of Law mentioned in the last paragraph.361 Another related to the question whether the casualty of relief applied only in cases of ward tenure.362 Although most lawyers in Scotland believed that it was so restricted, Craig maintained that an indication to the contrary in Regiam maiestatem should be accepted since the casualty also applied more broadly in Normandy. If Craig’s aim here and elsewhere was to redirect the thinking of Scots lawyers, the use he made of the old books and acts and of comparisons with English and Norman law remains perplexing, for he seems to have used broadly similar arguments both to encourage acceptance of provisions and to urge their rejection. Another example has the advantage of suggesting an alternative explanation for the seeming inconsistencies in his treatise. Remarking that real security was dealt with in the old books and acts in terms of mortgage, an institution borrowed by the English from the Normans and quite distinct from the feudal institution of reversion and regress, he declared: ‘I can scarcely be persuaded to believe that this book Regiam maiestatem was written by our people since it savours constantly of the laws and customs of the English rather than of ours’.363 In this instance he took the evidence of English and Norman influence on Regiam maiestatem to show that it was inauthentic not simply because it described an institution that was not found in current practice but because it described an institution that was not derived from the feudal law. His central concern, it was suggested in the last section of this chapter, was with the appropriation of the common feudal law. To understand how this affected his attitude towards the old books and acts it may help to consider how he believed res communes or res publicae could be handled proprie. In the fundamental texts on the classification of things in the Digest and Institutes it was stated that some things were matters of divine right and were res nullius in the sense that no one could own them, while most things were matters of human right and were res singulariae in the sense that they were owned by particular individuals.364 Some things, like fish in the sea or pebbles on a beach, were res nullius in the very different sense that they had not yet been acquired by any individual, while others, like theatres or harbours, were res publicae or res universitatis in the sense that they belonged to all the members of a community and not, like res singulariae or privatae, to particular individuals. The air and the sea were described as res communes, though whether in the positive sense in which res publicae belonged to everyone or in the negative sense in which res religiosae belonged to no one was not entirely clear.365 Craig maintained that the air and the sea were common in a positive sense, likening them to sea shores, rivers and highways, all 361 Strangely, this example is given particular prominence in Cairns, Fergus and MacQueen 1990, pp 63–4, as support for the thesis presented there. 362 Ius feudale, p 292; cf Regiam maiestatem (Latin edn), pt 1, f 69. 363 Ius feudale, p 172; cf Regiam maiestatem (Latin edn), pt 1, f 77v; [Glanvill], Laws and Customs of the Realm of England, p 124. 364 Digest, 1.8; Institutes, 2.1.pr–10. See too Perruso 2002. 365 This distinction was of great importance in the development of property theory, as will be explained in the next volume in this series. See generally Tully 1980; Horne 1990; Buckle 1991.

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The Reform of the Proper Law 261 of which he took to be publici iuris.366 ‘As regards the sea’, he wrote, ‘although it is still sufficiently common to everyone for it to be sailed upon, yet the property in it is taken today to pertain to those to whom the nearest land mass pertains’.367 In a similar though not identical way, he observed, it had become normal for harbours to be owned by particular corporations or individuals, ‘yet with the right of coming to land, disembarking, unloading and loading merchandise at will left not only to everyone of the same province and district, but even to the whole human race with whom friendship continues uninterrupted’.368 In dealing with the relationship between the learned laws and the local law it would have been natural for Craig to have had these categories and distinctions in mind, not only because the transfer of learning was conventionally conceived of in terms of the appropriation of common or public things but also because the Roman jurists had used similar categories and distinctions in classifying laws as common, proper or singular, and as public or private.369 Craig’s position was that the Libri feudorum described law that was common in a positive sense, either because it had been enacted by emperors with public authority extending across Europe or because it had been approved by the communis consensus or publicus consensus of nations throughout Europe.370 It was in a different sense that he regarded ius naturale et gentium as being common to all the nations of Europe, for its status was not dependent on public authorisation or approval but on its classification as divine law. When he responded to the assertion of English superiority over Scotland by insisting that the law the two nations had in common was ius naturale et gentium his point was that they did not share law in the more positive sense since the common law of England was dependent on authority and approval that was confined to England. More often the claim he made was that they did share law in the positive sense because instead of drawing directly from ius naturale et gentium they had channelled equitable provisions into their laws from learned sources. They had in particular followed the Normans in adopting feudal solutions to issues of land tenure and succession, with the consequence that their laws were—like coastal waters and harbours—proper to them yet still common to others. The Normans had imposed some of their more indigenous institutions on the English by conquest and when these appeared in the old books and acts Craig was slow to accept that they truly belonged among the laws of Scotland. Of course, they could have been adopted in Scotland, in the same way that provisions of the Regulae cancellariae had been adopted in France, but they would then have been 366

Ius feudale, pp 100, 103–4 and 188. Although O’Connell 1982, p 4, takes Craig to have argued that parts of the sea could be acquired by occupation, Craig did not use this technical term but talked instead of the division of the sea. He could scarcely have been clearer or more consistent in treating the sea as something that belonged to everyone. See too Fulton 1911, p 357; Meyer 1937, pp 24–5; Johnston 1987, p 169. 368 The word rather freely translated as right here was usus, which hints at a connection with the Roman treatment of river banks in Digest, 1.8.5.pr, and Institutes, 2.1.4. 369 Digest, 1.1.1.2, 1.1.6.pr, 1.1.9 and 1.3.16; Institutes, 1.1.4 and 1.2.1. 370 On the use of communis and publicus as virtual synonyms in medieval French writing on customary law see Chevrier 1952, pp 36–7. 367

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262 The Court of Law common to Scotland, England and Normandy only in a coincidental sense. More probably, it seemed to Craig, these institutions were proper laws of England and Normandy that had been misappropriated by the compilers of the old books and acts. If Craig seemed (as was noted in the first chapter above) to hint at a modern conception of authorship when he accused the writer of Regiam maiestatem of manifest theft, his point may truly have been that the writer had treated as common and open to appropriation material that belonged exclusively to another nation.371 On this interpretation, the writer would not have stolen material from his English source when it related to a feudal institution, for the material would then have been common and open to appropriation. It was the passages in the old books and acts dealing with feudal institutions that Craig appears to have been willing to recommend as a guide to the developing law of Scotland, even when he was unable to produce evidence of their approval. Although they could not be claimed to rest on the sovereign authority of the Scottish legislator, or even on the public consent of the Scottish people, they could be claimed to represent the law on the strength of their learned authority. At times it required some ingenuity to justify the use of the medieval sources in this way, as when Craig claimed that the institution of courtesy, though found in Scotland, England and Normandy alone, had its origins in a constitution preserved in Justinian’s Code.372 An example of crucial importance was his handling of a passage in the Leges Malcolmi Mackenneth on the origins of feudal tenure in Scotland. In Skene’s edition of the old books and acts the first thing lawyers would have encountered was a statement that in the early eleventh century Malcolm II ‘gave and distributed the whole land of the realm of Scotland to his people and kept nothing as property for himself except the royal dignity and the moothill of Scone, and there all the barons yielded to him ward and relief from the heir of each deceased baron for the sustenance of the king’.373 This passage was first referred to by Craig in his discussion of the arrival of the feudal law in Scotland, where he pointed out not only that Malcolm II had reigned from 1005 to 1034, but also that further traces of the feudal law could be found in legislation passed by Kenneth I and Kenneth III between 843 and 1005, and by Macbeth between 1040 and 1057, all before the Norman conquest of England.374 Craig considered it probable that the Scots had adopted the casualties of ward and relief from the Normans in order to supplement the meagre revenues of their kings, but he believed that they must have done so before the reign of Malcolm II, that the fragments of legislative 371 Eden 2001 indicates that the Roman categories and distinctions were sometimes used in attempts to articulate the emerging conception of original authorship, for instance by Erasmus who moved from handling his classical sources as res communes towards handling them as res derelictae, a kind of res nullius susceptible to private acquisition. (This is not how Eden herself perceives the shift, but it is consistent with the evidence she presents.) 372 Ius feudale, p 312; Code, 6.60.1. 373 Regiam maiestatem (Latin edn), pt 1, f 1. For the origins of this crucial passage, written some time after 1363, see Duncan 1993, pp 241–4. 374 Ius feudale, pp 35–7. The dates given here are those assigned to the reigns of these kings by recent historians. Craig’s were slightly different.

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The Reform of the Proper Law 263 intervention he had identified must have followed a prolonged period of customary usage, and that there had been no significant written law in Scotland before the conquest of England, during the reign of Malcolm III. In a later title devoted to discussion of the casualties of ward and relief he returned to the same passage, noting that almost all lawyers in Scotland understood it to mean that the casualties had been devised by Malcolm II as a peculiarly Scottish innovation.375 Craig admitted that some support for this reading could be found in Guillaume Terrien’s commentary on the Grand coutumier, but his own view was that the origins of ward must ‘rather be sought in the feudal law, which had begun to flourish and even to rule almost everywhere some years before Malcolm, notwithstanding that there is no or [only] indirect mention of it in the books that were circulated on the uses of feus’.376 That the superior should have the guardianship of a vassal’s heir who was too young to render service seemed clearly to be an inference drawn from feudal principle, and Craig claimed to know of authors who believed both in the antiquity of the casualty in Normandy and in its transfer from there to England after the conquest. Similarly, although Scots lawyers were generally proud to ascribe the invention of relief to Malcolm II, Craig (as was noted in passing earlier) preferred to endorse the opinion of Cuiacius that it could be traced back to a constitution of the emperor Leo VI, which was generally included among the Novels, and he drew attention to the existence of this casualty too in Norman law.377 It was on this basis that he made the point already mentioned about Norman practice confirming the reliability of an indication in Regiam maiestatem that relief was not limited to cases of ward tenure. From these examples it would seem that Craig’s inclination to treat similarities with Norman and English law as evidence of either the authenticity or the inauthenticity of the old books and acts turned on how far he felt able to trace the provisions they were concerned with back to learned sources. If it was not always clear why he regarded a particular statement as authentic or inauthentic, and if the arguments he did offer were sometimes contrived and unconvincing, his aim does seem to have been to determine in what sense the regulae communes found in Scotland, England and Normandy were common, for it was only when they were common in the positive sense of originating in learned sources that he expected other lawyers to be persuaded that rules observed in England and Normandy should also be observed in Scotland. This meant that his treatment of the sources of Scots law, though fundamentally similar to Dumoulin’s treatment of the sources of French law, was in detail rather different. Both writers had advised their colleagues to examine first the local statutory and customary sources and then the law that was both common and proper, but whereas Dumoulin had advocated recourse to the customs of neighbouring provinces in the belief that the French could be said to have a common law of their own, Craig had advocated recourse to the laws of neighbouring nations ‘provided they use the same law’, meaning 375 376 377

Ibid, pp 283–4 and 291–2. Commentaires du droict civil tant public que privé, observé au pays et duché de Normandie, p 187. Cuiacius, Opera, vol 3, col 1798.

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264 The Court of Law provided their law had the same learned origins as Scots law. Whereas Dumoulin had seen the recourse to neighbouring customs as a way of moving into the space occupied by the common law of France, Craig had seen it as a way of moving into the space still occupied to a large extent by the feudal learning of the schools. Whereas Dumoulin had advocated the use of learned sources for purposes of annotation and the confirmation of antiquity alone, Craig had been more inclined to use neighbouring customs for these purposes. It was perhaps Skene who had in all these respects come closer to taking Dumoulin’s approach, though like Craig he had turned not from one local custom in Scotland to another but from the law of Scotland to the laws of England and Normandy. If it was Craig who had encouraged Skene to examine the law of Normandy, it was Skene who seems to have encouraged Hope to make use of a recent commentary on the reformed custom of Normandy. As has been seen, Hope was conscious of the obstacles in the way of attributing authority to the old books and acts, and he tended to associate them less with the acts of parliament than with the books written by Craig and Balfour. He was like Craig in dealing with learned as much as legislative authority, yet he was like Balfour in making no attempt to trace the thinking of Scots lawyers further back than the medieval sources. He reproduced the crucial passage from the Leges Malcolmi, to take another example, without remarking on the supposed connections between ward and relief and the learned laws, enabling his son to add the gloss that ‘the king, be the comon law, hes the waird of all lands ubi non apparet that the holding is chainged per tenorem investiturae’.378 In referring to Godefroy’s commentary Hope’s purpose was apparently to fill out his knowledge of this common law, rooted in the old books and acts, rather than to shed light on the learned origins of the law of Scotland. Stair also drew attention to the distribution of land by Malcolm II in his discussion of ward and relief, but he made extensive use of Craig’s discussion of the subject and adopted his account of the origins of relief.379 Here and elsewhere Stair remarked that the law stated in the old acts was ‘most part over-ruled by custom’, and he declined to recognise the authority of the old books even when they described provisions in use in Scotland.380 He wrote, for example, that the rule invalidating deeds made by a person on his deathbed was, ‘as most of our Laws, by Ancient Custom, time out of mind, and not by Statute, or written Law, for, though the Books, called Regiam Maiestatem, treat thereof, yet these are no part of our Law, but have been compylled by some Stranger, who hath not fully known our Law, but by mistake, hath resolved most Cases, by the Customs of other Nations, especially of England ’.381 This was consistent enough both with Craig’s comments on the composition of Regiam maiestatem and with his claim that the law of Scotland had taken shape as custom before the reign of Malcolm III, a claim that 378

Hope’s Major Practicks, vol 1, pp 7–8. Institutions, 14.26–36/2.4.26–36. The account of Malcolm’s distribution of land was removed when the text was revised for republication in 1693. 380 Ibid, 17.23/2.7.23. 381 Ibid, 26.27/3.4.27. 379

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The Reform of the Proper Law 265 was given special prominence in epitomes like Robert Ker’s which began at this point.382 The more popular epitome summarised Craig’s historical introduction before stating that ‘before the dayes of Mcbeth and Malcolme Kenmore there wes no certain positive wryten law in our natione, sua that it was ruled for the most pairt by practise’.383 Whether the writer added the name Macbeth here because familiar with Shakespeare’s play or because familiar with the history behind the play, the message he sent to readers who believed that the law of Scotland had eventually been set down in writing was that this had occurred after the country was reduced to order by English arms and in a period associated with anglicisation.384 The discovery at the start of the seventeenth century that Regiam maiestatem had been largely copied from an English treatise strengthened the impression that the law of Scotland had been modelled on the law of England, and the fact that similarities could also be identified with the law of Normandy made little difference since English lawyers claimed that the same treatise lay behind the Grand coutumier.385 In the Interregnum setting the approach favoured by Skene and to some extent by Hope was in danger of playing into the hands of those who were intent on assimilating the law of Scotland with the law of England, which may explain why Stair preferred to follow Craig in denying that the law of Scotland had been reduced to writing in the old books.386 Yet Craig had himself encouraged the belief that the laws of Scotland and England were in many ways the same.387 Stair’s response was to reject his approach as well by insisting that the feudal law could not be ‘our proper Law’ because there was no common feudal law, and that there could be no common feudal law because the Libri feudorum was not a ‘written publick Law’.388 This otherwise opaque argument actually made clear sense in Craig’s terms. Although Stair accepted that the feudal law was in some sense common, he denied that it could be common in the sense that permitted appropriation. As he saw it, the books of the feus were no more open to appropriation than the treatise ascribed to Glanvill. The federal law could only be common in the negative sense of exemplifying the application of natural law and could not be both common and proper at the same time. 382 NLS, MS 5437, f 2v. The very brief epitome in ML, Baillie’s 39607, similarly commenced: ‘Befor the dayes of McBeth and Malcolm Canmor ther wes no writen positiv law’. 383 NLS, Adv MS 25.6.1, f 8v. 384 On the historical background to Shakespeare’s play and its bearing on Anglo-Scottish relations after the union of the crowns see Norbrook 1987; Kinney 1993; Mapstone 1998; McEachern 2002; Highley 2004. Clark 1981, pp 43–54 and 58–9, suggests that the play contains allusions to Scots law which, if true, might have stimulated interest among Scots lawyers. NAS, GD 1/520/2 indicates that Stair at least had an interest in the theatre. 385 The remarks of English Lawyers on Norman law generally and on the Grand coutumier particularly are conveniently assembled in Gruchy 1881, pp 352–60. 386 On this point see too MacQueen 1995, pp 16–19, though the opinion expressed there that Stair lost sight of the nuances of Craig’s argument seems rather to lose sight of the nuances of Stair’s. 387 William Lawrence’s readiness to refer to the law of England and Scotland in the singular may have been encouraged both by Skene’s use of the phrase ius regnorum Angliae et Scotiae and by Craig’s use of the phrase ius Anglorum et Normannorum. 388 Institutions, 1.15/1.1.16 and 13.1/2.3.1.

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266 The Court of Law Consolidating the customary law As several manuscript copies of Hope’s major practicks reveal, he made further use of Godefroy’s commentary on the reformed custom of Normandy in his opening title.389 At the start of his book Godefroy had commented on the name attached to the code he was about to work through, beginning with the word ‘coustume’ before moving on to ‘reformée’ and ‘de Normandie’.390 ‘If we wish to go back to the origin of statutes’, he announced at the outset, ‘we shall be forced to recognise that customs have come first, and that they are accordingly the first part of positive law, though we rank them last’. Hope observed that ‘customs have bein befoir lawes’, briefly summarised Godefroy’s explanation that, as many classical authors had shown, ‘the corruption of customs did first enforce the necessity of written lawes to reforme them’, then added that ‘customs ar the first part iuris positivi, although they be counted the last’.391 ‘From the foresaid maxim that statute is made after custom’, Godefroy went on, ‘I infer that in a contest of contrary dispositions it ought to prevail since the latest pactions are the strongest’. He backed this inference up by pointing out that customs were introduced by peoples who were subordinate to the kings who enacted statutes, that in the canon law customs had legal force only ‘where statute is deficient’, that customs contrary to statute amounted to an incitement to sin, and that in the civil law customs were not imputed such force as to overcome statute.392 Hope duly observed that ‘in the concurse of diverse dispositions of law and custom, the law should be preferred, quia posteriora derogant prioribus’, quoting the texts cited by Godefroy from the canon and civil laws before adding that ‘to addmitt customs against a standing law wer to authorize wrong: for quhatsomever controveins the law is wrong’. Godefroy next responded to the widespread belief that ‘custom is another nature, so strong that it can abrogate harsher laws’.393 In his view, ‘this might be true for popular republics, where the sovereignty is in the hands of the people and statutes are only valid with their approval, but it cannot be maintained in a monarchy where the king is above the people’.394 Although the subjects of a monarch might forget a statute and so deprive it of effect, they could not abrogate it in the strict sense of depriving it of validity. Hope observed with less precision that ‘a law may be abrogat be desuetude or be introduction of contrarie customs, quherby the law becoms to be forgetten insensiblie’, and he added to the confusion by accepting that ‘this hes place rather under a popular government then in a monarchie quher the lawes ar maid be the prince’. Godefroy proceeded to stress that when he talked of statutes prevailing over customs he meant only ‘the statutes of the prince and not 389 See, eg, NLS, Adv MSS 6.1.2, f 3r, and 24.1.3, p 3; GUL, Gen 1020, p 3, and Murray 539, f 3r; EUL, Dc 1.56, p 4, and La III 402, f 119v. 390 Commentaires sur la coustume reformée de Normandie, pt 1, pp 1–2. 391 Hope’s Major Practicks, vol 1, pp 4–5. 392 Isidori Etymologiae, 2.10.2 and 5.3.3; Decretum, 1.5.2; Code, 8.52.5. 393 On the idea that consuetudo est altera natura see Kelley 1990b. 394 Gouron 1988, p 119, shows that this idea was as old as civil law scholarship itself.

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The Reform of the Proper Law 267 of foreigners, for since the king does not recognise any superior in the secular domain, the disposition of the Roman law is in no way obligatory among us’. Unlike the other Italian jurists, Baldus had assessed the situation correctly when he remarked that ‘the French greatly admire the equity of the Roman laws, yet they never submit to them’. Hope believed that this assessment could be extended to Scotland, observing that ‘our king acknowledges no superior, and therfoir the Roman or civill law hes no auctority among us to derrogat from our customs’. Finally using his own words, he remarked of the learned laws that ‘we respect them as good counsellors, bot obey them not as commanders’. This remark might easily have been reconciled with the remarks Hope had already quoted from Craig on the authority of the civil law in Scotland, just as the remarks on the priority of statute over custom might have been reconciled with those on the same subject quoted from Craig, who had also recognised the historical priority of custom. Whether Craig believed that it would be beneficial to restate the law of Scotland in a written code like the reformed custom of Normandy is uncertain. In the late sixteenth century his preferred approach was to show how the law of Scotland could be restated by a learned author, but he may have hoped eventually to see the law sufficiently well developed to be capable of more formal restatement by a legislative author. This was how Dumoulin had hoped to see the reform of French law taken forward. In a famous Oratio de concordia et unione consuetudinum Franciae, delivered in 1546 and often reissued since, he had pointed out that while most of the regional customs of northern France had been ‘amended, written up and published’, some had still to be redacted or had been redacted badly, carelessly and without the due involvement of magistrates.395 ‘Nothing would be more praiseworthy’, he concluded, ‘nothing would be more useful and desirable for the whole commonwealth, than the reduction of the most diffuse and often inappropriately diverse customs of this kingdom into one concise, very clear and very fair concordance’. The less adequate customs could thus have been brought into line with ‘the common law and natural equity’ without the imposition of one region’s custom on others, for Dumoulin had envisaged a process that would have started with the local examination and annotation of each custom before a unified restatement was prepared centrally, and would then have involved further consultation in each region before ‘a very concise, clear, ready and finished little book’ was finally approved. If this was an ambitious project, given the large number and great diversity of the local customs, Dumoulin did not consider it unreasonable to suggest that a country where a ‘common language’ was used might also be governed by a ‘common law’. As he had indicated in his commentary on the custom of Paris, he believed that the French had at one time had, and to some degree continued to have, a common law of their own, and he was proposing the restatement of this ‘general custom’ more than the eradication of ‘local custom’, which was to remain variable ‘in certain 395 Opera omnia, vol 2, cols 1771–6. For exposition of Dumoulin’s oration see too Van Kan 1929, pp 28–42; Filhol 1937, pp 186–7; Thireau 1980, pp 114–20.

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268 The Court of Law particulars’. Furthermore, he was proposing that the similarities between the customs of the northern regions should be identified and used as a foundation for further reform and unification, not that the indigenous customs of the north should be unified with the Roman law adopted in the south. Even so, his project did prove to be too ambitious, or at least to be premature, though it was not without immediate effect.396 Dumoulin referred to two examples of recently redacted customs, those of Bourges and Nivernais, which were actually quite different from each other.397 As has already been mentioned more than once, the earliest of the many commentaries on the local customs was written about the custom of Berry by Nicolas Bohier, who had assumed that the custom should be treated as a statute in need of strict interpretation and that in dealing with issues left unresolved by the express provisions of the custom he should follow the common opinions of the schools. Building on Bohier’s work and making the same assumptions, a reform commission headed by Pierre Lizet, the first president or senior judge of the parlement of Paris, had produced in 1540 a restatement of the custom which was exceptional in the extent of its indebtedness to civilian doctrine, so much so that it came to be described in the seventeenth century as ‘docte & sçavante Coûtume’.398 By contrast, the reformed custom of Nivernais, produced in 1534, was exceptionally free from civilian influence, and when a commentary was written about it later in the sixteenth century it contained trenchant criticism of the methods of the Lizet commission. Guy Coquille had studied in Italy before joining the bar in Paris, but he had returned to practise in his native region and had emerged as a devotee of its history and traditions by the time he published his commentary on Les coustumes du pays et comte de Nivernois.399 Although he began by noting that the customs redacted by the authority of the king and estates could be described as ‘written law’, the point he wished to insist on was that ‘the customs of the provinces of France that we call customary are their true civil and common law’.400 It was a mistake to maintain like Lizet and his colleagues that the civil law of the Romans was the common law of France and that the customs of the provinces must be construed narrowly like the statutes of the Italian cities. ‘The Roman civil law’, Coquille maintained, ‘is not our common law and does not have the force of written law in France, but it must be alleged here for its reason alone’. This reason was impressive and Roman law was indeed to be relied on ‘when the constitutions and 396 The view has sometimes been expressed—for example in Viollet 1905, p 10; Naz 1935–65, vol 5, col 53; Bart 1998, p 151—that Dumoulin’s project finally came to fruition in the French civil code enacted in the time of Napoleon. 397 Filhol 1937, pp 125–9; Caswell and Sipkov 1977, pp 15–16 and 20–1; Thireau 1980, pp 92–5. 398 Gaspard Thaumas de la Thaumassière, Nouveaux commentaires sur les coûtumes de Berri, p 2. It has been suggested that the term ‘learned custom’ should be used in relation to early modern Scots law—for example in Smith 1972–3, p 9; MacCormick 1978, p 59; Levack 1987, p 95—but it is not always clear what is meant by this and it would be clearer if the term were in future used only in its original sense of custom developed in accordance with the precepts of the mos Italicus. 399 De Maumigny 1910, pp 11–28; Prevost 1933–2000, vol 9, cols 581–2; Burns 1991, pp 668–9. 400 Oeuvres de maistre Guy Coquille, vol 2(2), pp 1–4 (see too p 81, and cf Watson 1984, pp 68–72).

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The Reform of the Proper Law 269 ordinances of our kings, or the general unwritten French law, or our customs fail us’, but it was to be relied on ‘out of decency and for its reason and not from necessity’. In the pays de droit coutumier it was the local customs that formed the written, civil or common law and they were consequently to be handled expansively, which had the advantage of reducing the risk of entanglement in the labyrinthine complexities of the learned laws. The Italian commentators had added so many refinements to these laws and had accumulated so many authorities on either side of issues that it had become the standard practice ‘to take up the opinion of the greater number, without regard to the reasoning or to the authority of each doctor’. Coquille opposed those ‘excessive admirers of foreigners’ who tried to embrace the opinions and style of the Italians, and he encouraged his readers instead ‘to hold onto both the sense and the letter as well as the usage of our French law’. Coquille was pleased to be able to report that in 1555 Lizet’s place as first president of the parlement of Paris had been taken by a judge who had rejected the assumptions of the mos Italicus in favour of those promoted by Dumoulin. Christophe de Thou, he observed with admiration, ‘considered the customs and French law to be our common law and called Roman law written reason, as is seen at several places in the customs of Melun, Estampes and Montfort, for the redaction of which he was a commissioner’. Both by direct involvement in some commissions and by setting an example to others, de Thou had encouraged a new wave of reforms of the already redacted customs in the second half of the sixteenth century in which account was taken of the commentaries of learned practitioners and the decisions of the courts.401 Of these the most important was the reform of the custom of Paris itself, completed in 1580 under the influence of Dumoulin’s own commentary. When Louis Le Caron published the commentary on the custom of Paris referred to earlier in this chapter, rehearsing the literary conceit of the transfer of learned authority from Rome to Paris, it was this revised custom that he was concerned with. In his preface he praised the reform commissioners led by de Thou for the wisdom they had brought to their task and suggested that ‘the law which is now conferred by their authority on the Parisians is so equitable and reliant on their long experience of the more notable decisions of the parlement that it seems to have been ordained not only for the Parisians but also for all the French’.402 A country, he argued, ‘that recognises but one single king, and regards the noble and flourishing city of Paris as the head of the kingdom, needs to have but one single and identical law or custom, and so to conform itself to the Parisian law, mostly in that which is general’. That Paris was the caput of the kingdom or parens patriae, and that its custom might therefore serve as the common law of France, was often suggested by the members of its parlement.403 Le Caron observed 401

Meynial 1903; Filhol 1937; Gaudemet 1977. Coustume de la ville, prevosté et vicomté de Paris, sig A3v. 403 Olivier-Martin 1925, pp 17–19; Filhol 1937, pp 209–13 and 216; Brejon 1938, pp 95–6; Luig 1972, pp 203 and 205; Thireau 1980, pp 124–5. 402

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270 The Court of Law that this was to write about Paris ‘as the emperor Justinian wrote about the city of Rome, reciting the opinion of the jurist Julian’.404 To recall once more, Julian had advised lawyers to work in stages through leges scriptae, then mores et consuetudo, then quod proximum et consequens ei est and lastly ius quo urbs Roma utitur. If the third of these expressions had sometimes been taken to justify recourse to the customs of neighbouring regions, the fourth had sometimes been taken to justify recourse to the custom of Paris. Indeed it had sometimes been claimed that the custom of Paris was to be regarded as the common law in a stronger sense. Feudists like Franciscus Curtius had believed that when the customs of the city of Rome were widely adopted they moved into the category of leges scriptae, and while the specific claim these jurists had made for the custom of Milan had been criticised by Dumoulin, this left room for a similar claim to be made for the custom of Paris. Coquille felt uncomfortable with the claims made for the custom of Paris, at least to the extent that they hinted at the political supremacy of the capital over other regions, ‘for the estates of this province of Nivernais also have great power and authority in it, as the estates of Paris have in the prévôté and vicomté of Paris’. He complained that it was misleading ‘to liken Paris to ancient Rome’ since Paris did not exercise imperium over the rest of the country, and he explained that the custom of Paris was to be turned to, like the customs of other regions, ‘after the same reasoning that makes us borrow the Roman laws’.405 Questions left unanswered by local customs were to be handled comparatively ‘out of decency’ and ‘because the commissioners and principal authors of the aforesaid new customs of Paris and other provinces were very learned men and deeply knowledgeable about French law and with great and long experience’. If the revised custom of Paris had any special merit it was because its articles ‘for the most part contain determinations of some difficulties and differences of opinion that existed among French jurists, as well as those that had been determined by solemn decisions’. In later titles of his commentary Coquille worked through the articles of the custom of Nivernais, explaining how he believed they should be interpreted and referring freely to the customs of Paris and other regions, the texts of the learned laws, the opinions of professors and practitioners, and the decisions of the courts. In a later book, published in 1607 as his Institution au droict des François, Coquille moved beyond commenting on one local custom and tried to collate all the customs of northern France, restating at the beginning his conviction that ‘it is a mistake to liken our customs to the statutes of which so many Italian doctors speak’ because ‘in customary France the Roman civil law is not the common law’.406 In the later titles of this book he referred again to the texts, glosses and commentaries of the civil and canon laws, occasionally identifying ‘les opinions communes des

404

Code, 1.17.1.10. Le Caron and others were mistaken, in other words, when they talked of a translatio imperii as well as a translatio studii. As will be shown later, Coquille’s view was shared by other writers. 406 Oeuvres de maistre Guy Coquille, vol 2(1), p 10. On this and the related work mentioned below see Filhol 1937, pp 216–18; Luig 1972, pp 204–5; Gilissen 1979, pp 337–8. 405

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The Reform of the Proper Law 271 Docteurs ultramontains’ or pointing out where a custom was ‘fondé en la raison du droit Romain’.407 Further reference was made to decisions of the courts, opinions expressed by French jurists—Dumoulin especially—and where possible to ‘la commune opinion du Palais’.408 Overwhelmingly, however, the sources used were the redacted customs of the provinces, from which Coquille was sometimes able to extract ‘la coûtume generale de France’, ‘la regle commune’ or ‘une regle en forme de brocarde de droit François’.409 When his Institution appeared in 1607 it was bound with the Institutes coutumières of Antoine Loisel, an advocate in the parlement of Paris who had extracted a large number of ‘règles, sentences et proverbes’ from the local customs.410 Like his friend Le Caron, Loisel could not see why a nation united under one king could not also be brought under ‘the consistency, reason and equity of one single law’, though his approach was not to argue that the custom of Paris should be followed everywhere so much as to search for commonly observed rules in ‘the use and practice of our ancient customary law’.411 Both in the titles they gave to their books and in the way they laid out their material Coquille and Loisel brought to mind the Institutes of Justinian, but they did not follow the Roman model closely and they had not embarked on the same sort of enterprise as John Cowell had done in writing his Institutiones iuris Anglicani, which appeared two years before their books were printed.412 Cowell’s aspirations were more like those of the French lawyers who continued to believe that the civil law could serve as a common law, as to a large extent it did in expanding areas like the law of contract.413 It was in more traditional areas like the law of land tenure and succession that Coquille, Loisel and others were able to make more progress towards constructing a common law from the regional customs. Although Dumoulin’s proposal for an enacted code covering all of northern France was not implemented, these private authors felt able to identify in the reformed customs the same qualities of equity and reason that were imputed to the civil law, and to use this learned authority to construct a body of law that would not be limited in its effect to the regions in which the particular customs had statutory force. Authors on a particular custom like Terrien and Godefroy promoted this development when they compared ‘nostre Coustume’ with ‘la Coustume de Paris’, ‘la Coustume de Bretagne’ and other neighbouring customs, when they drew attention to ‘la Coustume generale de France’, and also when they referred to the opinions approved by ‘les plus celebres Praticiens de France’ or by ‘les arrests des

407 See, eg, Oeuvres de maistre Guy Coquille, vol 2(1), pp 11, 17, 22–3, 28, 45, 51–2, 55, 59, 61, 66–7, 109 and 119. 408 See, eg, ibid, vol 2(1), pp 23, 30, 45, 59, 61, 74–5, 77, 82, 85–6, 103 and 119. 409 Ibid, vol 2(1), pp 22, 31, 44, 55, 95, 100, 105 and 111. 410 Michaud 1843, vol 25, pp 34–5; Reulos 1935, pp 11–36; Roelker 1996, pp 29–31. 411 Institutes coutumières, sig B6r. For the customary origins of the rules see Filhol 1937, pp 190–207. 412 Reulos 1935, pp 78–9; Watson 1981, pp 66–7; Cairns 1983, p 86. 413 Gruber-Magitot 1980, pp 21–32; Chêne 1982, pp 225–34; Bart 1998, pp 148–54.

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272 The Court of Law Cours souveraines’.414 Whether or not Hope was familiar with much of this literature, it does seem to have influenced his understanding of his role as a reform commissioner and an author through his reading of Godefroy’s book. As a reform commissioner he had been told to examine first the ‘actes of parliament’ and then the ‘generall customes of the kingdome’, meaning those customs that had been ‘receaved in practick by the decreits of the lords of sessione’.415 In Godefroy’s book he had come across an explanation of this ranking of the sources which was consistent with the advice of Julian, Craig and most lawyers with a university education. It is thus scarcely surprising that he included notes on the acts of parliament in his book before his practicae observationes. However, he had also been told as a reform commissioner to examine the old books and acts as ‘ane record of the auncient lawes and customes observit within the said kingdome’, and the difficulty had arisen of knowing whether these materials should be treated among the statutory or the customary sources. Godefroy’s book pointed towards a way of proceeding without determining the status of the medieval sources, for he had emphasised at the outset, again without contradicting Craig, that customs were historically prior to statutes. It was therefore possible for Hope to include notes on the old books and acts in the opening sections of his titles where he explained how topics had been handled ‘of old’, leaving open the question whether they were statutory rather than customary sources. It could at least be assumed that they were books about the law, like those by Balfour and Craig, since they had undoubtedly helped to shape the thinking of Scots lawyers. Hope appears to have believed that in the absence of legislative intervention, in Scotland as in France, the work of the reform commissioners could be carried forward by private authors. In France the work of the reform commissioners was associated with a movement towards legal unification. Whether Hope would have seen much of a parallel between Scotland and France in this respect is more doubtful, though Godefroy’s book could have been taken to shed some light on the instruction the latest reform commissioners had received to concentrate on the ‘generall customes of the kingdome’. Hope did not write about the particular customs found in the regions of Scotland, but like Craig and Skene he did write about the custom of Normandy. Craig and Skene had written even more about the law of England, having both served not only as commissioners for law reform but also as commissioners appointed to negotiate a closer union with England after the union of the crowns. The arguments of French authors that people who had a common ruler and a common language should also have a common law had then been echoed by Francis Bacon, who had studied law in France and whose views on legal reform and unification were similar to those of Dumoulin and his followers.416 It was 414 See, eg, Terrien, Commentaires du droict civil tant public que privé, pp 19, 37, 41, 172–3, 185, 202, 207, 244–5, 317, 333, 533 and 535; Godefroy, Commentaires sur la coustume reformée de Normandie, pt 1, pp 52–3, 64–5, 126–7, 155, 242, 291, 369, 387, 412, 495 and 540, and pt 2, pp 28, 109, 156, 233, 292, 303, 361 and 415. 415 Acts of the Parliaments of Scotland, vol 5, pp 46–7. 416 Michaud 1843, vol 9, pp 167–8; Kocher 1957, p 4; Jardine and Stewart 1998, pp 59–61.

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The Reform of the Proper Law 273 Bacon’s proposals for legal unification on the basis of local consultation and the drafting of written restatements that the Scots found least alarming when the question of union was reopened in the 1650s. It might well have been thought then that the best way to prevent Scots law from simply being absorbed into the common law of England was to reject the authority both of Regiam maiestatem and of the Libri feudorum and to produce an account of the law based on indisputably local sources. Hope had not accepted Craig’s arguments for the authority of the feudal law in Scotland, but nor had he accepted his arguments against ascribing authority to the old books and acts. Had he done so he would clearly have been using the old books and acts in the opening sections of his titles on the assumption that they had contributed to the development of the common law in the minds of practitioners. He would have been dealing first with the common law in the sense of what lawyers thought of as the ‘auncient lawes and customes’, then with the statutory law contained chiefly in the acts of parliament, and then with the customary law emerging from the recent decisions of the session. As Stair appreciated, he would have been organising the sources of the law in a way that would have made sense to English lawyers. After explaining the original significance of the term ius commune in his Institutions, Stair proceeded to add that ‘the English so name the common Current of their Civil Law, as opposite to Statute and their late Customes, which is sometimes so taken with us’.417 If the French had appropriated the term ius commune for their time honoured customs, so too had the English and also, as Stair pointed out, the Scots. Edward Coke, indeed, had not only applied the distinction between common law, statute and recent custom to English law but had also observed that it was applicable to Scots law.418 What Stair made of the distinction will be considered further in a later chapter.

Reappraisal of the learned laws Hope had more to say about the authority of the civil and canon laws in the opening title of his major practicks. In reviewing the acts of parliament touching on the sources of Scots law he drew attention to an act passed in 1493, when James IV had come of age, in which it was explained that his revocation of the prejudicial deeds made during his minority was lawful ‘sen it is levit and permittit be the constitutiounis and ordinancis of the lawis civile and canon’.419 Hope was satisfied that this act ‘allowes directlie the constitutions of the civile and cannon law[s] in this realme’, though he was aware that other acts had been construed to the opposite effect. In the opening section of his title he had already followed Balfour’s example in reproducing both an act passed in 1426, ordaining that ‘all and sindry the kingis liegis of the realme leif and be governyt undir the kingis lawis and statutis of 417 Institutions, 1.10/1.1.11. The comment Stair went on to make about Roman law often being treated as the common law was a later addition. 418 Reports of Sir Edward Coke, pt 4, p v; Fourth Part of the Institutes, p 345. 419 Acts of the Parliaments of Scotland, vol 2, p 236; Hope’s Major Practicks, vol 1, pp 3–4.

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274 The Court of Law this realme alanerly, and undir na particular lawis, na specale privalege, na be na lawis of uther cuntreis nor realmis’, and an act passed in 1504 ordaining that ‘all our soverane lordis liegis, beand under his obeysance, and in specale the Ilis, be reulit be our soverane lordis awne lawis and the common lawis of the realme and be nain uther lawis’.420 John Selden had cited these two acts in 1618 as evidence that the authority of the learned laws had been expressly denied in Scotland, and they must sometimes have been read in the same way in Scotland since they were later to be cited to the same effect by John Nisbet when he argued in Sir Robert Spotiswoode’s defence that no one could be guilty of treason unless he had contravened a positive law.421 In Hope’s opinion, however, the act of 1426 had not been meant ‘to exclud the civil and canon law wher we have no municipall statuts, bot allanerlie to excluid the particular lawes maid or observed in any shereiffdom or quarter of the cuntrie in prejudice of the comon law of the realme’, as seemed to be borne out by the other act ‘quhilk prohibits such lawes speciallie in the Isles, because apparantlie to that tyme they had reteined the lawes of Denmark, to quhom they perteined of befoir’.422 In an act passed in 1540, on which Spotiswoode’s prosecution was to rest, the estates had declared it legitimate to issue a charge of treason ‘conforme to the commoun law, gude equitie and resoun, notwithstanding there is na speceale law, act, nor provision of the realme made therupoun of befoir’.423 Hope regarded this as further proof that ‘the comon law hes ever had place in this realme notwithstanding of the twa statuts above written’, and he went on to mention several other acts in which the civil and canon laws had been treated as the common law.424 Hope’s purpose in this passage is not nearly as obvious as is sometimes imagined. Like Stair he had not received a formal training in the learned laws, but he claimed before his admission to the bar to have been driven in his preparation for practice by ‘ane desyre to attane to some measure of knawledge in the civill and cannon lawes’, to that end he had read through and made careful notes on the Corpus iuris civilis, and he could have been more sympathetic towards the precepts of the mos Italicus than those who had been directly exposed to the views of humanist jurists and French practitioners.425 On the face of it, he appears to have been arguing in his major practicks that the learned laws enjoyed necessary authority in Scotland, in the way the civil law did in Italy or southern France, for he was suggesting that their authority had been acknowledged by several parlia420 Acts of the Parliaments of Scotland, vol 2, pp 9 and 252; Balfour, Practicks, vol 1, p 4; Hope’s Major Practicks, vol 1, p 2. 421 Selden, Historie of Tithes, p 480; Spotiswoode, Practicks of the Laws of Scotland, pp xiii–xvi. 422 Cf Donaldson 1984, p 26; MacQueen 1995, pp 12–13; Sellar 1997, pp 151–3. This reading went back at least as far as 1585, as David Calderwood, True History of the Church of Scotland, p 189, makes clear. 423 Acts of the Parliaments of Scotland, vol 2, p 356. 424 Hope’s Major Practicks, vol 1, p 3; Acts of the Parliaments of Scotland, vol 2, pp 360, 374, 493–4 and 548–9, and vol 3, p 429. 425 NLS, Adv MSS 6.2.8–9; Clyde 1937, p 7; Hope 2002, pp 147 and 150–51. The detailed notes Hope made on the Corpus iuris civilis at the start of the century extended to the Libri feudorum.

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The Reform of the Proper Law 275 ments in much the same way as the authority of the old books and acts was thought to have been acknowledged. It was presumably in response to this line of argument that Nisbet later saw fit to cite the acts of 1426 and 1504 in Spotiswoode’s defence, for he and his client were themselves willing (as was noted earlier) to cite a text from the Digest when it was consistent with reason. Their position appears to have been that the learned laws had the same authority in Scotland as the civil law was believed to have not in the south but in the north of France, which was more in keeping with the remarks Hope had adopted from the books by Godefroy and Craig. Indeed it is possible that Hope was approaching the same position from a different direction when he insisted that the acts of 1426 and 1504 had not been meant to deny the authority of the civil and canon laws. Rather than defend the view that the learned laws had been generally received as the common law of Scotland, his purpose may have been to defend the view that they formed a residual common law, possibly in direct response to Selden’s assertion that they could be nothing more than examples that legislators might choose to follow, enjoying no greater authority than the writings of philosophers, poets and historians. This would certainly have been more consistent with the use he made of the learned laws both in the later titles of his major practicks and in his minor practicks, where he never suggested that issues left unresolved by the local sources could be decisively determined by reference to the learned sources. He did sometimes suggest that solutions could be found there, but he did so as a means of promoting what he hoped would become ‘the common and received Opinion’ among his colleagues.426 The phrase ‘in my Judgment’ is frequently encountered in his minor practicks, often in the course of appraisals of decisions delivered by the court, though at times he declined to express a personal view.427 ‘But all these Questions I leave to be dispute’, he wrote at one point, ‘because they are not decided’, and at another: ‘the Question is more difficult, & meo iudicio, eget constitutione Imperatoria’. To judge from these comments, Hope’s purpose in claiming that the civil and canon laws were regarded as common law in Scotland could not have been to indicate that definitive solutions were to be drawn from them in cases left doubtful by statutes and decisions. Here again Hope’s thinking appears to have been broadly similar to Stair’s. In two painstaking articles Professor Gordon has shown that it was never Stair’s intention, as previous readers often imagined, to fill gaps in the law by adopting solutions to issues from the civil law.428 Although (as was again noted earlier) Stair sometimes identified issues that the local sources had failed to resolve and drew attention to solutions available in the learned sources, his approach was to assess the equity of the proposed solutions so that an informed judgment could be made about how the issues should be resolved locally. For example, he pointed out at one stage that while it was a standard practice for buyers to make payments to 426 427 428

Minor Practicks (1726), p 140. Ibid, pp 34–5, 61, 76, 81, 110, 112, 126 and 138. Gordon 1980 and 1981.

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276 The Court of Law sellers in earnest of their agreements, it was not clear what the legal effect of these payments was.429 He observed that ‘many Texts in Law adduced by Wezenbecius, Faber and others’ tended to suggest that the earnest served as evidence that a binding contract had been made, whereas other texts were taken by ‘many Interpreters’ to show that the buyer was free to withdraw from the agreement on forfeiture of the earnest.430 Going on to remark that ‘it hath not oft occurred (so far as I have observed) to be decided with us, which of these opinions is to be followed’, Stair expressed the personal view that ‘the former seems to be preferable’, explaining that it made better sense of the practice of Scottish merchants and was more consistent with the understanding of an earnest in the Bible. When he declared in relation to other controversial questions that ‘we shall leave this to every mans private judgement, till publick judgement cast the balance’, that ‘we shall not therefore anticipat the publick determination of the question’, and that ‘I shall not predetermine my self or others in the case, but leave it to publick determination’, he gave the distinct impression that he expected the opinions he expressed elsewhere to have some effect on the development of the law.431 Yet he was no more inclined than Hope to imagine that the opinions he expressed, however well grounded they might be on learned authority, could amount to definitive statements of the law. In the paragraph of his introductory title devoted to discussion of the sources of the law Stair spelled out his position on the authority of the learned laws in Scotland.432 ‘Our Customes’, he began, ‘as they have arisen mainly from Equity, so they are also from the Civil, Canon and Feudal Laws, from which the Terms, Tenors and Forms of them are much borrowed’. Although he was even less prepared than Hope had been to endorse Craig’s particularly strong claim for the authority of the feudal law, Stair did accept the broader point that equity had generally been channelled into the local law through learned sources, and like Hope he assumed that the feudal law could still be referred to in conjunction with the civil law. He accepted further that the learned laws ‘(especially the Civil Law) have great weight, namely in cases where a custom is not yet formed’, adding at once that ‘none of these have with us the Authority of Laws’, being ‘only received according to their Equity and Expediency, secundum bonum & equum’. He had already started his paragraph on the history of the civil law by saying that ‘though it be not acknowledged as a Law, binding for its Authority; yet as a Rule, followed for its Equity: it shall not be amiss to say something here of it’.433 Professor Watson has pointed out that in the middle of the seventeenth century the phrase ‘as a rule’ did not mean ‘generally’ but rather ‘as a guide’ or ‘as a standard’, which tends to indicate that Stair was providing here another formulation of the proposition variously stated by Craig, Godefroy, Hope and many others that the civil law was 429

Institutions, 10.65/1.14.3. As mentioned earlier, Gordon 1985 demonstrates that many of Stair’s references to learned sources were borrowed from other writers. On this passage, a fairly typical example, see pp 373–4. 431 Institutions, 10.74/1.15.7, 13.41/2.3.41 and 21.34/2.11.34. 432 Ibid, 1.15/1.1.16. Two obvious errors in punctuation are corrected in the quotations that follow. 433 Ibid, 1.11/1.1.12. 430

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The Reform of the Proper Law 277 followed non ratione imperii sed rationis imperio.434 Stair appears to have shared the view that the civil law had the same authority in Scotland as in the north of France, and his remark that the learned laws were received ‘according to their Equity and Expediency’ seems particularly reminiscent of Dumoulin’s statement that the civil law was followed when it was considered to be ‘both consonant with equity and apt and suitable to the business it deals with’. Yet Stair went on at once to say that ‘though it may appear from some Narratives of our Statutes, that the Parliament doth own the Civil and Canon Law, to be our Law’, in truth these statements amounted to ‘no more, then that these Laws are an example; after the similitude whereof, the Parliament proceeded’. Listing most of the acts cited by Hope, he pointed out that the argument was open to the same sort of criticism as Skene’s argument for the statutory approval of the old books and acts. An act of parliament might adopt a particular provision of the civil and canon laws, but it could not be inferred that ‘in so far it was our Law before, much less in the whole’. It could not be inferred that the civil and canon laws had been accepted generally as the common law. ‘But for the full Evidence of the Contrair’, Stair concluded, ‘there is an express and special Statute, declaring this Kingdom subject only to the Kings Laws, and no other Soveraigns Laws, Par. 1425. cap. 48. Par. 1503. cap. 79’. One possible interpretation of Stair’s rejection of Hope’s statutory argument is that he was concerned lest it be misconstrued as an argument for regarding the civil law in the same way in Scotland as it was regarded in the south of France. He was certainly familiar with the distinction between the pays de droit coutumier and the pays de droit écrit, and like Nisbet and Spotiswoode he could have cited the act of 1426 (along with the act of 1504) as evidence that the civil law was not necessarily binding in Scotland while still assuming it to have probable authority.435 This interpretation would square with the most obvious reading of his remarks on the reception of the learned laws for their equity and expediency, but it would be harder to reconcile with his description of them as ‘an example; after the similitude whereof, the Parliament proceeded’. If this description is focused on, together with Stair’s concern over which ‘Sovereigns Laws’ were to be followed, it would seem more likely that he referred to the acts of 1426 and 1504 for the same reason as Selden. As was noted earlier, Selden’s views were well known among English lawyers and were later connected by William Lawrence with Jean Bodin’s classic account of the concept of sovereignty. As was also noted earlier, Bodin had drawn attention to several decrees issued by the kings of France forbidding reliance on the learned laws.436 In establishing various universities, for example, these kings had indicated that ‘their purpose was to have the civill and canon laws in them publickly professed and taught, to make use therof at their discretion, but not that the subjects should be any way bound therunto’. Many of the writers on French law who have been mentioned in this chapter referred to these decrees as 434 435 436

Watson 1976, p 1167, and 1993, p 48. See too Gordon 1981, p 107. Institutions, 11.6/1.18.6. Six Bookes of a Commonweal, pp 107–9.

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278 The Court of Law evidence that the civil law did not enjoy the same status in France as in Italy, and while they acknowledged that the civil law had been adopted as common law in the south of France, they liked to emphasise that even Baldus had appreciated that it was only followed in the north for its reason and equity. Bodin, on the other hand—taking issue especially with ‘my companion, and ornament of all lawyers’, Dumoulin—insisted that Baldus had been mistaken in supposing that the civil law could be authoritative anywhere except to the extent that it had been endorsed by ‘the commaundement of a soveraigne, using of his soveraigne power’. When Craig commented on this passage he accepted that Baldus had correctly distinguished between the status of the civil law in Italy and France, and he gave an account of its status in Scotland that was similar to Dumoulin’s account of its status in the north of France. Stair came even closer to Dumoulin’s account when he spoke of the learned laws being accepted for both their equity and their expediency, but he did not actually say like Craig that the Scots were ‘bound’ by the civil law to the extent that it was equitable. If his statements were in some respects reminiscent of those of Dumoulin and Craig, they were in other respects more reminiscent of those of Bodin and Selden. In another influential book, a manifesto for the new legal discipline to which his Six livres de la république was designed to contribute, Bodin had distinguished between four different kinds of lawyer.437 The first kind were the professors who concentrated exclusively on the academic study of the learned laws and the second the practitioners who knew only about the judicial process regulated by the local laws. The third kind were those who had managed to combine the theory and practice of law, practitioners like Pape, Bohier, Chasseneuz and Dumoulin, as well as some exceptional professors like Eguinarius Baro and Franciscus Connanus. Bodin greatly admired these lawyers, but what he wished to encourage was the expansion of a fourth category consisting of ‘those trained not only by precepts and forensic practice but also in the finest arts and the most stable philosophy’, lawyers ‘who determine skilfully the standards of equity; who trace the origins of jurisprudence from ultimate principles; who pass on carefully the knowledge of all antiquity’. He was not thinking here of the earlier humanists who had tried to transfer learning from Italy to France by combining law with philology, but of later jurists who had called for the combination of law with history.438 Bodin asserted the supremacy of Paris as the cultural capital of Europe, recalled that the Romans had borrowed their laws from the Greeks as the Greeks had borrowed theirs from others, and encouraged his fellow lawyers in France to cultivate a comparative and historical method of legal study that would enable them to develop their law more securely. Yet if this was to advance another claim for the transfer of learning from Rome to Paris, it soon became apparent that the study of ‘universal jurisprudence’ would undermine the very idea of learned authority as a basis for legal develop437

Method for the Easy Comprehension of History, pp 4–8. Although he did not say so, Bodin was almost certainly thinking of Franciscus Balduinus, whose De institutione historiae universae et eius cum iurisprudentia coniunctione prolegomena had appeared five years earlier. See generally Brown 1939; Franklin 1963; Kelley 1964b and 1973. 438

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The Reform of the Proper Law 279 ment. Bodin’s major contribution to the new discipline, published ten years after his manifesto in 1576, proclaimed the discovery that all law must in principle derive from the exercise of sovereign authority by a legislator, with the implication that legal learning could serve only to influence a legislator in the same way as the works of historians, poets and philosophers. If this was what Stair had in mind when he described the learned laws as ‘an example’ that the parliaments of Scotland had sometimes followed then his remark that Craig ‘could but conjecture’ in proposing solutions to problems from the feudal law would have had a different significance from the one proposed at the close of the last section of this chapter. Far from using the term conjecture in its technical sense to indicate that Craig had written with only probable authority, he could have been using the term in its colloquial sense to indicate that Craig had merely been speculating on how the law might develop.439 He could have been indicating that when lawyers turned to learned sources they were no longer dealing with law. For the moment it will have to be concluded that many of Stair’s predecessors and contemporaries did believe that the learned laws formed part of Scots law and that he may well have agreed with them. It should be borne in mind, however, that there is another possibility.

439

See generally Van Leeuwen 1963; Hacking 1975; Shapiro 1983; Patey 1984; Franklin 2001a.

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4 The Restoration Court

T

HE LAST CHAPTER has shown that while Stair rejected the central claim Craig made for the authority of the feudal law in Scotland, his purpose in writing his Institutions may nevertheless have been to emulate Craig as a learned author on the law of Scotland. If Craig had moved beyond the attempt made by sixteenth-century judges to treat the lex municipalis as a local variant of the European ius commune and had tried to show how the authority of the learned laws could be appropriated for the local law, he had gone less far than some other judges and advocates.1 He had apparently encouraged Skene to explore the handling of customary law in France and to consider ways in which the local law could be married with the learned laws. Skene had held on to the belief that the old books and acts contained a statutory restatement of the law, but Hope had been less sure about this and had started to develop an understanding of the common law of Scotland that would depend neither on the belief that the old books and acts consisted of written law nor on the belief that the books of the feus contained proper law. Stair appears to have followed Hope’s thinking through more rigorously, perhaps under the direct influence of Dumoulin’s handling of the common law of France, though he was conscious that what he was left with was a conception of the common law of Scotland that was more obviously connected with the thinking of his English colleagues in the Interregnum court. More will be said about Stair’s understanding of the common law of Scotland in the next chapter, where his crucial discussion of the sources of the law will be examined thoroughly. Before then, however, attention needs to be given to the way in which Stair and his contemporaries reported the decisions of the session, for it has been seen that the digesting of reports was a central aim of the lawyers writing in the late 1650s and early 1660s, and that different lawyers appear to have had different views of the significance of decisions. Some lawyers appear to have viewed decisions as a source of customary law, others to have viewed them as a form of legislation, and others to have viewed them as a kind of learned exercise. These three perspectives are examined successively in the three sections of this chapter, where attention shifts from Stair’s Institutions to his Decisions and from the period in 1 Whether Spotiswoode had gone any further than Craig is difficult to tell on the evidence available, but he does appear to have gone as far. It is equally difficult to tell how great an impact he had on Stair’s thinking, though what does seem clear is that Stair was very heavily influenced by both Craig and Hope. More will be said about this in due course.

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282 The Restoration Court which he wrote his treatise to the twenty-year period in which it began to circulate in manuscript among members of the College of Justice. Stair’s reports of the decisions delivered during the 1660s and 1670s are compared on the one hand with the earlier reports that attracted interest in the late 1650s, and on the other hand with the reports produced by other lawyers in the Restoration court. This chapter digresses from direct study of Stair’s Institutions in order to shed light on the context in which his text was later revised.

THE PROOF OF CUSTOMARY LAW

Case reporting in the 1660s and 1670s As was seen in an earlier chapter, there are good reasons for believing that Stair wrote the first draft of his Institutions before the session resumed its sittings in 1661 and that he returned to work on his draft in 1662 and 1666. As was also seen, the decisions of the session in these years were reported by George Lockhart, the brother of one of the two ‘complying gentlemen’ who had been most heavily involved in the Cromwellian regime and himself an office holder as the ‘protector’s advocate’.2 Along with many other advocates Lockhart had been readmitted to practice after pledging allegiance to the restored monarchy, though in his case it seems that a formal pardon had also been required from the king, who was moved to leniency by his father’s loyalty.3 Sir James Lockhart of Lee had been appointed an ordinary lord of session in 1646 in place of the late Sir Alexander Gibson of Durie, but he had been deprived of office by the radical parliament of 1649, had spent much of the Interregnum in prison in England, and had only become involved in the administration of justice again when he was reappointed to an ordinary place in the session in the spring of 1661.4 By then many lawyers were engaged in the attempt described earlier to render accessible the books on law, records of legislation and reports of decisions written in the decades before the Interregnum, though it may have been for more personal reasons that George Lockhart produced his compendium of Gibson’s reports. By studying the decisions of the 1620s and 1630s while at the same time beginning to take notes on the decisions of the restored session, he may have been attempting to reorientate his own career as a member of the College of Justice, which he soon succeeded in doing. As dean of the Faculty of Advocates in the 1670s he presided over an increasingly cohesive and confident society of learned practitioners. Most prospective advocates continued to prepare for practice by going to a continental law school, though from the 1670s onwards more went to Dutch than to French universities.5 Most prospective advocates continued to be the sons of lairds, 2 3 4 5

NLS, Adv MS 24.3.9, ff 43r–89v. Stephen and Lee 1885–1901, vol 34, p 47; Young 1992–3, vol 2, p 433; Szechi 2002, pp 12–16. Brunton and Haig 1832, pp 319–20; Lockhart 1976, pp 34–5; Young 1992–3, vol 2, pp 435–6. Phillipson 1976, p 120; Feenstra 1996, pp 28–36; Cairns 1996, p 139.

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The Proof of Customary Law 283 lawyers and ministers, though fewer were now drawn from beneath these ranks and in the 1660s and 1670s as many as seven new intrants were the sons of peers.6 In terms of social status the advocates were becoming more prominent members of society at large, and it was for this reason, more than a growing need for the services of lawyers, that the bar was expanding. As laymen anxiously observed, ‘every gentlemans family in Scotland, that hes mo sones than one, ar designing them to follow the profession of law’, with the likely result that ‘in the nixt generation the most part of the inhabitants of Edinburgh shall be members of the College of Justice’.7 It was said that when the Senators of the College of Justice were appointed in 1661 ‘each great man was allowed a friend or two, till the list was compleat’.8 Whether or not this was true, it tends to give a false impression of the composition of the bench at the start of the Restoration period.9 Of the fifteen ordinary lords appointed, three had been lords of session before the Interregnum, seven more had been advocates—among them, at last, Robert Burnet of Crimond—and of the other five at least one had studied law before embarking on an administrative career as clerk to the privy council.10 With the striking exception of Stair himself, most had strong royalist credentials or at least had withdrawn from public life or legal practice under the Cromwells. In a departure from previous practice, the king nominated and parliament appointed as president of the session Sir John Gilmour of Craigmillar.11 The elder brother of Andrew Gilmour and the father-in-law of George Lockhart, John Gilmour was regarded as ‘an eminent royalist and sufferer’, despite having remained at the bar during the 1650s.12 Though admitted in 1628 after presenting a lesson on the civil law, he does not seem to have studied at a university but after first preparing to join his father in practice as a writer to the signet had become widely regarded as a man of natural ability who was ‘very learned without any help from the civil law’ or ‘learned without literature’.13 In the reports he made of the cases decided between 1661 and 1666 accounts were given of some of the arguments drawn by counsel from the civil, canon and feudal laws, but this was not a prominent feature of the collection and at no point did Gilmour follow Gibson’s example by adding his own observations on how far the decisions 6

Donaldson 1976, p 11; Phillipson 1980, pp 148–51; Rae 1989, pp 3–8. Lauder, Historical Notices, vol 1, p 210. 8 Mackenzie, Memoirs, p 10. 9 Cf Phillipson 1976, p 104. 10 Brunton and Haig 1832, pp 283, 299–300, 319–20 and 348–80. Another of the advocates appointed was James Roberton of Bedlay, who was believed to have gathered materials for a book on maritime law (Records of the Convention of the Royal Burghs, vol 3, pp 486–7 and 519–20), and who seems to have been credited by one copyist with producing the abridgement of criminal legislation usually attributed to Andrew Gilmour (NLS, Acc 11941). He may have had a hand in producing a revised version of the work. 11 Report on the Laing Manuscripts, vol 1, p 316; Fifth Miscellany of the Scottish History Society, p 122; Acts of the Parliaments of Scotland, vol 7, p 124. 12 Brunton and Haig 1832, pp 350–52; Stephen and Lee 1885–1901, vol 21, pp 377–8; Paton 1933, pp 111–16. 13 Catalogue of the Graduates of the University of Edinburgh, p 37; Register of the Great Seal, vol 8, pp 281–2; NAS, CS 1/5, ff 17v–18r; Mackenzie, Works, vol 1(2), p 7. 7

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284 The Restoration Court delivered by the judges could be reconciled with the learning of the schools.14 That he did have Gibson’s example before him is clear from the references he made to the decisions of the 1620s and 1630s, for Gibson’s were the only reports he specifically cited.15 In one case reference was made to a decision of the commissaries of Edinburgh, but it was at no stage suggested that the court might follow a decision of the commissioners for the administration of justice during the 1650s.16 On the contrary, many of the decisions Gilmour reported were concerned with clearing up doubts created ‘when the Kingdom was under the Power of the Englishes’, and particularly with deciding which decreets might be reduced on the ‘Ground of Iniquity, committed by the English Judges’.17 If these cases involved the process of ‘Question and Review’ or ‘review and Reduction’ introduced for one year by the parliament of 1661, the reality was that they were still being heard as late as December 1665. Gilmour’s reports of the decisions delivered between 1661 and 1666 were different in style from Lockhart’s, for whereas Lockhart summarised each ruling briefly in the same way that he summarised the rulings reported by Gibson, Gilmour reported cases more fully in the way that Gibson himself had done. As already mentioned, brief case notes were also made by other members of the court, such as Sir George Mackenzie of Tarbat, one of the statesmen appointed to the bench in 1661.18 After an inept attempt to have the earl of Lauderdale excluded from political office, Mackenzie was himself removed from the court in 1664.19 His place was taken by Sir John Baird of Newbyth, who had been admitted to the bar a few months before Stair after studying for several years in France.20 He had built up a flourishing practice during the 1650s but claimed to have suffered for his loyalty to the king, making much of his loss of office as a commissary of Edinburgh.21 As a lord of session he put together an index of the court’s decisions covering the period 1664 to 1681 and also a set of reports in Gibson’s style covering the period 1664 to 1667.22 It is no more obvious why he stopped reporting decisions in 1667 than it is why Gilmour stopped reporting in 1666, for Gilmour 14 Decisions of the Lords of Council and Session, pp 38–40, 45–7, 57–8, 60–62 and 81–3. The collection was edited in 1701 by Spotiswoode’s grandson who remarked (at p 5) that there was ‘not an exact Copy extant’ and that there were ‘very few Copies abroad’, adding that the text he was publishing had been corrected from a copy belonging to Gilmour’s family. No other copy seems now to exist. 15 Ibid, pp 6–7, 44, 55, 66, 73, 93 and 103. 16 Ibid, p 82. 17 Ibid, pp 3–5, 14–15, 21, 23, 32, 35–6, 41, 47–8, 68–9, 97–8, 123–4 and 126–7. 18 NLS, Adv MSS 6.2.13 and 25.1.11, and MS 1943. 19 Mackenzie, Memoirs, pp 66–134; Fifth Miscellany of the Scottish History Society, p 180; BL, Add MSS 23119, ff 111–17, 122, 125, 128 and 133–4, and 23120, ff 140–45. 20 Brunton and Haig 1832, p 391; Baird 1870, pp 22–3; Cokayne 1900–09, vol 3, p 330; Stephen and Lee 1885–1901, vol 2, pp 447–8; Young 1992–3, vol 1, p 34. 21 Register of the Great Seal, vol 9, p 736; Acts of the Parliaments of Scotland, vol 6(1), pp 111–12 and 367; Forbes, Journal of the Session, pp xl–xli; NAS, CS 1/5, ff 161v–2r; BL, Add MS 23120, ff 60–61. 22 For the index see NLS, Adv MS 24.1.9, ff 95–140; and for the reports see Adv MS 24.1.12, ff 1–49, and GUL, Gen 1262. Baird’s reports have been printed in Morison, Decisions of the Court of Session, and Brown, Supplement to the Dictionary of Decisions, but to obtain an impression of the collection as a whole it is necessary to read one of the manuscript copies. For another index of the decisions delivered in the 1660s and 1670s see NLS, MS 7137.

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The Proof of Customary Law 285 was to remain in office until 1670 and Baird until 1681. It may be significant, however, that it was in 1666 that Lockhart appears not only to have stopped making case notes but also to have put both his own notes and his compendium of Gibson’s reports into alphabetical order, and that 1666 to 1667 was the year in which Stair worked on his Institutions for the last time before 1681. It was suggested in the first chapter above that the period of about a decade in which lawyers in Scotland made a concerted effort to improve their knowledge of the literature of the local law came to an end in these years, for reasons that will be returned to in the next chapter. It may be that the reports written by Gilmour and Baird were connected with this development, for it may also be observed of Baird’s reports that the only specific references they contain to an earlier collection of reports were to Gibson’s.23 It may be added that one of Baird’s sons, who was to become an advocate in 1680, married in 1678 one of Gilmour’s daughters, for this typified the forming of alliances between legal dynasties in the court.24 As a commissary of Edinburgh in the late 1640s Baird had sat on the bench with his father, an advocate since 1617, and with John Nisbet, a judge in the court since 1639. On the same day that Baird was appointed to the bench of the session Nisbet was also appointed an ordinary lord, in place of one of the advocates appointed in 1661, who had died a few weeks earlier.25 Nisbet was appointed at the same time to the office of king’s advocate and was to be the last person to occupy this increasingly political post while serving as a judge. Some years later he provided another politician with advice on how to familiarise himself with the law of Scotland.26 ‘It is fitt, if not necessarie’, he made clear at the outset, ‘for persones of place and interest in the state to know the lawes of the kingdome, and in order therto to know something of the civill and cannon law, whence, as from the fountaine, the municipale lawes of all nationes are deryved’. Conceding at once that ‘it cannot be expected that persones of that conditione should plunge themselves in that studie so deip as these who are to live be the practice of the same’, he drew attention to several examples of elementary textbooks on the civil and canon laws that could have been read with profit as much by statesmen as by lawyers. ‘As to our Scotish law’, he went on, ‘it will be fitt to have and to read often as a vade mecum a short manuall writen be Sir Thomas Hope, the king’s advocate, and Craigs de feudis’. After mastering these treatises, it was advisable for students to progress to ‘Duries practiques and any other practiques they can have, and the acts of parliament’, and Nisbet believed that there was also much to be gained from the study of writs and styles, ‘which will be a great introductione to know the grounds of our practique’. He thus singled out Gibson’s practicks as the prime example of Scottish case reports and connected the book with the treatises by Hope and Craig, as Burnet 23

GUL, Gen 1262, pp 32 and 36, and see too pp 46, 54 and 95. Baird 1870, pp 23–4; Cokayne 1900–09, vol 4, p 310; Grant 1944, p 9. 25 Brunton and Haig 1832, pp 389–91; Omond 1883–1914, vol 1, pp 187–99; Stephen and Lee 1885–1901, vol 41, pp 70–71. The deceased judge was James Roberton. Robert Burnet—who had been ‘the oldest tolbuith man living’ in 1661 (EUL, La III 354(1), f 9)—had died later that year. 26 NAS, GD 6/2172; EUL, La II 89, f 147. Cf Lauderdale Papers, vol 2, p 3. 24

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286 The Restoration Court had done, perhaps because these were the books that would have helped students to move from the study of the learned laws to the study of the local law.27 As a lord of session Nisbet himself compiled reports in Gibson’s style of the decisions delivered between 1665 and 1677, when he was forced to resign from office.28 Most of the same period was covered in another collection compiled in the same style by Sir Peter Wedderburn of Gosford, a reluctant addition to the court in 1668 after the death of one of the laymen appointed in 1661.29 Admitted to practice as an advocate in 1642 after presenting a lesson on the civil law, Wedderburn had assumed the influential role of clerk to the privy council in 1660, and his translation to the bench was as unexpected as it was unwelcome.30 It is therefore understandable that he appears (as the next chapter will explain) to have devoted time to making a close examination of Gibson’s reports in 1668 to 1669, when he started to compile his own collection.31 Like the reports written by Stair between 1661 and 1681, those written in the same period by Gilmour, Baird, Nisbet and Wedderburn were all started when their writers became lords of session, with the result that they tend to shed greater light on how the court reached its decisions than other reports written by advocates. Colin Campbell of Aberuchill, who became an advocate in 1664 after delivering a lesson on the civil law, produced an alphabetically arranged review of cases decided between 1662 and 1674, sometimes providing brief notes on decisions and sometimes more detailed reports.32 Given the date of his admission he could not have been personally involved in many of the cases he dealt with.33 Patrick Home of Lumsden, who was admitted to the bar in 1667 after giving proof of his literature, did not start to report decisions until 1673, and he sometimes drew attention 27 That he clearly had in mind Hope’s minor practicks may strengthen the impression that Burnet had been thinking of the same treatise. To a lesser extent the impression is also strengthened that Nisbet may have been the author of the ‘Treatise anent the Scotts Law in Civills’. 28 Nisbet’s Decisions of the Lords of Council and Session was printed in 1698. Several copies of these reports have survived in manuscript, including NLS, Adv MS 24.1.9, which seems to have been put together as a companion volume to Adv MS 24.1.12. Forbes, Journal of the Session, p xxiii, states that reports were also compiled after 1665 by Sir John Lockhart of Castlehill, the brother of George Lockhart, and this is confirmed by Sir Roger Hog of Harcarse, Decisions of the Court of Session, pp 11, 31, 41, 44, 46, 90, 109, 115, 151, 153, 165, 167, 245, 247, 254 and 296. However, no copy of this collection has survived. 29 Brunton and Haig 1832, p 394; Stephen and Lee 1885–1901, vol 60, p 139; Wedderburn 1898, vol 1, pp 363–70 and 460–62. Wedderburn’s reports have also been printed in Morison, Decisions of the Court of Session, and Brown, Supplement to the Dictionary of Decisions. For the whole work see NLS, Adv MSS 24.1.12, ff 50–390, and 29.3.13. 30 NAS, CS 1/5, f 130; NLS, MS 577, f 28, and MS 6406, f 74; EUL, La III 354(2), ff 147–9; BL, Add MS 23129, ff 55, 71–2, 87, 92, 116 and 136. 31 NLS, Adv MSS 24.1.3 and 25.4.5; GUL, Murray 72; EUL, La III 738. 32 Adv MS 25.7.17. 33 Brunton and Haig 1832, pp 433–4, stated with reference to the ‘Pitmedden MS’ that Campbell was admitted to the bar on 4 November 1654, straight after saying that ‘he was very young when he lost his father, who was killed at the battle of Worcester in 1651’. Despite the obvious discrepancy, the dating of his admission was accepted by Grant 1944, p 28, and thence by Young 1992–3, vol 1, p 89. In fact NLS, Adv MS 25.2.5(i), does not support the statement made by Brunton and Haig, and Campbell’s admission on 16 November 1664 is clearly recorded in NAS, CS 1/6/1, pp 151–2.

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The Proof of Customary Law 287 to the opinions of particular judges or to divisions in their voting.34 He could only have been reporting what he had heard from some of the judges, however, for even the more senior advocates who presented pleadings in cases before the inner house were required to withdraw before the judges debated the issues among themselves and made a decision.35 That it was not Home’s standard practice to write up his reports after taking advice on the motivation of the decisions is clear from the fact that he often recounted the circumstances surrounding disputes and rehearsed the arguments of the advocates before he knew what had been decided, ending his reports in mid sentence with the phrase ‘the lords found’.36 John Lauder of Fountainhall, who joined the bar in 1668 after studying in France, seems similarly to have been as interested in how cases were handled by the advocates as in how they were decided by the judges.37 After returning to Scotland at the end of 1667 he copied out some earlier reports and started to compose his own, at first drawing largely on his experience of the handling of cases in the outer house.38 He was to continue reporting cases in a highly personal style for several decades, forming a journal of his experience of legal practice as much as a collection of case reports. His comments on legal practice both in his reports and in other notebooks he kept are often illuminating and will be returned to frequently in the discussion that follows.39 Another advocate’s perspective on the decisions of the session was provided by Sir George Mackenzie of Rosehaugh, who had been the last advocate admitted to practice in the Interregnum court.40 During the 1660s Mackenzie launched a prolific career as an author with a series of literary works, prompting John Dryden to praise him as ‘that noble wit of Scotland’.41 Gilbert Burnet similarly thought of Mackenzie as ‘a man of much life and wit’, though he was more struck by the 34 NLS, Adv MSS 28.3.8–9 (for example at pp 84–5, 182, 199–200, 218, 262, 268, 311, 314–15 and 320 of 28.3.8); NAS, CS 1/6/1, p 230; Minute Book of the Faculty of Advocates, vol 1, p 17. See too Cokayne 1900–09, vol 4, p 375; Grant 1944, pp 103–4; Young 1992–3, vol 1, pp 351–2. 35 Home’s father had been a judge between 1663 and 1671 (Brunton and Haig 1832, pp 383–4), which may explain how he came to be on familiar terms with some of the judges. 36 See, eg, NLS, Adv MSS 28.3.8, pp 42–50 and 351–62, and 28.3.9, pp 25–33 and 228–35. 37 Brunton and Haig 1832, p 442; Laing 1848, pp xii-xxii; Stephen and Lee 1885–1901, vol 32, p 196; Crawford 1900, pp xxii-v; Young 1992–3, vol 2, p 409. Although Lauder studied primarily in France, he later spent some time in the Netherlands. Ironically, it seems to have been the entry of the French into the second Dutch war that broke the strong educational links between Scotland and France and encouraged students to make the shorter crossing to the Netherlands, where the faculties of law had acquired a high reputation. 38 NLS, Adv MS 24.4.1. A few of the reports from this volume can be found in the Historical Notices extracted from Lauder’s papers in 1848. The Historical Notices overlaps with the printed edition of Lauder’s Decisions of the Lords of Council and Session, taken from later volumes in the same series in 1759–61. 39 Of particular interest are the unprinted notebooks in NLS, Adv MSS 6.2.15–16. Lauder appears to have intended to use these books for more personal reflections, but the distinction between them and his volumes of reports is often imprecise. Other material from his manuscript collections has been printed as his Historical Observes (superseding his Chronological Notes) and Journals. 40 Mackenzie was also to have the distinction of being the only advocate of the period to whom a full length biography would be devoted. See Lang 1909, along with Omond 1883–1914, vol 1, pp 200–35; Stephen and Lee 1885–1901, vol 35, pp 142–5; Tucker 2001, pp 239–41 and 364–78. 41 Essays of John Dryden, vol 2, p 108.

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288 The Restoration Court quantity than the quality of his publications, which were ‘full of faults, for he was a slight and superficial man’.42 In 1672 Mackenzie published as his first work on law a collection of Pleadings, in Some Remarkable Cases, before the Supreme Courts of Scotland, since the Year, 1661, to which, the Decisions are Subjoyn’d. Only the briefest of statements of each decision was given, and only a reconstructed version of Mackenzie’s own arguments for one of the parties was provided, but as evidence of how one advocate wished his handling of cases to be remembered the book is of some value. Mackenzie had studied in France before being admitted to the bar, had made the acquaintance of learned practitioners there, and had consciously modelled his Pleadings on the plaidoyers often published by French advocates.43 John Lauder noted in his journals the purchase of a volume of plaidoyers, as well as his acquisition of the case reports by Guy Pape and Jean Papon, to which he often made reference in his own reports of the decisions of the session.44 He bought reports from other foreign jurisdictions too, and very probably owned more French reports than the incomplete record of his spending reveals. A catalogue for the sale of the library owned by John Nisbet shows that he owned not only Papon’s book but also half a dozen other volumes of arrêts and plaidoyers, including the Recueil de plusieurs arrests notables du parlement de Paris gathered in two volumes by Georges Louet, the collection of Cent notables et singuliers questions de droict, decidees par arrests memorables des cours souveraines de France written by Jean Chenu, and the reports of CCXXXVII arrests celebres et memorables du parlement de Paris collected by Barnabé le Vest.45 When the library at Newbyth was catalogued in the eighteenth century it contained French reports and pleadings that may well have been acquired in John Baird’s time, and Peter Wedderburn may similarly have had access to books on French practice.46 After it was decided in 1679 that books should be accumulated ‘for a Liberary to be erected for the Use of the Colledge of Justice’, advocates and judges donated for common use copies of the reports by Pape, Bohier, Papon, Louet, le Vest and several other French writers, together again with reports from other jurisdictions but with a preponderance still of materials from France.47 42 43 44

Burnet, History of His Own Time, vol 1, p 275. Pleadings, pp 20–5; Science of Heraldry, sig A3r; Report on the Laing Manuscripts, vol 1, p 364. Journals, pp 244, 283–4 and 297; and, for example, NLS, Adv MS 24.4.1, ff 88, 91v, 175r, 195v and

198r. 45

Catalogue of the Library of the Late Lord Dirltoun, pp 2, 11–13 and 17–18. NLS, MS 6306, pp 53 and 57. NLS, MS 6505 appears to be a catalogue of a library at Gosford to which Wedderburn had access. A section headed ‘catalogus iurisperitorum’ (at ff 25–6) does not include works by French practitioners, but a later list of continental titles has a reference at the foot of one page (f 39r) to a book about pleading in France. The next leaf, where the list would clearly have continued, is unfortunately torn away. 47 Acts of Sederunt (1740), p 115; The Best and Fynest Lawers and Other Raire Bookes, pp 26–7, 30, 38, 82 and 91; Ouston 1982, pp 148–9; Rae 1989, pp 15–16; Cairns 1989b, pp 23–4. That the first catalogue of the advocates’ library contained a preponderance of French materials, and that this was probably significant, was pointed out in conversation many years ago by Alan Watson. For the rise of reporting in France see generally Castaldo 1998, pp 370–71; Basdevant-Gaudemet and Gaudemet 2000, pp 240–42; Carbasse 2002, pp 214–16. 46

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The Proof of Customary Law 289 It was observed earlier that the reports by Papon were significantly different in style from those by Pape and Bohier, and that they were themselves quite varied in method. Louet’s reports similarly ranged from short statements of the points decided to essays on the questions raised by cases, but in general he followed the more typical approach of reporters in France during the seventeenth century by first outlining the facts of the case, then reproducing in detail the arguments advanced by the advocates, and finally recording in brief terms the decision delivered by the judges.48 Although the judges’ decisions were based on ‘les desmandes, defenses, repliques et dupliques des parties’, the reporters tended to draw the advocates’ arguments together to form a single and coherent discussion of the case from one point of view then the other, thus explaining lucidly ‘les moyens deduits par les Advocats de part et d’autre’.49 The standard style of reporting was the one favoured by Anne Robert, except that most reporters focused on the legal arguments advanced and did not emphasise instead the use made of works by philosophers, poets and historians. John Lauder’s impression of these reports was that they were ‘like our printed Informations (which they call Factums in France)’, the point being that the reporters had reconstructed the advocates’ pleadings in a way that made them resemble the written submissions sometimes made to the judges.50 In the 1660s and 1670s the written pleadings submitted by the Scottish advocates who were due to appear before the lords of session in the inner house became more frequent and extensive, as the massive collection of informations made by Lauder himself illustrates.51 Although a departure from ‘the ancient summar way of advising processes’, by 1677 written submissions had become so standard that the clerks of the court were told they need only ‘set down distinctly the Defences, Replys, Duplys, &c as they are proponed at the Barr’, since ‘the Reasones for inforcing thereof’ would be spelled out elsewhere in the papers before the court.52 The judges had encouraged the submission of written pleadings in the hope that it would serve as an antidote to the soliciting of members of the court before hearings, but they disliked the French practice of printing pleadings for general distribution, which a few advocates experimented with in the late 1670s.53 What appealed to Lauder about the French reports was that while the decisions they recorded were ‘municipall, upon ther locall customes’, the arguments they reproduced were ‘learnedly drawen to the topicks of the Roman law’.54 This made French reports a great deal more interesting than English reports since the latter reflected a ‘manner of pleading’ that had ‘litle of forrain learning mingled in it’.55 The approach favoured at the English bar was to ‘run over the law books of their 48 Le Vest’s reports, it should be noted, were unusual in providing an account of the procedural stages through which disputes passed. 49 Chenu, Cent notables et singulieres questions de droict, pp 30 and 40. 50 NLS, Adv MS 6.2.16, p 17. 51 NLS, Adv MSS 27.2.1–5.3, consisting of sixteen unwieldy volumes of informations. 52 Lauder, Historical Notices, vol 1, p 406; Acts of Sederunt (1740), pp 107–8. 53 Lauder, Historical Notices, vol 1, pp 348 and 597; Acts of Sederunt (1740), pp 108–9 and 138. 54 NLS, Adv MS 6.2.16, p 17. 55 NLS, Adv MS 6.2.15, pp 106–7.

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290 The Restoration Court own kingdome’ and, where no direct authority could be found on a point, to reason by ‘similitude or dissimilitude with other coincident points determined in their law’, with hardly any reference to ‘the Roman law or the customes of other nations’. Even where reference was made in the English pleadings to ‘rules and axiomes that are truely borrowed from the civil law or the popes canon law’, as sometimes seemed obvious to Lauder, ‘they make no mention of the fountain but refers us to some of ther owne law books wheir thesse sentences are made use of’. As he was aware, this complaint, reminiscent of remarks already made by Craig, had also been rehearsed by Mackenzie in his Pleadings and in another book outlining his Idea eloquentiae forensis hodiernae, in which he had tried to encourage his compatriots to contribute to a body of forensic literature that might be put to common use throughout Europe.56 However, no other advocate followed Mackenzie’s example by publishing pleadings, and the standard style of reporting in Scotland differed significantly from the French model. The typical Scottish report did not involve a reconstruction of the pleadings presented on either side of the case but a summary of the disputational moves the advocates had made. This style of report bore a clear resemblance to the style of the decreets extracted by the clerks of the court from processes (as already described in an earlier chapter). The primary purpose of obtaining an extracted decreet was to facilitate enforcement of the decision in the particular case, and although decreets were occasionally cited in other cases they were not regarded as being any more persuasive than the reports written by judges or advocates. For example, when an advocate cited one of Sir Richard Maitland’s reports of the decisions of the 1570s, his opponent objected that it was ‘old, and not authentick’, adding that Sir James Balfour, ‘whose Practiques are known, hath observed a contrary Decision’.57 To this it was answered that ‘Lidingtouns Practiques are as authentick as Balfours’, and that Balfour’s book was actually less reliable since it ‘doth not mention any Debate’. It was at no point suggested, however, that an authentic record might be searched for in the archives. Part of the explanation may have been that the decreets extracted by the clerks were not themselves believed to be a flawless record but were often criticised for the errors they contained.58 When these criticisms were made in an attempt to prevent a decreet from being enforced against a defender they tended to be met with the reply that res iudicata pro veritate habetur, and that however inaccurate the clerk’s record might be, in the interests of justice and for the peace of mind of the parties it had to be accepted as correct.59 It was much less clear, however, that the accuracy of a decreet recorded in one case should be accepted in another case between different parties. Indeed, when the pursuer in one case produced as evidence of an entitlement a decreet he had 56 Pleadings, pp 1–19; Idea of the Modern Eloquence of the Bar, pp 43–65. And see too Mackenzie’s later remarks in his Oratio inauguralis, pp 66 and 71–2, and in BL, Sloane 3828, ff 157–8. 57 Stair, Decisions of the Lords of Council and Session, vol 2, pp 258–9. 58 Minute Book of the Faculty of Advocates, vol 1, p 57; Acts of Sederunt (1740), pp 119–20; Stair, Decisions, vol 2, pp 650–51. 59 Digest, 1.5.25 and 50.17.207.

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The Proof of Customary Law 291 obtained against other defenders in a different action it was typically answered that ‘a Decreet against some few Persons, could not prove it against others, being inter alios actum’.60 If the civil law had provided the maxim that res iudicata pro veritate habetur, it had also provided the maxim that res inter alios acta aliis non nocet.61 These maxims tended to be cited when it was suggested that a decreet had determined the rights and obligations of particular parties, but they could also have been considered relevant whenever it was suggested that a previous decision had settled a general issue in the law.62 Whether reference was made to a decreet or to a report, it could have been complained that the decision was a res inter alios acta and so was incapable of imposing obligations on the parties to later actions. It could also have been complained that according to another maxim of the civil law non exemplis sed legibus iudicandum est.63 For lawyers trained in the civil law it was by no means obvious what significance judicial decisions could have as a source of law.

Recording the emergence of consuetudines approbatae Of course this was not a problem encountered for the first time by lawyers in Scotland during the seventeenth century. For several centuries the learned response had been to argue that while decisions could not be reported and referred to as examples worthy of imitation, they could be referred to as evidence of customary practices.64 The basis of this response was a text in the Digest in which Ulpian had remarked that when a local custom was alleged ‘the very first issue which ought to be explored, in my opinion, is whether the custom has ever been upheld in contentious proceedings’.65 The emphasis placed by this text on the approval of customs in iudicia contradicta had been echoed in the constitutions of the German emperors, in the decretal epistles of the popes, and also in the medieval commentaries on French customary law.66 It had been accepted that where a custom had not already been upheld in contentious proceedings it would have to be proved as a matter of fact using the ordinary evidentiary procedures of the courts. In France, for instance, oral evidence of local customs was gathered from men credited with reliable memories using the ordinary enquête par turbe procedure.67 But where a local custom had been upheld in contentious proceedings, or where a custom was considered to be general, it was taken to need no 60

Stair, Decisions, vol 1, p 240. Code, 7.60.1. 62 Cf Wijffels 1989, p 184, and 1997, pp 302–3. 63 Code, 7.45.13. 64 Pissard 1910, pp 30–3 and 91–7; Jolowicz 1957, pp 34–7; Godding 1973, pp 9–14; Gilissen 1982, pp 78–9; Poudret 1990, pp 541–2. 65 Digest, 1.3.34 (translation slightly altered). 66 Monumenta Germaniae historica (constitutions), vol 2, pp 241–2; Decretales Gregorii IX, 5.40.25; Philippe de Beaumanoir, Coutumes de Beauvaisis, p 249. 67 Pissard 1910, pp 98–159; Filhol 1965, pp 360–66; Poudret 1990, pp 523–31. 61

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292 The Restoration Court proof on the basis of the canon law maxim that notoria non egent probatione.68 Moreover, as a coutume approvée or consuetudo approbata a customary practice already upheld in contentious proceedings had been both proved as a matter of fact and approved as a matter of law, for a court would not have upheld a custom it considered to be unjust. It was only those local customs that had not yet been approved as law that still needed to be proved as fact. In France, after the redaction of the local customs, this need was seldom felt and in 1667, as part of a major procedural reform that will be returned to later, the use of group inquests was discontinued and a simpler procedure developed for obtaining certificats d’usage from local courts or experts.69 In England too, where any debt to civilian thinking was as usual disguised, local customs approved by the central courts were no longer taken to require proof but were considered to form part of the common law when judged, in the way noted in a previous chapter, to be fair and reasonable by the standards of the common law.70 In Scotland evidence of local customary practices had been received in a variety of ways by the session during the period covered in Gibson’s reports. One case he dealt with related to the rule that when a tenant of land died the landlord could take his best beast as a heriot or herezeld so long as he let the tenant’s wife remain on the land for a year.71 When a landlord who had received a beast tried more than a year later to have a widow evicted, she alleged it to be ‘the Custom of the Barony, that where the Relict pays an Herezeld, she bruiks [or enjoys] the Land for payment of the old Duty, during her lifetime; which Custom hath been kept past memory of man’.72 The relevancy of the widow’s response was acknowledged by the judges, ‘but the alledged Custom was ordained to be proven by Writ expresly, or Oath of Party, and no otherways, and so it was admitted to be proven, and not by instances of others, who having payed the like, bruiked for their lifetime; which was not found sufficient’. It would not have sufficed to show that other landlords had in fact allowed widows to remain on land for the rest of their lives since they might have done so voluntarily. What was required was proof that landlords were obliged to do so by local custom, which might perhaps have been found in the records of the barony court, failing which the landlord might have been challenged to deny under oath that he was obliged.73 The evidentiary requirement was therefore quite stringent, though at times a more relaxed attitude was taken. Another case related to the statutory rule that a defaulting debtor should be put to the horn and denounced as a rebel at the market cross of the head burgh of his own shire.74 When a debtor was put to the horn at Duns he objected that Greenlaw had been declared by act of parliament ‘to be the place whereat all Hornings should be 68

Pissard 1910, pp 20–1; Filhol 1965, pp 359–60; Poudret 1990, pp 533–4 and 538–41. Pissard 1910, pp 176–9; Filhol 1965, pp 371–3; Poudret 1990, pp 534–5. 70 Holdsworth 1922–66, vol 3, pp 256–75; Doe 1990, pp 20–2 and 79–83; Baker 1998, pp 155–81. 71 Skene, De verborum significatione, p 75; Craig, Ius feudale, p 193; Balfour, Practicks, vol 1, pp 199–200. 72 Gibson, Decisions of the Lords of Council and Session, p 227. 73 Cf Brown, Supplement to the Dictionary of Decisions, vol 1, p 441. 74 Acts of the Parliaments of Scotland, vol 3, p 142. 69

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The Proof of Customary Law 293 execute against persons, Indwellers within the Sheriffdom of Berwick’.75 Perhaps because the act of parliament referred to had been passed for the benefit of a private party and had not been printed, or perhaps because the court had already accepted a similar argument in another case, the judges acknowledged the relevancy of the response that by ‘contrary consuetude’ hornings were permissible at Duns and ‘found the same should be proven by Hornings execute since the Act’.76 On a previous occasion they had gone so far as to recognise an exception to a wellknown act of parliament, and without receiving any evidence of a contrary custom. When it was enacted in 1617 that no transfer of title to land would be valid unless recorded in the register of sasines, the only exception made was where land was held in a royal burgh under burgage tenure.77 The judges were aware that it was ‘the consuetude and perpetual custom’ in Edinburgh to rely on this exception, and they suspected that the conveyancing practice in Leith, where the pursuer in an action had acquired land without registration, would be similar, yet they were also aware that Leith was not a royal burgh.78 Fearing that to declare the pursuer’s infeftment invalid would have a ‘dangerous consequence, whereby many of the Subjects Rights would fall’, they found that ‘the custom in Leith’ had created a further exception to the 1617 act and left the defender to prove that the practice there was actually to register deeds. In cases like these the court was concerned with the customs of particular baronies, shires or burghs. Sometimes it was concerned with the customs of other courts. For example, when in one case the pursuer, who had been appointed executor to his father while still in utero, claimed that his mother had profited improperly from his father’s estate during his infancy, she responded by producing a decreet of exoneration issued some years earlier by the local commissary court.79 The decreet stated that the mother had not made improper use of her deceased husband’s property without going into any detail, and she was unable to provide a detailed account to the lords of session because it was, she alleged, ‘the custom of all the Commissars of Scotland’ to retain the papers submitted to them. Since the crucial papers in the case had all been lost there was not much the lords of session could do beyond deciding that ‘they would try, if there was such a Custom’. In another case a party produced a decreet signed by a commissary.80 It was objected that the decreet must be invalid since the commissary had apparently assumed the role of a clerk as well as a judge, ‘for as the Judge could not sit down and minut Process, and Write his own Ordinances, no more could he Subscribe Decreets’. The lords of session were persuaded that ‘it was the Custom of that Court, and divers other Inferiour Judicatures to do the same’, and because of the expectation this created among litigants they upheld the decreet in the case before 75 76 77 78 79 80

Gibson, Decisions, pp 202–3; Acts of the Parliaments of Scotland, vol 4, p 246, and vol 10, p 59. Gibson, Decisions, pp 627–8. Acts of the Parliaments of Scotland, vol 4, p 545. Gibson, Decisions, p 72. Ibid, pp 428–9. Ibid, p 567.

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294 The Restoration Court them, ‘but the Lords found it a Custom unlawful, and not to be hereafter allowed, and ordained the Commissar to abstain therefrom in time coming’. As this indicates, it was one thing to prove that a practice was in fact observed, which usually had an impact on the outcome of the case in hand, but another for the judges to approve of the practice in law, which was essential if it was to have an impact on the decision of future cases. To be recognised as customary laws practices had to be considered legitimate and also obligatory, as the herezeld case outlined in the last paragraph indicates. In another case it was alleged to be ‘the Custom of the Town of Wigtoun’ for landlords to let the heirs of their deceased tenants remain on land for the rest of their lives, but the court found that this could not be proved ‘by the Testimony of the Burgh, declaring that that was their Custom, nor by any Tryal showing, that the Rentallers Heirs bruiked so de facto’, but rather would have to be proved from ‘some Sentence, given in foro contradictorio betwixt Parties, where the Judge allowed the said Custom, and Found the samen Proven’.81 It had to be shown that a court had seen fit to compel a landlord to observe the practice. When the heir of a tenant made reference to the custom of Wigtown in another case a few years later it was held that ‘there was no necessity to Alledge or Prove any such Custom’.82 The point may have been that the judges had come to regard the Wigtown custom as no more than an example of a more widespread practice of making ‘kindly’ grants to tenants and their heirs, which was in the process of being reassessed as part of the general law of leases, or the point may have been that as the custom had already been proved it was notorious and part of the general law.83 In a second case in which a Berwickshire debtor’s defence that he had not been put to the horn at Greenlaw was dismissed ‘in respect of the Consuetude, and use to Execute at Dunce’, Gibson noted that ‘this was done without any Probation’ and added a reference to his account of the first case.84 Much later Peter Wedderburn reported a case in which an advocate talked about the lack of ‘registrations of seasines within Leith’ as a well established example of the ‘special customs of burghs’, mentioning in addition ‘the observance of the udal laws in Orkney’.85 In this case, however, the advocate suggested that when special customs were referred to, ‘the Lords are in use, in respect of the said customs, to absolve from penalties and nullities, as to bygones: but, in all time coming, they ordain the laws and statutes to be observed, as not being thereby abrogated’. His suggestion was not merely that the judges would declare their unwillingness to follow customs they disapproved of in subsequent cases, but that they would no longer uphold special customs as exceptions from the common law. He was possibly thinking of the acts of 1426 and 1504, and of Hope’s interpretation of them as being designed ‘to excluid the particular lawes maid or observed in any shereiff81 Ibid, p 300, and see too p 771, where the mere fact that some farmers habitually took their corn to be ground at a particular mill was insufficient to establish that others were bound to do so. 82 Ibid, pp 582 and 629–30. 83 Monteath 1958, pp 194–5; Sanderson 1982, pp 56–63; Hogg 2000, pp 366–9. 84 Gibson, Decisions, pp 627–8. 85 Brown, Supplement to the Dictionary of Decisions, vol 1, pp 684–5.

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The Proof of Customary Law 295 dom or quarter of the cuntrie in prejudice of the comon law of the realme’.86 He was possibly also thinking of a case decided two years earlier and reported by both Wedderburn and Stair in which the court had commissioned a report on the customs of royal burghs in the granting of sasines.87 The report showed that by ‘the Common Law and Custom of the Kingdom’ deeds granted by royal burghs were only valid if subscribed by the provost, baillies and council, whereas by the ‘particular Custom’ of Inverness deeds were generally subscribed only by one of the baillies and by the clerk of the council. It was argued for the pursuer that ‘this being an inveterate Custom, time out of Mind, though it be but of one Town, it must be effectual as to it’. It was argued for the defender that there was no ‘custom in Scotland allowed which is derogator to the common law of the Land, but only the Udal Rights of Orkney, which was a part of another Kingdom’, and that to recognise particular customs would be to ‘take off the stability and uniformity of our Law’. The court upheld the validity of the deed in question ‘in respect of the ancient custom’, but declared that in future it would not uphold deeds unless ‘conform to the course of common law’. According to Wedderburn’s report of the case, the court also decided to issue an act of sederunt restating its declaration, and though on this occasion it did not actually do so, after another case concerning the common custom of the royal burghs it did try to clarify the law by issuing an act.88 A creditor complained that a debtor confined in the tolbooth of Dundee had not been ‘necessitate, squalore carceris, to do all Deeds in his power to satisfie his Debt’, for he had been allowed out with a guard to attend church, to sail on the river, and to visit taverns. It was replied that the magistrates of Dundee had followed a policy consistent with ‘the constant Custom of all Burghs’, as proved in a previous action brought against the burgh of Culross, and that whatever the lords of session might think of the practice it ‘put the Defenders in bona fide, to Act as all their Predecessors had been accustomed to do’. The court decided that the magistrates were not liable ‘as to the time past’, warned that ‘in time coming they would have no regard to that unwarrantable Custome’, and soon afterwards issued an act of sederunt to the same effect. The custom was clearly considered to be unwarrantable because it was inconsistent with the rationale behind imprisonment for debt, but the judges may also have been mindful of the distinction drawn elsewhere between what people were ‘accustomed’ to do and what ‘custom’ legally obliged them to do.89 In an earlier case the magistrate responsible for collecting taxes from feuars in Culross claimed to have followed a standard practice in requiring them to pay more than the amount of tax due so that he could cover his expenses in administration.90 He offered to prove that other magistrates followed the same practice and insisted that 86

Acts of the Parliaments of Scotland, vol 2, pp 9 and 252; Hope’s Major Practicks, vol 1, p 2. Stair, Decisions, vol 2, pp 23–5; Morison, Decisions of the Court of Session, vol 15, pp 12431–2. 88 Stair, Decisions, vol 1, pp 732–3 (and see too vol 2, pp 616–17, where it was found several years later that the act had not had the desired effect); Acts of Sederunt (1790–1811), vol 1, p 105. 89 Stair, Decisions, vol 1, p 159. 90 Ibid, vol 1, pp 413–14. 87

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296 The Restoration Court ‘such immemorial Customes have the strength of Law’. The court, however, was more impressed with the answer that ‘if any such Custome were, it hath been by the consent of the Vassals, or at least they have not questioned the same’. As the point had been put in another case, it was not sufficient to show that some people had, ‘to save themselves trouble, given an uncertain acknowledgement, according to their own discretion’.91 It had to be shown that people had been forced to pay ‘by Sentences’ and in a ‘compulsive way’. Similarly, when it was alleged by a creditor that it was the ‘long Custom’ of the lyon court to find messengers at arms who failed to execute letters of caption liable to pay the debts themselves, some judges maintained that such a custom, ‘being clandestine, and without the contradiction of Parties, who might voluntarly submit themselves to any Authority, could not be sufficient’.92 The books of the lyon court were examined but no clear evidence of the alleged custom was found. As the reports just referred to indicate, notwithstanding the suggestion that the court could no longer permit special customs to derogate from the common law, the lords of session continued in the 1660s and 1670s to take proof of local customs and to decide whether or not to uphold them in much the same way as they had done in the 1620s and 1630s. In another case a creditor sought to explain his failure to seek redress in accordance with an act of parliament by saying that his claim was based ‘upon the local Custom of the Border’, offering to prove that ‘past memory’ it had been ‘the custom on both sides of the Border’ for debtors from the other side to be seized, taken before a magistrate and imprisoned until they provided security for their reappearance in court.93 The pursuer offered to prove the existence of this ‘reasonable and necessar Custom, without which there could be no Trafficque on the Borders’, by producing a ‘Testificat’ signed by a number of noblemen and gentlemen living in the region. The court insisted on having proof ‘by Witnesses upon Oath’, but it recognised that the custom would be relevant if proven, apparently on the basis of the civilian principle that tacitus consensus populi pro lege habetur.94 In another case a defender offered to prove that deviation from the normal practice of infeftment was justified by ‘the Custom of the Town of Lauder’, in another a ‘speciall custome’ followed at horse races in Haddington was found relevant and admitted to probation, quia specialia derogant generalibus, and in another it was found that in calculating a minister’s stipend ‘the measure of Ayr’ would be preferred to ‘the common measure’ if it was proved to be customary in the district.95 Similarly, when a creditor tried to recover the principal and interest of a debt from a guarantor it was alleged to be ‘the custom in the West’ that the debtor alone could be asked to pay the interest.96 The creditor complained that any such custom would be ‘contrary to the general custom and universal practice 91 92 93 94 95 96

Ibid, vol 1, p 243. Ibid, vol 1, pp 339–40, and vol 2, pp 195–6. Ibid, vol 2, p 397. Morison, Decisions of the Court of Session, vol 6, pp 4827–8. Gilmour, Decisions, p 67; Lauder, Historical Notices, vol 1, p 9; Stair, Decisions, vol 1, p 465. Lauder, Decisions, vol 1, pp 52–3.

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The Proof of Customary Law 297 received in this kingdom’, the guarantor replied that ‘consuetudes are local, and derogate from the municipal customs’, and though the case was settled without a decision it was reported that at least some of the judges had been ‘inclined to sustain the custom, if it were proven’. The proof of local customs admitted in cases like these was different from the proof of foreign laws admitted in some other cases (and mentioned in an earlier chapter), for it was never suggested that foreign laws could be approved as part of the common law of Scotland.97 Stair, for instance, reported a case in which a pursuer produced a bond that failed to satisfy the formal requirements of validity imposed by Scots law but did allegedly satisfy the requirements of the custom of Rheims where it had been drawn.98 When a report was obtained from magistrates there showing that ‘by their custom, and the common custom of France, such Bonds were valid’, the court proceeded to apply the French rule not because it was thought to form part of Scots law but because Scots law required the application of the law of the place where the bond was drawn, which remained so far as the Scottish court was concerned a matter of fact in need of proof. In a later case a bill of exchange drawn in Rouen required payment by two merchants in Edinburgh.99 The general rule in Scotland was that in the absence of any provision to the contrary joint debtors were liable to pay equal shares of the sum due, but it was claimed that in this case the debtors were liable in solidum, meaning that the creditor could pursue either debtor for the whole amount and leave him to seek a contribution from the other. As Wedderburn reported the case, the court ‘did remit to merchants, or others who did best know the custom of France, to give their opinion’ on the issue. According to Nisbet, the court ‘thought fit to try the custom of Merchants, and to take the opinion thereupon of certain Merchants in Edinburgh’, who in due course reported that ‘it was the custom of Merchants, both in the place where the Bill was drawn and here, that there should be Action in solidum upon such Bills’. According to Stair, the reason for receiving ‘the Testimonies of several knowing Merchants’ was the court’s recognition that ‘the custome of Merchants must rule this case’. In his reports of other cases the judges apparently decided to admit proof of ‘the custom of Merchants, in the most eminent places abroad’, and to seek ‘the opinion of several knowing Merchants anent their Customs’, without believing that the task before them was to apply the law of a foreign country.100 The custom of merchants seems often to have been viewed as an unusual type of local custom, pertaining to a class of persons rather than to a place and extending—like the custom of the borders—beyond the geographical limits of the country, yet treated as part of the law of Scotland to the extent that it had been proved in the court.101 At other times it seems to have been viewed as an 97 For further examples from the 1620s and 1630s see Gibson, Decisions, pp 232–4, 242–3, 277, 319, 493, 679, 691–2 and 817. 98 Stair, Decisions, vol 2, pp 204–5, and see too p 573. 99 Morison, Decisions of the Court of Session, vol 17, p 14673; Nisbet, Decisions, p 110; Stair, Decisions, vol 2, p 313. 100 See, eg, ibid, vol 1, pp 264–5, 502–5 and 699. 101 Cf Baker 1979, pp 314–17, and Kiralfy 1990, pp 392–3.

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298 The Restoration Court international law of commerce, as part of ius gentium or the common custom of nations.102 Sometimes it seems to have been regarded less as a body of laws or customs than as a collection of usages or practices that the court might take into account in dealing with commercial litigation.103 ‘Cases of this nature’, the lords of session were reminded by an advocate representing a commercial client, ‘should be judged with regard to natural equity, and the Laws and Customs of Nations, and the exuberancy of Trust that is necessary and usual betwixt Merchant and Merchant, and without which the freedom and interest of Trade and Commerce cannot be maintained, and upon which accompt your Lordships in other cases have so interpret the Laws and Customs of this Kingdom’.104 When regarded as a type of local custom, the custom of merchants, once it had been upheld in decisions, was regarded as part of the common law of Scotland, even though the rule applicable to merchants might differ from the commonly applicable rule. In this it was broadly similar to the custom of burghs, which in one sense was special to those who lived in burghs yet in another sense was central to the common law.105 This was to some degree a matter of generality, for a practice observed by all merchants or burghs was bound to be regarded as the common custom in comparison with practices confined to particular trades or towns. As practices increased in generality they might cease to be special and become common customs, though equally practices that were common might sometimes become special.106 Thus it had once been the common rule that when those obliged to grind their corn at specified mills tried to take it elsewhere, the corn and the animals carrying it could be seized by the miller, yet this had become by the seventeenth century a rule peculiar to certain areas of the country.107 Even such special customs, however, formed part of the common law after they had been proved and approved in the court, for they then formed part of the common knowledge of the College of Justice. Thus the custom of the borders that defenders could be ‘summarly arreisted’ was successfully relied on without proof when it had become possible to say that ‘the Lords of Session have allowed of this custome’.108 When proof was required, it has been seen, the court called for evidence in a variety of forms, depending partly on the circumstances of each case and partly on the need to establish that people were not merely accustomed to doing something but were customarily obliged to do it. In many of the cases noted above the court called for evidence of the acceptance of a rule in contentious proceedings before a local court, and it would obviously have fulfilled the same demand to produce a decreet or report of an earlier decision by the lords of session themselves. 102

The tendency to talk in these terms will be examined further in the next volume in this series. Cf Baker 1999. Stair, Decisions, vol 2, pp 197–202. 105 Cf MacQueen and Windram 1988. 106 Stevenson 1928, p 355. 107 Regiam maiestatem (Latin edn), pt 2, f 5r; Gibson, Decisions, p 743. 108 Lauder, Historical Notices, vol 1, p 176, where reference was made to a description of ‘the border laws’ often attached to Balfour’s practicks. A description of the ‘leges burgorum’ was one of many components of the old books and acts that had originally described special customs. 103 104

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The Proof of Customary Law 299 One purpose of reporting decisions of the session may well have been to provide evidence of the recognition of local customs. Yet since these customs had in theory become notorious and part of the common law there was no necessity to lead evidence of their recognition.109 In practice lawyers may have found it helpful to have the evidence available, but since there was no need to produce it, and since relatively few cases were concerned with the proof of local customs, the reporters of decisions must have had other purposes in mind.

Documenting the development of stylus curiae It has been seen that the lords of session sometimes received evidence of the practices of other courts as a kind of local custom. In a Digest text Ulpian had advised that in setting the level of advocates’ fees account should be taken of the consuetudo fori et iudicii, a constitution in the Code had referred to the mos iudiciorum, and it had also been indicated in the Institutes that each court had its forma et observantia.110 When commenting on these and other texts, the civil law doctors had coined the expression stylus curiae to denote the customary practice developed in each jurisdiction.111 ‘The stylus curiae, which the emperor Justinian calls the forma et observantia’, one author explained in the seventeenth century, ‘is nothing other than the custom concerning the process of law or manner of proceeding observed in a court’.112 It was the procedural custom showing how cases should be processed as opposed to the substantive custom showing how they should be decided, though sometimes the decision of a case could be dictated by a point of style, as when it was found that a party could only be allowed to present proof of a kind he did not have. ‘But since this stylus curiae appears more clearly in the daily practice of courts, in the particularities of things’, the author noted, ‘therefore the distinguished practitioners who have been employed for a long time and frequently in court are greatly to be trusted here’. It was the expertise of practitioners that was acknowledged by the professors to be fundamental in this area, for although the treatises the professors had themselves written about the procedural aspects of the learned laws had influenced the development of procedural practices and had brought about a measure of uniformity throughout Europe, these practices were reckoned to be proper to each court and were generally the subject of a separate body of literature.113 When Guy Pape had published his reports of the 109 Sellar 1987 is preferable to Cameron 1964 because the possibility that new local customs might be approved is recognised there. Poudret 1990, p 541, is perhaps correct in taking Sellar 1990 (an abbreviated version of Sellar 1987) to show that most Scottish customs had become notorious. 110 Digest, 50.13.1.10; Code, 9.35.11; Institutes, 4.11.7. 111 See, for instance, Bartolus, Opera, vol 3(1), f 84r; Paulus Castrensis, Opera, vol 3(1), f 5; Baldus, Commentaria super Codicem, vol 1, f 7v. 112 Paulus Voet, De statutis, pp 114–16. This example is used because it was referred to by one of the Scots lawyers mentioned in the next paragraph. Other examples may easily be found, as is shown, for example, by Dionysius Gothofredus, Praxis civilis, vol 1, pp 148–51. 113 Gilissen 1982, pp 99–100; Van Dievoet 1986, pp 14 and 18; Fowler-Magerl 1994, pp 16 and 33–4.

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300 The Restoration Court decisions of the court at Grenoble in the late fifteenth century he had claimed to be making a contribution to this body of literature.114 He had identified the need to master the developing stylus curiae as one of his main reasons for writing reports, commenting that ‘the style and custom of courts ought to be regarded as law’. Over a century earlier the parlement of Paris had declared that a ‘decision rendered on usage, style and custom serves as law’, as Laurent Bouchel recalled at the start of the seventeenth century.115 He advised those who wished to learn about stil ou pratique to study the ‘recueils des Arrests’ along with any procedural passages they could find in the ordinances and redacted customs, Jean Imbert’s Practique judiciaire, and the style books and formularies kept by clerks and notaries. Another reason for reporting the decisions of the Restoration court in Scotland may therefore have been to facilitate learning of the stylus curiae, for if other courts in the country had procedural customs that might be brought to the attention of the lords of session, the College of Justice had a procedural custom of its own that certainly had to be known by its members. Although the court’s own custom was in theory notorious, in practice it had to be learned from personal observation, the remarks of experienced practitioners and any books that could be found to touch on the subject.116 The reports of decisions written by judges and advocates would certainly have been among these books, though what anyone who searched through Stair’s reports for use of the expression stylus curiae would have found was that it tended to be used in a specific and quite dismissive way. In one case a creditor had tried to recover money he was owed from a magistrate who had refused to take his debtor into custody.117 When the magistrate pointed out that he represented not a royal burgh but a burgh of regality, ‘the Baillies whereof were never in custom to be Charged with Rebels’, the creditor replied that the baillies of regalities were specifically included in ‘the Tenor of all Captions’. The response that this was ‘but stylus curiae’ failed to carry weight in this case, but it was more successful in a similar case where the defender was able to say that a provision was ‘but stilus curiae, long in desuetude’.118 Here and in several other cases the style and custom of the court was taken to consist in the documents used to initiate actions, and sometimes it was taken more broadly to consist in all documents used as a basis for litigation, such as the bonds creditors often produced as evidence of sums owed to them.119 The expression stylus curiae was used less often with reference to the rules of procedure, though Stair did report one case in which it was argued that a grant of land directly from the king could not be challenged without the king’s consent, and that the customary practice of obtaining consent from the 114 Decisiones parlamenti Delphinatus, pp 7–8, 310–11 and 420. See too Auzary-Schmaltz 1997, pp 234–5, for the central importance attached to procedure in the early reporting of the decisions of the parlement of Paris. 115 La bibliotheque ou thresor du droict françois, vol 1, p 322, and vol 2, p 1042. 116 Pissard 1910, pp 20–1 and 68; Sergène 1961, pp 239–40 and 259–60; Godding 1973, pp 14–15. 117 Stair, Decisions, vol 1, p 549. 118 Ibid, vol 1, p 381. 119 See, eg, ibid, vol 1, pp 473, 518 and 540, and vol 2, pp 259, 513 and 516. And see too Gilmour, Decisions, p 7, and NLS, Adv MSS 24.4.1, f 56r, and 28.3.8, pp 461–2.

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The Proof of Customary Law 301 king’s advocate was insufficient and ‘but ex stilo curiae’.120 The assumption in all these cases was that a mere formality should not be allowed to constrain decisions, but there were known to be ‘formalists’ in the court who took a more positive view.121 In his Pleadings Mackenzie claimed to have reminded the lords of session in one case about a procedural rule and to have advised them that ‘the Stiles in all Courts are equivalent to fundamentals’.122 ‘Stiles are the product of common consent’, he had explained in another case, ‘and are introduced after much experience, by such as understand’, which he took to mean that ‘unlesse it can be made appear, that these Stiles are restricted by the constant current of Decisions, or by some expresse Laws, certainly, Stile must rule us’. Mackenzie pointed out repeatedly that the authority of stylus curiae seemed to have been confirmed by an act of parliament requiring writers to the signet to adhere in the documents they produced to ‘the lovable and accustumat style and forme’.123 Although the expression stylus curiae does not appear to have been widely used in Scotland with reference to the procedural rules of the court—the preferred expression, as Mackenzie remarked, was ‘the form of process’—those who wished to learn about the rules would have found much of interest in the reports of decisions. In the 1620s and 1630s Gibson had reported a large number of cases that were entirely concerned with procedural issues such as how parties were to be summoned to appear before the court, at which stage in proceedings defences should be entered, and what methods of proof might be allowed.124 In one case the lords of session had been persuaded that a sum of money owed by a pursuer to a defender could not be set off against an award of damages because an act of parliament had expressly prohibited the admission of a plea of compensation after sentence had been given.125 Gibson had been critical of the court’s decision, partly because the civilian doctors had taught that it could sometimes be appropriate to admit compensation after sentence and partly because the procedural rule ‘was never observed to my Memory before this time; for the Lords has ever been in use to admit Compensation, by way of Suspension, notwithstanding of this Act of Parliament, which [till] now was not in viridi observantia’. It was what the lords were in use to do, the customary forma et observantia of the court, rather than the bare texts of the acts of parliament that seemed to Gibson to provide a reliable guide to the rules of procedure. Stair showed a similar interest in reporting what was ‘oft times decided by the Lords, and is now their constant practice’, ‘their constant Custom’, ‘the known Custom’ or ‘their ordinar Course’.126 He too reported decisions that dealt entirely with procedural issues. In one a defender’s complaint 120

Stair, Decisions, vol 1, p 204. Lauder, Decisions, pp 51 and 94, and Journals, p 222. 122 Mackenzie, Pleadings, pp 151 and 165; Observations on the Acts of Parliament, pp 179, 220–21 and 445; Works, vol 2, pp 492 and 497. 123 Acts of the Parliaments of Scotland, vol 3, p 377. 124 See, eg, Gibson, Decisions, pp 9, 15, 26, 64, 77, 119, 133, 176, 242, 285, 326, 356, 374, 401, 430, 476, 523, 550, 639, 675, 757, 798, 813 and 845. 125 Acts of the Parliaments of Scotland, vol 3, p 573; Gibson, Decisions, p 240. 126 Stair, Decisions, vol 1, pp 192, 466–7, 554–5 and 579, and vol 2, pp 253, 403 and 883. 121

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302 The Restoration Court that he should have been summoned personally and not by a public announcement at his local market cross led the court to reform its ordinary practice.127 In another the court considered whether an attempted alteration to what had been ‘anciently the Custom’ on the entry of defences had come to be ‘notorly known’, and in another it reaffirmed its rule that allegations of fact were in general to be ‘proven habile modo, by habile Witnesses, and not by Women’.128 In a later case the court was urged to reconsider its award of damages for the spuilzie (or wrongful seizure) of a horse since, ‘by inspection of the Testimonies, it would appear that there was no Probation of any part of the Spuilzie’.129 The court was persuaded to uphold its ‘inviolable Custom’ of reviewing evidence in the absence of the parties and then holding to its findings without further inspection. ‘And this Custom of closing of Testimonies’, it was claimed, ‘is founded upon solid Grounds and Expediency, which immemorial experience hath confirmed’. As such it formed an important ‘part of our Law by immemorial Custom, which nothing can alter, but a Statute in Parliament’. As these cases illustrate, the reports of decisions did quite often shed light on the procedural customs of the court. Sometimes, moreover, these customs had more substantive significance. ‘By the Practique of old’, Gibson observed after one of his reports, ‘an Heir to a Defunct, albeit entered Heir to him, could not have been pursued for the Defuncts Debts by his Creditor, before year and day was expired after the Defuncts decease’.130 The lords of session had introduced the procedural rule that a summons could not be served on an heir by a creditor within a year of a debtor’s death since during this period an executor would be administering the movable estate and creditors would be expected to claim satisfaction of their debts from him, leaving the immovable estate intact.131 However, while some practitioners were ‘of opinion’ that this rule excluded any action within a year and a day of the debtor’s death, others were ‘of opinion’ that it would be possible to serve a summons on an heir as soon as he entered into enjoyment of the immovable estate. ‘I am of the mind’, Gibson went on, ‘that the lords have now these many years by-past been in use, to find Process against the Heir, within a year, where he entered before, and it hath been so decided divers times’. Gibson’s reporting of the decisions of the court had led him to favour an understanding of the procedural custom that had the substantive effect of making the heir liable to pay debts from the immovable estate which the executor could still have paid from the movable estate. In reporting a later case, in which the defender had improperly entered into enjoyment of an estate before the appointment of the executor, Gibson commented that ‘in this Process, as in all the like Cases pursued against Parties, as universal Intromettors, the Lords are ay in use to Find, that one conveened as universal Intromettor, if he be proved to have Intrometted with all, is lyable to pay 127 128 129 130 131

Stair, Decisions, vol 1, p 383. Ibid, vol 1, pp 572–4, and vol 2, p 355. Ibid, vol 2, pp 650–51. Gibson, Decisions, p 376. Hope’s Major Practicks, vol 1, p 308.

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The Proof of Customary Law 303 the Debt for which he is conveened’.132 The lords of session, he proceeded to explain, would find any universal intromitter liable for the whole sum due even if others had also interfered with the estate, whereas the commissaries would divide the debt among those involved. The different courts had different customs, yet here the customs clearly determined the liabilities of the parties, and while it was not especially problematic for each court to have its own procedural custom, problems did arise when the customs affected issues of substance. Whether a creditor could bring an action against just one intromitter for the whole sum he was owed or would have to raise proceedings against several for equal shares was at a practical level a question of how the creditor should proceed in seeking redress before a court, and it was natural for the answer to depend on how the particular court conducted its business. But the question might also have been raised in a more abstract and substantive way whether one of several intromitters would be liable in Scotland for the whole debt owed by the deceased or only for a proportionate share, and at this level it could only have been answered that it would depend on which court dealt with the issue. The answer to the question of substance was dependent on the answer to the question of procedure. Much later Stair reported a case in which the extent of a tenant’s liability to pay rent was affected by the procedural custom of the court.133 In the summons used to initiate the action rent had been claimed at a level set by agreement with the tenant, but when the parties appeared before the court it was explained that tenants seldom entered into written tacks, ‘and therefore it hath always been sustained to prove prout de iure what they possessed, and that the Lands were worth so much, unless they did except upon an agreement for a lesser Duty, and proved the same’. In accordance with this rule of evidence the lords of session decided that the pursuer need only prove that the tenant had possessed the land and that it was generally believed to be worth a certain amount of rent, leaving it to the tenant to prove that there had actually been an agreement for a smaller amount. In doing so they confirmed the substantive rule that in the absence of agreement to the contrary a landlord was entitled to as much rent as it was generally thought the land should yield. They also allowed the pursuer to depart from the claim he had made in the summons, which they would not have done if it had reflected more accurately the normal practice of the court. In another case the ownership of land had been transferred to the defender subject to an agreement that it would be returned on repayment of a sum of money he had disbursed.134 The pursuer offered to repay and, when the defender refused to return the land, brought an action before the court for ‘a Declarator of Redemption, having used the ordinary way’. When the defender replied that the superiority of the land had been forfeited to the crown and granted to him, and that this later grant superseded the first transfer, the pursuer argued that ‘the common Stile’ of the summons he had used entitled him to expect that the court would require the defender to return the land. The 132 133 134

Gibson, Decisions, pp 389–90. Stair, Decisions, vol 2, p 274. Ibid, vol 2, pp 561–3.

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304 The Restoration Court court duly did so, deciding the case ‘according to the common Forms of Declarators of Redemption’, and informing the defender that he would have to bring an action of his own to establish his new title.135 In another case a new title was sustained because that was what the form of the action provided for.136 A creditor who had acquired land in satisfaction of a debt complained that the superior was refusing to receive and infeft her in the manner specified in the ‘common form’ of the summons she had used, ‘which hath been ever sustained upon good grounds’. The court decided in her favour ‘in respect of the common custom of these Summons’, in effect taking one of its procedural documents to settle an issue of substantive law, for whereas the defender had argued that he could not be required to accept a new vassal until she proved that the old vassal had held a valid title for her to acquire, the pursuer had argued that her title was acquired not from the old vassal but from an earlier court order ‘adjudging’ the land to her in satisfaction of the debt.137 The judges felt justified in finding that a new title had been created by adjudication since this was customarily assumed in the documents used to initiate actions before them. The substantive assumptions behind the procedural forms relied on in cases like this would generally have been debated in previous cases, but the significant point is that it was the reflection of the assumptions in the procedural forms that was taken to justify their recognition as law. It was the court’s development of its own procedural custom that was taken to underpin its development of substantive law, perhaps because it was understood that historically the development of substantive law had tended to emerge from the development of procedure, or perhaps because it was in relation to procedure that the university professors had been most ready to place their trust in the expertise of practitioners.138 It has been shown in an influential article that the early interest in judicial decisions in France arose primarily from the light they were believed to shed on court procedure and only secondarily from the bearing they were believed to have on substantive issues.139 Guy Pape therefore had good reason for drawing attention to the procedural relevance of the decisions he reported in the fifteenth century, though it also appears to have been his aim to explain why he should be trusted as a practitioner to write about the topics he handled. Inevitably, many of these were more substantive than procedural, but having asserted his authority to write as a practitioner, he went on to demonstrate that he could write like a professor. Having claimed to write about the procedural law in which he might have been expected 135 As the pursuer’s advocate appreciated, the court’s conclusion was connected with the rule remarked on in the last chapter that a tenant could not plead by way of an exception in an action of removing that he had acquired ownership of the land. See again Morison, Decisions of the Court of Session, vol 8, p 6425. 136 Stair, Decisions, vol 1, p 440. 137 The significance of adiudicatio, a mode of acquisition of ownership in Roman law, will be returned to in the final chapter of this volume. 138 For a classic statement of the historical priority of procedural development see Maine 1883, p 389. 139 Sergène 1961.

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The Proof of Customary Law 305 to have some expertise, he had dealt with the procedural issues raised by cases in a learned way, had dealt in a similar way with the more substantive issues emerging from the same cases, and had found it simple enough to move on to writing about substantive issues even when they had no connection with points of procedure. As later reporters realised, he had shown that by gradually broadening their conception of pratique to encompass both court procedure and the effective settlement of more substantive issues by forensic practice, by taking pratique to signify not just procedural law but customary law more generally, the law put into practice locally as opposed to the law examined in theory by the schools, they might eventually be able to displace the professors from the position of authority they had occupied. By gradually extending the domain the professors had allotted to them, practitioners could aim eventually to exclude the professors from the domain they had reserved for themselves, and the reporting of judicial decisions was one obvious way of pursuing this aim. In France it became an increasingly important activity when the local customs were codified, for the development of customary law in the courts then became the only local alternative to royal legislation.140 French practitioners began to look for their local law in the customs established by the reform commissioners, in the ordinances promulgated by their kings, and in the customs that continued to evolve in the decisions of their courts, and to this extent they resembled the practitioners of the common law in England, which remains the most striking example of a system of law developed largely through forensic practice.141 As was mentioned earlier, the common law had been built up around the writs used to initiate court proceedings, and after the forms of the writs had been fixed it was through legislation and judicial decisions that the law had been developed further.142 It is understandable that lawyers came to look for their local law in a similar range of sources in Scotland, where the term practick—or often practique—was taken to denote not only court procedure, customary law and the local law generally, but also the reported decisions of the courts.143 Emphasising the importance of praxis forensis Learned justification for a broader understanding of style or practick was available in the Roman law texts. Two imperial constitutions preserved in the Code had instructed provincial magistrates to resolve disputes in accordance with what was normally done in similar cases in the locality, and in the Digest this was taken to show that ‘statutory force ought to be ascribed to custom or to the authority of an unbroken line of similar judicial decisions’.144 While the Code texts seemed at first sight inconsistent with the other Code text stating that disputes should be resolved non exemplis sed legibus, the interpretation in the Digest suggested that all the texts 140 141 142 143 144

Timbal 1990, pp 231–2. Godding 1973, p 15. Maitland 1936, pp 1–9; Milsom 1981, pp 33–6; Baker 2002, pp 53–7. It is presumably in this light that the remarks in Smith 1959b, p 38, should be read. Code, 8.10.13 and 8.52.1; Digest, 1.3.38.

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306 The Restoration Court could be reconciled if a line of decisions was reckoned to enjoy the auctoritas legis ascribed by Julian to consuetudo. The requirement that cases be decided in a similar way frequenter or perpetuo was not hard to square with Julian’s explanation of the source of the almost statutory authority ascribed to custom. Bartolus accordingly commented that ‘usage and habit are not the proximate cause of custom, but the tacit consent of the people’, and that ‘judicial acts introduce custom not because adjudication is the cause of custom but because the tacit consent of the people is easily identified from those acts’.145 The influential canonist Panormitanus, after reviewing opinions on the use of judicial or extrajudicial acts as proof of customs, similarly observed that ‘it is the common opinion that the acts need to be sufficiently frequent and notorious to pass into the awareness of the people, for as I have often remarked it is not the acts but the tacit consent of the people that introduces custom’.146 While opinions varied as to how numerous and frequent the instances of usage adduced as evidence of a customary practice needed to be, there was no doubt that they needed to be sufficiently numerous and frequent to permit the inference to be drawn that people were aware of and content with the observation of the practice as a law.147 A series of judicial acts could have been adduced as proof of a local custom, though it would have sufficed to adduce only one if it involved the recognition of the custom in contentious proceedings. What was more significant about the concept of res perpetuo iudicata was the justification it provided for treating a series of judicial decisions less as evidence of a popular practice than as the source of a customary rule created by the court itself. Rather than the court receiving proof of a popular practice and conferring approval on it as a customary law, the court might have developed the practice of deciding cases in a consistent way and have relied on popular approval to clothe it with the authority of customary law. It was the civil law concept of res perpetuo iudicata that Craig referred to explicitly when he talked about the praxis of the session as a source of law, and it has often been suggested that it was the idea of judicial custom that lawyers in early modern Scotland generally had in mind when they cited the decisions of the courts.148 In Stair’s reports advocates are often found drawing attention to the previous decisions of the session, and the judges themselves are sometimes said to have recalled earlier cases. Stair was reputed to be especially interested in the search for precedents. ‘When any new point occurs to be decided’, Lauder observed, ‘he runs over all the practiques new and old, but particularly since the kings restoration in 1661, to see if he can find it ther decided alreadie, or any parallel or contingent help—which speaks his indefatigablenes’.149 In his own reports 145

Opera, vol 1(1), f 18, commenting on Digest, 1.3.32. In quinque Decretalium libros commentaria, vol 1, f 79v. On Panormitanus, ‘the most influential canonist of his time’, see Clarence Smith 1975, p 94; Black 1979, pp 92–5; Burns 1988, p 682. 147 Jolowicz 1957, pp 24–6; Le Bras, Lefèbvre and Rambaud 1965, pp 546–7; Godding 1973, p 10–11; Vanderlinden 1990, p 274; Poudret 1990, pp 537–8. 148 Gardner 1936a, pp 23–6; Smith 1952, pp 1–5; Walker 1974, pp 202–6; Maher and Smith 1987, pp 93–8; Dolezalek 2002, pp 60–1. 149 NLS, Adv MS 24.4.1, f 270r. 146

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The Proof of Customary Law 307 Stair often noted how previous decisions had been cited to show that ‘this Point was already determined’ or that ‘this case in all the circumstances after full Debate hath been determined before by the Lords’.150 Nevertheless, it is also evident from his reports that the lords of session did not feel obliged to abide by all their previous decisions. An advocate’s assertion that an issue had already been determined would certainly have been ignored if ‘no such Practique was produced, nor acknowledged’, and a decision might also have been disregarded if the report was found on inspection ‘not to hold forth fully the Case’, or if the dispute was found to have been determined ‘upon a Report, and was appointed to be heard again in praesentia, and was no further insisted in’.151 Where an advocate was able to produce a full report of a case debated in the inner house, and to explain how the ‘ratio decidendi in that Decision’ coincided with the reasoning he was urging the judges to adopt, his argument would have been considerably strengthened, and Stair often noted the efforts advocates made to explain why the decisions cited by their opponents ‘clearly differed’ from or did not ‘quadrat with’ the cases in hand.152 In one case, for example, in which the defender’s advocate urged the judges to decide in accordance with ‘the common Stile of this Defence’, he argued that a decision cited from Hope’s major practicks could be ignored since it was concerned with ‘a distinct Defence’.153 Yet in reporting cases in which decisions had been cited Stair more often than not saw no need to note the response of the opposing advocate or to explain why the court had failed to follow the precedent. In one report he observed that a relevant decision had been mentioned before simply adding, ‘which Decision the Lords resolved not to follow’.154 In another report he indicated that a case cited in support of an heir’s right to a heritable debt could have been disregarded because it was ‘but one single Decision’ and was ‘inconsistent with the nature of the Right’.155 ‘One Decision’, it was similarly claimed elsewhere, ‘either contrary to the nature of the Right, or to the conveniencie of the people, doth never determine the Lords, unless a Consuetude were introduced by several Decisions’.156 The judges would adhere to a previous decision if they were satisfied that it was well founded, but they would never consider themselves obliged by a decision as such unless it was one of a series of judicial acts that had introduced a customary law, and it would then be the custom that was taken to bind them. That a customary law could be introduced by ‘the current of the Lords Decisions’ was clearly recognised.157 Indeed there were several cases in which it was suggested that a law of this type 150 Stair, Decisions, vol 2, pp 672 and 728. To begin with most decisions were cited from Gibson’s reports or (far less often) those of Haddington, Spotiswoode or Hope, and scarcely ever from earlier reports. In time increasing reference was made to the decisions of the Restoration court itself. 151 Stair, Decisions, vol 1, pp 393–4 and 601, and vol 2, pp 796–8. 152 See, eg, ibid, vol 1, pp 528, 585, 706 and 759, and vol 2, pp 43–4, 95, 234–5 and 825. 153 Ibid, vol 2, p 471. 154 Ibid, vol 2, pp 123–4. 155 Ibid, vol 2, pp 152–4. 156 Ibid, vol 2, pp 160–66. 157 Ibid, vol 2, pp 206, 558, 603, 727–8, 738–9 and 796–8; and see too vol 2, pp 440–41, for the view that a consuetudo fixa was binding on the court.

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308 The Restoration Court could only now be introduced by the ‘constant custom’ of the session. When an advocate offered to show that ‘the common custom’ of landlords and tenants had rendered an act of parliament in desuetude, it was replied that ‘Acts of Parliament are not derogat by custom of privat parties, acquiescing in their agreements; But [by] the custom of the Lords by current Decisions’.158 In a later case, when Nisbet made an appearance at the bar as king’s advocate to maintain the crown’s interest in the feudal casualty of marriage, he drew the attention of his fellow judges to ‘the opinion of Sir John Skene in his Explications upon Quoniam Attachiamenta, re Maritagio, bearing that it was praxis fori, that if the Vassal give his Heir in Marriage upon Death-bed, it was esteemed a fraudulent precipitation, in prejudice of the Superior’.159 The judges were warned by Nisbet’s opponent that they would find nothing more in Skene’s book than ‘the very instancing of the Practiques’, with no account of ‘the Case dispute, and Reason of Decision’, and they were assured that the decisions were in any case ‘three score years in desuetude’ since dying vassals had often been known to give their heirs in marriage during the intervening period. Nisbet replied that this was entirely beside the point because ‘Customes here are only such as are Judicial, by the Kings Ministers of Justice, whereanent Skene expresly saith, that this is praxis forensis’. Five months later, when an advocate described a widespread practice as the ‘universal Custom over all the Kingdom’ and reminded the court that communis consuetudo pro lege habetur, his opponent complained that he had made no attempt to show that ‘the Lords by their Decisions did approve the same, which Decisions can only make a Custom equivalent to Law’.160 In the following year Nisbet again made an appearance at the bar as king’s advocate and insisted that ‘an Act of Parliament cannot fall in desuetude, by a contrair voluntar Custom never allowed by the Lords’.161 After another five years, when it was argued that the usage of conveyancers should be recognised as ‘the common opinion and practice of this Kingdom’, it was answered that it might instead be regarded as ‘a common error, contrary to Law’, and that ‘it cannot be alledged that ever there was a Decision as to this point, much less a judicial consuetude; so that the case being new and undetermined, the Lords should proceed according to equity and expedience, and to the Analogy of our Law in other cases’.162 This reply involved a clear allusion to a Digest text in which it was said that where something was first introduced by error and then observed as a custom it ought not to be observed in aliis similibus.163 On one reading this meant that the error ought not to be repeated, and on this basis lawyers frequently used the maxim communis error non facit ius. An alternative reading was supported by 158 Ibid, vol 1, p 356. Cf NLS, Adv MS 24.4.1, ff 55v–6r; Gilmour, Decisions, pp 132–3; Morison, Decisions of the Court of Session, vol 19, p 16410. 159 Stair, Decisions, vol 1, pp 446–7 (apparent misprint amended); Regiam maiestatem (Latin edn), pt 1, f 129r. 160 Stair, Decisions, vol 1, pp 473–4. Cf Nisbet, Decisions, p 38. 161 Stair, Decisions, vol 1, pp 561–2. 162 Ibid, vol 2, pp 208–10. Cf Morison, Decisions of the Court of Session, vol 7, pp 5451–3. 163 Digest, 1.3.39. See too Jolowicz 1957, pp 26–8.

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The Proof of Customary Law 309 another text in the same title of the Digest saying that where something was received by error it ought not to be extended ad consequentias.164 The implication was that a custom introduced by error might be a valid law but of a kind that should not be extended by analogous reasoning to cover new cases, and on this basis lawyers also used the maxim communis error facit ius.165 The alternative reading fitted neatly with the theory that local customs could develop which would differ from the common law and would need to be interpreted narrowly, leaving the common law to deal with new cases. It provided a theoretical explanation for the emergence of customary laws from the popular belief that practices were both habitual and obligatory, for at first the belief that a practice was obligatory could only have been mistaken, at least if this was taken to mean that it was legally obligatory. A different way of solving the problem was to maintain that the popular belief was in the moral obligation of the practice and that it was the emergence of a consensus that the practice was morally obligatory that introduced the element of legal obligation. It was perhaps on this basis that some lawyers were inclined to refer to the ‘common Custom of the Nation’ as the ‘common Opinion’, assuming that the consensus populi was not so much the agreement or mutual consent of the people as their communis sensus.166 But whether it was assumed that the common acknowledgement of a moral obligation could transform it into a legal obligation or that a common error could make new law, the practical difficulty remained of distinguishing between a binding customary law and the sort of ‘voluntar Custom’ that emerged from people ‘acquiescing’ in what was demanded of them. It was seen earlier in this section that in cases of doubt about the status of a local custom the judges tended to ask if the custom had ever been upheld in contentious proceedings. In a case concerned with the general custom of citing absent debtors ‘at the Mercat-Cross of Edinburgh, as communis Patria’, it was objected that ‘nothing can be called a Custom but that which hath been drawn in question in iudicio contradictorio, and maintain’d’.167 The judges did not agree but concluded that absent debtors had to be cited in the customary way, ‘albeit there be no Sentence to warrand that Custom, and to disallow other Citations, in any contradictory Judgment’. In other cases too they were prepared to recognise local and general customs as binding laws on the strength of extrajudicial acts, but it may have been the tendency to regard the upholding of customs in contentious proceedings as the best evidence of their binding force that encouraged advocates to suggest that only judicial acts were relevant. An obvious problem with maintaining that customs could only be legally obligatory if they had previously been upheld in contentious proceedings is that it 164

Digest, 1.3.14. For the adoption of this maxim in England see Baker 2001, pp 5–7. 166 Stair, Decisions, vol 1, pp 473–4. Although Julian had used the phrase tacitus consensus omnium, Hermogenian had used the less ambiguous phrase tacita civium conventio in Digest, 1.3.35. For the Roman understanding of the relationship between the terms consensus and conventio with reference to contract law see Zimmermann 1990, pp 563–5. 167 Gibson, Decisions, p 588; Spotiswoode, Practicks, p 321. For the origins of the communis patria idea see Digest, 27.1.6.11 and 48.22.18(19).pr, and Cicero, De lege agraria, 2.32.86. 165

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310 The Restoration Court precluded the recognition of any further customs and so prevented the tacitus consensus populi from giving rise to new law. To some extent this may have been precisely what advocates intended when they argued that customary laws could only emerge from the decisions of the session. It is notable that in two of the five examples given earlier the concern was that acts of parliament might be dispensed with because inconsistent with popular practice, and that in a third the concern was that the praxis forensis established by the previous decisions of the session might similarly be disregarded because it was found to have fallen into desuetude. It was the jurist Julian who had assigned the concept of desuetude a prominent part in civilian theory when he observed that just as the tacitus consensus populi was effective in creating consuetudo, so it was effective in repealing statutes by leaving them in desuetudo. As was noted in the last chapter, however, the view was held by many lawyers that this theory made little sense where people lived under a monarch or emperor and that it must have been a legacy of Rome’s republican past. If the theory was too well established to be dismissed out of hand, it may at least have seemed possible to bring it more into line with the realities of monarchical rule by insisting that it was only the decisions of the king’s ministers of justice that could render an act of parliament in desuetude. This implied that to some extent the king’s ministers of justice exercised his sovereign authority, and this also appeared to be the implication of treating the praxis forensis established by their decisions as something akin to an act of parliament. In another of the examples given earlier the judges were urged in the absence of a statute or judicial custom to determine the issue in terms of ‘equity and expedience’, as they had done on an earlier occasion when they ‘found no Consuetude, or Decision in the Case, but determined the same, ex bono et aequo’.168 In the fifth example they were persuaded to determine the ‘general point by it self, for clearing the Lieges’, although the dispute between the parties remained to be settled. What all these examples might be taken to indicate is that some lawyers had come to reject the Bartolist doctrine that the proximate cause of custom was the tacit consent of the people and to believe instead that it was the adjudication of sovereign judges.169 Although the customary practices of the people had sometimes been upheld as laws in earlier cases, it may have been believed that they derived their authority not from the agreement or consensus of the people but from the exercise of legislative sovereignty by the judges. The extent to which Scots lawyers may have thought along these lines will be examined in the next section of this chapter. First it needs to be recognised that there is a further way of understanding the claim that only judicial decisions could introduce customs with the authority of law. When Bartolus claimed in his commentary on the text attributed to Julian that the proximate cause of custom was the tacit consent of the people, and that the importance attached to decisions must therefore lie in the evidence they contained of popular approval, he went on to elaborate on his claim in a significant 168 169

Stair, Decisions, vol 1, pp 398–9. Cf Watson 1985, pp 43–65.

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The Proof of Customary Law 311 way.170 In response to the insistence of some jurists that sufficiently numerous decisions must be adduced to show that the custom was consented to by most people, Bartolus observed that there was ‘no need to prove that the majority of the people knew, for since a definitive sentence is delivered after great contention—as Code, 7.57.7, has it—the law presumes that the majority of the people know, or at least the majority of the counsellors who represent the people’. As he saw it, the importance of iudicia contradicta was not so much that they showed customs to have been upheld in a compulsive way as that they showed them to have been upheld in a public way, after magnus conflictus—as a Code text put it—in open court. Although it might have been objected that most people were unaware of what went on in courts of law, Bartolus had already established the principle that concilium repraesentat mentem populi, so that the people could be taken to know whatever their legal representatives knew.171 ‘The presumption’, he proceeded to explain, ‘is that by reason of their office the counsellors know the things that happen in public and in the law courts in which they do business’. When he added that in doubtful cases ‘a judge will call the advocates and procurators of the court to him and investigate the custom’, he not only acknowledged the expertise of practitioners in matters of court procedure but also indicated that their expertise might extend to the more substantive matters on which court decisions often touched. When he explained that the practitioners were to be consulted ‘because trust ought to be placed in those skilled in an art with regard to what they understand and know in terms of their learning’, he indicated that the judge should rely on the expertise of the advocatus vel bonus procurator for the same reason that he should rely on the learning of an excellens doctor. By arguing that the people could be taken to consent to the custom of each court, that this was the custom known to expert practitioners, and that expert practitioners could speak with the same kind of auctoritas as learned doctors, Bartolus revealed that he attached less importance to the tacit consent of the people than at first appeared. For those who found the republican aspect of his theory rebarbative, and who also hesitated to ascribe legislative authority to judges, the alternative was available of regarding learned authority as the proximate cause of praxis forensis.172 The alternative was available of claiming that practitioners could develop the substantive as well as the procedural custom of the court since they enjoyed the same kind of learned authority as the university professors. It may have been this claim that the reporters of decisions in Scotland were keen to promote when they stressed the need for cases to be debated in praesentia dominorum, and compared the judges’ decisions with the opinions held by practitioners in the court. It may have been the same claim that 170

Opera, vol 1(1), f 21. Ibid, vol 1(1), ff 9–10 and 18r; and see too Ullmann 1962. Although it might have been objected further that agreement need not follow knowledge, Bartolus was less concerned with whether people agreed to the introduction of a rule than with whether they agreed that it was right. 172 When Baldus, Commentaria super Decretalibus, f 13v, claimed that the communis opinio doctorum enjoyed the force of custom he supported the same view from a different angle, for if the learning of the schools could be seen as a species of custom, the custom of the courts could be seen as a body of learning. 171

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312 The Restoration Court the judges had at the backs of their minds when they decided that people must be presumed to know what was done publicly in the capital because all Scots were expected ‘to have a Procurator at Edinburgh, as in communi patria’.173 If this tended after all towards a more republican ideology, the same idea had already been taken up in France as another way of emphasising that Paris had replaced Rome as the centre of legal development.174 How far Scots lawyers may have thought along these lines will be examined in the third section of this chapter.

THE SOVEREIGNTY OF THE SESSION

Comparison with the parlement of Paris Around 1673 a retired soldier wrote in Edinburgh a ‘Compendious Comparison of the Lives and Lawes of the Senators of Rome with the Lives and Lawes of the Senators of the Colledge of Justice’, devoting a sonnet to each of the lords of session and in each instance identifying one of ‘Plutarchs Lyves’ that he believed would help to further a comparison of ‘Rom’s worthys with the worthies of our time’.175 Although no more valuable as a guide to the ‘vertues’ of the judges than as poetry, the comparison does at least have the merit of recalling the tendency of Scots lawyers, especially those like Craig and Burnet who had spent years studying in France, to refer to the session as the senatus Edinburgensis and to suggest that its decisions might be regarded as a kind of senatusconsulta. It does not seem at any stage to have been suggested that the session was directly modelled on the Roman senate, but it does seem to have been commonly understood that there was a less direct connection between the two institutions. When James VI and I told his English parliament in 1607 that Roman law had only probable authority in Scotland, as in northern France, he explained that ‘James the fift brought it out of France by establishing the Session there according to the forme of the Court of Parliament of Fraunce, which he had seene in the time of his being there’.176 In the description of the Scottish legal system that was produced for an English audience at about the same time, the writer similarly remarked that the College of Justice ‘was first instituted in the yeare of God 1532 in the dayes of Kinge James the Fifte, his majestes Grandfather, to the example of the Courte of Parliament of Paris’.177 This view of the history of the court was frequently restated as an established fact

173

Stair, Decisions, vol 1, p 316. Olivier-Martin 1925, pp 17–19; Kantorowicz 1957, pp 246–8; Post 1964, pp 388–9. NLS, Adv MS 19.3.45, ff 1–17. Although dated 1678, it is clear from the identity of the judges covered that the poem must have been written between 1672 and 1674 (and as the next chapter will explain, these dates are significant). Plutarch had of course written parallel lives of Roman and Greek worthies, and more specifically had written about Roman senators. 176 Workes of the Most High and Mightie Prince, p 521. 177 ‘Manner of Judicatores’, p 265. The connections between this text and those cited in the preceding and following notes will be examined in the final chapter of this volume. 174 175

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The Sovereignty of the Session 313 during the next fifty years, and even in 1607 it was not without precedent.178 While it may not previously have been believed that the session was directly modelled on the parlement of Paris, it had often been suggested that the session was an example of what the French called a ‘parlement sedentaire’, that such courts were aptly called ‘the Senat of the commoune welth’, and that such courts could pass senatusconsulta.179 In France it seems to have been genuinely believed at the end of the fifteenth century that the parlement of Paris had been created ‘à l’instar du sénat de Rome’, and despite doubts raised by historical scholarship during the sixteenth century the belief was still adhered to by members of the court in the early seventeenth century.180 Much was made of the fact that the first Roman emperor had claimed to be the princeps senatus and no more than primus inter pares, and that later Roman emperors had been prepared to regard the senators as pars corporis nostri.181 The judges of the parlement accordingly claimed to participate in the exercise of sovereign authority, not because they believed that authority had been delegated to them by the king but because they believed that the king’s authority was shared with them.182 In the thirteenth century the parlement of Paris had emerged from the curia regis as a branch of the royal administration with particular but not exclusive responsibility for the resolution of legal problems.183 It had dealt with complaints of injustice sent to the king, had heard appeals from lower courts, and had intervened in disputes heard by other courts where they exceeded their jurisdiction. Its decisions were referred to as arrêts or senatusconsulta to emphasise their finality, for while the parlement was sometimes prepared to rehear cases itself, there could in principle have been no appeal from its decisions.184 Since it exercised the sovereign authority of the crown there was no higher court to review its rulings, nor could it have been objected that its decisions were inconsistent with the law when it had the authority to depart from the law and to determine disputes in accordance with 178 William Camden, Britain, pt 2, p 8; Joan Blaeu, Theatrum orbis terrarum, vol 5, p 28 (translated, www.nls.uk/digitallibrary/map/early/blaeu/921); Macfarlane’s Geographical Collections, vol 2, pp 625 and 638; William Drummond, History of Scotland, p 196; NLS, Adv MS 31.6.19, p 9. 179 David Chalmers, Histoire abrégée, pt 2, ff 7v and 23v; John Leslie, Historie of Scotland, vol 1, p 126; Acts of Sederunt (1790–1811), vol 1, pp 23–4. According to Hannay 1933, pp 22–3, the view that the session was modelled on the parlement of Paris was introduced by George Mackenzie in the late seventeenth century on the strength of a typically superficial reading of the history by Chalmers, who like Leslie had been a lord of session before moving to France after the Reformation. It seems clear that Hannay was mistaken in this respect, and it remains a controversial question whether the view eventually espoused by Mackenzie had any basis in fact. For contrasting opinions see Antonio 1928, p 3; McKechnie 1956a; Smith 1958a, p 25; Smith 1962b, pp 39–40; Phillipson 1990, p 42. On the alternative proposed by Hannay see Stein 1952. 180 Franklin 1973, pp 7–10; Jurmand 1987, pp 55–64; Daubresse 1995, pp 375–9. 181 Res gestae divi Augusti, 1.7 and 6.34; Code, 9.8.5.pr. 182 Krynen 2000, and also 2001. 183 Auzary-Schmaltz and Dauchy 1997, pp 200–02; De Waele 2000, pp 22–9; Harding 2002, pp 160–70. 184 Charles de Grassaille, Regalium Franciae libri duo, pp 116–17; Laurent Bouchel, La bibliotheque ou thresor du droict françois, vol 1, pp 322–3 and 760–61; Franciscus Hotomanus, Francogallia, pp 502–5. In practice decisions were sometimes overturned or suspended by a royal council.

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314 The Restoration Court natural equity.185 It was able to retain the title parlement because no legislative body comparable to the parliaments that emerged in Scotland and England during the thirteenth century ever achieved the same degree of prominence in France. When French kings wished to promulgate legislation they sent their edicts or ordinances to the parlement to be announced publicly and registered in the books of the court.186 The judges took to maintaining that legislation was not valid unless registered by the court, to amending legislation before they gave it effect, and to refusing to register legislation when they considered it unjust or inexpedient. Often they insisted on amending or rejecting legislation that had less to do with private law than with matters of finance, religion or government, assuming that like the senators of Rome they had a general advisory function. They claimed that their experience in practical affairs, together with their expertise in the law, gave them a status above that of the bourgeoisie to which they most obviously belonged.187 They claimed to form a noblesse de robe and sought to rival the noblesse d’épée (with whom they sometimes mingled both professionally and personally) in political prestige, opulent lifestyle and dynastic cohesion.188 It was eventually accepted that individual judges would indeed attain noble rank if their fathers and grandfathers had held judicial office before them, but what was more important at the start of the seventeenth century was their claim to form collectively a senatorial class or fourth estate in the realm. As a body the judges claimed to take precedence over most members of French society, insisting that no other officials could intervene between them and the king on ceremonial occasions, and when a king died they were taken to represent the continuing corpus mysticum of the realm.189 The eventual acceptance by royal officials that individual judges might attain noble rank through inheritance in fact undermined the claims the judges had earlier made to nobility as an automatic consequence of their exemplary virtue and judicial function. The claims they made to sovereignty were undermined more generally by assertions of the rights of kings to rule absolutely, not in the sense of having arbitrary power but of having the sole responsibility to decide how the requirements of their office should be fulfilled.190 French kings had always had the ultimate power to force the judges to register their decrees, which they typically did either by appearing personally in a lit de justice ceremony in the parlement of Paris, or by dispatching lettres de jussion to one of the provincial parlements modelled on the Parisian court.191 In 1641 Louis XIII made use of this power in forcing the judges to recognise that their ability to review and reject legislation was restricted to edicts of a judicial or financial nature and did not extend to edicts of a more political nature, which therefore had to be registered in the records of the 185 186 187 188 189 190 191

The equitable jurisdictions of the parlement and the session will be returned to in the last chapter. Aubert 1894, vol 1, pp 357–64; Carey 1981, pp 9–10; Shennan 1998, pp 159–61. Salmon 1981; Bohanan 1991; Descimon 1997. Salmon 1975, pp 101–12; Roelker 1996, pp 49–58; Shennan 1998, pp 110–47. Kantorowicz 1957, pp 220–21 and 413–19; Giesey 1960, pp 52–61; Bryant 1986, pp 84–92. Durand 1976; Bonney 1987; Mettam 1990. Moote 1971; Hanley 1983; Famiglietti 1983; Holt 1988; Knecht 1993.

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The Sovereignty of the Session 315 courts as soon as they were received.192 Disputes over the scope for discussion of financial edicts gave rise to the series of civil wars known as the Frondes in the late 1640s and early 1650s, during the minority of Louis XIV.193 When the parlement of Paris set about debating financial measures again in 1655 the young king appeared in person and forbade them from doing so, allegedly uttering on this occasion the phrase ‘l’état, c’est moi’.194 The intervention did not have the desired effect, but it did give notice of the intentions that Louis realised more successfully in the 1660s and 1670s, when he limited the authority of the courts by making effective provision for appeals against decisions, by securing the independence of the executive bodies in his administration, and by forcing the judges to register all of his edicts with at most a restricted power of remonstrance.195 It was now insisted that the king alone exercised sovereign authority and that the parlements were ‘superior’ rather than ‘sovereign’ tribunals. How far the parlements ceased in reality to provide an effective constraint on the exercise of royal authority and became instruments of absolute monarchy remains a matter of debate.196 While it had become clearer in theory that sovereignty was undivided and was vested exclusively in the king, Louis continued in practice to pursue his aims by a process of negotiation and compromise with powerful agencies like the nobility and judges. Louis XIV began his personal rule of France in 1661 at the moment when Charles II started his reconstruction of Scottish government. Charles had been living with his mother at St Germaine-en-Laye when the Frondes were sparked off by the parlement of Paris in 1648, he had experienced revolutionary government at first hand when he spent over a year between 1650 and 1651 in Scotland, and he had returned to live with his mother at the Louvre throughout the remainder of the civil wars in France.197 Like Louis he aimed in 1661 to restore order by augmenting the authority of the crown and diminishing the power of his parliament, and to a large extent he succeeded in doing so.198 By the end of the 1660s the earl of Lauderdale was able to assure him that ‘never was King so absolute as you are in poor old Scotland’, for by comparison with the mode of government experienced by Charles himself in the early 1650s and by his father in the 1640s, the Restoration regime did allow the king to rule without much constraint from parliament.199 In contrast to the English parliament, the Scottish parliament followed the European trend in largely emasculating itself in the early 1660s.200 It accepted that it should meet at the times appointed by the king in exercise of his 192

Church 1972, pp 304–9; Knecht 1991, pp 137–8; Shennan 1998, pp 250–52. Briggs 1977, pp 132–40; Bercé 1996, pp 161–78; Sturdy 2004, pp 103–26. 194 Moote 1971, pp 358–60; Hamscher 1976, pp 89–90; Treasure 1995, pp 210–11. 195 Hamscher 1976, pp 119–54; Mettam 1988, pp 258–68; Hurt 2002, pp 17–66. 196 Moote 1969, pp 229–30; Bonney 1989, pp 175–6; Parker 1989, pp 71–2; Hamscher 1991, pp 192–3; Lossky 1994, pp 110–12; Shennan 1998, pp xxxi–xxxii; Treasure 2001, pp 74–5 and 339. 197 Jones 1987, pp 11–32; Miller 1991, pp 1–19; Hutton 1991, pp 15–99. Charles stayed in Paris until 1654 when he moved to the Netherlands. Most of his exile was spent in France. 198 Miller 1990, pp 217–18; Hutton 1991, pp 268–9; Lee 1994, pp 54–5; Lee 1995, p 293–4; Goldie 1996, pp 226–7. 199 Lauderdale Papers, vol 2, p 164. On the experience of the early 1650s see Lee 2003, pp 205–22. 200 Myers 1975; Koenigsberger 1986; Graves 2001. 193

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316 The Restoration Court royal prerogative, that its meetings should be presided over by an officer appointed by the king, and that its business should be directed by a committee of lords of the articles over which the king and his ministers had effective control.201 The king, it was widely believed, was the ‘absolute master’ of his Scottish parliament, which had further accepted that it had no part to play in the selection of officers of state or the conduct of foreign policy.202 The imposition of new taxation did require consent, but this could be sought from an informal convention of the estates, as it was when conventions met between 2 and 4 August 1665, between 9 and 13 January 1667, and between 26 June and 11 July 1678. As these dates reveal, conventions met very briefly, and they dealt with issues of supply alone, for they had no freedom to raise other concerns for discussion.203 The meetings of parliaments were not in fact much longer, and they were intermittent even when a parliament was formally in session. In 1663 Charles was advised that the Restoration parliament had fulfilled its purpose and that it should be dissolved so that the country could ‘returne to the good old forme of government by his Majesties privie councell’, with ‘all sutes at Law to be decided by the Session’.204 After October 1663 he did not call a parliament again until October 1669. When meetings of this second parliament were disrupted by those who sensed a drift towards government ‘formed on a French model’, it was dissolved in March 1674.205 No further parliament met until July 1681. For most of the period covered by Stair’s two volumes of Decisions there was thus no functioning parliament in Scotland, as he pointed out in reporting that the lords of session had reluctantly agreed to give advice on a question referred to them in 1667.206 ‘The Lords demurred long to give their answer’, he recalled, but eventually they came to the conclusion that it would be appropriate for them to give advice on any question of law asked by the king, ‘especially considering that of old Parliaments were frequent in Scotland, and now are but rare; and that the Lords of Council and Session, were the Kings Council to give his Majesty their advice in general Cases’. The belief that the session could be thought of as ‘his Majesties Council, though not his Secret Council’, was restated in another of Stair’s reports in an attempt to elucidate the court’s practice of ‘advocating’ cases from other tribunals.207 Usually, when the lords of session were satisfied that a case was being improperly heard by another tribunal, they would go on to deal with it themselves ‘as competent Judges in the principal Cause, in the first and second instance’, on the ground either that the action ought to have been raised before them in the first place or that they would have had the authority to review it on appeal from the inferior court. Occasionally, however, the lords of session were 201

Rait 1924, pp 380–81 and 399–400; Young 1996, pp 310–12; MacIntosh 2005, pp 164–6. PRO 31/3/122, f 327, and 31/3/124, f 146; Lauderdale Papers, vol 1, pp 134–5 and 173–4; Acts of the Parliaments of Scotland, vol 7, p 449. 203 Rait 1924, pp 163–4; Donaldson 1965, p 287; Lee 1995, pp 197–202. 204 Lauderdale Papers, vol 1, pp 172–4. 205 Burnet, History of His Own Time, vol 1, p 235. 206 Decisions, vol 1, pp 451–2. 207 Ibid, vol 2, pp 511–12. 202

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The Sovereignty of the Session 317 persuaded to call into their hearing a case over which they had no jurisdiction, such as a criminal prosecution, and they would then ‘remit it to the competent Judge’. It was explained in Stair’s report that they had the power to do this because as the branch of the king’s council responsible for the administration of justice they had a supervisory role in the legal system as a whole. Like the parlement of Paris, and like the parliament and the privy council of Scotland, the College of Justice had emerged from the curia regis and consequently had conciliar authority. Like parliament and the privy council, to which some of its members also belonged, the College of Justice exercised administrative and legislative as well as adjudicative powers, as when it issued orders fixing the prices of commodities marketed in Edinburgh.208 In this respect it was also like the parlement of Paris, with which it was directly compared when it agreed to provide the king with advice on proclamations he proposed to make or agreed to register his decrees in their books of sederunt.209 When Stair reminded the privy council in 1680 that ‘the Lords of Session were the King’s Council at law’, and argued that a request for advice from the king should therefore be referred to them, John Lauder expressed the concern that it might prove ‘dangerous to bring up this practice of referring to the Session, and not to a Parliament; for this in process of time may bring them to be adhibite in verifying all the King’s acts and edicts, (as the Parlement at Paris uses to do) and being of the King’s nomination, they will not dare refuse to ratify and interinate them’.210 George Mackenzie similarly remarked, though with no great concern, that the recording of the policy statements received from the king in the books of sederunt ‘was somewhat like the French Custom of verifying in the Parliament of Paris (that is the same with our Session) the Kings Edicts’.211 That Lauder’s concern may not have been groundless is confirmed by the earl of Lauderdale’s notorious pronouncement that ‘the king’s edicts were to be considered, and obeyed as laws, and more than any other laws’.212 There is no evidence that the lords of session ever resisted requests that they register decrees in their books, or made any attempt to amend them before doing so. On the other hand, they were not often asked to register decrees, and when they were the matters dealt with generally related to their particular responsibility for the administration of justice. Furthermore, the lords of session did resist repeated attempts by the king to influence their handling of specific disputes.213 In November 1661 Sir John Gilmour wrote to Lauderdale suggesting that it would be inappropriate for the king to receive petitions from litigants in connection with cases pending before the court. Lauderdale had been asked to convey the king’s sympathy for a petitioner to the judges because Charles was ‘so tender of the colledg of Justice’ 208

See, eg, NAS, CS 1/6/1, pp 45, 99, 121, 152, 185, 207, 222, 243, 271, 290 and 340. See, eg, ibid, pp 78–81, 197–206 and 320–31. 210 Decisions, vol 1, p 113; cf Simpson and Weiner 1989, vol 7, p 1106. 211 Observations on the Acts of Parliament, pp 164–5. 212 Burnet, History of His Own Time, vol 1, p 225; Journals of the House of Commons, vol 9, p 292; Anchitell Grey, Debates in the House of Commons, vol 2, pp 236–40; see too Roberts 1966, pp 189–90, and Miller 1991, pp 176–7. 213 Fifth Miscellany of the Scottish History Society, pp 127–33, 147–8, 187–8 and 190–91. 209

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318 The Restoration Court that he would not himself ‘write any Letters or recommendations in causes depending before them’. In response to Gilmour’s letter Lauderdale assured him that ‘so long as I serv the King you shall finde me more carefull then any of my predecessors were in avoyding recommendatorie letters’, yet scarcely a month later Gilmour felt obliged to answer another letter hinting at how a dispute should be handled. ‘The trust and place I am in obligeth me in all humilitie to say’, he pointed out, ‘that as it is his Majesties just inclinatioun not to interpose in privat processes depending befoir the Session, so in this it may be expected that his Majestie will be pleased to suffer and allow justice to have its owne cours’. A year later another device was employed when Lauderdale mentioned in a letter to Gilmour, who had recently visited London, ‘a command from his Majestie to acquaint you that, althogh he will not recommend busines depending before the Session by letters, yet he is sorie he did [not] tell you himself how great a value he hath for my Lady Carnegie, and that he did not particularly recommend her concerns to you as much as stands with justice’. By 1666 Lauderdale felt justified in observing that in his time as secretary of state for Scotland he had sent very few letters relating to business before the session, at least by comparison with the ‘multitudes of letters in the registers of my predecessors in this office’. Nevertheless, pressure was brought to bear on the lords of session and was resisted by them throughout the 1660s and 1670s. When the court had to resist a demand from the king to have the papers in one case sent to London in 1677, John Lauder declared the demand ‘a sore wipe upon the Lords’ and noted that to most lawyers it seemed ‘20 tymes worse than Almond’s appeall from them to the Parliament’.214 By Almond’s appeal Lauder meant an attempt three years earlier to have a case that was being heard by the judges reconsidered by the parliament that was then formally in session though not actually meeting.215 The advocates involved maintained that the parliament had ‘not only a legislative power, but a judicial and judicative power’, that the judicial power of the parliament was ‘supreme, and the Session subordinate to the same’, and that therefore ‘the Parliament, if they find just cause, may rescind decreets of the Session’.216 The judges warned that ‘by this appeal the sovereign court for civil causes is quite overthrown’, drew Charles’ attention more generally to ‘the dangerous consequences which would ensue if litigious persons, not acquiescing in the sentences of this judicatorie as ultimate decisions, should offer such appeales’, and managed to insinuate that the advocates’ underlying aim was to open up the possibility of appeals ‘that so there might be a necessity of frequent parliaments’.217 Charles was persuaded to declare it vital ‘that the honour and authority of our College of Justice be inviolably preserved, and that there be an entire confidence in, and deference to, all the decreets and 214

Historical Notices, vol 1, pp 131–2. This incident, which interrupted the court’s proceedings for over a year, is examined in some detail in Mackay 1873, pp 113–20; Simpson 1974, pp 171–6; Lee 1995, pp 242–5 and 254–6. 216 Mackenzie, Memoirs, pp 280–93. 217 BL, Harleian MS 4631(1), f 113, and Add MS 23136, f 81; Burnet, History of His Own Time, vol 1, p 246. 215

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The Sovereignty of the Session 319 sentences thereof’, and to promise that ‘we will constantly maintain our authority exercised in that Court against all incroachments, indignities and reproaches that may be attempted against the same, or against any of the Lords of Session, whom we shall always cause to be held in special honour, as these who represent our person, and bear our authority’.218 Similar language had been used a few years earlier when the judges had found it necessary to protest against attempts by the provost of Edinburgh to push himself ahead of them on ceremonial occasions.219 They had determined to defend the authority conferred upon them ‘by his Majestie as representing his persone (so sayes our law) in ane universall jurisdiction over all inferior judges within the kingdome, being, under his Majestie, the supreme judicatory in all civill causes’. They had decided to ‘affirme and assert that their place did entitle them to have the precedencie befoir all persones, magistratis and judges within the kingdome under the degree of Lords of the Clergie and nobilitie’, pointing out that everyone apart from the bishops and peers had to ‘stand befoir thame in judgement uncovered’ and that they were themselves entitled ‘with the honor of Lordis of his Majesties Counsell and Session or Lords of Session’. If it seemed strange to some observers that the judges should rank ahead of everyone ‘except the Lords of Parliament and their eldest Sons’, it was at least appreciated that in this they were like ‘the Senators of the Parliament of Paris’.220 The lords of session were clearly believed to be comparable in many respects to the judges of the parlements and therefore to the senators of ancient Rome.221 They were called ‘the worthies of our time’ and compared with the Roman senators because like the noblesse de robe in France they had earned high status by serving with distinction in the central administration.222 They were understood to represent the king’s person in the administration of justice, to exercise his sovereign authority in adjudication and to be his advisory council on questions of law. They advised the king on the legality of policies he wished to pursue, they advised him in particular about proclamations he proposed to make, and they were sometimes themselves invited to propose legislation for enactment by parliament.223 On occasions like these they could have been taken to resemble Roman senators on the republican model hinted at by Craig when he talked of matters being referred by the session ad comitia. As was noted in the last chapter, the technical position 218

Mackenzie, Memoirs, p 270. Cf Acts of the Parliaments of Scotland, vol 7, pp 240 and 250. Report on the Laing Manuscripts, vol 1, pp 345–7. 220 Mackenzie, Observations upon the Laws and Customs of Nations, as to Precedency, pp 37–8. 221 The obvious comparison was with the judges of the parlement of Paris, though given the belief that the session had been modelled on the Parisian court a more exact comparison might have been with the judges of one of the provincial parlements, which like the session tended to have fewer than the hundred members originally appointed in Paris after the example, it was supposed, of the senators of Rome. For Scots who were known to have served in provincial parlements see the Register of the Great Seal, vol 9, pp 254–6 and 354, and Jean Chenu, Cent notables et singulieres questions, p 64. 222 This is not to say that the lords of session actually formed a noblesse de robe. With the exception of individual judges like Stair who were raised to the peerage they held only courtesy titles, and efforts to treat judicial offices as heritable—exemplified by Spotiswoode’s father’s resignation of his place in favour of his son—were generally thwarted. See Goodare 1999, pp 88–9. 223 BL, Add MS 23132, ff 80 and 170; Lauderdale Papers, vol 2, pp 172–3; Fifth Miscellany of the Scottish History Society, pp 137–9 and 148–57. 219

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320 The Restoration Court in republican Rome was that the senate gave advice which only became legally binding if it was ratified by one of the legislative assemblies.224 These assemblies, however, were not able to initiate legislation themselves, and the concern of educated lawyers like Lauder during the 1660s and 1670s could well have been that the Scottish parliaments were effectively being reduced to the level of assemblies that could do little more than accept or reject proposals put to them. When the Restoration parliament appointed a committee of lords of the articles ‘to consider and advise upon all such articles, proposalls, overtures, acts or lawes as they shall conceave necessary to be past’, it appointed another committee ‘for hearing of private complaints betwixt parties’.225 It was this latter committee for bills and complaints that dealt mostly with judicial business in the six months before the lords of session resumed their sittings in the summer of 1661, but sometimes proposals relating to disputed cases were received from the lords of the articles, who had also been given instructions for ‘heareing of all processe and indictments that are or shall be depending befor the Parliament’, just as other proposals were sometimes received from the committee for bills and complaints, which had also been given instructions for ‘prepareing of overtures for advanceing of tread, navigation and manufactories’. Having resumed their sittings against this background, the lords of session would have had good reason to compare themselves with republican senators and to regard their decisions as senatusconsulta which were in some way connected with the legislative process. However, when French judges claimed, as Bernard de la Roche Flavin did in a huge summation of their thinking published in 1617, that they ‘ressemblent un vray Sénat Romain’, the comparison they had in mind was with the senators with whom the wiser emperors had been prepared to share their imperium.226 Following the collapse of the Roman republic, senatusconsulta had come to be treated as a direct form of legislation, perhaps because with the withering away of the comitia the senate alone had appeared to represent the people, or perhaps because the senate had emerged as a body through which the early emperors found it convenient to exercise their sovereign authority.227 A central claim made by the French judges was that they not only provided advice on legislation but participated directly in the legislative process when they registered the edicts and ordinances of the kings in their books.228 It was feared in some quarters that the Scottish judges were beginning to develop a similar practice, and that in doing so they might enable Charles II to rule Scotland in the way that Louis XIV was trying to rule France. But in fact the lords of session showed little interest in this kind of direct participation in the legislative process. They were less interested in claiming to share sovereignty with the king than in asserting the right to exercise his sover224

Jolowicz and Nicholas 1972, pp 17–45; Watson 1974, pp 6–30; Lintott 1999, pp 40–93. Acts of the Parliaments of Scotland, vol 7, pp 8–9, and app, pp 5–7 and 11–32. 226 Treze livres des parlemens de France, pp 30, 701, 709–10 and 724. For De la Roche Flavin and his work see Franklin 1973, p 19; Popoff 1996, pp 847–8; Roelker 1996, p 40. 227 Jolowicz and Nicholas 1972, pp 363–5; Schiller 1978, pp 458–62; Talbert 1984, pp 432–5. 228 On what this should and should not be taken to mean see Daubresse 2005, pp 65–6. 225

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The Sovereignty of the Session 321 eignty in the administration of justice, free from interference by other courts, parliament or the king himself. Their claim was to deliver sovereign decisions in the sense of decisions that were immune from review elsewhere. The French judges had also made this claim in the sixteenth and early seventeenth centuries, when they had identified other ways in which a bold statement found in the Digest that ‘the senate can make law’ was open to appropriation.229 De la Roche Flavin pointed out that ‘the parlements had at all times the authority to declare, interpret, modify and restrain the edicts and ordinances of our kings’, and that ‘the parlements could make regulations concerning acts of justice’. If the lords of session showed little interest in scrutinising royal decrees, what does need closer investigation here is the possibility that they sought to exercise the sovereignty of the king in their handling of acts of parliament or in their regulation of litigation.

Parliamentary legislation and the law Stair reported several cases in which the relationship between statutes, decisions and customs was considered. In one case the court assessed the impact of a body of legislation dating back to the thirteenth century.230 Landowners on the upper reaches of the river Don had raised an action complaining that their interests in salmon fishing were being impaired by landowners in Aberdeen who were using traps to catch fish as they swam upstream. After it was established that the defenders were entitled to fish for salmon with traps called cruives, the dispute centred on how this could be done. Cruives were boxes fitted between walls built into the river, with folding doors at the front that fish could push through from the outside alone and with grates at the back that only small fish could pass through.231 To protect the rights of other fishermen it had been enacted repeatedly that the grates must be at least three inches wide, that the cruives should be left open for a day every weekend, and that a gap must be left between the walls in the midstream of the river.232 In the case reported by Stair it was pointed out that one act required the grates in cruives to be at least five inches wide, but the judges took this to be an error, ‘seing otherwayes five Inch would let the greatest part of Salmond passe’, and after further deliberation they ‘ordained the distance of the Hecks to be three Inch Scots measure’. They also held that ‘Saturndays Slop’, the practice of leaving cruives open every weekend, remained a legal requirement, but they were less clear about ‘the Liberty of the Midlestream’.233 The defenders had argued that ‘the old Acts anent the midle Stream were wholly in desuetude’, as an act passed in the 229

Digest, 1.3.9 (translation altered). Stair, Decisions, vol 1, pp 255–6 and 305. 231 Stewart 1892, pp 189–200; Tait 1928, pp 171–3; Scott Robinson 1990, pp 99–103. 232 Acts of the Parliaments of Scotland, vol 2, pp 5, 51, 96–7, 119, 211, 221, 345 and 537–8, vol 3, pp 147 and 217–18, and vol 7, p 292; Balfour, Practicks, vol 2, p 544. 233 The prosaic requirement in the later acts that there be a five-foot gap between the walls had replaced the more intriguing insistence that there be enough space to allow a well-fed pig to be turned around without touching the walls. 230

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322 The Restoration Court reign of James VI had recognised by referring to Saturday’s slop without mentioning the midstream rule, but the pursuers had replied that ‘albeit the desuetude of such Laws could be effectual’, in this instance another act had been passed by the Restoration parliament reviving them. The lords of session, accepting that the latest act had been passed for the benefit of the pursuers and without public notice, invited the parties to present witnesses who would know ‘whether the midlestream was accustomed in any Cruives in Scotland’, and who might also advise on ‘whether the same would be beneficial, or hurtful to the Salmond Fishing of the Kingdom, in general, and whether it were destructive to the Cruives in Common’. After taking evidence the court confirmed that the only requirements were to have three-inch gaps in grates and to leave cruives open on Saturday nights. If nothing else this report shows that the lords of session were still willing to decide that statutory provisions had been deprived of effect by popular usage, and it may be thought to show rather more. It may be thought to show that the lords of session were willing to regulate practices in the way that parliament might have done, by receiving expert evidence on what would be in the public interest and by laying down—the term used was ordaining—clear rules to be observed by all those engaged in the activity.234 Their willingness to regulate activities where parliament failed to do so was illustrated by another of Stair’s reports.235 The archbishop of Glasgow had raised an action for a declarator that the local commissary should either reside in the city and attend to the business of his court personally or be deprived of office. The archbishop had argued that personal residence and attendance were required by injunctions issued in 1610 under authority granted to the bishops in 1609, when an act of parliament had made them responsible for the operation of the commissary courts.236 The defender replied that it was unclear whether the injunctions had been issued under parliamentary authority and that even if they had been they were now ‘in desuetude, because ever since, all Commissars have enjoyed their place with power of Deputation, and exercised the same accordingly’, as indeed it was ‘most necessar’ for them to do. The archbishop insisted that the injunctions ‘were commonly received and known through all the Kingdom’, and that although not all commissaries adhered to them, ‘seing there is no contrair Decision, they cannot go in desuetude by meer none observance’.237 He also told the judges that after resuming their responsibility for the commissary courts in 1662, the bishops had sent a revised version of the injunctions to the king who had ‘Signed and Approven the same, which therefore Revived them’. The lords of session found that as the defender had acted in accordance with the practice of other commissaries he ‘was in bona fide’ and should not be deprived of office, ‘but as to the future, they found that he ought to reside, and make use of no 234 NAS, GD 16/27/111 and 115, indicates that other landowners with interests in salmon fishing took an interest in the case. 235 Stair, Decisions, vol 1, pp 363–5. See too Muirhead 1948, p 22. 236 Acts of the Parliaments of Scotland, vol 4, p 430; Balfour, Practicks, vol 2, pp 664–8. 237 The injunctions were certainly well known, for many copies have survived. See, eg, NLS, Adv MSS 25.2.3, ff 18–19, and 25.5.3, ff 141–7, and MS 2933, ff 2–5; GUL, Gen 1470, pp 1–6.

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The Sovereignty of the Session 323 Deputs, without the consent of the Archbishop’. By this they did not mean that the defender could be excused for failing to comply with the injunctions in the past because he knew nothing about them, for it was accepted that the injunctions had been drawn to his attention. Rather, they meant that because the injunctions had fallen into desuetude no provision could be binding ‘till it was declared’ to be revived. They were themselves willing to declare provisions binding in their own decisions if it could be shown that the practice of the commissary courts would be improved by them, but six days later they were presented with a copy of the injunctions, revised by Baird and Nisbet as former commissaries and signed by the king, which they agreed to record in their books of sederunt.238 No attempt was ever made to have the injunctions ratified by parliament. In other cases reported by Stair the lords of session decided that acts of parliament were no longer ‘in constant custom’ or that they continued ‘to stand in vigour’, and on one occasion they even found that an act remained effective when it had been repealed by parliament.239 Another case related to an act passed in 1600 requiring fifteen days’ notice to be given to debtors who lived north of the river Dee before they were put to the horn.240 When an Aberdeenshire debtor complained that he had received only six days’ notice it was replied that the purpose of the act was to ensure that those living at a distance from Edinburgh had sufficient time to respond, that in the circumstances of the case the debtor had received sufficient time, and that it had been expressly agreed by the parties that only six days’ notice need be provided.241 The judges were urged to take account of this standard term in the contract on the assumption that ‘consuetudo [est] optima legum interpres; for immediately after that Statute, and till this time, such Hornings have been accustomed, and never found null’.242 The court found ‘the Act of Parliament 1600 to be cleared by subsequent consuetude not to extend to Hornings upon Clauses of Registration upon consent’, though whether this was really to refuse to extend the terms of the act beyond their literal meaning or was to declare the act to be partly in desuetude was open to doubt. The creditor quite reasonably objected that the court was allowing people to dispense with the law by private agreement, contrary to the civilian principle that pactis privatorum non derogatur iure communi.243 A later case raised similar doubts in relation to a 1540 act aimed at eradicating, among other fraudulent devices, ‘the new Inventit craft of falsett committit and done dalie be thame that sellis bare landis’.244 The point was that a landowner could convey his property to someone else either by resigning the feu to his superior, who would then confirm the new vassal in possession, 238 NAS, CS 1/6/1, pp 197–206; Acts of Sederunt (1740), pp 61–9; Acts of Sederunt (1790–1811), vol 1, pp 94–101. This version of the injunctions was also widely copied, as for example in NLS, Adv MS 81.1.1 and MS 3060; EUL, La III 421. 239 Stair, Decisions, vol 1, p 511, and vol 2, pp 472–3 and 844–5. 240 Acts of the Parliaments of Scotland, vol 4, p 239. 241 Stair, Decisions, vol 2, pp 306–7. 242 Digest, 1.3.37. 243 Code, 2.3.6; Digest, 2.14.7.16, 2.14.28.pr, 2.14.38 and 50.17.45.1. 244 Acts of the Parliaments of Scotland, vol 2, p 375.

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324 The Restoration Court or by granting a feu to the vassal while himself remaining in place as an intermediate superior. The former method was of necessity known to other people and so was called public infeftment, but the latter need not have been known to anyone other than the two parties to the conveyance, at least until the land was openly occupied, and so was called private, bare or base infeftment. In 1540 the concern was that some landowners were conveying their property twice, first privately— perhaps to a friend or relation—then publicly—to an innocent purchaser for value who was liable to action by the first recipient. To stop this happening it was enacted that anyone who acquired land publicly and possessed it for a year and a day could not be dispossessed by anyone with only a private and base title. In the case reported by Stair the lords of session were persuaded that private and base infeftments had proved to be ‘so odious and unfavourable’ that the condition of possession for over a year had been ‘dispensed with’ by ‘custom and the inviolable Practick’.245 A statutory provision had fallen into desuetude, but it was the language of statutory interpretation that was used to explain why the court was not strictly bound by the terms of the act.246 In a previous case the language of statutory interpretation had been used to explain why the court was on the contrary strictly bound by the terms of the 1540 act.247 Land had been granted subject to a guarantee that if the title proved to be defective another estate could be occupied instead. The title to the former estate, ‘the principal Lands’, had turned out to be defective, but not until the latter estate, ‘the Warrandice Lands’, had been conveyed to someone else by public infeftment. When it was argued that the act of 1540 gave this public infeftment priority over the earlier base infeftment, it was answered that the act had been ‘correctory of the Common Law, and Feudal Custom, which by the Act it self, appears then to have been constant, and is only altered by the Statute upon the presumption of Fraud’. It was clear from the act itself that under the common law there had been two ways in which land might be conveyed and that the general rule had been that any prior infeftment would prevail over a later grant. This general rule had been altered to prevent fraud, which the court accepted was not likely to be an issue where principal and warrandice lands were granted together. The court therefor found ‘this base Infeftment of Warrandice valid against the posterior publick Infeftment’, evidently applying the rule of statutory interpretation that acts should be narrowly construed when they contradicted the common law. In the later action it was claimed to be ‘the Opinion of our Lawyers’ that infeftments of warrandice lands were ‘a special Case’, but there was certainly nothing special about the argument that ‘this Statute being Correctory of the Common Law, is strictly to be interpret, and not to be extended’, or that a statute ‘being a Correctory Law, is not to be extended de casu in casum, but is strictissimi iuris’.248 Sometimes the point was more 245

Stair, Decisions, vol 2, pp 527–31. For another example of a provision that was ‘by positive Law, and odious’, see ibid, vol 1, p 284. 247 Ibid, vol 1, pp 335–6. 248 Ibid, vol 1, pp 763–4, and vol 2, pp 568–71 (and see too pp 338–9, where it was again argued that an act ‘being against the common Law, is not to be extended’). 246

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The Sovereignty of the Session 325 simply made that an act ‘being a new statute’ or constituting ius novum must be narrowly construed, and it was a short step from this to the general assertion that ‘Statutes are stricti iuris, not to be extended to like Cases’.249 One advocate told the court that ‘Statutes can neither be restricted nor amplified a paritate rationis, but are strictissimi iuris, which is a known principle’, while according to another ‘the meaning of Acts of Parliament, may not be extended contrair to the words, neither can any thing be supplyed that is omitted in a Statutory Act’.250 ‘Statutes are stricti iuris’, it was explained elsewhere, ‘and parity of Reason cannot extend them to like Cases, for that were to give a Legislative Authority to the Lords’.251 Although frequently advanced, however, these arguments were by no means always accepted by the lords of session. When it was argued in one case that ‘Statutes being stricti iuris, the Lords cannot extend them beyond their Sense to like cases’, the court preferred to accept the answer that it ‘always did, and might Explain, and Extend Acts of Parliament to Cases implyed, and consequent, albeit not verbatim exprest’.252 The court similarly accepted the argument advanced in one of the cases already mentioned (in language that does not appear to have been used before the Interregnum) that ‘that interpretation should be ever followed, which is according to Equity, and whereby the Statute may stand, and not be eluded’.253 When it was argued in the last case reported by Stair that ‘Statutes are stricti iuris, and cannot be extended ad similes casus’, the court preferred to accept the response that ‘the Lords, and all Sovereign Judicatories, may and ought to declare, that non licet fraudem facere legi’.254 The allusion here was to the concept of fraud on a statute introduced by texts preserved in the Digest, where it was advised that anyone who ‘sticks to the words of the law but evades its sense’, or who ‘does that which the statute does not wish anyone to do, yet which it has failed expressly to prohibit’, should be held to have contravened the statute.255 In following this advice judges endeavoured to give effect to the underlying purposes of statutes, as other texts in the Digest encouraged them to do, for instance in providing that where it was clear how the legislator would have dealt with an omitted case the judge ‘ought to proceed by analogical reasoning and declare the law accordingly’. On the other hand, there were constitutions both at the start of the Digest and in the Code providing that it was for the emperors alone ‘to consider an interpretation interposed between equity and law’, and that doubtful points must be ‘referred by judges to the very summit of the empire and made clear by the imperial authority, to which alone it is granted both to create laws and to interpret them’.256 One way of trying to reconcile these texts was to distinguish between the function of the judge in identifying and implementing the intentions of the 249 250 251 252 253 254 255 256

Ibid, vol 1, pp 540–41, and vol 2, pp 531 and 734–6. Ibid, vol 1, p 472, and vol 2, pp 796–8. Ibid, vol 2, p 178. Ibid, vol 1, p 576. Ibid, vol 1, pp 763–4. Ibid, vol 2, pp 895–6. Digest, 1.3.29–30, and for the example that follows 1.3.12. Constitutio Tanta, 21; Code, 1.14.1 and 12.

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326 The Restoration Court legislator, even when imperfectly expressed, and the function of the legislator either in making new law or in extending existing law to cover new cases.257 If the extension of an enactment to cover new cases was taken to involve the exercise of legislative authority then judges could only have indulged in interpretation of this kind on the assumption that legislative authority had been delegated to them. A more plausible explanation of the confusion is that the jurists whose works were excerpted in the Digest drew no clear distinction between the exercise of legislative authority by the emperor and either their own exercise of learned authority or the manifestation of popular consent in the form of customary law.258 When the lords of session were urged by advocates to extend acts of parliament to cover cases that did not clearly come within their terms, or for that matter when they were urged to exclude cases that clearly were covered, they were generally told either that they would be implementing the unstated intentions of the legislator or that they would be acting with the tacit consent of the people. At times the intentions imputed to the legislator appeared to owe less to the reading of the parliamentary record than to the court’s understanding of how the area of law affected might best be developed, and here it might have made more sense to talk openly of the exercise of ‘Legislative Authority’ by ‘Sovereign Judicatories’. At times the intentions of the legislator were blatantly overridden on the strength of popular custom, as when the act giving priority to public infeftments was extended to cover cases brought within a year of acquisition, or when the act requiring fifteen days’ notice of horning was held to exclude cases in which the parties had agreed on a shorter period. Custom was said here to be the best interpreter of statutes, though it might have been more accurate to say that the acts had fallen partly into desuetude, in the same way that many acts had been dispensed with in particular baronies, burghs and tribunals through adherence to a contrary custom. Acts were also found to be wholly in desuetude, and there is no doubt that, despite the objections raised by some authors and advocates, the theory that law could arise from the tacit consent of the people continued to influence the decisions of the session. No act of parliament or royal decree would have been given effect until it had been drawn to the attention of the people, and even then it would have been deprived of effect if it had been rejected by the people. Acts that appeared from the parliamentary record to be in force often had no effect, while others had an effect that was scarcely warranted by the record. To understand the statutory law of Scotland it was necessary to explore the records and reports of the session, for it was in the decisions of the court that acts of parliament were effectively registered as being in force, just as royal decrees could be registered as being in force in the books of the court. The authority of the acts and decrees both descended from the legislator and ascended from the people, but it could also have derived to a significant degree from the judges.259 When the lords of session found that an act of parliament had 257

Jolowicz 1957, pp 9–11; Vinogradoff 1968, pp 67–8; Schiller 1971, pp 739–40 and 742–4. See further Digest, 1.3.14–15 and 17–19. 259 For the distinction between theories of the descent or ascent of authority see Ullmann 1966, pp 20–1. For a Scottish theory combining both to which Stair subscribed see Ford 1990 and 1994. 258

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The Sovereignty of the Session 327 been rejected by the people, they often concluded that it should not have been. They did not then deny that the custom existed or insist that the act was in force, but rather gave effect to the custom in the case before them while declaring that they would not do so in future cases, generally after taking advice on whether the statutory or customary provision at issue was in the public interest. In these cases they seem to have assumed that they had legislative authority of their own.

Judicial regulation and the law The contrary view that the judges were not entitled to legislate was frequently stated. As early as 1428 a Scottish king had persuaded the estates assembled in parliament to decree that ‘na man interprete his statutis uthirwayis than the statutis beris, and to the entent and effec thai war maid of, ande as the makars of thaim undirstude’.260 Balfour included this act in the practicks he compiled in the late sixteenth century, together with a report of a case decided in 1469 in which it was said that ‘gif any question 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’.261 It was for parliament to indicate ‘how the said questioun, and all uther materis siclike, sould be decydit and reullit in time to cum’, because ‘na jugeis within this realme hes powar to mak any lawis or statutis, except the parliament allanerlie’. Both these passages were later reproduced by Hope in his major practicks, and they may have affected the decision mentioned by Craig in which the senatus had referred a question ad comitia regni publica ‘lest it should appear to arrogate anything to itself in a new matter’.262 Gibson reported a decision delivered in 1636 in which the judges held that ‘their Power reached not safely to them to make any new Law, where there was no Practique thereanent before’.263 A superior had argued that he should not have to receive as his vassal a creditor to whom land had been adjudged unless he first paid a fee of a year’s feu duty, as he would have been required to do by statute had he acquired the land by comprising.264 The lords of session had agreed that the similarity between comprising and adjudication was undeniable, but since an act on adjudication had been passed on the same day as the act on comprising without requiring payment of a fee, they had been unable to see how such a requirement could be read into the act. Here, as on an earlier occasion, they had found it tempting to extend an act beyond its terms, ‘yet the Tenor thereof being so specifick’ they had concluded that this could be done only ‘by Ordinance of the Estates’.265 That they might in different circumstances have 260

Acts of the Parliaments of Scotland, vol 2, p 16. Practicks, vol 1, pp 1–3. 262 Hope’s Major Practicks, vol 1, p 1; Craig, Ius feudale, p 67; Cairns, Fergus and MacQueen 1990, pp 65–6. See too NAS, GD 406/54. 263 Decisions, p 819. 264 Acts of the Parliaments of Scotland, vol 4, pp 609–10. 265 Decisions, p 593. 261

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328 The Restoration Court construed the act more freely was clear from several other decisions reported by Gibson.266 In 1637, for instance, an act providing that ‘obligationes’ would prescribe after forty years was extended to cover a ‘decreet’ obtained in 1583.267 According to Gibson, when the lords of session delivered their decision in this case they ‘Declared that they would observe this, and the like Decision in all time coming, when the like question of Prescription should be obtruded against Decreets’. Several other decisions he reported involved similar declarations of intent, which were often stated in terms reminiscent of the ruling in 1469 that it was the business of parliament to issue a ‘declaratioun’ explaining how any ‘questioun, and all uther materis siclike, sould be decydit and reullit in time to cum’.268 Thus in one case ‘the Lords declared, that they would keep this Decision thereafter in all like Cases, whensoever any should occur’, while in another ‘the Lords declared in time coming they would decide, where the like question occurred, conform to the last Decision’. As John Gilmour’s reports indicate, similar declarations were made in the early years of the Restoration court.269 In January 1662 a declaration was issued after a case in which the apparent heir to one heavily indebted nobleman granted a collusive bond to another so that the estate could be acquired by adjudication and returned to him, thus enabling him to hold the estate by a new title and to renounce his inheritance. When the father’s creditors objected, it was found that the heir had done nothing illegal and did not have to accept liability for the debts, but the judges declared that ‘in time coming’ they would hold any apparent heir who used the same device liable, and they ordered a statement to this effect to be recorded in their books of sederunt and published at the market cross of Edinburgh.270 Later in the same month they dealt with a case in which one of three sisters appointed as executors in their brother’s will had died before the administration of his movable estate was completed. The Interregnum court had found that the heir of the deceased executor was entitled to her share of the estate, to which it was objected that by ‘the confirmed and constant tenet and custom’ her share should have passed to her sisters. The lords of session accepted that the decision of the English judges was supported by ‘Reason and Justice’, declined to exercise their statutory power to reverse the ruling, ‘and Declared they would decide just so in time coming’. When John Baird started to report cases three years later he too noted that in issuing decisions the lords of session sometimes ‘declared they would judge so in all time coming’, and that in one case, in which they had held that anyone who acted as a tutor should be liable in the same way as a tutor, they had reinforced the decision by confirming their intention in their books of sederunt.271 These practices were given particular prominence in the reports Peter Wedderburn began to compile after another three years. He often noted that in 266

Decisions, pp 229–30, 236, 297–8, 365, 467, 502, 574–5, 744–5, 755 and 854–5. Acts of the Parliaments of Scotland, vol 2, p 95. 268 See, eg, Gibson, Decisions, pp 28, 68, 98, 149, 163, 172, 195, 287, 477, 556, 629 and 837. See too Acts of the Parliaments of Scotland, vol 3, pp 162–3. 269 Gilmour, Decisions, pp 16–17, 21 and 70–1. 270 Acts of Sederunt (1740), pp 48–9. 271 GUL, Gen 1262, pp 27, 36, 72 and 235–6; Acts of Sederunt (1740), pp 60–1. 267

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The Sovereignty of the Session 329 giving a ruling the lords had ‘declared they would do so in all such cases’, and less often he noted that they had confirmed their intention ‘as to the future by an act of sederunt’, as in the case in which they criticised the practice of permitting debtors to leave burgh prisons.272 In one case he reported that ‘the lords declared they would make this decision a practique for the future in all such cases’, in others he reported that they had come to a decision ‘having considered this case as of a general consequence and to be a practique for the future’, or after ‘resolving to make it a practique and to be a leading case’, and in many others he reported that the judges had consciously decided ‘a generall case’ or ‘a leading case’.273 The practice of declaring how questions would be answered in future cases was also followed by the judges of the parlements.274 It was believed in France to be one of the prerogatives of a sovereign court to declare that a ruling would be retentum in mente curiae and would ‘serve as a law’ to govern the determination of similar disputes. A declaration of this type was often preceded by a process of consultation among judges representing the different chambers into which the parlements were divided, and even where no declaration was made particular value was attached to decisions delivered after consultation. More value still was attached to decisions formally pronounced on the eve of feast days by the presidents of the courts, dressed in red robes symbolising the senatorial status they shared with the king.275 Some reporters inserted annotations in the margins of their books drawing attention to the decisions ‘prononcés en robbes rouges’. Jean Chenu, for example, marked sixteen of the hundred arrests memorables he reported in this way, while Barnabé le Vest pointed out that twenty-three of the two hundred and thirty-seven arrests celebres et memorables handled in his book had been delivered en rouge.276 Several other reporters devoted their books entirely to decisions delivered in this fashion, ‘to the end that no one may pretend ignorance’, often going into great detail. Guillaume du Vair, for example, spent almost four hundred pages in reporting just five Arrests sur quelques questions notables prononcez en robbe rouge au parlement de Provence, while Antoine de Lestang devoted twice as much space to reporting eleven Arrêts de la cour de parlement de Tolose prononcés en robe rouge. Jacques de Montholon, who drew from the records of a variety of courts in reporting a large number of these cases more briefly, explained that he was dealing with ‘rulings the court selects and recognises as having to make law for the resolution of the issues determined by them’.277 Of the many decisions delivered, he explained, most were too bound up with the circumstances of the disputes they 272 NLS, Adv MS 24.1.12, ff 69, 70v–1r, 117v, 131v–3r, 134r, 136r, 142v–3r, 154r and 254; Acts of Sederunt (1740), pp 73–4. 273 NLS, Adv MS 24.1.12, ff 81–2, 100, 102r, 106v, 114r, 144r, 148r, 151, 156r, 158v–60v, 166r, 216, 224r–6r, 236r, 260, 271r, 287v, 309v, 312, 327r, 331v–2r, 338v, 339v, 366r, 377v and 354(a)r. 274 Filhol 1937, pp 174–5; Dawson 1968, pp 210–14; Beignier 1989, pp 45–8. 275 Laurent Bouchel, La bibliotheque ou thresor du droict françois, vol 2, p 911; Giesey 1960, pp 56–7; Bryant 1986, pp 85–6. For a not entirely convincing account of the attire of Scottish judges and its possible connection with the French model see Hargreaves-Mawdsley 1963, pp 94–102. 276 For another example see Jean Bouguier, Arrests de la cour decisifs de diverses questions, pp 1, 50, 65, 99, 135, 154, 222, 323, 341, 343, 380, 393, 399, 410 and 436. 277 De Montholon, Arrests de la cour prononcez en robbes rouges, sigg A2r–3r.

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330 The Restoration Court arose from to be of much future interest, but some disputes gave rise to more abstract questions and so to decisions of wider relevance. It was these ‘arrests generaux’ that the presidents of the courts were inclined to bring to the attention of lawyers so that they might be observed as ‘regles, loix, & maximes au Palais’. It was the decisions they selected that reporters like Jean Papon were thinking of when they remarked that the decisions of the sovereign courts could in certain circumstances serve ‘pour loy certaine’.278 As another author pointed out, it was these decisions especially that justified the application to French law of the statement that ‘the senate can make law’.279 He also took care to distinguish between decisions made in general cases and those made in more circumstantial cases, though he believed that even the latter could sometimes have value as precedents. It has been suggested that there was some similarity between the French practice of making formal pronouncements of general rulings and the English practice of issuing judicial resolutions on general points of law, particularly after consultation among the judges of the different benches of the royal courts in the exchequer chamber, as had happened in the postnati case referred to earlier.280 The exchequer chamber was not itself a court but a forum for discussion of important questions raised by cases heard in the courts. A decision reached in the exchequer chamber had no effect until it was delivered by the court hearing the case, yet it was believed that a resolution of all the judges would govern the handling of similar cases in the future. It has been suggested further that in Ireland during the first half of the seventeenth century resolutions were often issued after consultation among the English judges as a way of drawing the local customs into line with the common law.281 There is no evidence, however, of a similar practice being adopted by the English judges in Scotland during the 1650s, though the practice of taking advice on important questions from all the judges in the inner house may have seemed reminiscent of the referral of questions to the exchequer chamber.282 It is of course possible that the judges of the Interregnum court issued declarations or resolutions that were unrecorded, for declarations were not an integral part of decreets and those made could have been ignored by the only reporter of the court’s decisions. Yet it could well be that the judges of the court were averse to making declarations of this sort, given that questions were known to have been sent to the exchequer chamber when the king was dissatisfied with the position taken in parliament, as in the postnati case, or when the king had wished to avoid summoning parliament, as in the notorious ship money case.283 As successive attempts at parliamentary government failed during the 1650s, with ordinances increasingly taking the place of acts of parliament and with the republican constitution giving way to the rule of a gradually more regal protector, it may have seemed 278 279 280 281 282 283

Recueil d’arrests notables, sigg E3v–4. Nouveau dictionaire civil et canonique de droit et de pratique, p 101. Dawson 1968, pp 60–2 and 69–72; Abbott 1973, pp 177–83; Jones 1971, pp 49–52. Pawlisch 1985, pp 42–51. The difference was, of course, that decisions were actually made in the inner house. Stuart Constitution, pp 109–17.

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The Sovereignty of the Session 331 ideologically suspect to the judges in Scotland to participate in a practice that appeared to have facilitated government without recourse to parliament. In an earlier chapter it was seen that the judges were reluctant to take the initiative in reforming the law on the recovery of unpaid debts, despite the strong encouragement they received from the government. When they did finally show some initiative they undertook ‘to offer a bill or act to be past in parliament’, and in the meantime, ‘untill a law be made for remeiding the said inconveniency’, explained how they would handle some of the cases raised before them.284 To do this they added a series of resolutions to a decreet issued in a particular case and then ordered the decreet to be recorded in their books of sederunt. These books have not survived, but detailed notes taken from them indicate that it was not the normal practice of the court to have decreets recorded there. That this decreet was inserted into the books of sederunt tends to confirm that the English judges in Scotland were not in the habit of issuing declarations or resolutions to govern the future handling of cases. The distinction between the books of sederunt and the registers of acts and decreets had not originally been made.285 In the early records of the College of Justice a single register had been kept, starting each day with a list of the judges who had been present preceded by the word sederunt. Within twenty years these entries had been moved to a separate book, along with notes on the admission of members of the court and other administrative matters, including orders designed to govern the procedure of the court. In making these orders the judges had to some extent been continuing to exercise the conciliar authority enjoyed by their predecessors, but they had also been exercising an authority specifically conferred on them by parliament ‘to mak sic actis, statutis and ordinances as thai sall think expedient for ordoring of procesis and haisty expeditioun of Justice’.286 The books of sederunt surviving from the seventeenth century are full of entries recording the exercise of this authority, not always in relation to procedural concerns.287 In 1662, for example, the judges sought to provide a ‘Remedie in Time to come’ for the ‘great Confusion’ and ‘Prejudice’ that arose when some of the creditors of a deceased debtor secured appointment as his executors so that they could expedite the administration of the movable estate.288 As these executor-creditors were inclined to claim priority over others, the lords of session intervened to ‘Declare’ and ‘Ordain’ that in future all creditors who made a claim on the estate within six months would be entitled to recover payment proportional to their debts, provided they helped to meet the expenses incurred by the executor-creditors in their administration. The language used here was typical of ‘acts of sederunt’ and 284

NLS, MS 25.2.5(i), ff 319v–21r. Thomson 1809, p 180; Livingstone 1905, pp 81–2; Cadell 1996, pp 102–3. 286 Lawes and Actes of Parliament, f 110v; Acts of the Parliaments of Scotland, vol 2, p 371. 287 See, eg, NAS, CS 1/5, ff 29v, 47r, 48, 54v, 61v–2r, 90r, 93r, 142r, 144v–5, 149r, 155v–6r, 165v, 170, 192–3r, 194, 199r, 202–4r and 205–6r; CS 1/6/1, pp 60–6, 97, 110–11, 169–70, 172, 179–80, 218, 284, 359, 382, 388–91, 407–8, 415, 419, 466 and 468; CS 1/7, ff 8v, 10v, 25v, 46, 53r, 54, 100, 101v–2, 137v–8r, 142r and 164v–5r. 288 Acts of Sederunt (1740), p 48. 285

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332 The Restoration Court distinguished them, to varying degrees, from the other entries found in the books. In acts it was typically stated that the court, in seeking to provide a ‘remeid’ for a specified problem, ‘statutis and ordains’ or ‘declairs and ordains’ that a matter should be handled in some way ‘in all tyme cuming’. These patent acts of legislation also had a parallel in the practice of the French courts.289 In the light of its conciliar origins the parlement of Paris had not hesitated to issue decrees in the form of regulations governing its own procedure, the conduct of business in the city and other matters, and these arrêts de règlement were imitated in the provincial courts. Often, when it was said that the decisions delivered in certain cases would serve as law, the decisions were associated with these statutory orders.290 Lawyers in seventeenth-century Scotland showed an understandable interest in the books of sederunt. Someone worked through the records of parliament from 1424 to 1621, making notes on any unprinted material encountered, followed by the records of the privy council from 1561 to 1614 and then the records of the session from 1537 to 1626.291 The notebook he used bears the signature of Sir Thomas Hope, and there is a clear connection between its contents and the series of notes on the ‘unprinted acts of parliament’, ‘acts of secret counsell’ and ‘statuts of sessione’ that intervene in several titles of Hope’s major practicks between the printed acts of parliament and the reports of decisions.292 That Hope may have been responsible for compiling this abridgement of the records was not, however, apparent to John Lauder, who acquired the notebook after the Restoration and ascribed the section dealing with the ‘statutes of sessione’ to ‘ane uncertain author’.293 Lauder made a copy of this section in his own hand, adding a ‘continuation of the forsaid collection or abridgement of the books of sederunt, done by my Lord Stair’, covering the period 1626 to 1650.294 He then added a new review of the books covering the period 1537 to 1608 before moving on to those covering the periods 1654 to 1659 and 1661 to 1682. Someone else was working at the same time on a review of the books covering the periods 1626 to 1650 and 1661 to 1682, which he expanded by prefixing the abridgement that seems to have been made by Hope and the continuation attributed to Stair, and by inserting the new review of the period 1654 to 1659 that seems to have been by Lauder.295 Around the end of the 1680s Lauder’s collection of notes was to be put to further use by Sir Alexander Seton of Pitmedden, who had become an advocate in 1661 and was a lord of 289 Olivier-Martin 1948, pp 538–41; Payen 1997, pp 18–20; Shennan 1998, pp 86–7; Castaldo 1998, pp 114–15; Basdevant-Gaudemet and Gaudemet 2000, pp 243–4. 290 Gilissen 1979, pp 371–2; Chêne 1985, pp 184–5; Timbal 1990, p 231. 291 EUL, La III 399. 292 The third part of the manuscript was originally entitled ‘notis and observationis gatherit out of the buikes of sederunt of the lordis of session’, but the heading ‘statutes of sessione’ was later added. 293 NLS, Adv MS 25.2.7, ff 1r and 64r. Lauder’s signature also appears on the flyleaf of EUL, La III 399. It seems from his Journals, pp 283–99, that he acquired the manuscript after September 1679. 294 NLS, Adv MS 25.2.7, ff 58r, 73r and and 94r. 295 NLS, Adv MS 25.2.3. By the end of the review of the period 1661 to 1682 use was being made of Lauder’s account, so presumably it was while working on this period that the writer learned of what Lauder had done.

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The Sovereignty of the Session 333 session from 1677 to 1686.296 Seton reproduced most of Lauder’s material, as well as a review by someone else of the book covering the period 1567 to 1575, and he appears to have produced his own review of the books covering the periods 1626 to 1650 and 1661 to 1689.297 He added prefatory remarks to the passages he borrowed from Lauder which tended to give the impression that he had written them himself and which were also misleading in other respects, for example in indicating that the abridgement of the period 1608 to 1626 was by Stair and that the book covering this period was lost in 1674.298 Generally, though, Seton reproduced Lauder’s text accurately, and it is this collection that is usually used by historians. Comparison with the surviving books of sederunt shows that Hope, Lauder, Seton and others took careful and comprehensive notes from the records, using their own words to describe administrative measures but quoting verbatim any letters received from the king or acts of sederunt passed by the judges. Other lawyers concentrated on these passages, or produced notes for personal use alone.299 Someone also produced a much more succinct abridgement of the books covering the period 1552 to 1677, and this was also copied for use by other lawyers.300 It appears from the surviving books of sederunt and from the abridgements made of others that when the judges of the Interregnum court decided in 1658 to take a decreet out of the ordinary register and to record it among their administrative and procedural orders they did something that the lords of session had not done in the first half of the seventeenth century.301 Of course, the gaps in the records make it impossible to state this with confidence, and some acts of sederunt must certainly have been prompted by the discussion of issues arising in particular cases, but it is notable that the reporters of decisions in the first half of the century never mentioned the intention of the judges to confirm in their books of sederunt that they would follow a decision in the future. It does seem that this was done for the first time by the English judges in 1658, perhaps because they were anxious about appearing to legislate and believed that it was only through acts of sederunt that the lords of session had been able to do so.302 When the lords of session themselves decided for the first time to confirm their intention to deal with future cases in a preordained way by making an entry in their books of sederunt this happened, probably not coincidentally, in a case involving the familiar problem of noble indebtedness. Stair reported the case in January 1662, observing that the judges had ‘declared’ their intention to hold heirs liable in similar cases in the 296 Brunton and Haig 1832, pp 406–7; Stephen and Lee 1885–1901, vol 51, pp 264–5; Grant 1944, p 189. Lauder, Journals, pp 284 and 290, indicates that Seton gave him some of his books. 297 NLS, Adv MSS 25.2.5(i)–(ii). The second volume begins at 1661. 298 In ascribing the 1608 to 1626 abridgement to Stair he may have been misled by a mistake made and then corrected in NLS, Adv MS 25.2.7, f 152r. That the book covering this period was missing as early as 1670 is apparent from NLS, MS 7025, f 70. 299 NLS, Adv MS 25.3.5 and MS 168; GUL, Murray 274. See too NLS, Adv MS 25.4.5, ff 73–9. 300 NLS, Adv MSS 25.7.2–3 are complete copies, and Adv MS 22.6.12 an abbreviated version. There are gaps in the period covered from 1587 to 1626 and from 1650 to 1661. 301 For a late sixteenth-century example see Acts of Sederunt (1790–1811), vol 1, p 19. The books do contain decreets in cases of false witness and public disorder, but these are of a different kind. 302 As already mentioned, the English judges clearly knew about the session’s books of sederunt.

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334 The Restoration Court future and had ‘resolved to make and publish an Act of Sederunt’, but he made no further mention of any declaration of intent for the future until he reported the case in June 1665 in which the judges found that a person who behaved like a tutor should be liable like a tutor.303 On the page before this report Stair observed that two days earlier the judges had drawn the attention of the clerks and writers to a procedural act of sederunt, and on the page after the report he observed that a letter from the king touching on procedure had been recorded in the books of sederunt four days later. In over one thousand, nine hundred pages of reports this passage is unique. Only here did Stair include among his reports of decisions notes on entries made in the books of sederunt, and it was between these two notes that he carefully situated his report of the pro-tutors case. He reported that the lords of session had found ‘no Law nor Custom of ours to make a Pro-tutor lyable in all points as a Tutor’ and had accordingly decided the case in hand in the defender’s favour, but had ‘Declared, that in cases occurring in all time coming’ they would hold pro-tutors liable as tutors and had ‘ordained an Act of Sederunt to be made thereupon and published in the House, to all the whole Advocats, that none pretend Ignorance’. On later occasions Stair reported that a change in court procedure prompted by a case ‘was intimat to all the Advocats, being called in, and an Act of Sederunt appointed to be insert thereupon’, and that in changing the procedure for citing debtors the judges ‘ordained an Act of Sederunt to be made, and Publication by Proclamation’.304 On a few other occasions he reported that the judges had decided to issue an act of sederunt announcing a change in the law, though they had not always gone on to do so, and in two cases he simply stated that the judges had declared their unwillingness to uphold a local custom in the future, though in one instance they had actually gone on to issue an act of sederunt.305 It is striking, by comparison with the reports written by the other judges, how seldom Stair’s reports indicated that the judges had declared an intention to follow a decision in the future without also indicating that they had ordained an act of sederunt to be made and published.306 Given that Stair’s two volumes of Decisions contain well over two thousand entries covering a period of twenty years, it is indeed surprising how seldom they provide any indication of the court’s intention to follow one of its decisions in future cases. Very occasionally he reported that the judges had consciously handled ‘a leading case’, or had considered ‘the general case’ as opposed to the particular case in hand, but he did this rarely by comparison with Wedderburn.307 Sometimes he reported that a case had been dealt with but that the judges ‘did not decide the Case to be of generall rule’, or ‘did not resolve the point generally’, which could have been taken to indicate that elsewhere general rules were

303 304 305 306 307

Decisions, vol 1, pp 86–7 and 280–81. Ibid, vol 2, pp 269 and 860. Ibid, vol 1, pp 733, 753 and 759, and vol 2, pp 25, 84 and 481. Ibid, vol 1, p 601, and vol 2, pp 182 and 624. Ibid, vol 1, pp 78, 208 and 238.

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The Sovereignty of the Session 335 established by decisions.308 In one case an advocate reminded the judges of a decision they had ‘declared they would follow as a Rule’, though the only reports of the decision say merely that the judges ‘heard this Case in their Presence’.309 The decision was not in the end followed in the later case, but the suggestion may have been that any decision carefully considered by all the judges could be taken to lay down a general rule for future cases, whether or not the judges actually declared their intention to follow it or issued an act of sederunt confirming their intention. By situating his report of the pro-tutors case between two entries drawn from the books of sederunt, and by having a selection of the acts of sederunt passed between 1661 and 1681 printed along with his reports, Stair could have been suggesting that the legislative authority the judges exercised in passing acts of sederunt was also exercised in their decision of at least some cases.310 On the other hand, his evident reluctance to report that the judges had deliberately laid down a rule to govern future cases, and his tendency to observe that they had resolved ‘to make an Act of Sederunt’ where a reporter like Wedderburn was more inclined to remark that they had determined ‘to make this a practic in the future’, tends to suggest that Stair distinguished sharply between the legislative authority exercised in passing an act of sederunt and the kind of authority exercised in forming a rule by decisions.311 One possibility is that he remained committed to the theory that the auctoritas of res perpetuo iudicata derived from the tacitus consensus populi, and that he considered it inappropriate for the judges to purport to legislate when all they could do was decide cases consistently in the hope that the people would approve of what they were doing. Another possibility is that he thought it misleading to use the language of legislation to describe what amounted to exercises in learning. It is as exercises in learning that the consultations of the English judges in the exchequer chamber and elsewhere have generally been described by historians of English law.312 In France writers who talked about the decisions delivered in red robes establishing rules for future cases tended to explain that ‘the presidents who pronounce them draw to our attention what we must learn from the decision that has been pronounced, and what axiom, issue or difficulty has been judged’.313 When one writer observed that these decisions were pronounced ‘pour servir de leçon’, he began to doubt whether the comparison between arrêts and senatusconsulta was entirely apposite.314

308

Ibid, vol 1, pp 332, 336 and 560. Ibid, vol 1, pp 66 and 490; Gilmour, Decisions, p 8. 310 The arrangement of the material in some of the titles of Hope’s major practicks was also suggestive of a connection between the decision of cases and the enactment of legislation. 311 Stair, Decisions, vol 1, p 759; Morison, Decisions of the Court of Session, vol 5, p 3496. 312 Hemmant 1933, p lxxxiii; Dawson 1968, p 72; Baker 2002, p 198. 313 De Montholon, Arrests de la cour prononcez en robbes rouges, sigg A2v–3r. 314 Les oeuvres d’Estienne Pasquier, vol 2, col 578. 309

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336 The Restoration Court Reforming the court’s procedure Whatever the purpose of solemnly pronouncing decisions in red robes may have been, the practice came to an end in 1667 when, as was mentioned earlier, the procedure of the French courts was reformed. In 1665, recognising the need ‘to render the dispatch of business more prompt, easy and certain through the suppression of several delays and useless acts and through the establishment of a uniform style in all our courts and benches’, Louis XIV had appointed a commission to examine the procedures followed in the various courts and to recommend improvements.315 Those appointed had been statesmen or jurists who were not involved in forensic practice, though eventually the commissioners had received advice from the judges of the parlement of Paris and had based many of their recommendations on reforms already introduced in that court.316 A lengthy ordinance on civil procedure was produced, arranged under titles in numbered articles and presented in rough accordance with the order in which cases were taken through the courts. It began by requiring the parlements to register royal ‘ordinances, edicts, declarations and other letters’ without the prolonged opposition of the past, and to implement the king’s intentions without any modification. The judges were forbidden from deciding cases against the disposition of statutes ‘on the pretext of equity, the public good, the expedition of justice, or of what our courts may have to represent to us’, and in cases of doubt about the applicability of statutes they were forbidden ‘from interpreting them’ and were instead required to remit the cases to the king ‘to learn what will be our intention’.317 The point mentioned already was that the practice of receiving evidence of local customs by enquêtes par turbe was abolished, and so too were ‘the formalities for the pronouncement of decisions and judgments’.318 In future decisions would be binding on the parties to the actions alone and would not be formally pronounced as rulings to govern similar cases. Most articles in the ordinance were designed to reduce the delays and costs of litigation, for instance by limiting the amounts of time that could elapse between the different stages of a case, by limiting the number of stages there could be in an action, and by limiting the power of the parlements to review their own rulings.319 After 1667 further reforms were made by royal legislation, including an ordinance on criminal procedure enacted in 1670.320 In August 1669 Charles II surprised his ministers in Scotland by announcing a plan to appoint commissioners to review the procedure of the courts there.321 The 315

Code Louis, vol 1, p 4. Olivier-Martin 1948, pp 353–4; Hamscher 1976, pp 155–6; Royer 1995, pp 33–5; Bart 1998, pp 154–5; Basdevant-Gaudemet and Gaudemet 2000, pp 306–7. 317 Again, the previous possibility of recourse from law to equity is something that will be returned to. 318 Code Louis, vol 1, pp 19 and 44. The power to enact arrêts de règlement was not affected. While it may well have been coincidental, it is notable that Stair was more prepared to report that a general issue had been settled without mention of an act of sederunt in his first volume of Decisions. 319 Engelmann 1928, pp 737–8; Dauchy 1988, pp 69–71; Castaldo 1998, pp 345–6. 320 Hamscher 1976, pp 179–80; Royer 1995, pp 35–7; Hurt 2002, pp 22–4. 321 BL, Add MS 23132, ff 79–80 and 93; NLS, MSS 7003, f 163, and 7023, f 224. 316

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The Sovereignty of the Session 337 source of the plan is obscure, but it could perhaps have originated in discussions Charles was having with the French ambassador, whose brother had been the prime mover behind Louis’ project. Although the Scottish ministers suggested that it would be more appropriate for the lords of session to make proposals for reform to the parliament that was about to meet, commissioners eventually assembled at the king’s command early in 1670.322 They began by reviewing the practice of calling cases to be heard in the outer house of the session in whatever order suited the judge, which forced litigants to waste time in the court and raised the suspicion that the judges favoured their friends. The problem had already been addressed by the judges themselves in 1650, 1662 and 1664, and the commissioners based their recommendations on measures the judges had introduced, as they did elsewhere in the report they submitted to the king in March 1670.323 Other parts of the report required the lords of session to ensure that they dealt with most of the cases raised before them by extending their sittings during busy periods, eased the pressure on the session by requiring small claims to be heard in lower courts, limited the power of the lords of session to review their own decisions, limited the amount of time advocates could take in preparing for each stage in the legal process, and limited the number of advocates who could appear in the inner house of the court. Although the king was satisfied with the report, the commissioners continued to meet during the summer, largely because they were worried that provisions the report contained on the regulation of the fees paid to advocates were going to meet with strong opposition.324 In early November the king wrote to the lords of session asking them to record the report in their books of sederunt, and it was then printed with a warrant explaining that it had been recorded there.325 The report was presented in numbered articles arranged under two titles, the first ‘Concerning the Session’ and the second ‘Concerning the Justice-Court’. Since the second part created the modern high court of justiciary it has tended to receive more attention than the first, but it was the procedure of the session that was reformed as soon as the report was recorded in the books of sederunt and declared to have the force of law. As expected, the advocates did oppose the provisions regulating the fees they could charge, especially a requirement that they promise under oath to accept no more from their clients than the rates allowed.326 As had happened at the start of the Interregnum, when the advocates had been required to swear allegiance to the English regime, most refused to take the oath and were excluded from practice, with the result that no new cases were heard in the court during the first few weeks of the winter session of 1670 to 1671.327 By late December, however, many had 322

BL, Add MS 23133, ff 20 and 24; Lauderdale Papers, vol 2, pp 177–8; Stair, Institutions, 4.2.6. NAS, CS 1/6/1, p 128; Minute Book of the Faculty of Advocates, vol 1, pp 5–6; Acts of Sederunt (1790–1811), vol 1, pp 62–3 and 85–7. 324 NLS, MSS 7004, ff 91 and 121, 7023, ff 236 and 238, and 7025, f 30; EUL, La III 354(1), f 54. 325 NAS. CS 1/6/1, pp 320–31; Articles, for Regulating of the Judicatories, pp 3–4. 326 NAS, CS 1/6/1, p 332; Register of the Privy Council, 3rd ser., vol 3, pp 239–40; Minute Book of the Faculty of Advocates, vol 1, pp 20–1. See too Simpson 1974, pp 169–71. 327 NAS, CS 1/6/1, p 334; BL, Add MS 23134, ff 138 and 153; Stair, Decisions, vol 1, p 702. 323

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338 The Restoration Court taken the oath required, and by mid January most had done so.328 It was said to have been crucial that Sir Robert Sinclair, the dean of the Faculty of Advocates, had taken the oath shortly before Christmas in the reasonable expectation that he would be offered a government post.329 Gilmour had been known to be ill and on the verge of resigning from office as president of the session. Nisbet had been expected to take Gilmour’s place, and Sinclair had hoped to take Nisbet’s place as king’s advocate. But when Gilmour did resign in January 1671, Nisbet expressed reluctance to accept the presidency. On being informed that Nisbet was entirely serious and was ‘not one to loose 500 pounds sterling a yeare for a small advancement’, the earl of Lauderdale proposed to the king that Stair, who had already been sounded out and found willing to accept appointment, be granted the presidency of the court.330 Although it was rumoured at the time that Gilmour had resigned only because he believed that the office would be granted to Wedderburn, and that Nisbet had expressed reluctance to accept appointment only because he wished to be further encouraged, no evidence has survived to substantiate either rumour. Gilmour seems to have favoured Nisbet’s succession, Wedderburn’s name does not seem to have been mentioned until after Stair was appointed, and Nisbet seems to have been content with the appointment of Stair, who had acted in Gilmour’s place when he was ill in 1667.331 After becoming president of the session Stair was also appointed to the privy council and court of exchequer, and his former pupil Wallace replaced him in the session as ‘a good outerhouse lord’.332 It was, however, an inauspicious moment to take charge of the court. As Mackenzie later recalled, opposition to the regulation of the advocates’ fees grew into opposition to the regulations generally, and ‘that harmony which us’d to be betwixt the Lords and Advocates, was here broke off’.333 Just as Louis had done in France, so Charles instructed his commissioners to continue working on the reform of the courts in Scotland.334 In 1672 a revised version of their report, with the addition of a third part ‘Concerning the Exchequer’, was placed before parliament for ratification.335 Mackenzie was among the advocates who spoke against the proposal.336 He warned that the regulations had been put together ‘by noblemen, whose birth and education cannot allow them to understand what was to be introduc’d or abrogated’, insisting that none ‘save learn’d lawyers’ had the expertise required for the regulation of court procedure, which was why parliament had resolved long before to entrust the task to the 328 NAS, CS 1/6/1, pp 338, 368–9 and 485–6; BL, Add MS 23134, f 172; Mackenzie, Memoirs, pp 213–16. 329 BL, Add MS 23134, f 157; NLS, MSS 7004, f 72, and 7023, f 252; Lauder, Journals, pp 213–14. 330 NLS, MS 7025, f 71; Report on the Laing Manuscripts, vol 1, p 379. 331 BL, Add MSS 23126, f 81, and 23134, f 182; NLS, MS 7023, f 257. 332 BL, Add MS 23134, f 178. 333 Memoirs, p 216. 334 Articles, for Regulating of the Judicatories, p 4. In 1669 the commissioners had also been asked by parliament to extend their enquiry to include the lower courts (Acts of the Parliaments of Scotland, vol 7, app, p 110). 335 BL, Add MS 23135, f 168v; Acts of the Parliaments of Scotland, vol 8, pp 80–8. 336 Memoirs, pp 234–8.

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The Sovereignty of the Session 339 judges. There had been lords of session on the commission, including Stair, who was credited with promoting the requirement that cases be called in the order of their enrolment in the court, but even he was opposed to the enactment of the regulations in parliament.337 Nevertheless, the regulations were enacted, and it was a failure to comply with their terms that provided a pretext for the appeal made against a decision of the session to parliament in 1674.338 On this occasion it was found that the regulations offered grounds for petitioning parliament to extend its review of the court’s practice, but it was certainly not the intention of the advocates to signal their acceptance of the regulations as a whole. In seeking to defend themselves in a ‘Humble Address’ presented to the privy council, the advocates noted that ‘though acts and decreets should be extracted, bearing compearance and debate, yet as appears by Dury, and all others who have digested and collected the Practiques of the Session, it has been competent and allowed to parties and Advocates, in all ages, to question the said acts and decreets, by way of Suspension or Reduction’.339 Since the lords of session had always been willing to review their own decisions it could hardly be said that their decisions were final and not open to review. Yet as one of the noblemen on the royal commission pointed out, it was no longer true that the judges could ‘repeale their owne sentences which are upon hearing of parties’.340 Following advice from the judges, the commission had recommended and parliament had enacted that ‘Decreits in foro contradictorio befor the Lords of Sessioun be not again suspended’, and that ‘where there is once Compearance for any pairty and Defences proponed, the Decreit shall be holdin as done in foro’.341 In the French ordinance of 1667 a distinction had similarly been drawn between decisions delivered contradictoirement ou par défaut, though it had remained possible in France for an arrêt contradictoire to be revised.342 Gibson had indeed reported cases in which the lords of session had been prepared to suspend or reduce their own decisions, not only where they had been delivered in the absence of the defender but also where he had appeared, disputed the case and lost. In some cases they had refused to review a decision delivered in foro contradictorio on the basis of the principle that res iudicata pro veritate habetur.343 But in other cases they had suspended or reduced their decisions where it was shown that false evidence had been presented or that the defender had been in a weak position at the time of the action, and on one occasion they had indicated that while they could not reopen a case to hear an argument that the defender had omitted to present, they could do so where an argument had been

337

Forbes, Journal of the Session, pp xxxiii–xxxiv. Stair, Decisions, vol 2, pp 262–3; Mackenzie, Observations on the Acts of Parliament, pp 445–7. 339 Mackenzie, Memoirs, p 290. 340 BL, Add MS 23136, f 85r. 341 Acts of the Parliaments of Scotland, vol 7, app, p 108, and vol 8, p 83. 342 Code Louis, vol 1, pp 59–64. 343 See, eg, Gibson, Decisions, pp 556–7 and 728–9. In the first case Gibson added references to Digest, 12.2.31 and 42.1.35, and Code, 2.4.19, 7.52.4 and 10.9.1, observing that the decision was ‘agreeable to the Civil Law’. 338

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340 The Restoration Court presented but misunderstood.344 On another occasion they had been advised that while the defenders ‘had compeared and proponed some Defences’, they had withdrawn from the action by the time ‘Sentence was given, the Defenders not Compearing’.345 It was found that the decision made in the outer house had been mistaken and that it could be reduced ‘without any Imputation to the Judge in the first Sentence; seing it was given, (parte non comparente), in which Course of Process in absence of Defenders, the Judges their Decreets are not so exactly Examined, as when both Parties Compears’. It was clearly this kind of decision that the new regulations were designed to prevent when they explained that decreets would be classified as in foro contradictorio if the defender took issue at any stage with the pursuer, ‘albeit the advocat thereaftir past from his Compearance’. Yet the policy behind the regulations was not immediately understood and accepted. Stair included several examples in his second volume of reports of cases in which advocates appeared to find it necessary to explain the thinking behind the new regulations.346 They argued that ‘there is nothing can be more secure than a solemn Decreet of a Soveraign Court, wherein Parties have compeared’, and that ‘it would make Processes endless, and unsecure all the Lieges, if such solemn Decreets were to be drawn in question’. What Stair did not report were the arguments presented to the contrary effect. As Nisbet’s reports reveal, ‘some heat’ had been generated among the judges themselves by the change of policy, for whereas some thought it vital to ‘the Credit of the House, and the Security of the People, that the Decreets of the Lords in foro should be ultimate and unquestionable Decision[s]’, others thought that ‘the Honour of the House, and Interest and Security of the People consists in this, that Justice should be done, and no evident Iniquity should be without Remedy’.347 Since the alternative line of argument does not appear in Stair’s reports of the cases on suspension and reduction, the suspicion must be that he was deliberately promoting the view that decreets in foro contradictorio were ultimate and unquestionable. Why he was doing so is not entirely clear. No doubt he shared to some extent the desire of the royal commission to prevent litigation from dragging on indefinitely, and he may also have been concerned that the session’s readiness to review its own decisions ran the risk of encouraging their review elsewhere. In order to preserve the session from subordination to the judicial power of parliament it had to be insisted that the session enjoyed the power of bringing disputes to an end, as the judges appreciated when they responded to the appeal made to parliament by declaring it essential to the security of the people that litigants ‘acquiesce’ in their sentences as ‘ultimate decisions’. While the rule against revis344

Gibson, Decisions, pp 283, 331, 781–2 and 813. Ibid, pp 706–8. 346 See, eg, Stair, Decisions, vol 2, pp 279–80, 429–30, 437–8, 474, 650–51 and 770–71. 347 Nisbet, Decisions, pp 105–6 and 133. Stair did not report these cases, nor were most of the cases he did report included in Nisbet’s collection. When the cases Stair reported were covered by others the argument that decreets in foro contradictorio must be considered final was generally given far less prominence. See NLS, Adv MS 28.3.9, pp 90 and 116–18; Nisbet, Decisions, pp 175–6; Morison, Decisions of the Court of Session, vol 1, pp 694–6. 345

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The Sovereignty of the Session 341 iting decreets in foro contradictorio ostensibly reduced the power of the lords of session, it also enabled them to defend their claim to form a ‘sovereign court for civil causes’ in the sense of a court whose decisions could not be challenged. The procedural regulations introduced at the close of the 1660s did not undermine but rather reinforced this claim to sovereignty, and they similarly left intact the claims the lords of session could have made to a broader exercise of legislative authority. Unlike the regulations introduced three years earlier in France, the Scottish regulations made no reference to the practice of registering the king’s decrees in the books of the courts, presumably because the practice had not been taken far in Scotland and had not given rise to tension between the judges and the king. The registration of regulations drawn up by a royal commission, instead of the proposal of reforms to parliament, was itself an example of how this alternative mode of legislation might have been developed, at least in relation to the administration of justice. In the 1660s and 1670s, however, the lords of session were more frequently engaged in the exercise of legislative authority when they interpreted acts of parliament liberally or restrictively, or when they issued declarations that they would handle future cases in a specified manner. The Scottish regulations also differed from their French precursors in making no attempt to modify these practices, presumably because in Scotland they detracted less from the authority of the king than from the authority of parliament. If Charles’ aim in subjecting court procedure to reform was to follow Louis’ example in enhancing his own authority (as may well have been the case) then the strategy adopted was not to weaken the position of the judges but to strengthen the judicial system so that there would be less need to summon parliaments.348 The comparison of Stair’s reports with those written by other judges suggests both that he was exceptionally eager to emphasise the finality of decisions and that he was exceptionally reluctant to record declarations of intent to deal with cases in a specified manner in the future. He appears to have been eager to emphasise the authority of the lords of session to make definitive judgments in particular cases but reluctant to assert their authority to use decreets of session as well as acts of sederunt to make laws that would govern later cases. He did draw attention to the legislative authority exercised in the passing of acts of sederunt, and he went to unusual lengths to connect these acts with the decreets of session, yet he hesitated to record the resolutions the judges made to follow some of their decisions in later cases. A possible explanation, it was pointed out earlier, could have been that he was committed to the theory that the authority of res perpetuo iudicata derived from the tacitus consensus populi rather than from any power the judges had to legislate. What is now evident, however, is that Stair was not particularly interested in reporting decisions of the type that could have been taken to manifest popular consensus. So far as the proof of customary law was concerned, it was necessary to produce evidence that a practice was considered to be obligatory and was not 348 For the view that Charles and his ministers were pursuing the ‘grand design’ at the end of the 1660s of developing an absolute form of government in Scotland that might then be extended to England see Lee 1965, pp 51–2 and 59–62. For a sceptical response see Hutton 1991, p 268.

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342 The Restoration Court simply something that people were prepared to acquiesce in voluntarily. The production of decreets in foro contradictorio had been considered effective because in contested cases parties were found to be obliged to behave in ways in which they were unwilling to behave. In contested cases parties were not simply induced to conform to standard practices but were required to fulfil obligations that were commonly believed to be incumbent on them. Decreets in foro contradictorio therefore provided evidence of customary law because they reflected the popular understanding of the obligations imposed by the law, yet the procedural regulations, and to a significant extent Stair’s later reports, promoted a quite different conception of contested cases. They defined decreets in foro contradictorio as acts of voluntary acquiescence in the rulings of the judges. They took a decreet to be delivered in foro contradictorio if at any stage both parties to an action had appeared and submitted their dispute to judicial determination, thus undertaking to abide by the ruling regardless of its basis in law. It is not obvious how decisions of this type could have been taken to manifest popular consensus.

THE DISPUTES OF THE LAWYERS

Focusing on the advocates’ arguments In 1668 Stair reported a case in which an advocate argued that a decision cited by his opponent should be disregarded since it was ‘a Decreet in absence’ and had therefore been given with ‘less consideration’ than other decisions.349 The advocate argued that the judges should feel free to ignore a decision made without debate when they were themselves presiding over a debate on the point decided. He claimed that a decreet in absentia had less significance than a decreet in foro contradictorio not because it was inadequate as evidence of the customary law behind the decision, nor because it was delivered without the submission of the parties to the sovereign authority of the court, but because it was delivered without both sides of the case being presented at the bar. The distinction he drew thus owed more to the thinking behind the decision reported by Gibson, in which the court had agreed to review a ruling when the defender failed to argue his case through, than to the thinking behind the new procedural regulations, in which the court was forbidden from reviewing its rulings if the defender had appeared at any stage in the proceedings. The advocate apparently shared the thinking of those judges who continued to believe, according to Nisbet, that the central concern should be with reaching the correct decisions. Nisbet was himself inclined to think along these lines. He reported a case heard in 1676 in which it was asked whether a person could be liable for interfering with a deceased person’s estate if he was himself subsequently appointed as an executor.350 Some of the judges were 349 Stair, Decisions, vol 1, pp 529–31. The advocate was Mackenzie, who reproduced his arguments, without elaborating on this point, in his Pleadings, pp 120–30. 350 Nisbet, Decisions, p 169 (and see too pp 177–8).

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The Disputes of the Lawyers 343 ‘positive of the Opinion’ that he could be liable so far as he had interfered with things omitted from the inventory, but it was ‘asserted’ by Stair and some other judges to be ‘the custom and daily practique’ that no one who was appointed as an executor could be sued for any interference. Nisbet considered it ‘hard that a custom, contrare to the Principles of Law, and to the Opinion of Hope and other Lawyers, should be obtruded; unless, upon a Debate in praesentia, there be a Decision, which may be the Foundation of a Custom’. His concern may partly have been that the custom had not been shown to be based on the decisions of the court, for it has been seen that as king’s advocate he insisted that only decisions could give rise to customs contrary to statutes. But when it was ‘asserted’ in other cases that statutes had not been received into practice, with nothing ‘instanced to verify the custom’, he went so far as to argue that even where decisions were cited they ‘ought not to be put in the ballance with express Laws founded upon good Reason and Common Law’.351 What troubled Nisbet was not the failure to adduce authoritative decisions as evidence of customs so much as the assertion of customs to the exclusion of learned debate. In the reports he compiled between 1665 and 1677 Nisbet placed great emphasis on the learned discussion of issues in the session. Mostly the judges had decided the cases he dealt with ‘upon a Report, having debated amongst themselves, what was fit to be done’, and often they had held a case ‘to be of that Consequence, that they would not decide upon a Report, but Ordained it to be debated in praesentia’.352 Nisbet generally identified the judges who had reported the arguments heard in the outer house, identified the cases that had been reheard in the inner house, and identified the advocates who had debated cases in praesentia dominorum. Whether the cases had been decided directly from a report or after further debate, Nisbet’s practice was to summarise the advocates’ arguments in the standard way after outlining the facts of the case and before describing the court’s ruling. What is striking about his reports, however, is the amount of information they provide on the views expressed by the judges. In describing the court’s rulings Nisbet often started by saying that the judges, ‘upon a debate amongst themselves’, expressed a variety of opinions on the issues, even when the advocates had been asked to debate the case again. Indeed, there were cases in which the issues were ‘debated among the Lords more fully than at the Bar’, and sometimes new issues were raised for debate by the judges themselves.353 Nisbet reported their discussion of these points even if they had no bearing on the decisions delivered, just as he reported their discussion of cases that were never brought to a decision.354 In some cases the judges delayed or avoided making a decision because they were unable to arrive at a consensus, especially when the cases raised issues of general importance.355 In other cases they made a deliberate effort to resolve issues ‘which 351 352 353 354 355

Ibid, pp 135–6; Acts of the Parliaments of Scotland, vol 2, pp 494 and 502, and vol 7, pp 451–2. Nisbet, Decisions, pp 14 and 85–6. Ibid, pp 6, 21, 48, 83–5, 125, 143 and 218. Ibid, pp 7–8, 11, 15, 17, 29–30, 35, 37, 47, 59–60, 139, 145, 162, 211 and 221. Ibid, pp 4, 11–12, 20, 54, 59, 62, 85–7, 98, 116, 123, 172, 177 and 186.

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344 The Restoration Court had been often before in agitation, but never decided’, yet Nisbet scarcely ever indicated that the court had declared its intention to follow a decision in the future, and he never indicated that a declaration had been reinforced by an act of sederunt.356 On one occasion he reported that the judges had found a case to be important and, ‘upon debate at the Barr in praesentia and among themselves’, had made a whole series of ‘Resolutions’.357 But he did not take the resolutions to explain how the case was decided, nor did he say that the judges had declared their intention to follow the resolutions in deciding future cases. The resolutions were an expression of the current thinking of the court, and it was the refinement of this thinking through debate at the bar and on the bench that Nisbet was concerned to commemorate. When dealing with controversial cases he indicated clearly what ‘most of the Lords enclined to think’, but he also recorded the views of the judges who lost the argument, as well as his own and other people’s views of the decisions delivered.358 He certainly did not believe that opinions ceased to be relevant if cases were decided to a contrary effect. To at least some extent emphasis was also placed on how cases were debated in the reports composed by other lawyers. Baird sometimes mentioned that cases had been ‘debated at great length in praesentia’ or that the judges had themselves ‘debated the case very contentiously’, he sometimes recorded the opinions expressed by dissenting judges, and he occasionally expressed his own disapproval of decisions.359 That cases had been decided ‘after a long debate in praesentia’ or after being ‘debated amongst the lords’ was reported more regularly by Wedderburn, who frequently expressed his own views on the merits of decisions.360 ‘That question was not decided’, he observed at one stage, ‘yet there are strong and probable arguments for both opinions’.361 Often when he reported that the judges had consciously decided a general or leading case his point was that they had debated the general issue before deciding the specific case and had tried to reach an understanding of how the law ought to be developed. Obviously the debates conducted by the judges behind closed doors could not have been reliably reported by the advocates who kept notes of the court’s decisions, but from their own perspective they too were inclined to emphasise the debates that gave rise more or less directly to the decisions. Just as Nisbet was eager to preserve a record of the debates among the judges, even if they had not resulted in a decision, so Lauder was eager to preserve a record of the debates among the advocates, regardless of the effect they had on the outcome of cases. In one report, for example, he 356

Nisbet, Decisions, pp 69, 144 and 183–4. Ibid, pp 163–4. 358 Ibid, pp 11–12, 19, 22–3, 28, 36, 66–7, 76, 95–6, 121–2, 128, 137, 152, 158–9, 168, 187, 192, 195, 206–7, 211, 215–17 and 225. 359 GUL, Gen 1262, pp 31–2, 38–9, 42–3, 84–5, 119–20, 124–7, 179, 188, 203–4 and 241. 360 NLS, Adv MS 24.1.12, ff 60r, 66v–7r, 68, 72v, 75r, 76v, 79v, 80v–1r, 83v–4r, 86v–7, 88v, 89v, 93r, 97, 101r, 104v, 111r, 112v, 116r, 118r, 140r, 147v, 150v, 155v, 168r, 169v, 180r, 182v, 184r, 189r, 191r, 202v–4r, 225r–6r, 249r, 254, 261v, 263r, 270, 294r, 304r, 312, 315v, 316r, 320r, 321v, 322v, 323v, 329v–30r, 352v, 354(a)r, 361v, 368, 379v, 389v and 380v. 361 Ibid, f 76. 357

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The Disputes of the Lawyers 345 identified a question that had been ‘verie hotly debat betwixt Sir George Lockhart and Sir John Cunyghame’, but he gave no indication of how the case had been dealt with by the judges.362 In his reports and notebooks he constantly referred to legal issues that had been ‘quereed among the advocats’, sometimes making it clear that points decided by the judges had afterwards been ‘agitat’ or ‘reasoned among the advocats’, sometimes making it clear that a quite separate debate had been ‘started among the advocats as a quaeree’, but often giving no indication of how the debates of the advocates were related to the decisions of the judges.363 Lauder’s interest was in the development of legal doctrine, both inside and outside the court. He sought to understand how the decisions of the court were related to the opinions expressed by lawyers, whether in the course of disputation at the bar or during discussion on the bench, whether in the course of court proceedings or during informal debate elsewhere, and whether in the course of oral exchanges or in the books lawyers wrote, both at home and abroad.364 At the start of the 1680s Lauder recorded in one of his notebooks that he had heard Lockhart, whose opinions he respected and often recorded, complaining that ‘the lords of session have generally followed this course and method in deciding of causes: not to determine generall points of law but to bottom ther interlocutors on specialities and circumstances differing in matter of fact, wheirby we shall never come to a ius stabile but our practique shall ever be fluctuating and varieing, and decisions seiming to run contrary on to another’.365 Stair’s reports of the decisions made during the preceding twenty years provide ample confirmation of the reluctance of the judges to determine general points when ‘they were equally divided in their Votes’, or when ‘the Case was rarely occurring’, or was ‘a leading Case’, or ‘in consideration of the newnesse of the Case’.366 On these occasions the judges mostly tried to persuade the parties to agree to an out of court settlement of the dispute or else made a decision narrowly on the facts of the case. When the burgesses of Cupar, for example, sought a declaration that the inhabitants of a neighbouring town were not entitled to engage in ‘Merchant Trade’, or more specifically ‘in keeping Hostlers, and selling Wine’, the judges, ‘considering that this dipped upon the Controversie, betwixt Burgh Royal and Burgh of Barony, which has remained undecided these thirty years, would not Discusse this particular’.367 When it was proposed in another case that the judges should take the opportunity to clarify the relationship between the burghs, they were advised that ‘since this debate related to the policy of the kingdom, it was more proper to be 362

NLS, Adv MS 24.4.1, f 81r. NLS, Adv MSS 6.2.15, pp 16, 48 and 56, and 6.2.16, p 1. Examples could easily be multiplied, but for a few more from these notebooks see Adv MS 6.2.15, pp 5, 57 and 81, and 6.2.16, pp 4, 9 and 12. 364 Lauder’s notebooks contain reviews of some of the books he read. In NLS, Adv MS 6.2.15, p 26, for example, after working through a recent book on the feudal law by a follower of Dumoulin, he noted that ‘ther are many other things in this book relating to the French customes that are appliable to our law’. 365 NLS, Adv MS 6.2.15, p 58. 366 Stair, Decisions, vol 1, pp 78, 105, 220, 245, 268, 303, 307, 358, 371, 408, 471, 498 and 560, and vol 2, pp 8, 68, 539 and 845. 367 Ibid, vol 1, p 204. 363

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346 The Restoration Court consider’d by the Parliament than by the Session’.368 One source of the reluctance to determine general points of law could therefore have been a belief that only parliament could make new law, and sometimes the judges did conclude that questions would have to be remitted to parliament.369 At other times, however, the judges were far less reticent. Stair reported cases in which a deliberate effort was made to clarify issues that had ‘never been Determined’ or were ‘of great importance to the Liedges, and not cleared by Decisions’.370 The reluctance to determine general points could thus have resulted from the contrary belief that law could be made by the court and that the judges accordingly needed to avoid delivering decisions until they were clear about how they intended to develop the law. A further possibility is that the decisions of the session, unlike acts of sederunt, were believed to make new law through the exercise not of legislative but of learned authority, and that the judges were reluctant to deliver decisions until they had arrived at a consensus on the law that was taking shape.371 Whatever the problem may have been, if the parties to a controversial case insisted on having their dispute determined by the court, there could be little alternative to concentrating on a ‘speciality’ in the facts and neglecting to handle the point of ‘general concernment’.372 Like other judicial reporters, Stair sometimes mentioned that the judges had made a decision having ‘heard the whole Dispute at length in praesentia’ or having ‘debated the case at large amongst themselves’, though he did so more often in his first than in his second volume of reports.373 He mentioned that one case had been heard by all the judges ‘in their Presence, because the Point had been variously Decided’, and that on another occasion they had ‘heard this case at length, and debated the same accuratly amongst themselves, in respect they found no preceeding Decision’.374 Occasionally he reported a debate on a point that had not been brought to a decision, and on twenty to thirty occasions he remarked on differences of opinion among the judges, reporting in some cases what the different views were, and in one instance expressing a personal preference for a particular point of view.375 With this one exception, however, Stair at no stage in his reports expressed his own views on the merits of decisions, and it will be apparent that his discussions of the differences of opinion among the judges were relatively infrequent. It certainly cannot be said of Stair’s reports as it can of Nisbet’s that they reflect a constant concern with charting the directions in which the thinking of the judges was moving. If anything the emphasis in Stair’s reports was on how the thinking of the advocates was developing. After identifying the point at issue in 368

Mackenzie, Memoirs, pp 226–7; and see too Mackenzie’s Pleadings, pp 131–43. Stair, Decisions, vol 2, pp 73–4; Nisbet, Decisions, pp 114–15; NLS, Adv MS 24.1.12, ff 203–4r. 370 Stair, Decisions, vol 2, pp 105 and 439. 371 Cf Baker 1986a, pp 164–9. 372 Stair, Decisions, vol 2, p 845. 373 Ibid, vol 1, pp 109, 125–7, 135, 151, 181, 190, 203, 208, 232, 234, 237–8, 242, 245, 261, 268, 279, 280–81, 285, 330, 332, 352, 435, 440 and 497, and vol 2, pp 182, 202, 269, 385 and 777. 374 Ibid, vol 1, pp 66 and 336. 375 Ibid, vol 1, pp 55, 61–2, 186–8, 219, 232, 249, 255, 317, 340, 382, 408, 435–6, 468, 552, 560, 595 and 709, and vol 2, pp 43, 47, 145–6, 187 and 518. 369

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The Disputes of the Lawyers 347 one case he reported that ‘the Lords were not so clear in it, but resolved to hear such Cases in their own presence, when they should occur’, and in another he referred to an issue that had been raised and debated among the judges before adding that since it had not been ‘debate by the Parties, they ordained them to be heard thereupon’.376 In reporting these and similar cases Stair gave the distinct impression that the judges were dependent on the advocates for guidance on how the law should be regarded, and in general his approach was to recount in some detail the arguments advanced at the bar with only a brief statement of the decision handed down from the bench. Often he stated no more than that an argument or defence had been accepted, so that the wider relevance of the decision had to be deduced from the report of the pleadings. It was exceptional when he reported in one case that the judges had ‘Repelled the Defenses, and Sustained the Libel and Reply, to make up the palpable and known Law’, for mostly he left it to his readers to work out what effect the decisions would have on the law.377 It was a common complaint among the advocates that they had difficulty in making out any connection between their pleadings and the very concise rulings issued by the judges, which prompted speculation on the true motivation behind many decisions.378 Although the difficulty was to some extent alleviated by the publication of reports in which the thinking of the judges was made apparent, this was clearly not the approach Stair preferred to follow. The style of his reports was closely modelled on the style of the records extracted by the clerks, perhaps because he wished to stress the similarity between decreets of session and acts of sederunt. In this respect it may be significant that whereas Stair was reluctant to mention the judges’ resolutions to follow decisions in future cases without adding that they planned to pass acts of sederunt to that effect, Nisbet not only hesitated to mention these resolutions but also declined to mention the use made of acts of sederunt to reinforce them. Nisbet presented the decisions of the court as contributions to a continuous process of debate, whereas Stair presented them as sovereign acts that had the same effect on past cases as acts of sederunt would have on future cases. Nisbet presented decisions as expressions of opinion that required to be weighed against conflicting expressions of opinion, whereas Stair presented them as formal rulings that could seem quite detached from the exchange of opinions at the bar. Stair, it has been found, was eager to emphasise the finality of decisions, which makes his reluctance both to report the views of individual judges and to express his own views on the soundness of decisions (especially in the reports he wrote during the 1670s) readily intelligible. What this makes even harder to understand, however, is his purpose in reporting judicial decisions. If the decreets of session differed in their retrospective effect from the prospective acts of sederunt, and if decreets in contested cases did not provide evidence of popular consensus, then it is difficult to see how the decisions of the court could have been believed to have any bearing on the handling of future cases unless as refinements 376 377 378

Ibid, vol 1, p 286, and vol 2, p 297. Ibid, vol 1, p 200. See, eg, Lauder, Historical Notices, vol 1, pp 40–8.

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348 The Restoration Court of legal doctrine. Yet it clearly was not Stair’s aim to provide an account of judicial learning or to participate directly in augmenting that learning. At most his aim could have been to preserve and promote the exercises in learned disputation that lay behind decisions. As a former university teacher he could well have believed that the exchange of arguments by the parties to disputations was more crucial to the learning process than the formal determination of the debates by those who presided. What he described certainly were disputational exchanges.379

Resolving practical ‘doubts and questions’ When Nisbet’s collection of Some Decisions of the Lords of Council and Session was printed in 1698 it was accompanied by a collection of Some Doubts and Questions in the Law, Especially of Scotland. Despite the diffident title selected by the publisher, this other collection went a long way towards justifying Nisbet’s reputation as one of the most learned lawyers to have practised in Scotland during the seventeenth century. It has been suggested that his Doubts and Questions belonged to the same genre as the Quaestionum illustrium liber written by the French professor Franciscus Hotomanus while he was living in exile in Geneva in 1573, and Nisbet did in fact possess a copy of this treatise.380 There were, however, important differences between the two books. Hotomanus had tried to resolve in the successive chapters of his book ‘these questions that hold the first place in our law and have been agitated in the disputations of many jurists’, questions that were thought to be of contemporary relevance yet were mostly the ‘old questions’ disputed in the universities by the glossators and commentators.381 As a leading exponent of the mos Gallicus, Hotomanus had written in a more elegant style than his Italian predecessors, presenting a coherent account of the arguments on either side of the questions he handled rather than working through the various arguments, responses and answers that characterised academic disputations. If this meant that his book bore some resemblance to the reports of decisions increasingly published in France during the late sixteenth and early seventeenth centuries—and consequently differed in style from the more openly disputational reports written in Scotland—the resemblance was largely superficial. In his own way, Hotomanus did make a point of reviewing all the arguments and authorities available on either side of questions, and of the quaestiones disputatae of the schools, not the questions aired inter pragmaticos nostros, to which he turned only rarely and with evident contempt for those who had raised them.382 By contrast, Nisbet dealt only rarely with the questions debated by university professors, and when he did so it 379

The contrast in style between his reports and the lesson he gave as an intrant will be discussed

later. 380 Smith 1916, p 352 (repeated in Gardner 1936b, p 231); Catalogue of the Library of the Late Lord Dirltoun, p 17; Burns 1991, p 679. 381 Quaestionum illustrium liber, sig *3r. 382 For a rare exception see ibid, pp 42–5. On Hotomanus’ hostility towards pragmatici like Pape and Papon see Giesey and Salmon 1972, pp 30–1.

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The Disputes of the Lawyers 349 was for practical purposes and without any attempt at a rigorous review of all the arguments and authorities available.383 Nisbet showed in his Doubts and Questions that he had an impressive store of learning to draw from in responding to questions, but his concern was with the questions that troubled practitioners. Since Nisbet’s questions often appear to have occurred to him while he was writing his reports of the decisions of the session, a more apt comparison might perhaps be made with books like the Questions notables de droit written by Claude le Prestre, a judge in the parlement of Paris, or the Decisions notables sur diverses questions du droit written by Jean de Cambolas, a judge in the parlement of Toulouse.384 Although essentially collections of case reports, books like these sometimes presented essays on the questions raised by cases. Some of Nisbet’s questions appear to have occurred to him while he was working on acts of parliament or local customs, which suggests that another apt comparison might perhaps be made with a book like Guy Coquille’s Questions, reponses et meditations sur les articles des coûtumes, of which Nisbet also owned a copy.385 All these French practitioners had referred to both learned and local sources in seeking solutions to the questions they had encountered in practice, as had Scipion du Périer, an advocate in the parlement of Provence, in a book he published in 1668 dealing with Questions notables du droit.386 ‘This question’, du Périer remarked at one stage, ‘is extremely doubtful and disputable, for it has been determined neither by any statute, nor by any decision given in suitable terms, nor even by the resolution of any interpreter’.387 He attempted wherever possible to find answers to the questions left open by statute and custom by identifying ‘la plus grande et la plus saine opinion des Interpretes et des praticiens’, or ‘la maxime establie par les Docteurs et Praticiens, et authorisée par les Arrests’, and by explaining, when confronted with ‘la contrarieté d’opinions, de raisons et d’Arrests’, how in his own view the question might best be answered.388 It was in a similar vein that Nisbet sometimes referred to ‘the opinion or authority of Cragius noster, most learned in the common and national law’, or to ‘the authority of res iudicatae, which for me is great’, though mostly he offered solutions to questions without citing sources, even when he expounded his responses at length, often in essays composed in Latin.389 Many responses in his book consisted merely of jottings, others went no further than a peremptory ‘Answer Affirmativé’, and much of his book consisted of unanswered questions, interspersed with notes from half a dozen books he had been reading. In its failure to review rigorously the authorities touching on all the questions raised, and indeed to offer answers or even to raise questions in all the passages printed, Nisbet’s Doubts and Questions differed as much from the books on notable questions of law written by French practitioners as it did from the book by 383 384 385 386 387 388 389

See, eg, Doubts and Questions, pp 186–91. On Le Prestre see Dawson 1968, pp 326–9, and on De Cambolas see Michaud 1843, vol 6, p 458. Catalogue of the Library of the Late Lord Dirltoun, p 18. On Du Périer see Michaud 1843, vol 32, pp 480–81, and Prevost 1933–2000, vol 12, col 328. Questions notables du droit, p 297. Ibid, pp 106, 159 and 181. Doubts and Questions, pp 114 and 168.

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350 The Restoration Court Hotomanus. The material Nisbet had gathered together was published posthumously after being edited by another lord of session, Sir William Hamilton of Whitelaw, and it was probably not intended to be anything more than a collection of varied notes and queries.390 In many respects Nisbet’s Doubts and Questions bears less resemblance to the French books than to the notes on ‘some doubts in law’ and ‘some useful quaeries’ that were found among Sir Robert Spotiswoode’s papers, or to the notes on ‘querees’ that can be found scattered throughout Sir John Lauder’s notebooks.391 It records quite genuine uncertainty and perplexity about the practical application and development of the law, often inspired by cases heard in the session. If the obscurity of many passages in the Doubts and Questions may accordingly be illuminated by comparison with reports of the court’s decisions, a great deal of light may also be shed on Nisbet’s understanding of the relevance of decisions by comparison of his reports with the other notes he left among his papers.392 One of Nisbet’s questions was whether the maxim pactis privatorum non derogatur iuri communi should be taken to mean only that contracting parties could not dispense with the protective formalities provided by the law, or also that they could not abandon the benefits provided by the law, for instance by stipulating in a marriage contract that a surviving spouse would not enjoy terce or courtesy.393 He did not try to answer the question but instead observed that ‘the Lords of Session have not a Legislative Power: And when there occurres a Case not formerly decyded, and the best governed Nations do not agree anent the Point in question; some being for the Affirmative, some for the Negative; and upon probable Reasons on both sydes, sustinendum Iudicium’. That he meant by this that the court should refrain from giving judgment is clear, for he added at once that ‘if the Question be of an Exception from a general Rule; the Rule is to be stuck to, until there be a Law to the contrare’. He finally gave an example that helped to explain the connection between the point he was making and the pactis privatorum maxim. He revealed that he was thinking of a recent case that had raised the question ‘whether Minors should be debarred from the Remedie of Restitution, by their Oath; conform to the Novel Sacramentum puberum: Which in effect is to make a new Law’. The rule of Roman law that minors were not obliged to fulfil the promises they made and that they could recover whatever was lost through fulfilment of their promises had been received into the law of Scotland, but in 1677, shortly after Nisbet lost his seat in the session, the question was raised whether the Scots had also received an exception to the rule introduced by the later civil and canon laws that a minor would be obliged by a promise if he had reinforced it with an oath.394 Earlier decisions were adduced as proof that the exception ‘hath been allowed, and constantly followed by our custome’, and it was observed that ‘many famous Lawers 390 391 392 393 394

Forbes, Journal of the Session, p xlii. Spotiswoode’s notes were printed at the end of his Practicks. See further Cooper 1957, pp 278–9. Doubts and Questions, p 134. Stair, Decisions, vol 2, pp 578–9; Codex Iustiniani, ad 2.28.2; Libri feudorum, 2.53.10.

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The Disputes of the Lawyers 351 are positive, that an Oath supplies the defect of formalities and nullities’. When it was replied that the exception had been specifically excluded in ‘the Law of most Nations’, and that ‘publick Laws cannot be derogat from by privat Pactions or Oaths’, it was answered that many nations did still recognise the exception, that while others had introduced legislation to exclude it the Scottish court ‘must proceed according to Law, till such a Statute be introduced’, and that while private parties could not dispense with formalities by agreement they could undertake not to exercise ‘a meer personal priviledge’. Nisbet was evidently sceptical about this distinction, as about the relevance of the decisions adduced, which had been dismissed by the opposing advocate as relating to trivial sums. Since he did not think there were decisions sufficient to form the basis of a custom on the point at issue, and since there was apparently no consensus among the nations of Europe as to the merits of the exception, Nisbet believed that the received rule should have been applied until the exception was adopted by statute. He believed that the lords of session had failed to proceed according to law when they decided that the minor was bound by his oath, that they had in effect made new law by introducing the exception to the received rule, and that in doing so they had usurped the legislative authority of parliament. When a parliament next assembled in 1681 it did legislate on the issue, but in order to exclude the exception the court had recognised.395 After Nisbet’s book appeared in print his comments in this passage were subjected to reinterpretation by Sir James Stewart of Goodtrees, who had become an advocate in 1661 after giving a lesson on the civil law (and earlier serving an apprenticeship with Stair) and who held office as the king’s advocate later in the century.396 After quoting Nisbet’s words he remarked that ‘Courts of Judicature not having a legislative Power, when a new Case occurs, ought certainly to consider all Reasons pro and con; and principally the Analogy of our Law, and what may be observed in other Parts, with the greatest Verisimilitude; and that their Judgment should be sustained’.397 Stewart seemed to be in broad agreement with Nisbet, yet this last phrase was not consistent with Nisbet’s intention in writing that where the arguments on either side of a question were equally balanced sustinendum iudicium. If Stewart agreed that the lords of session lacked the power to legislate, he believed nonetheless that they enjoyed the sovereign authority to determine disputes, even if the arguments and authorities presented at the bar failed to indicate clearly how the case should be decided. He mentioned too that arguments ought to be drawn principally from analogous provisions in the local law, supported if possible by observations on the laws of other nations, whereas Nisbet had mentioned only comparison with foreign laws. The concern here was evidently with what Julian had meant when he advised lawyers confronted with cases covered neither by statute nor custom to examine quod proximum et 395

Acts of the Parliaments of Scotland, vol 8, p 352. NAS, CS 1/6/1, p 46; Forbes, Journal of the Session, p xxxiv. 397 Dirleton’s Doubts and Questions Resolved and Answered, p 217. On the concept of verisimilitude and its relationship with probability see Patey 1984, pp 77–83. 396

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352 The Restoration Court consequens ei est. Nisbet may have talked of comparison with foreign laws alone because that had been the focus of attention in the case about the oaths of minors, but other passages in his book confirm that he did attach some importance to the consensus of nations.398 In one passage he argued that it was not appropriate for lawyers to express opinions on constitutional issues on the strength of their knowledge of Roman law. His basic assumption was that they could not express any opinions as lawyers unless they had legal sources to work from since, ‘as to Lawyers and Juris-consults, it is said, Turpe est sine lege loqui, et ubi leges silent they cannot but be silent’. The civil law of the Romans had only been ‘the Municipal Law of that People’, and in contemporary Europe ‘the Constitution of the Respective States doth varie both from that of the Romans; and for the most part each from another’. It followed that ‘as to Questions of State and Government, the Civil Law is of no Use with us’, and that these questions could only be ‘warrantably Answered’ to the extent that lawyers had statutes or customs to work from. In another passage Nisbet seemed to apply the same thinking to questions of criminal law, which sheds some light on the position he took in defending Spotiswoode against a charge of treason based, as they saw it, on the civil law rather than on local legislation. But Nisbet applied quite different thinking to questions of private law. It was in relation to public law alone that he believed ‘the Laws of all Nations’ to be ‘only municipal’, for he believed that the civil law had otherwise been widely adopted and that ‘by Reason of the great Equity of it, in Questions de Iure privato, tho it has not the force of Law with us; yet it is of great Authority and use in cases not determined either by statute or custom’. The civil law may not have had the necessary force of legislation, but it did have the probable authority ‘to warrand the Resolutions and the Opinions of Lawyers’ on points of private law. Cases often arose, Nisbet observed in another passage, which could not ‘be easily decided by the customary Law of the Country, and Acts of Parliament’, but only ‘by such as understand the Civil and Canon Law’. After statute and custom had been exhausted judges could decide cases on the strength of their own expertise because in the area of private law the learned authority of the civil and canon laws had been acknowledged by the best governed nations of Europe. Another difficulty with handling constitutional issues left untouched by statute and custom was that lawyers had to be ‘at liberty to give their Opinion freely and without prejudice, which they cannot doe after His Majesty has any way predetermined them, by declaring his own Royal Will and Pleasure’. The freedom of lawyers to formulate and express their own opinions was a recurring concern of Nisbet’s and lay behind the most frequently quoted query in his book.399 He asked ‘whether the Sentences of the Lords of Session should be considered as Laws, and if notwithstanding thereof, these who are of another Opinion may in cases occurring thereafter, vote according to their own Opinion’. In the light of his clear declaration that ‘the Lords of Session have not a Legislative Power’, he cannot have 398 399

Doubts and Questions, pp 32, 138 and 214. Ibid, p 40.

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The Disputes of the Lawyers 353 been asking whether the court’s sentences were laws in the sense of rules laid down to prejudge or predetermine issues by the indirect exercise of the sovereign’s will. What he was asking becomes clearer if his question is read in the light of an incident in 1675 which he took the trouble to describe in his reports.400 After the king received a complaint about a decision of the session, a letter was drafted explaining what the judges had done and was produced by Stair for them all to sign. Some objected that while the letter purported to explain the decision of the whole court, they had expressed contrary opinions and could not subscribe those they had never held. They argued that ‘albeit in all Judicatories, even in Parliament, what is done by the plurality doth overrule and conclude the Dissenters, so as to submitt to the same: Yet they are not obliged to maintain or assert the Justice of a Sentence and Act, that they had been against in their Judgment and vote’. Eventually the dissenting judges agreed to sign, but in doing so several declared that ‘they subscribed not their own sense, but the sense of the Court’. It was this idea that the court, as distinct from its individual members, could have a sense or opinion that seems to have been behind Nisbet’s question whether its sentences could amount to laws. Elsewhere in his book he raised several queries about the ability of ‘a Colledge or Corporation, being in Law a Body’, to bind itself for the future, the problem being that a corporation had its own personality yet could only act through its individual members.401 It was arguable that the future members of a corporation could not be bound irreversibly by the decisions of their predecessors, yet it was also arguable that once a corporate decision had been made it would survive any alteration in the individual membership of the body. If the decisions of the College of Justice bound its future members then the question would arise whether they amounted to laws, and also whether the natural personalities of the judges would be so submerged in the artificial personality of the court that they could no longer hold their own opinions. Nisbet offered no answer, though Stewart felt able to respond that ‘the Sentences of the Lords do (no doubt) bind Parties; but no wise tye up the Lords dissenting, that they may not vote according to their own Opinion in like Cases occurring thereafter’.402 It does not follow, as has been suggested, that Stewart understood the majority judges to be bound to decide similar cases in the same way.403 His point was that decisions were final determinations of disputes, and he chose not to engage with the question whether they might be binding as corporate opinions.404 Nisbet’s understanding of the relationship between decisions and opinions became the focus of a personal crisis in 1677, when the king received a complaint that he had not only given private advice to litigants but had advised both the parties to an action. The lords of session were ordered to investigate the matter and 400

Decisions, p 102. Doubts and Questions, pp 37, 97 and 108. On corporation theory see Brown 1941; Chroust 1947; Ullmann 1948; Tierney 1965; Canning 1980. 402 Dirleton’s Doubts and Questions Resolved and Answered, p 70. 403 McKechnie 1936, p 41. 404 Elsewhere, as a later volume will explain, Stewart treated the Scottish people as a corporation. 401

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354 The Restoration Court submit a written report to the king, Nisbet was invited to write a paper recounting what had happened, and he took the opportunity to write several other papers justifying what he had done.405 To begin with he explained that ‘it was the practice and previledge of the kings advocats, even when they were lords of the session, in all times to consult and to give their advice to the subjects’. The king’s advocate was not only permitted but was sometimes obliged to advise parties or to plead at the bar, and it was no more problematic for him to sit at the same time as a judge than it was for advocates to hold office in the commissary or other inferior courts while continuing in practice. That litigants had never suspected Nisbet himself of partiality was shown by his record as an outer house judge, for most people had been eager to have their disputes heard by him, ‘and when he did decide or give his judgement, which he did often and almost in all causes without troubling the lords with reports, they acquiessed in his decisions’, very seldom insisting on a review in the inner house and then generally finding that his decision was upheld. Turning to the charge that he had ‘wronged his trust as a lawer’ by advising first one party to an action and then the other, he explained that he had not acted as an ordinary advocate, receiving a fee and undertaking to defend a client’s interest, but as ‘a councillour and jurisprudent’, entering into ‘no engagement or relation of patrominnie and clientele’. As the function of the king’s advocate was to supply ‘impartiall responsa prudentum’, like the consilia of ‘doctors and professors of law’, there was no reason why he should not express his opinion freely to both parties to an action, at least ‘where there was no dependence of proces’. This implied that once an action had started no further advice could be given, but why this should have made a difference was not made clear. In the late sixteenth century the lords of session had considered it a problem that they often received requests to answer ‘Queries in Writ, concerning Points in Controversy before inferior Judges’, for when cases were later heard on appeal by the session those who had expressed an opinion were obliged to withdraw ‘by reason of partial Counsel given’, and it had therefore been decided that no one ‘should sign Resolutions to any Question, except in Judgment’.406 It was considered extraordinary by some advocates that Nisbet should have been routinely required to vote as a judge on questions he had already debated as king’s advocate.407 Even Mackenzie, who encouraged Nisbet to defend himself against the complaint made to the king in 1677, thought it extraordinary for the same person to hold office as a lord of session and king’s advocate, believing that French practice had been imitated here without much reflection.408 Yet Nisbet himself did not believe that his role as king’s advocate restricted his freedom to judge impartially. On being offered support by Stair if he would ‘promise friendship and a good understanding with him’, Nisbet had preferred to preserve ‘that freedome which is allowed and incumbent to all judges to debate and vote according to their own judgment and reason without deferring to others’. 405 406 407 408

NAS, GD 205/40/10/16–17 and 19; Nesbitt 1941, pp 245–72. Forbes, Journal of the Session, p vii; NLS, Adv MSS 25.2.5(i), f 132v, and 25.2.7, f 109r. Mackenzie, Memoirs, pp 318–19. Observations upon the Laws and Customs of Nations, as to Precedency, p 43.

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The Disputes of the Lawyers 355 Feeling isolated, and fearing that his enemies would find some way of having him removed from office, he concluded that it would be as well to resign from office. So far as Nisbet was concerned, the sort of thing that might limit a lawyer’s freedom to exercise his own judgment was loyalty to a king who had predetermined a point of constitutional law, loyalty to a client whose interest he had undertaken to maintain, or loyalty to a friend who had indicated how he thought a question ought to be answered. The third example brings to mind Stair’s remark in his Institutions, quoted in the last chapter along with similar remarks made by Hope, that ‘I shall not pre-determine my self or others in the case, but leave it to publick determination’.409 Stair refrained here from predetermining his own judgment and the judgment of those beholden to him by expressing an opinion on a difficult issue, apparently assuming that the issue might be determined publicly in a similar way. The assumption appears to have been made by Stair and Hope as well as by Nisbet that questions could be determined by expressions of opinion, and that decisions were expressions of public rather than private opinion, the point being not simply that decisions were delivered in public but that they expressed public or common as opposed to private or singular opinions. It was perhaps for this reason that Nisbet spoke of customary laws being made only through the decisions of the king’s ministers of justice and not by popular usage, for at no stage in his book did he contradict his statement that the lords of session lacked legislative authority. There is a passage in which he remarked on one issue that ‘in this our Custome is lame, and opus est vel constitutione vel Decisione’, but he does not appear to have meant by this that a new law could be introduced by a decision as much as by a statute.410 This was an issue on which he had felt able to express a firm opinion and, as he had explained elsewhere, he believed that lawyers were only entitled to express opinions on what the law was, not on what it should be where there were not already sources of law to work from. When he spoke of the freedom of lawyers to express their own opinions he was not thinking of the freedom to express personal preferences or even moral commitments but of the freedom to formulate and maintain singular opinions on the law. Nor was he thinking of the freedom to decide each case as it arose, regardless of any opinions expressed in the deciding of previous cases. It was precisely because personal integrity was taken to require consistency in the making of judgments that doubts arose about the force of decisions, for the need to preserve the integrity of the College of Justice by upholding its decisions conflicted with the need of each judge to preserve his individual integrity by maintaining his own opinions. If it could be argued on the one hand that the public determination of disputes by the court could help to stabilise the law by expressing the common opinion of the judges on doubtful questions, it could be argued on the other hand that common opinions were worthy of respect only if they had emerged from the dialectical refinement of singular opinions. Judges who might once have been justified in relying on the communis opinio 409 410

Institutions, 13.41/2.3.41. Doubts and Questions, p 129; and see again Nisbet’s Decisions, pp 114–15.

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356 The Restoration Court doctorum because it had emerged from disputation in the schools, could only now be justified in relying on decisions if they had emerged from disputation in the court. Nisbet’s approach to reporting decisions was therefore to take note of the level of debate behind them and of the singular opinions expressed on either side, by impartial judges as well as by committed advocates.411 His purpose both in his Decisions and in his Doubts and Questions was apparently to promote the development of the law through learned debate on doubtful points of legal doctrine. Reinventing the advocates’ arguments In an essay in his Doubts and Questions on the value of the commissary courts Nisbet observed that ‘Testamentary and other Consistorial Causes, are in apicibus Iuris; and cannot be decided, but by the Civil and Canon Law’.412 At the beginning of one of the reports in his Decisions he observed in similar terms that ‘since the case that follows is doubtful and perplexing, and the debate about it is in apicibus iuris, it seems fitting to present it and the arguments adduced on either side from the civil law in Latin, the idiom of that law’.413 The report was duly presented in Latin, but neither here nor in a later report presented in the same language was it actually suggested or decided that a question left open by the local sources should be determined in accordance with texts or commentaries cited from the civil law. In one of the Latin essays in his Doubts and Questions Nisbet did refer expressly to texts from the Corpus iuris, to the opinions of several professors, and also to the example of French law, as described by Dumoulin, but this passage was exceptional.414 In most of his Latin essays Nisbet wrote about the problems he had encountered in the local sources without citing learned sources, using the language, concepts and principles of the civil law to elucidate the problems rather than proposing the adoption of solutions from the civil law.415 In commenting on one of these essays Stewart described it in a rather dismissive way as ‘this Latin Exercise’, and he remarked of another that ‘the Author seems to have more intended a Specimen of his Latin than of his good Law’, yet elsewhere he suggested that a Latin essay must be taken to represent ‘the Author’s second and best Thoughts’, and he gave part of his own response to another question in Latin.416 It cannot be concluded that Nisbet turned to Latin whenever his position had been carefully worked out since some of the more polished passages in his book, such as the essay on the value of the commissary courts, were in English. What may be significant is that the extended essays in Latin were all related to the feudal law and its application in Scotland. As might have been expected of the lawyer who assisted Burnet with the production of his edition of Craig’s Ius feudale, Nisbet used the 411 412 413 414 415 416

See again George Monck’s remarks in Acts of the Parliaments of Scotland, vol 6(2), p 916. Doubts and Questions, p 32. Decisions, pp 40–3, and see too pp 173–4. This was the passage referred to in n 382 above. Doubts and Questions, pp 57–67, 92–4, 112–15, 152–4 and 158–71. Dirleton’s Doubts and Questions Resolved and Answered, pp 110, 158, 189–90, 245 and 262.

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The Disputes of the Lawyers 357 language of the learned laws in an attempt to clarify issues in the land law of Scotland. He used Latin to signal not that he was turning from the local to the learned laws but that he was writing about the local law with learned authority.417 In other reports in his Decisions Nisbet revealed that the lords of session were sometimes encouraged to adopt solutions to problems from the civil law. One case involved discussion of the question whether a person nominated in a will to serve as tutor to an infant heir should have to account for his dealings with the estate from the moment he heard about the nomination or only from the moment he accepted the appointment.418 As Nisbet reported the debate, ‘diverse Citations were adduced from the Civil Law’ to show that a tutor was obliged to take care of an estate as soon as he was told about his nomination, particularly where, as in the case in hand, he had been left a legacy in the will.419 In reply the lords of session were reminded that they had already decided the case five years earlier on a report from the outer house, finding that the responsibility of a tutor began only when he accepted appointment, and they were urged to stand by their previous decision ‘in respect the Civil Law is not received by us altogether in the case of Tutors’. It was pointed out that in Rome tutory had been a munus necessarium which no one could decline without a satisfactory excuse, whereas in Scotland no one was forced to accept appointment, and that even by the civil law it was irrelevant that a legacy had been left until it was actually received. Nisbet reported that the lords of session had concluded on these grounds that their previous decision should be upheld, and he then noted some observations that had been made by the judges ‘in the Debate amongst themselves’, one being that the rule requiring a tutor in receipt of a legacy to accept appointment was ‘only provided by the Civil Law; which is the Municipal Law of the Romans; and is not of force with us, until it become our Law, either by a Statute or Custom authorizing the same’. This observation appeared in Stair’s account of the case in significantly different terms and among the arguments presented by the tutor’s advocate. ‘And as to the alteration arising from the Legacy’, he was reported to have said, ‘it is of no moment; nor is the Roman Law a rule to us further than our Customs have allowed the same; so that Tutors are not obliged to know or consider the Roman Law, but the Law of this Kingdom’.420 The impression given by Stair’s report was not that one of the judges had questioned whether a particular provision of the municipal law of the Romans could form part of Scots law without explicit reception but that the decision of the whole court had been influenced by an argument regarding the general authority of the civil law. The argument was not summarised in any form in the long and detailed decreet extracted from the process by one of the 417 There are other, much shorter, passages in Latin in Nisbet’s Doubts and Questions, pp 6, 28, 76–7, 103, 146 and 155, some of which related to actual or imaginary cases. The inclusion of passages in Latin alongside notes taken in the same language from continental treatises and of similar passages in English could have formed part of a deliberate attempt to transfer learning into Scots law, but it is even harder to draw reliable inferences from the inclusion and arrangement of material in Nisbet’s Doubts and Questions than it is from the material assembled in Spotiswoode’s Practicks. 418 Nisbet, Decisions, pp 111–12. 419 Nisbet referred generally to Digest, 26.1 and 7, and 27.1; Code, 5.37–8 and 62. 420 Stair, Decisions, vol 2, pp 314–15.

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358 The Restoration Court clerks, nor can it now be found in any of the informations submitted to the court in the course of the protracted litigation that arose from the dispute.421 Nisbet therefore seems to have been correct in including the argument among those rehearsed by the judges, though since it was Stair who had originally reported the arguments from the outer house it may be that he had reminded the judges correctly of an argument presented there in oral debate.422 Four months later another case was reported in significantly different terms by Stair and Nisbet.423 Two sisters had become joint owners of land by inheritance. When one married a Glasgow stonemason he was granted her share of the land in fulfilment of a marriage contract, but after the other sister married a new arrangement was made with the consent of all four spouses. The ownership of the land was returned to the sisters, their husbands being entitled only to enjoy the land for their lifetimes, with ownership passing on the death of either sister to any children of her marriage or, should there be none, to the other sister and her children. It was objected by one of the stonemason’s creditors that his position had been rendered less secure by the new arrangement since it had deprived his debtor of a valuable asset. He sought to have the return of the land to the sisters annulled in accordance with an act of parliament passed in 1621, which had been designed to reinforce an act of sederunt declaring the intention of the lords of session ‘to follow and practize the guid and Commendable lawis Civill and Cannone made aganis fraudfull alienatiounes in prejudice of creditores’.424 When it was replied that the act’s purpose had been to prevent bankrupt debtors from defrauding their creditors, and was pointed out that the stonemason remained solvent and had transferred ownership for a perfectly respectable cause, it was answered that whatever the specific concern behind the introduction of the legislation may have been it had the effect of invalidating any gratuitous transfer made to the detriment of a creditor. As Nisbet reported the case, it was observed during the debate at the bar that ‘by the Civil Law, all Rights and Deeds made and done in prejudice of Creditors without an Onerous Cause, are null, and may be rescinded actione Pauliana’, and was observed during the debate on the bench that ‘when we have not a Municipal Law, nor custom to the contrary, we ought to follow, tho not the Authority, yet the Equity of the Civil Law, which is received every where, where there is no custom to the contrary’.425 Stair did not report these arguments, and came no closer to doing so than in attributing to the defender’s advocate the statement that ‘even the actio Pauliana behoved to have fraud in prejudice of 421 The dispute had first been aired before the Interregnum court and was not even settled by the ruling reported by Nisbet and Stair in 1675, which is presumably why the process is now to be found among the papers of the pursuer’s family rather than among the court records. The decreet is preserved as NAS, GD 137/2194, and the more relevant submissions by advocates as GD 137/1046–8 and 1057. The defender complained (for instance in GD 137/1049) that the action was being prolonged vexatiously. An information from the case can also be found around the middle of NLS, Adv MS 27.2.2. 422 NAS, GD 137/1045. 423 Stair, Decisions, vol 2, pp 336–7; Nisbet, Decisions, pp 139–41. 424 Acts of the Parliaments of Scotland, vol 4, p 615. 425 The term actio Pauliana had been added to Digest, 42.8, by the glossators.

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The Disputes of the Lawyers 359 Creditors’. In this case the records of the court do not confirm the reliability of Nisbet’s report, but since the opinions expressed by the judges were never entered in the records it could hardly be expected that the most interesting observation he reported would be found there.426 What may be significant is that after Stair had inserted into the arguments he reported in one case the opinion that the civil law had no authority until it was received locally, he refrained from inserting into the arguments he reported in another case the opinion that the civil law should be followed non ratione imperii sed rationis imperio. Nisbet made it clear that each of these opinions was held by ‘some of the Lords’. Two years later Stair and Nisbet produced contrasting reports of a third case dealing with the authority of the civil law.427 The pursuer had sought to have a transfer of land annulled on the ground that the transferor had been imprisoned and mistreated by the defender and had only agreed to subscribe a deed because he was frightened. Specific reference had been made to the provisions of Roman law on the reduction of deeds ex capite metus, and the defender’s advocate had responded by reminding the judges that in Roman law only such threats as would have alarmed a resolute man were taken into account, and then only if actual loss had been suffered.428 It was alleged that what had happened here would not have frightened a resolute man, that the transferor had been induced merely to subscribe a deed in execution of a transfer he was obliged to make, and that he had done so after being released from imprisonment. The lords of session decided that the pursuer should have the opportunity to prove that the deed had in fact been subscribed while the transferor was still imprisoned, concluding that the first two allegations made by the defender were irrelevant, though Nisbet revealed that some of the judges had found the argument about actual loss needing to be suffered persuasive. They had acknowledged that the thirteenth text in the Digest title on metus described a remedy penalising anyone who used force to obtain something due to him instead of pursuing an action before a court, but they had argued that this remedy, ‘being penal, by the Municipal Law of the Romans, cannot be introduced by the Lords of Session being Civil Judges, without an Act of Parliament’. Nisbet’s report gave the impression that the other judges had been prepared to rely on the thirteenth text in the Digest title, while those who disagreed had assumed that they could rely on the texts in the title describing ‘a Civil action’ for duress without any authorisation from an act of parliament. This was not the impression given by Stair’s report. As usual he made no mention of opinions expressed by the judges but presented the bare decision of the court as a response 426 The decreet and process can both be found in NAS, CS 15/499. The decreet in this case, like those in the cases discussed in the preceding and following paragraphs, cannot be found in the appropriate volumes of the register of acts and decreets, yet nor can any of these cases be found indexed among the unextracted processes catalogued in the National Archives of Scotland. GUL, Murray 62, gives a list of many cases from the 1670s and 1680s of which the records were known to have gone astray by the beginning of the eighteenth century, and since none of the cases dealt with here is included in this list there must have been more. 427 Stair, Decisions, vol 2, pp 489–91; Nisbet, Decisions, pp 207–9. 428 See generally Digest, 4.2.

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360 The Restoration Court to the arguments advanced at the bar, and while he did mention the texts cited on either side from the Digest title, he gave the impression that the decisive argument had been against placing any reliance on Roman law. As Stair reported the case the pursuer’s advocate had argued that ‘the Roman Law not being obligator with us, we only follow it for its equity, and expedience, and not for its authority; so that it is not sufficient to cull out particular responses of their Juris-prudence, whereof there are many contrair congested in the Digests, and therefore we are not bound to use the expedients introduced by that Law’. No trace of this line of argument can be found in the informations submitted by the advocates or in the very detailed account of the case written by Patrick Home.429 The argument imputed to the pursuer’s advocate by Stair was similar in its terms to the argument imputed to some of the judges in Nisbet’s report of the case dealing with the reception of the actio Pauliana, for in both instances it was observed that the civil law was followed for its equity rather than its authority. Yet the arguments were also significantly different, for in Nisbet’s report it was emphasised that the civil law was ‘received’ and ‘ought’ to be followed where there was no local custom to the contrary, whereas in Stair’s report it was emphasised that the civil law was not ‘obligator with us’ so that the Scots were ‘not bound to use the expedients introduced by that Law’. As was noted in the last chapter, the mention of both the equity and the expediency of the civil law was a distinctive feature of Stair’s account of the authority of the civil law in his Institutions, much as the contrast between the provisions of the civil law that were commonly received and those that were merely municipal was a distinctive feature of Nisbet’s discussion of the topic in his Doubts and Questions. In writing their reports both Stair and Nisbet seem to have allowed their own views to affect at least the form of the arguments they recorded, and Stair was apparently prepared to be quite creative in reorganising and restating the arguments advanced in the court. In another case he attributed to an advocate the argument that provisions of the civil law adduced by his opponent ‘neither meet the Case, nor are they Laws for us, where the Civil Law is not a Law, but an Example we follow freely when we find it Just and fit’.430 The advocate had in fact been Mackenzie, and this was certainly not how he wished his argument to be remembered. In his Pleadings he did indeed contend that the problem addressed in the texts cited by his opponent ‘differs very much from our case’, but far from casting doubt on the general authority of the civil law he based his argument on the authority of other texts cited from the Digest.431 Stair again put a peculiar slant on the decision relating to the liability of pro-tutors. Whereas Baird reported that the lords of session had declared their intention to decide cases ‘conform to the civil law’, Stair reported that they had consciously made new law, ‘seing there was no Law nor Custom of ours to make a Pro-tutor lyable in all points as a Tutor, and that the Civil Law oblieges not us, but only we 429 For Home’s account see either NLS, Adv MS 28.3.8, pp 398–409, or Adv MS 28.3.9, pp 256–63. The informations can be found in Lauder’s collection, towards the back of Adv MS 27.4.1. 430 Stair, Decisions, vol 1, pp 49–50. 431 Mackenzie, Pleadings, pp 34–9. More will be said about this case in the final chapter.

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The Disputes of the Lawyers 361 ought to consider the equity and expediency thereof’.432 This point of view was repeatedly stated in Stair’s reports as if it was a standard assumption.433

Disputatio fori as refinement of auctoritas prudentium Given that Stair appears to have gone to some trouble to promote a particular view of the relevance of the civil law in his reports, it is tempting to conclude that he intended to promote the same view in his Institutions. Despite presenting there what seemed to be a reformulation of the familiar proposition that the civil law was followed not by reason of its authority but by authority of its reason, he never actually stated that the civil law was obligatory to the extent that it was found to be equitable and expedient, describing it rather as a store of examples that might be followed by the legislator. He appears in his Decisions, particularly when read in comparison with the reports Nisbet produced at the same time, to have promoted more robustly the view that the Scottish legislator was not in any way obliged to follow the example of the civil law, however worthy it may have seemed of imitation.434 He appears to have promoted in Scotland a movement away from reliance on the learning of the schools towards reliance on the decisive determination of disputes by the courts, and thus to have promoted a Scottish variant of a general shift in dependence from doctrine to decisions that is believed to have occurred throughout Europe during the sixteenth and seventeenth centuries.435 A dramatic increase in the amount of case reporting across the Continent coincided then with a change in the more traditional practice of reporting in England, where notes on the common erudition of lawyers gave way to accounts of the decisive rulings that courts were increasingly prepared to make. In France in particular, where far more reports were in reality printed than in England, lawyers came to rely on the decisions of the courts for guidance on how their redacted customs and royal ordinances were to be interpreted and applied.436 Influenced no doubt by the 432

GUL, Gen 1262, p 36; Stair, Decisions, vol 1, p 280. See too Gilmour, Decisions, pp 84–5. This is not to say that he never reported contrasting views. At Decisions, vol 1, pp 173–4, and vol 2, pp 46 and 633, he reported arguments of a mos Italicus variety, though not in a way that elevated them to the status of standard assumptions of the court. 434 In his Institutions, 1.11/1.1.12, Stair remarked that the civil law was followed as a rule, while in his Decisions, vol 2, pp 314–15, he reported the argument that the civil law was not a rule any further than it had been received by statute or custom. But it is difficult to know whether this difference in expression reflected a difference of opinion. Although Nisbet, Doubts and Questions, p 138, stated that the civil law lacked legal force in Scotland yet had great authority, he remarked at p 32 of the same book that the civil and canon laws were followed for their equity as opposed to their authority, and he reported an argument advanced in similar terms in his Decisions, p 140. The difference here was in expression alone, for Nisbet clearly believed that while the civil and canon laws were without legislative authority in Scotland they did have learned authority. 435 Baker 1985 and 1989. These crucially important articles gave rise to extensive study of the records and reports of decisions throughout Europe. 436 Timbal 1963; Sève 1985; Thireau 1993. Dawson 1968, p 337, remarks on the relative incidence of case reporting in France and England, but without mentioning the widespread circulation of reports in manuscript among English lawyers, which is noted in Abbott 1973, pp 240–41; Baker 1975, p 12; Ibbetson 1997, p 56. 433

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362 The Restoration Court humanist professors who dominated their universities, French practitioners came to regard the civil law as the product of a past civilisation, to examine their own law in historical perspective, and to attribute all law to the exercise of sovereign authority.437 Advocates then developed a style of pleading that was designed less to assist the judges in reaching the correct legal decisions than to persuade them to exercise their sovereign authority in particular ways.438 When the sovereignty of the courts was undermined in the latter half of the seventeenth century the result was not a renewed emphasis on learning, for the purpose of imposing limits on the parlements’ powers of remonstrance, freedom of interpretation, and practice of pronouncing decisions was to reduce the judicial function to the literal interpretation and strict application of the king’s edicts. Paradoxically, the effect of the creation of university faculties devoted to the study of French law in 1679 was to strengthen this trend by restoring responsibility for legal doctrine to the schools.439 It was no accident that the term jurisprudence came to assume the peculiarly narrow meaning in French usage of case law as opposed to doctrine.440 It is important to recognise, however, that this peculiar usage also reflected the fact that responsibility for the learned development of the law had at one stage been quite successfully assumed by the courts in France. Although writers in the second half of the seventeenth century were inclined to search for the law in redacted customs, royal ordinances and the decisions of the courts, it took them some time to move away from treating the decisions as exercises in learning.441 In comparing the sources of French and Roman law one writer observed that ‘as for the responses of the jurists, there is no one in France who has the power to respond on the law in such a way that his answer can pass as formal law, though a great deal is invariably made of the advice of persons absorbed in the palais, who in Cicero’s view ought to be totius oraculum civitatis’.442 Cicero had used this expression in imagining himself as a retired orator giving advice on the law to grateful clients, the implication being that lawyers should be envisaged as experienced advocates who could provide reliable information on what the law was and on how cases would be decided rather than as iurisprudentes who were actively involved in the dialectical development of the law.443 Yet the French writer continued to use expressions like ‘la commune resolution des Docteurs’, ‘l’opinion de tous nos Jurisconsultes François’, and ‘l’opinion de tous les Praticiens François’, all of which hinted at the more active role lawyers had sometimes played in legal devel437 Reulos 1963; Thireau 1995 and 2003; Gazzaniga 1995 and 2000. French legal thought thus passed through the same pattern of development as is found in Scottish legal thought in Cairns, Fergus and MacQueen 1990. The question is whether an important stage in the development has been ignored. 438 Holmès 1967, pp 270–71; Dawson 1968, p 373; Descimon 1997, pp 114–15. This development and its significance for legal practice in Scotland will be returned to in the third volume in this series. 439 Bart 1998, pp 152–4; Basdevant-Gaudemet and Gaudemet 2000, pp 164–5; Carbasse 2002, p 214. 440 Carbonnier 1974, pp 91–2; Chêne 1982, pp 223–4; Demars-Sion 2002, pp 117–18. 441 Nouveau dictionaire civil et canonique, pp 100 and 362–4; HM, Remarques du droit françois, sur les Instituts de l’empereur Justinien, pp 2–3 and 9–10; Claude de Ferrière, Institutiones Iustiniani singulari methodo illustratae et cum iure Gallico collatae, sig A4r and pp 17–20. 442 HM, Remarques du droit françois, sur les Instituts de l’empereur Justinien, p 10. 443 De oratore, 1.45.200.

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The Disputes of the Lawyers 363 opment.444 Another writer pointed out that the only significance the custom of one province could have in another was in interpretando non in constituendo, yet he still talked about the respect shown everywhere to ‘la plus saine partie des Coûtumes du Royaume’, and to the custom of Paris especially as ‘la plus sage’, recalling that earlier in the century the customs of neighbouring provinces had been followed on the strength of their reason and dignity.445 Guy Coquille’s argument that the customs of neighbouring provinces should be respected on the same basis as the civil law was repeated as late as 1666 in a book by Paul Challine, an advocate in the parlement of Paris.446 As was noted earlier, two years later Scipion du Périer was still seeking to find authoritative answers to the Questions notable du droit he raised among the opinions expressed by professors and practitioners. He was not alone in attaching particular value to an opinion ‘confirmée par divers Arrests’, or in talking about ‘la Doctrine des Arrests’, or in recognising that even circumstantial decisions could have ‘une grande autorité’ on the strength of their ‘raison’.447 When writers wrote in terms like these in the latter half of the seventeenth century they indicated that they were not yet prepared to distinguish sharply between jurisprudence and doctrine.448 Earlier writers who had commented on the purpose of reporting the decisions of the parlements had generally emphasised the assistance their reports could provide novice advocates in making the transition from theory to practice, though they had also made something of the benefits they offered to experienced practitioners.449 Barnabé le Vest had thus emphasised that his reports would enable ‘the young to perceive the mode of proceeding, the terms of art, the manners and forms of establishing their judgment in doubtful matters’, while François Desmaisons had added that in his reports ‘there are some passages sufficiently replete with doctrine and learning to satisfy the erudite and to give them relief in the questions they have to treat’.450 In an exceptionally elaborate discussion of his aims as a reporter Jean Bouguier had admitted that he was concerned with a science fort douteuse, but he had denied that this was because ‘justice resides in opinion and not in truth’.451 Although he had accepted that decisions would indeed have been ‘arbitrary’ and ‘doubtful’ if founded on each judge’s ‘good natural sense’, he had pointed out that it was in order to avoid this uncertainty that those elevated to judicial office were required to have studied the learned laws, for 444

HM, Remarques du droit françois, sur les Instituts de l’empereur Justinien, pp 233, 412 and 421. Nouveau dictionaire civil et canonique, pp 260–61. 446 Methode generale pour l’intelligence des coustumes de France, pp 173–206. For Challine’s career see Michaud 1843, vol 7, pp 410–11, and Prevost 1933–2000, vol 8, col 213. 447 Nouveau dictionaire civil et canonique, p 101; HM, Remarques du droit françois, sur les Instituts de l’empereur Justinien, pp 9–10, 53, 57 and 59. 448 See too Chêne 1985, pp 184–7, and 2002, pp 75–7; Petitjean 1997, pp 270–71; Hilaire 2002, p 89. 449 Dauchy 1997, pp 245–6; Petitjean 1997, p 268; Hanley 2003, pp 10–11. 450 Le Vest, CCXXXVII arrests celebres et memorables du parlement de Paris, sig A4r; Desmaisons, Nouveau recueil d’arrests et reglemens du parlement de Paris, sig A4r. 451 Arrests de la cour decisifs de diverses questions, sigg I3r–O1v. Bouguier, it should be noted, came closer to following the openly disputational style of the Scottish reports than most French reporters. He had interesting things to say about forensic eloquence, which will be examined in a later volume. 445

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364 The Restoration Court though the French were not strictly bound by the civil law Bouguier knew of no way ‘to rule our judgments more surely than with these written laws that have shown us the path and way to the truth’. The Roman jurists, he maintained, had opened ‘the fountains of the truth’, yet this had not always been ‘sufficient to put an end to uncertainty and the diversity of opinions’. This was why it had been necessary to impute authority to res perpetuo iudicatae, and this in turn was why it had become possible to assert in France that senatus ius facere potest, even if it was recognised that ‘the parlements and sovereign courts cannot truly establish a law or genuinely abolish an old one, that being given to the prince alone, in whose person all sovereignty resides’. ‘But they can’, Bouguier had insisted, ‘by the force and authority of their decisions, establish in judging cases and disputes between parties a certain and perpetual law to have recourse to in the event of parallel and like difficulties’. Decisions could thus clarify the law, provided the ‘motives and reasons’ behind them were understood, though the problem remained that the judges were not permitted to divulge their reasoning. According to Bernard de la Roche Flavin it was for the advocates in later cases to identify the fundamental principles behind decisions through the disputatio fori associated in the Digest with the auctoritas prudentium.452 De la Roche Flavin believed that ‘just as some philosophers once had their established principles, to contradict which and depart from which was not allowed, so too among us there are certain axioms of the civil law of the French which it is wrong to call into doubt by contested disputation’. Anyone who challenged these established principles ‘would deservedly be considered ignorant of our law’, and their arguments would be properly countered by the philosophical objection that contra negantem principia non est disputanda. The reporting of decisions would accordingly provide not only a store of ‘decisions, examples and precedents to imitate’, but also a record of the dialectical process through which it gradually emerged that some rules of law were not so much the subject as the presuppositions of debate.453 From this perspective, the disputatio fori of the advocates would be one of the ways in which the auctoritas prudentium appropriated by French practitioners would make new law, and some writers therefore tried to fashion ‘a sort of conference of opinions and precedents’, by combining an ‘epitome of the better and more celebrated authors of French law’ with the decisions of the ‘sovereign courts of France, related from the more famous reporters of the times’.454 From this perspective, the ‘Arrestographes’ as well as the ‘Autheurs’ would be taken to have prised responsibility for the forming of legal doctrine away from the professors by weakening their claim to authority without weakening the authority itself. It was the delicacy of this manoeuvre that can at times make it hard to tell what a writer had in mind when he wrote about the authority of the learned laws. Bernard Automne, for example, commented in his Conference du droict françois avec le 452

Treze livres des parlemens de France, pp 306–7, 542 and 560. De la Roche Flavin himself reported Arrests notables du parlement de Toulouse. 454 Noel du Fail, Memoires des plus notables et solemnels arrets du parlement de Bretagne, sigg O2v–3v. See too Leyte 2003, pp 62–3. 453

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The Disputes of the Lawyers 365 droict romain that when provisions of the civil law were received in northern France, ‘the inhabitants are not subject to the said law but truly to the customs introduced after the example and in imitation of the said law’.455 John Selden referred to this statement in support of his proposition that the civil law had no more authority in France than the writings of poets, philosophers and historians, yet it has been found already that Automne viewed ‘the authority of the greatest practitioners of France’ as a source of law.456 His point was not that the learning of lawyers lacked authority but that learned authority had been transferred from the schools to the courts. Similarly, it may be wondered whether Etienne Pasquier was as opposed to the concept of learned authority as has recently been suggested.457 A prominent advocate in the parlement of Paris at the beginning of the seventeenth century, Pasquier wrote about the authority of the civil law in a series of letters addressed to Antoine Loisel, a close friend, and to Anne Robert, who had sent him a copy of his reports.458 Pasquier argued at length that the opinions expressed by the Roman jurists could not have enjoyed the force of laws, made critical comments on the accumulation of opinions by university professors, and took French law to reside in ‘the royal ordinances, the various customs of the regions, the general decisions of the sovereign courts, and certain ethical propositions that we observe through long and ancient usage out of fidelity and deference to Roman law’. It is understandable that his comments have been taken to mean that the views lawyers expressed could amount to no more than advice on what the law was or on how it should be changed, and his generous remarks on Robert’s reports could have been interpreted as support for the new mode of pleading in which the advocates used their eloquence to persuade the judges to exercise their sovereignty in the ways they desired. Yet the point of questioning the authority of the Roman jurists and Italian doctors could instead have been to make room for the exercise of the same authority by French practitioners, and elsewhere Pasquier actually spoke of Bartolus as someone who by ‘mixing theory and practice together’ had shown how jurists could offer guidance to the courts.459 It was Pasquier, furthermore, who in noting that the general decisions of the sovereign courts were solemnly pronounced ‘pour servir de leçon’ had begun to doubt whether it made sense to describe them as senatusconsulta.460 In a fictitious dialogue between several Parisian advocates, Loisel felt able to have Pasquier declare: ‘I desire in my advocate the opposite of what Cicero requires in his orator, which 455

Automne, Conference du droict françois avec le droict romain, sig 01v. Selden, Historie of Tithes, p 480. 457 Parrow 2001. 458 Les oeuvres d’Estienne Pasquier, vol 2, cols 563–82. On Pasquier’s career see Kelley 1970a, pp 272–8; Burns 1991, p 688; Roelker 1996, pp 26–8. Thickett 1979, p 67, dates the last and most important of the letters to 1609. Automne’s book was published in the following year. 459 Les recherches de la France, vol 3, pp 1565–8. In his letters Pasquier actually said that provisions of the civil law ought to be adopted when they were found to contain ‘some natural light of justice’, though always with ‘limitations and modifications, depending on what we reckon to be better and more expedient’. He referred with apparent approval to Baldus’ famous observation that the French imputed probable authority to the civil law. 460 Les oeuvres d’Estienne Pasquier, vol 2, col 578. 456

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366 The Restoration Court is eloquence in the first place and then some knowledge of law; for I say quite the reverse, that the advocate must be above all learned in law and practice and not especially eloquent, more a dialectician than a rhetorician, and more a man of business and judgment than of grand or lengthy discourse’.461 Pasquier’s criticisms of the university professors were similar to those expressed by Guy Coquille in his commentary on the custom of Nivernais where, as was mentioned in the last chapter, French lawyers were urged to avoid the labyrinthine complexities of the civil law by concentrating on their own customs. Both writers complained that the university professors contradicted each other endlessly and that undue weight was given to counsels written for the reassurance of those who had commissioned them.462 Coquille restated most of his complaints in his Questions, reponses et meditations sur les articles des coûtumes before concluding that the writings of the doctors formed ‘a mass so excessive—like an ocean sea— that three lives may be said to be insufficient to arrive at a resolution of the questions they have debated, and we are most fortunate in the brief and substantial texts of our customs which are not subject to such anxieties and uncertainties’.463 The same metaphor was used in a well-known passage from the second part of Sir Edward Coke’s Institutes of the Laws of England, first published in 1642.464 ‘Upon the Text of the Civil Law’, Coke wrote, ‘there be so many glosses and interpretations, and again, upon those so many Commentaries, and all these written by Doctors of equal degree and authority, and therein so many diversities of opinions, as they do rather increase then resolve doubts and incertainties, and the professors of that noble Science say, that it is like a Sea full of waves’. He explained that the difference between the literature of the civil law and the literature of the common law of England was that the former consisted of glosses and commentaries ‘written by Doctors, which be Advocates’, and was therefore based on ‘private interpretations’, whereas the latter was fashioned from ‘the resolutions of Judges in Courts of Justice in judiciall courses of proceeding, either related and reported in our Books, or extant in judicial Records, or in both’. When gathered together these public resolutions produced ‘Certainty, the Mother and Nurse of repose and quietness’, and in contrast to the private opinions of the doctors they were ‘not like to the waves of the Sea’. In writing this passage Coke appears to have had before him the preface to Sir John Davies’ reports of the decisions of the English judges in Ireland, for Davies had talked there in strikingly similar terms of the relative uncertainty of the civil and common laws.465 ‘The Civilians themselves confesse’, he had felt the need to point out, ‘that their lawe is a sea full of waves, the Text whereof being digested into so many volumes, & so many Doctors interpreting the Text, & twise as many more Commenting uppon their interpretations, & 461

‘Pasquier, ou dialogue des advocats’, p 122. They were presumably thinking especially of the consilia commissioned by litigants rather than by courts, a distinction neglected by Nisbet. On the different varieties of consilia see Riesenberg 1962, pp 8–10; Pazzaglini and Hawks 1990, pp xiii–xiv; Kirshner 1999, pp 111–16. 463 Oeuvres de maistre Guy Coquille, vol 2(1), p 128. 464 Second Part of the Institutes, sig A6v. See too Helmholz 1990a, pp 14–18. 465 Le primer report des cases, ff 4–5. See too Pawlisch 1985, p 167. 462

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The Disputes of the Lawyers 367 so glosse uppon glosse, & booke uppon booke, & every Doctors opinion being a good authority fitt to bee cited & vouched among them, must needs breed distraction of opinions & uncertainty in that lawe’.466 Davies had felt the need to point this out in responding to the ‘vulgar imputation of uncertainty’ levelled against the common law, for he knew that many people assumed from the volume of litigation passing through the courts that the law must be doubtful. He maintained that most of the cases heard by the courts turned on doubts about their facts rather than the law, he observed that the judges were rarely required to assemble in the exchequer chamber to issue resolutions on new legal questions, and he recalled a remark made by Coke in his reports to the effect that the fundamental principles of the common law were seldom if ever disputed in the courts.467 Davies suspected that had Sir Thomas Littleton’s treatise on feudal tenure been written by a civilian it would already have been overwhelmed by glosses and commentaries, whereas in England it was thought ‘that Littleton being a learned & reverend Judge, wrote with a purpose to bee understoode, & that therefore an other man, specially if he were of lesse learning then hee, could hardly expresse him better then he had expressed himselfe’. Precisely the same line of argument could not have been pursued by Coke since the first part of his Institutes, published in 1628, thirteen years after Davies’ reports, had consisted of a commentary on Littleton’s treatise. Coke did not draw the distinction that has often been drawn between the foundation of the civil law in texts and of the common law in cases. He believed that the common law had basic texts of its own, starting with ‘the Register, which containeth the original Writs of the Common Law’, and including the treatises ascribed to Glanvill, Littleton and others, and the ‘old Statutes’ on which he set out to comment in the second part of his Institutes.468 Moreover, he believed that the civilians themselves appreciated the benefits of ‘the Reporting of particular Cases or Examples’.469 If case reporting had been more central to the English tradition, this had merely induced one common lawyer, who had made a detailed comparison of the common and learned laws, to advise students on how to confront the problem ‘that the law books are so huge, and large, and that there is such an ocean of reports, and such a perplexed confusion of opinions’.470 Coke’s response to the problem was not to deny that the common lawyers had their texts or that their reports were voluminous but was to distinguish between the expression of private opinions and the reporting of public resolutions.471 He considered it to be one ‘of the great Honours of the Common Laws, that Cases of great Difficulty are never adjudged or resolved in tenebris or sub 466 Davies referred here to a commentary on the Regulae cancellariae which will be returned to shortly. 467 Reports of Sir Edward Coke, pt 2, p x. 468 First Part of the Institutes, sig A6r; Reports of Sir Edward Coke, pt 10, ff xiii-xx. 469 Reports of Sir Edward Coke, pt 6, pp ix-x. 470 Fulbeck’s Direction, or Preparative to the Study of the Law, p 13. Fulbeck’s Direction had been published in 1600. His comparative study of the common and learned laws had appeared in 1598. 471 On the composition of Coke’s Reports see Plucknett 1942; Baker 1972; Powell 2000. On reporting in England generally see Abbott 1973; Baker 1989; Bryson 1995; Macnair 1995; Ibbetson 1997.

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368 The Restoration Court silentio suppressis rationibus’, for in England, unlike France and Scotland, the judges did not deliberate on cases behind closed doors or issue bare rulings without explaining their reasoning.472 In England cases were debated ‘first at the Bar by the Counsel learned of either Party’ and afterwards ‘at the Bench by the Judges’, who spelled out ‘in open Court’ all the ‘Authorities, Reasons and Causes of their Judgments and Resolutions in every such particular Case’. Coke claimed in his reports to reveal the thinking behind these ‘Judgments and Resolutions’ so that the ‘Verity’ might appear. Although he admitted to being selective in the cases he covered and in the arguments he rehearsed, and also to reconstructing the debates in his own terms, he was clearly in a position to go much further than any case reporter in France or Scotland could have done in recounting the reasoning behind the decisions delivered by the judges. Not everyone agreed that Coke had succeeded in maintaining a distinction between private opinions and public judgments. Lord Ellesmere criticised him for sometimes ‘setting downe that for resolve which [he] himselfe drawes in upon the by and tendeth nothing to the point in Judgement’, for ‘setting downe the sudden opinions of Judges for resolucions, which is more then the Judges themselves intended’, and for ‘sowing his owne conceits almost in every case by takeing occasion—though not offered—to range and exspaciate upon by-matters’.473 In the postnati case Ellesmere had himself distinguished between a ‘Resolution of the reverend Judges’ and an ‘opinion of some skilfull in the Lawes’, and between a ‘reall and absolute Judgement’ and a less formal ‘opinion of the Judges’, for he believed that while all opinions might be respected for their learning, the resolutions made by the judges ‘in their proper Courts and Seates of Justice’ enjoyed a higher degree of authority.474 He believed, it was noted in an earlier chapter, that while rulings should be based on ‘knowne Principles and Maximes, and ancient Customs, against which there never hath been, nor ought to bee any dispute’, failing which on the example or analogy of ‘former Judgements given in like Cases’, it was possible in entirely new cases for the judges to make decisions without waiting for a parliament to legislate. In response to the complaint that ‘if this be thus, then the common Lawe of England is uncerten, and so the rule of Justice, by which the people are governed, is too pliable, and too weake, and uncerten’, he had pointed out that the same complaint could have been made even in jurisdictions where trust was placed in the civil law, ‘which is taken to be the most universall and generall Law in the world’. It was his impression that civilian judges were confronted with great uncertainty when they turned to the ‘Doctours opinions delivered in their Prelections and Treatises’, that it was for this reason that they sought refuge in ‘that which is Communior opinio’, and that it was for the same reason that they too relied on ‘Arrests and former Judgements, as may appear in the books of many that have collected such Arrests’. He understood that the decisions of the 472

Reports of Sir Edward Coke, pt 4, f 4, pt 9, ff xiv–xv, and pt 10, ff ii and 24. ‘Lord Chancellor Egertons Observacions upon the Lord Cookes Reportes’, pp 297–8 (punctuation adjusted). See too Knafla 1977, pp 123–54. 474 ‘Speech of the Lord Chancellor’, pp 208–13, 218 and 225–7. 473

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The Disputes of the Lawyers 369 sovereign courts of France were viewed as a kind of ‘Positive Lawe’, and he believed that certainty would only be achieved in England if decisions were similarly ‘received, allowed, and reverenced’ there, which would only happen if they were treated as something distinct from learned opinions. His successor in office similarly held that ‘the certainty of laws’ was contingent on a distinction being drawn between ‘reported judgments’, as one kind of ‘authentic writings’, and ‘the enormous multitude of authors and doctors of laws’.475 Francis Bacon called for the appointment of official reporters who would concentrate on ‘judgments only, and resolutions’, and he too complained that Coke had included in his reports observations ‘uttered for law’ which were in reality ‘but expatiations of his own, and no judgments’. In 1616 Coke was ordered by the king to revise his reports.476 On refusing to admit that he had made more than a handful of errors, he was dismissed from judicial office and turned his attention to writing his Institutes, though he remained unrepentant. ‘In the eleven books of our Reports’, he assured his readers, ‘we have related the opinions and judgments of others; but herein we have set down our own’.477 Coke thus insisted that he had not confused his own opinions and judgments with those of the courts, yet in saying that he would now express his own views in his Institutes he confirmed that he did regard the public resolutions and judgments of the courts as essentially another species of the opinions that authors could express more privately. The problem was to explain why public resolutions and judgments could be taken to end the uncertainty of private opinions. For Ellesmere and Bacon the answer appears to have turned on what has lately been described as a fusion of doctoral and royal authority in the persons of judges who were able both to express learned opinions and to exercise sovereignty on behalf of the king.478 As they were clearly aware, this line of thought was also being pursued in France, where the judges of the parlements certainly exercised sovereignty in delivering arrêts de règlements, arguably exercised the same authority in delivering decisions en robes rouges or sur partage d’opinions, and possibly exercised the same authority again in delivering the ordinary préjugés referred to in some cases by way of analogy.479 If in France as in England there were lawyers who hesitated to distinguish between public resolutions and private opinions on this basis, the problem they faced was to explain how else public resolutions could be taken to resolve the uncertainty of private opinions. It could not have been explained that the formal determination of a disputation precluded further discussion, for this was not how the process of learned disputation operated, and it was standard civilian teaching that a decision based on an expert’s opinion ‘can 475 Works of Francis Bacon, vol 5, pp 103–5; Letters and Life of Francis Bacon, vol 6, pp 85–6, and vol 7, pp 68–9 and 94–6. Bacon clearly had Coke in mind when he warned that judges should not be entrusted with reporting ‘lest from being too fond of their own opinions, and relying on their own authority, they exceed the province of a reporter’. See too Coquillette 1992, pp 110–12. 476 Holdsworth 1938, pp 121–4; Bowen 1957, pp 325–34; Jardine and Stewart 1998, pp 389–92. 477 First Part of the Institutes, sig A6r. 478 Baker 1985, p 54, and 1989, p 9. 479 Hilaire 1995, pp 183–6, and 2002, pp 89–94.

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370 The Restoration Court always be retracted whenever the consilium of another doctor of a sounder opinion will appear’.480 Nor could it have been explained that the collective decisions of learned judges were common opinions and ought therefore to be adhered to without further discussion, for (as already noted) judges were expected to adhere to common opinions on the assumption that they would have been disputed further in the schools had any lingering doubts remained. The most that anyone could have claimed was that the decisions of the courts could amount to a highly probable form of opinion which would at least reduce the need for further discussion. In a commentary on the Regulae cancellariae, printed in Paris for the benefit of practitioners in ‘all the courts and parlements of France’, and expressly referred to in the preface to Davies’ Irish reports, Ludovicus Gomesius, a professor of canon law who had served as a judge in the rota, explained why he took the decisions of that court to be a peculiarly potent species of opinion.481 Pointing out that the judges of the rota were themselves learned men, and rehearsing the familiar complaints about the partiality and proliferation of academic consilia, he added that whereas common opinions had normally to be gathered together from the remarks ‘of diverse doctors expressed at diverse and successive times’, the decisions of the rota represented the opinions of the judges formed through ‘exchanged counsel’ and ‘common discussion’ of precisely ‘the same business’. Consequently, it could be affirmed that the rota, ‘by the gravity of its sentences and the weight of its authority, overcomes the rest of the doctors even if they are more numerous’. Gomesius’ account of the decisions of the rota was cited by Thomas Craig when he observed that the decisions of the parlements and other senates had the same probable authority as the civil law enjoyed in the north of France and in Scotland. When Craig wrote about the decisions of the session effectively settling the law he may well have meant that the collective opinions formed by a college of judges after rigorous debate at the bar and on the bench would enjoy such a high degree of learned authority that they would in effect preclude any further discussion.482 It was this conception of the authority of decisions that seems to have underpinned the reports compiled by Nisbet, who also endorsed Craig’s view of the authority of the civil law.483 Like Craig, Nisbet identified the customary law of Scotland with res perpetuo iudicata or praxis forensis, insisting that no custom could be binding unless founded on debate in the session and making it clear when 480 Robertus Maranta, Praxis, seu de ordine iudiciorum tractatus, p 375, citing several other authors in support of this doctrine. 481 Commentaria in Regulas cancellariae, ff 8–16r. On Gomesius, who himself published a collection of reports of the rota’s decisions, see Naz 1935–65, vol 5, cols 974–5. 482 For the notion that the lords of session constituted a collegium dominorum iudicum, comparable to a collegium doctorum, see Hannay 1933, pp 49–50. 483 Nisbet’s distinction between the municipal law of Rome and the aspects of Roman law that had been commonly received throughout Europe was essentially the distinction drawn by Franciscus Curtius between ius quo urbs Roma utitur and the Roman laws received as the equivalent of leges scriptae. Nisbet took Curtius’ argument for the necessary authority of the feudal law in Italy to establish the probable authority of the civil law in Scotland. As already noted, the various epitomes and treatises that may have been by Nisbet reflect acceptance of Craig’s views on the authority of the feudal law.

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The Disputes of the Lawyers 371 debate was still continuing. By presenting the judgments of the court as contributions to a broader discourse on the doctrinal development of the law he was to some extent following the example of earlier reporters like Spotiswoode and Gibson, though he differed from Gibson in failing to record the resolutions the judges often made to adhere to decisions in future cases. By mentioning these resolutions, as well as the reinforcement they received from acts of sederunt, reporters like Baird and Wedderburn may have been identifying a fusion of doctoral and royal authority in the court, though their own impression may simply have been that the judges were trying to teach the law to the advocates when they deliberately delivered decisions touching on general issues.484 Nisbet clearly did not recognise any need for the judges to move away from expressing their private opinions or to distinguish clearly between opinions and the public resolutions made by the court, which left him exposed like Coke to the criticisms of his enemies.485 By contrast, Stair was exceptionally eager to distinguish between the public determination of disputes by the judges and the reasoning that lay behind decisions, which he almost always presented as reasoning at the bar. Although he made much of the connection between decreets of session and acts of sederunt, he was unusually reluctant to suggest that the former could be taken to establish general rules governing future cases. He normally left the broader implications of decisions to be deduced from the disputational exchanges of the advocates, perhaps because it was there if anywhere that he took learned authority to reside. He went to some trouble in writing his reports to give the impression that the civil law enjoyed no authority in Scotland, yet his purpose in doing so may have been to relocate learned authority more locally. Although this is beginning to seem less likely, his aim may still have been to emulate Craig as a learned author. For a Scots lawyer whose thinking had taken shape during the 1650s, it would certainly have made sense to envisage the law as a body of forensic custom formed in the minds of the practitioners who represented the people and who were relied on as experts in the court’s procedure.

484 As in France, the judges may have tried to speed up the dialectical process by spelling out the rules, axioms or maxims that they believed should be extracted from decisions. More will be said on this topic in the next chapter. 485 In one of John March’s better known reports the English judges had refused to maintain their former practice of giving advice to barristers on general issues because the greater demand for decisiveness had forced them to conclude ‘that they cannot be Judges and Counsellors, and that they ought not to advise any man, for by that means they should prevent their Judgment’ (Reports, pp 155–6).

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5 The Revolution Court

I

N ONE OF his notebooks John Lauder recorded the occurrence of a ‘great revolution’ in the College of Justice on 1 November 1681, when Stair and four other lords of session were removed from office.1 By using the word revolution Lauder apparently meant to indicate that there had been a sudden change in the staffing of the court, perhaps with the connotation of a sharp decline in the personal fortunes of several of its members.2 1681 certainly brought an abrupt end to Stair’s connection with the Restoration court. Warned by Mackenzie, Nisbet’s successor in office as king’s advocate, that he was in danger of prosecution, Stair left Scotland in 1682 and spent the next six years in exile in the Netherlands, eventually sailing back to Britain in 1688 aboard the flagship of William of Orange. In the following year he was reappointed to the presidency of the session, where he remained until his death in 1695, shortly after the appearance in print of the edition of his Institutions with which most readers are familiar. The first edition had appeared in 1681 at the time of the crisis that had precipitated his fall from grace. As Lauder had been aware, English fears that Charles II and his ministers were intent on introducing ‘the popish religion and ane arbitrary forme of government’ had come to a head between 1678 and 1681, when a rebellion in Scotland had threatened a return to the period of revolutionary turmoil following the rebellion of 1638.3 One of the first casualties of what English historians have traditionally called the ‘exclusion crisis’, but have lately preferred to call the ‘Restoration crisis’ or the ‘attempted whig revolution’ of 1678, a prelude to the ‘glorious revolution’ of 1688, had been the duke of Lauderdale’s dominance of Scottish politics.4 Complaints about his arbitrary style of government, increasingly heard in Scotland during the 1670s, had been rehearsed in England and had undermined the administration in which Stair had been a prominent participant, as a lord of session, a privy councillor and a member of parliament.5 Called upon to answer the charges of ‘arbitrary government’, especially as they related to the judges, Stair had then emerged rather ironically as a leading opponent of the perceived tendency towards ‘popish religion’, hence losing his place in the Restoration court 1

Historical Observes, pp 50–1. On the meaning of the word revolution in the seventeenth century see Snow 1962; Goulemot 1967; Lasky 1970; Hill 1986; Rachum 1995. For Stair’s own use of the term see Institutions, 4.1.58. 3 EUL, La II 89, f 119. 4 Furley 1957; Jones 1961; Ronalds 1974; Scott 1991; Knights 1994. 5 Jones 1958, pp 37–8; Buckroyd 1980, pp 129–31; Hutton 1997, pp 78–9 2

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374 The Revolution Court and beginning his progression towards active involvement in the Revolution of 1688 and the regime it ushered in.6 It was against this background, significantly different from the setting in which he had begun to write his Institutions and to collect his Decisions, that Stair prepared his books for the press. The first section of this chapter examines more closely the setting in which his books were printed and considers the claims he made for them in the 1680s and 1690s. The second section examines the development of the crucial discussion of the sources of Scots law in his Institutions between the late 1650s and the early 1690s. The third section examines his handling of the notion that there were laws in Scotland that could in some sense be regarded as ‘fundamental’ and distinct from other laws.

THE PRINTING OF STAIR’S INSTITUTIONS

Defending the session in 1681 When Mackenzie remarked that the attempt to regulate the fees paid to lawyers in the early 1670s had damaged the previously harmonious relations between the bench and the bar of the College of Justice he explained that the advocates had endeavoured ‘to discover to the people the errors of those who had oppos’d them’, adding that they had found ample opportunity to do so, ‘being now numerous, and most of them being idle, though men of excellent parts, wanting rather clients than wit and learning’.7 In 1674, after Lauderdale had for the first time been forced to confront concerted opposition in parliament, the advocates’ complaints had been forcefully expressed in writing.8 They had complained that the bench was being packed with ‘ignorant and insufficient men’, that ‘the very foundations of Law and right’ were being damaged, as was evident from ‘several late decisions’, and that when parties were advised to appeal against decisions, the judges claimed that their rulings were not open to review. It had been warned that conceding this point would amount to ‘a direct constitutione of ane arbitrary power in the session to judge as they pleased without controll’, and that the lords of session would be found to match George Buchanan’s description of judges who ‘desyre no lawes to be their rule but thair owne opinions, which they alter and use as they pleas’. It had once more been proposed to parliament that ‘there should be a methodical digestion of our laws, and that the rules of judgement should be rendred more 6

Mackay 1873, pp 140–50; Graham 1875, vol 1, pp 61–5; Hutton 1981a, pp 31–9. Memoirs, pp 240–41. 8 NLS, MS 9375, ff 4–10 and 22; An Accompt of Scotlands Grievances, pp 14–16. The latter tract is generally attributed to Sir James Stewart, though only on the strength of an unsubstantiated rumour in circulation at the time. The writer of the tract indicated clearly that it was composed in the spring of 1674, when Stewart had been making a living as a merchant in France for four years. For further criticism of the session see J Maidment (ed), Book of Scotish Pasquils, pp 218–21. The favourable comparison of the senators of Scotland with the senators of Rome by William Mercer belongs in the same setting, though it was exceptional in offering support to the judges. The rise of opposition in the 1673 parliament is examined in Patrick 1974, but see too MacIntosh 2005 on the 1669 meeting. 7

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The Printing of Stair’s Institutions 375 fixed and certain’, and this proposal was revived again when the complaints against Lauderdale’s regime were drawn to the attention of the English parliament at the end of the 1670s.9 It was then complained in pamphlets circulated in print and manuscript that ‘albeit we have at present some few both able and just men in our session’, others were ‘promoted to be lords of session who are no lawyers [and] whose breeding and education did not in the least enable them for it, though by the lawes of the kingdome, it is required, they should have the knowledge of law and custome’. ‘Never were decisions so uncertain, so injurious and partial’, it was lamented, ‘and if a remedie be but regularlie craved by that onlie court which can repair the subject, viz. the parliament, then the plaintiffs are represented as seditious or worse to the king’. It was therefore proposed that all those appointed as lords of session should be ‘educat as jurists’, and that the law should be ‘digested into a certaintie for directing of the judges and security of property, which now depend too much on the judges consciences and wills’. In 1679 a select group of judges was led to London to respond to the complaints by Stair, who from being ‘weil beloved’ as an ordinary lord in the 1660s had come to be ‘no les hated’ as president of the court in the 1670s. The king declared himself satisfied that the session was ‘now filled with as much learning and integrity at least as in any age’, but when he called a new parliament in 1681 it passed an act to have the law ‘reduced into a free and plaine method, therby to establish constant and clear Rules for directing all his Judges’.10 Under the new act the king was to nominate commissioners to examine ‘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’. After receiving from the clerks and closely reviewing ‘the Registers and Records which containe the saids Laws or Practicks’, the commissioners were ‘to collect and digest the Laws and Acts of Parliament, Customs, decisions, and formes of Process, into such order and methods as shall seem most fit and expedient to them’, taking care in particular to omit ‘the obsolet and abrogat Acts, that the Acts in vigor in the severall Parliaments may be printed together and the rest remaine as unprinted Acts’. A revised and definitive edition of the acts of parliament was clearly to be a central component of the restatement drafted by the commissioners for approval by the king and estates, yet the present act ended by providing that it should ‘not prejudge his Majesties Patents in favours of the Lord Register and others appointed by him for printing the Acts of Parliament’. The person referred to here was Sir Thomas Murray of Glendook, who had become an advocate in 1661, a lord of session in 1674 and the clerk register in 1677, allegedly at the importuning of 9 NAS, GD 30/2126, 157/1657, 406/2/635/3, 6 and 14, and 406/2/640/4–5; NLS, MS 7034, ff 65–6; EUL, La II 89, f 139; Some Particular Matter of Fact Relating to the Administration of Affairs in Scotland, p 4; Some Further Matter of Fact, p 4. See too NAS, GD 406/2/635/16–17. 10 NAS, CS 1/7, f 133v, and GD 406/2/635/8–9; Acts of the Parliaments of Scotland, vol 8, p 356.

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376 The Revolution Court Lauderdale’s wife, who was his second cousin.11 Murray was one of the judges who had travelled with Stair to the royal court in May 1679, and he was one of those who was to be removed from the session in November 1681. In July 1678 the privy council, realising that the acts of parliament were ‘now so far out of print that they are not to be bought, whereby the leidges cannot come to the knowledge thereof’, had issued Murray with a licence ‘to cause the whole forsaids acts, laws, constitutions and ordinances of Parliament of this kingdome, both old and new (now being in force), to be reprinted’.12 In May 1679 the licence had been reinforced by a ‘Royal Letter of Gift’ framed in similar terms, and in September 1681, on the day the appointment of the reform commission was approved, the king’s letter was also ratified by parliament.13 Had Murray included in the volume of the Laws and Acts of Parliament that appeared at the end of 1681 only legislation ‘now being in force’, and had he not only ‘reprinted’ acts but also examined ‘the Registers and Records’ of parliament, which as clerk register he was in an ideal position to do, he would have come close to fulfilling part of the instructions drawn up for the reform commissioners. In fact his book was little more than a reprint of Skene’s Lawes and Actes, supplemented with reprints of the legislation passed by subsequent parliaments and conventions. Nevertheless, Murray announced on his title page that the acts in his edition had been ‘Collected, and Extracted, from the Publick Records’, and he attested at the end that they had all been ‘revised and compared with the principall Records’.14 His purpose in doing so was presumably to encourage favourable comparison with the edition by Skene, but he may also have been seeking to suggest that there was no need for a definitive collection of statutes to be produced by a reform commission.15 What Murray’s book did not begin to satisfy was the demand for a digest of the law covering not only the acts of parliament but also the ‘Customs, decisions, and formes of Process’, all reduced to ‘a free and plaine method’. However, in March 1681 Stair had entered into a contract with the king’s printers for the publication of ‘the Acts of Sederunt and Decisions of the Lords of Session’, the first two parts 11

Brunton and Haig 1832, p 403; Stephen and Lee 1885–1901, vol 39, pp 404–5; Grant 1944, p 161. Register of the Privy Council, 3rd ser, vol 5, pp 481–2. 13 Murray, Laws and Acts of Parliament, sig A2v; Acts of the Parliaments of Scotland, vol 8, pp 388–9; Mann 2000b, pp 120 and 246. 14 Murray’s testimony that the acts in his edition were ‘exactly conform’ to the public records appears on an unmarked page inserted into his book after the acts themselves and before a copy of Skene’s De verborum significatione and other materials. Among these materials was ‘An Abridgement of the Acts of Parliament’, which fulfilled the requirement in Murray’s licence that he ‘compleat the index of the whole acts’. An abridgement by James Stewart, with which Murray’s may have been connected, was printed with later editions. Thankerton 1936, p 7, and Walker 1985, p 174, take a note in Lauder’s Journals, p 296, that in April 1678 he bought a copy of ‘Lo. Hatton on Statuts’, to indicate that a lost work on the acts of parliament was written by Lauderdale’s brother, Sir Charles Maitland of Halton, the most notorious of the laymen appointed to sit in the session. However, the reference seems clearly to have been to the English Treatise Concerning Statutes that was attributed to Sir Christopher Hatton in an edition published in 1677. 15 The Register of the Privy Council, 3rd ser, vol 7, p 255, indicates that in November 1681 the ‘late Clerk of Register’ was required ‘to subscrive his name at the end of ilk book’ of the acts he printed and ‘not to suffer any of the saids books to be vented or sold bot such as have the said subscription’. Murray’s edition did not actually bear his ‘subscription manuall’ in the way that Skene’s had done. 12

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The Printing of Stair’s Institutions 377 of ‘the Institutions of the Law of Scotland’, and ‘the Form of Process before the Lords of Session’.16 A month later the contract had been ratified in a royal letter passed under the privy seal in recognition of Stair’s ‘long experience and knowledge of the lawes and customes of that our kingdome’, and towards the end of the year, at about the time that Murray’s Laws and Acts was published, the Institutions appeared for the first time in print, with Stair’s ‘Form of Process’ appended under the new title Modus litigandi. As was noted in the first chapter above, the title Institutions was also new and emphasised that Stair had tried to follow the example of the compilers of Justinian’s Institutes in providing an orderly restatement of the law rather than an incoherent digest of excerpts from the sources he had used. In dedicating his book to the king Stair declared that his purpose in writing had been to provide ‘a Summary of the Laws and Customes of Your ancient Kingdom of scotland’, and he offered now to expose Scots law ‘to the view of the World, in a Plain, Rational, and Natural Method’.17 In a new preamble attached to the opening title of his book he similarly declared that his purpose had been to provide ‘a Description of the Law and Customes of scotland’, adding that his subject would be intelligible to anyone, whether lawyer or layman, Scot or foreigner, ‘when plainly and orderly proposed’.18 He was able to claim that his book provided the methodical digest everyone was looking for because he had tried to produce an orderly survey of Scots law set against the background of ‘the common Dictates of Reason and Justice’. As he justifiably claimed in his dedication, he had tried to begin each title of his book by examining ‘the Common Rules of Justice’, and before progressing to the particular provisions of Scots law he had tried to include a ‘Historical Part, relating to the Helps and Expedients for Clearing and Securing the Rights of Men out of the Word of God; the Moral and Judicial Law contained therein; the Civil, Canon and Feudal Laws, and many Customes of the Neighbouring Nations’.19 As he justifiably claimed in his new preamble, he had tried to lay suitable foundations for this approach in his opening title by presenting some ‘Common Principles of Law’, by outlining the ‘Method’ he meant to follow, and by defining some ‘general Terms, commonly made use of in Law’. He had already written a methodical digest of the law in a plain style, and though he had not yet included an account of the form of process before the session in his survey, he had already written a brief tract on the topic sufficient to satisfy the present demand.20 At least part of Stair’s purpose in sending his incomplete treatise through the press in 1681 appears to have been to confirm that there was no need for the king to nominate reform commissioners to prepare a systematic restatement of the law for enactment by parliament, ‘thereby to establish constant and 16 NAS, GD 135/25/5 and 135/2726; George Dallas, System of Stiles, pp 152–3; Mackay 1873, pp 173–6. On the exceptional precision of the contract Stair had entered into see Mann 2000b, p 114. 17 Institutions, sig A2. 18 Ibid, 1.pr/1.1.pr. 19 Obviously, part of the aim here was also to appeal to as wide an audience as possible. 20 Stair’s use of the concepts of method and style will be returned to in a later volume in this series.

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378 The Revolution Court clear Rules for directing all his Judges’. In fact Charles never did nominate commissioners to report under the 1681 act. When the act was passed Lauder commented that it ‘may be useful, if it take effect’, adding that the attempt to have the law reformed had ‘been oft on foot’, most recently in 1649, and that it was conceived ‘in imitation of Justinian, who employed Tribonian and sixteen other Lawyers, to review the books of law in his time, and who compiled from them the corpus iuris we now use’.21 It may have been the same parallel that the copyist who entitled Stair’s book ‘The Body of the Scots Law’ had in mind, though in proceeding to emphasise that the ‘acts of parliament’ and ‘practiques before the Lords of the Sessione’ had all been ‘Methodicallie Digested into Titles and Paragraphes’ he tended like Stair himself to encourage comparison with Justinian’s Institutes, written by Tribonian and two other jurists, rather than with the Digest, compiled by the larger commission to which Lauder referred.22 The parallel with Justinian’s attempt to have the law reformed must also have brought to mind Burnet’s description of Craig as ‘hic Iustinianus noster Scoticus’. It has been noted already that the long title Stair gave to his book in 1681 was similar to the long title Burnet had given to Craig’s Ius feudale in 1655, that Burnet had included in his edition a preface in which Craig had promised to show how Scots law ‘might be reduced to some form and order’, and that Stair had modelled his approach to writing on Craig’s. The preface Burnet had published took the form of a dedicatory epistle addressed to James VI and I.23 It began by celebrating the benefits of the regal union, by reflecting on the prospects for a legal union, and by advising the king that nothing would do more to secure peace and stability in Britain than the preservation of the feudal law, ‘the subject of our institute’. Craig had drawn attention to some of the central claims of his book, observing that the feudal law had first taken shape in Lombardy, that it had come to form part of the civil law taught in the schools, that it had been received into Scotland from France before it was carried into England by conquest, and that despite marked differences in court procedure the laws of Scotland and England were broadly similar in substance. He had emphasised that he was writing on the strength of forty years’ experience of legal practice and had boasted that ‘our forms of actions and of proceedings towards judgment are preferable to the forms of all the nations that I have ever seen’. He had modestly disclaimed any ambition to write something new, had called on others to improve on his achievement, and had apologised for the inelegant style he had been forced to use in writing about a technical subject.24 In dedicating his Institutions to Charles II Stair also expressed the hope that his work would be ‘Inlarged and Improven by others’, apologised for his use of ‘Plain and Accurate Expressions’, unrelieved by ‘the Flourishes of Eloquence, the ordinarie Condiment and Vernish which qualifie the pains of 21

Decisions, vol 1, p 155; Historical Notices, vol 1, p 322. AUL, MS 2097. It is possible that this title was given to Stair’s book shortly before it appeared in print, though calls for a methodical digest of Scots law were made throughout the 1670s. 23 Ius feudale, sigg A2–3. 24 On the various manifestations of the humility topic see again Janson 1964. 22

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The Printing of Stair’s Institutions 379 Reading’, and claimed to have been engaged in the practice or at least the study of law for ‘little short of fourty years’.25 He too boasted that ‘our Forms are Plain and Prompt’, and insisted both that the Scots had more reason to feel secure in their rights than their neighbours, and that they had more reason to take pride in their past than the English or other nations since ‘no forreign Power was ever able to setle the Dominion of a strange Lord over us’. In reminding the king that he and his progenitors were reckoned to have ruled Scotland without interruption for ‘above two thousand years’, Stair followed Burnet’s example in writing as if the Cromwellian conquest had never happened. He did not remark on the benefits of the regal union or the prospects for a legal union but pointed out that as ‘the most Ancient King in the World’ Charles enjoyed an especially close relationship with his Scottish subjects, who expected him to preserve the purity of their religion.26 Another copyist of Stair’s book recognised a parallel with a more recent treatise on Scots law.27 After the printing in 1678 of a book by Mackenzie called The Laws and Customes of Scotland, in Matters Criminal, the copyist reproduced its title page at the front of his manuscript of Stair’s book, replacing the word ‘Criminal’ with ‘Civil’ but otherwise following Mackenzie’s terms and layout exactly. Mackenzie had dedicated his book to the duke of Lauderdale, whose enemies, he predicted, were about to find it easier to drive him from office than to fill his place.28 He told Lauderdale that his aim in writing had been ‘to inform my Country-men, and to illuminat our Law’, and went on to provide all his readers with a fuller account of his ‘Design’.29 Complaining that no one had previously attempted to write about the cases heard in the highest criminal court, even though they were more likely to make a difference to the lives of ordinary people than those heard in a civil court like the session, he continued: ‘In prosecuting this design, I was forced to revise and abreviat those many and great Volums which make up our Criminal Registers, and having added to them those Observations I have myself made, during my twenty years attendance upon that Court, either as Judge, or Advocat; I collationed all with our Statutory Law, the Civil Law, and the Customs of other Countreys, and the opinions of the Doctors’. Elsewhere Mackenzie often called his book his criminal practicks, for he had tried to write about the law administered in the justiciary court in the way that lawyers in Scotland had traditionally written about the law administered in the session.30 Yet he had also composed the kind of book that Burnet would undoubtedly have regarded as a treatise, as he sought to emphasise both by declaring in his preface that he had collated the local sources with the learned laws and the customs of neighbouring nations, and by announcing on his 25

Institutions, sigg A2–4. This aspect of Stair’s thinking will be returned to in a later volume. Other remarks in his dedication will be examined more closely below. 27 EUL, La III 418. 28 Laws and Customes, sigg ¶1–2. In 1683 Mackenzie issued an extended defence of the Lauderdale regime under the title A Vindication of His Majesties Government, and Judicatures, in Scotland. 29 Laws and Customes, sigg A1–3r. 30 Observations on the Acts of Parliament, pp 127, 190–91, 199, 211, 217, 244, 249, 252, 257, 262–3, 273, 275, 279–80, 287, 291, 297, 300, 311–12, 327, 332, 336, 345, 349, 364–5, 394 and 431. 26

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380 The Revolution Court title page that his readers would learn How the Civil Law, and the Laws and Customs of Other Nations Do Agree with, and Supply Ours. As the copyist of Stair’s book realised, Mackenzie had tried to follow Craig’s example in much the same way as Stair had done, and Stair may himself have realised that Mackenzie had shown how the influence of Craig’s treatise could be brought out in a printed edition of his book.31 In prefacing his text with a title page, a dedicatory epistle and a preamble in which he explained his ‘Design’ in writing, Stair declared repeatedly that he had collated Scots law with the learned laws and the laws of other nations. Mackenzie had made his similar declaration in saying that his design was ‘to establish solidly the Principles of the Criminal Law’, and he had claimed that ‘without wearying my Readers with Citations, (which was very easy) I have furnished the Book with as much reason as is ordinarily to be found in Legal Treatises’.32 Stair also claimed to have concentrated on legal principles, asserting that there was little in his book ‘imposed for no other reason but quia maioribus placuerunt; but the rational Motives inductive of the several Laws and Customes, are therewith held forth’, and he too promised that ‘the Nausiating burden of Citations, are as much as can be left out’. Mackenzie had completed the first draft of his book in 1672, when the reform of the justiciary court had been one of the more successful aspects of the attempt to regulate the courts.33 In the following year an account of ‘The Form of Proceeding in Matters Criminal’ had been written by William Hamilton of Whitelaw, then an advocate and later the judge who would reduce Nisbet’s Doubts and Questions ‘into Form and Method’.34 It was also in 1673 that Mackenzie completed his Pleadings, together with a collection of Observations on an act passed by the 1621 parliament, and during the same period other writers produced a new abridgement of the acts of parliament and an attempt to organise the law by assembling styles and other materials in the pattern of Justinian’s Institutes.35 This burst of literary activity appears to have ended, however, when open opposition to the Lauderdale regime emerged in 1674. When the crisis came to a head four years later the response consisted not so much in the writing of new books on the law— though Stair and Mackenzie did make significant revisions to their treatises—as in the printing or reprinting of existing books.36 In the preface Mackenzie attached to his Laws and Customes he explained: ‘I did Print it, not only to correct the many 31 In an undated letter from Mackenzie to Lauderdale, printed in the Report on the Laing Manuscripts, vol 1, p 364, he remarked that ‘in the vaccance now I writ our criminall law in Latin’. His original intention may thus have been to write like Craig in the language of the learned laws. 32 Mackenzie meant case citations, however, whereas Stair could only have claimed to omit learned citations. 33 EUL, La III 428, is an early version of Mackenzie’s treatise containing citations dated no later than 1672. Lauder, Journals, pp 264–5 and 270, indicates that he had a copy made in 1673. 34 NLS, MSS 2763 and 2793. The title was a later addition to the latter copy, and was no doubt meant to suggest a connection with Mackenzie’s treatise on the substantive law. On Hamilton see Brunton and Haig 1832, pp 462–3; Grant 1944, p 96; and again Forbes, Journal of the Session, p xlii. 35 EUL, Dc 6.32, and La III 422. 36 Lauder, Decisions, vol 1, p 158, refers to an attempt to have Gibson’s reports printed in 1681, and EUL, La III 354(1), f 70, to an attempt to have another of Craig’s treatises printed.

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The Printing of Stair’s Institutions 381 false Copies which were abroad, but to divert me from refining too much upon our publict debates, and I wish the reading of it may have the same effect upon others’.37 Fearing that the ‘publict differences’ of the time might hinder the fair reception of his treatise, Mackenzie exhorted his readers to seek common ground in the benefits of the restored monarchy, reminding them that they were fortunate to live under a king of their ‘own Religion and Blood’ and under their ‘own Laws’. He believed that the study of these laws would focus attention on the common interest people had in the administration of justice and would distract them from the political controversies that were threatening a return to the turmoil and oppression of the covenanting rebellion and the Cromwellian occupation. Obviously this would not have been true if the administration of justice had itself been open to criticism as a manifestation of the arbitrary government people were complaining about. Mackenzie regretted living in a time when people were apt ‘to make all whom they hate, pass for such as love Arbitrary Government’, and he tried to explain that one of his aims in writing his book had been ‘to oppose Arbitrariness’. He declared that ‘there is nothing here which is not warranted by Law, or Decisions, or in which, when I doubted, I did not confer seriously with the learned’st Lawyers of this Age’. Although the observations he made on the acts of parliament and decisions of the court were his own, they served to consolidate the law because they were based on extensive reading and widespread consultation, and because they were made by a prominent practitioner who was involved in the determination of causes, ‘for he who disinterestedly declares his own opinion, before private cases occurr, (wherein interest or inclination may byass him) doth in so much praeclude himself, and others too (as far as his authority can reach) from the power of being Arbitrary’.38 This remark was reminiscent of Stair’s professed reluctance at some points in his book to predetermine himself and others by expressing an opinion on a question before it arose for decision in the session, which implied that in expressing his own views elsewhere he had tried to exert some authority. In the prefatory materials attached to the first edition of his Institutions he did not claim like Mackenzie to have read and consulted widely before making personal observations on the law, but he did say that modesty had prevented him from publishing his treatise earlier, ‘lest it should be judicially cited, where I sat’. Stair’s treatise had of course been published scribally at least a decade earlier, but the text was now fixed in print and issued with royal approval.39

37 Since multiple copies of Mackenzie’s treatise have not survived it is unclear how many were abroad by 1678 and whether they were false in the sense of being corrected or conflated or were simply out of date. For reviews of the books of adjournal, the criminal equivalent of the books of sederunt, see EUL, La III 397 and 400. 38 Mackenzie went on: ‘and let others say what they please, I will stand more in awe of my conscience then of my enemies, and govern my self more by my own reason, then by the giddie multitude’. He seems quite clearly to have been responding to the complaints that Scottish judges wanted ‘no lawes to be their rule but thair owne opinions, which they alter and use as they pleas’, and that decisions depended ‘too much on the judges consciences and wills’. 39 On the significance of licensing under the privy seal see Mann 2000b, pp 100–01.

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382 The Revolution Court Publishing case reports in the 1680s When Stair’s first volume of Decisions was published in 1683 it was accompanied by a dedicatory epistle addressed to the lords of session. The epistle bore two dates and had apparently been written in two stages. It seems that Stair’s original intention was to begin by saying that he had for the past twenty years been ‘making up this Journal of all the Decisions that had any thing of difficulty or importance in them, which I did design to leave behind me, as a Token of my most devoted affection to that excellent Society, The Colledge of Justice’.40 It was Stair’s understanding that ‘King James the fifth, who Institute the Colledge of Justice, Ordered one of the Lords to keep a Journal of their Decisions, with which Henry Sinclar Dean of Rastalrig was entrusted, and did observe the same for the space of ten years, as Maitland, Hadington, Hope, Balfour, Spotswood, Dury, and several others since have done’. The notion that James V had ordered one of the judges to keep a journal was probably as mistaken as the attribution of the earliest reports to John Sinclair’s brother, but Stair’s basic claim that there had been a succession of reporters was accurate enough.41 In adding a new passage to his Institutions in 1681 to explain the relationship between his treatise and Craig’s he had similarly remarked that since the beginning of the century many decisions had been reported ‘by the most eminent of the Lords and Lawers, as by Haddingtoun, who was President of the Session, and by President Spotswood, and by Dury, who continued in the Session from the year 1620 until his death in the year 1642’.42 Although reporting had lapsed between Gibson’s death and the Restoration, Stair maintained that this was no great loss, ‘these times being troublesome, and [there being] great alterations of the Lords’, and he emphasised that ‘the Decisions of the Lords have been constantly observed since the Kings return’. In the dedication of his first volume of Decisions he tended to gloss over his own involvement in the Interregnum court, saying only that in 1661 the king had been obliged to appoint ‘most of the Eminent Advocats to the Bench, so that after a long interruption, the Session was almost wholly new’, and that ‘being one of that Nomination’ he had undertaken to report the court’s decisions.43 He tended further to gloss over the later interruptions in the court’s sittings by claiming to have been well placed to report decisions, ‘being scarce a day absent in any of these Sessions wherein I have marked them’, recalling only his absence in ‘the Summer Session 1679, when I attended His Majesty by His own Command’. Without making the claim explicitly, Stair was suggesting here that he had in effect served as the latest in a long line of official reporters of the session’s deci40

Decisions, vol 1, sigg A3v–B1r. In Lauder’s review of the books of sederunt (NLS, Adv MSS 25.2.7, ff 73v and 77v, and 25.2.5(i), ff 45v and 54v–5r) an attribution of the earliest reports to John Sinclair was later altered, seemingly after Stair’s Decisions was published. For clarification of the relationship see Tytler 1823, pp 86–7; Mackay 1873, p 191; McKechnie 1936, p 30; Murray 1980, pp 92–5; Dolezalek 2002, pp 57–9. 42 Institutions, 13.3/1.3.3 (punctuation altered). 43 Cf NAS, CS 1/6/1, pp 3–4, or Acts of Sederunt (1790–1811), vol 1, pp 70–1, where the restoration of the session was described in similar terms. 41

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The Printing of Stair’s Institutions 383 sions, and he was at least in a position to say that his reports were being printed with the ‘allowance and approbation’ of the court.44 In June 1681 he had told his colleagues that ‘having these twenty years observed the remarkable practicks or decisions that had past in this court’, he had spoken to the king about having his reports printed and had received his ‘allowance and approbation therin’.45 The judges had then agreed that the publication of his reports would be ‘of great use and advantage not only to the Colledge of Justice but to the wholl lieges’, and it was their approval and ‘harty thanks’ that he referred to at the start of his first volume. He maintained there that his reports were ‘sincere and authentick, having been Written on the several Sederunt dayes, for more then twenty years together’. ‘I did form this Breviat of these Decisions’, he declared, ‘in fresh and recent Memory, de die in diem as they were pronunced’, explaining that ‘I seldom ate, before I Observed the Interlocutors I judged of difficulty, that past that day, and when I was hindered by any extraordinary occasion, I delayed no longer then that was over’. He had mostly dictated his observations to his children, including those who had not been trained as lawyers, and their unfamiliarity with the subject matter, together with the speed at which they had been forced to work, had sometimes resulted in errors and obscurities. He had made a few corrections and had given thought to ‘whether it were not fit to amplifie and embellish the Disputes so, as might have been expected from so pregnant and eloquent Pleaders, as our time hath afforded’, but he had concluded that ‘this would look too like a new Frame from my own Fancy or Memory, after so long a time’.46 Stair’s aim had therefore remained to compile and publish an authentic record of the court’s decisions, though this did not mean that he had preserved precisely the words used by the advocates or judges. ‘It was neither feazable nor fit’, he remarked, ‘that I should set down the large Pleadings, or the Written Informations of Parties’.47 Nor was it expected that reporters would ‘look into the Clerks Minuts’ and reproduce the interlocutors in the terms they had used, for it was of little ‘import what the words were, if the Matter were truly exprest’. ‘And in such a Breviat’, he remarked again, ‘it is not to be expected that I should at large set down the Elegant and Eloquent Disputes of the Lawers, but that I should express the Matter and Moment of their Reasons, with the greatest plainness and equality that I could’.48 44 It is notable that in Institutions, 13.3/1.3.3, Stair made no reference to Hope’s reports, though he had used them as often as those by Haddington and Spotiswoode. He emphasised that Haddington and Spotiswoode had both been presidents of the court, as eventually had Gibson, whose reports had run across a twenty-year period like Stair’s. In the dedication of his first volume of Decisions Stair drew repeated attention to his eventual replacement of Gilmour as president. 45 NAS, CS 1/7, f 166v. 46 At Institutions, 13.3/1.3.3, Stair also emphasised that his predecessors had reported cases de recenti. Since no manuscript copy of Stair’s reports has survived, it is impossible to know to what extent he did revise his text for the press. It is true, however, that errors and obscurities remained. 47 In other words, Stair aimed to produce the same sort of record as the clerks did in extracted decreets. 48 Stair alluded here to the rhetorical distinction between memoria verborum and memoria rerum. The rhetorical element in his discussion will be returned to in the third volume of this series.

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384 The Revolution Court Stair mentioned in passing that one purpose of publishing an authentic record of the court’s decisions was to provide ‘evidence of your Lordships Justice’. Since he aimed to persuade people that only just judges could have delivered such ‘uniform’ decisions over a prolonged period of time it was important for him to make clear that he had not concentrated on the cases he ‘liked best, leaving out others which might have showen contrariety’. Although other reporters were likely to ‘have observed other Cases’, this could not ‘at all weaken the Credit of these’, for Stair had not dealt with cases heard in the inner house while he was taking his turn in the outer house, ‘being resolved to take nothing at a second hand’, and he had only dealt with cases that struck him as being of ‘such intricacy or importance, as made them fit to be published’. He is in fact known to have omitted at least one case because he thought it had been badly decided, but he may have been sincere in declaring that he had left out none ‘upon any design to cover inconsistencies’.49 Having explained why different reporters were likely to have dealt with different cases, Stair went on to explain why in reporting the same cases different reporters were likely not only to have used different words but also to have focused on different lines of argument. In 1681 he had shed light on his own method of reporting by telling the judges that he had covered cases decided ‘either upon debate in presence of the wholl lords or upon report from the ordinarie in the utterhouse, expressing not only the summe of the debate as it was considered and resumed by the lords, with the interlocutor, but also the grounds wherupon the lords proceeded’.50 In 1683 he further explained that he had gone beyond the clerks of the court, who had been able at best to summarise the advocates’ arguments before recording the interlocutor, and had laid bare the ‘Reasons and Motives’ behind the court’s decisions. As was seen in the last chapter, Stair had actually made relatively little reference to the opinions expressed by the judges during their debates in camera, and had usually left his readers to work out from his summary statements of the advocates’ pleadings what had motivated the bare rulings reported. He was now claiming, however, to have summarised the pleadings in a more instructive way than the clerks. For one thing, he was claiming to have used the written ‘Informations’ submitted by the advocates selectively. ‘I did peruse them thoroughly’, he told his former colleagues, ‘and pitched upon the Reasons which were of moment, as to the points determined, whereas in the same Informations, there were many obvious Points insisted on, which I omitted’. Nor was all the reasoning behind decisions proposed by the advocates in their written or oral pleadings. ‘I did alwayes relate the Case as it was proposed or resumed to the Lords’, Stair continued, ‘and with the important Reasons offered by Parties, I added these which occurred to the Lords in their Deliberations’. As also became apparent in the last chapter, he tended to do this by reporting opinions expressed on the bench as if they had been arguments rehearsed at the bar, perhaps because this accorded 49 Lauder, Historical Notices, vol 1, p 38, refers to a case omitted from Stair’s reports but included in Wedderburn’s and now printed in Brown, Supplement to the Dictionary of Decisions, vol 1, p 662 (and see too p 321 of the same volume for an earlier reporter adopting a similar practice to Stair’s). 50 NAS, CS 1/7, f 166v.

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The Printing of Stair’s Institutions 385 better with his own expectations of a learned disputation, or perhaps because he hoped to prevent criticism of the judges by keeping their views secret.51 For whatever cause, he had tended to report the judges’ decisions as if they were direct responses to the advocates’ arguments, and if he now saw some advantage in admitting that he had actually taken account of the judges’ reasoning, he also saw some advantage in pretending that he had refrained from promoting his own views. ‘I had ever that Deference to your Judgment’, he declared, ‘that I did not omit any thing that was said for it, much less did I magnifie my own opinion against it’. When he wrote the first draft of his dedication to the lords of session on 30 October 1683 Stair remarked that although he could ‘say great things of that Judicature, and of your selves particularly’, he would refrain from doing so, hoping that ‘the Matter will speak more for your Honour, than to need any thing further from me’. Ten days later he changed his mind and wrote a new introductory passage to explain further why the printing of his reports would ‘serve for the Illustration and Vindication of your Justice and Faithfulness in your Service to the King and Kingdom, to whom it cannot but be highly acceptable and satisfying to see, that in so long a tract of time, you have kept so steady and equal a course in the Administration of Justice with so litle variation’.52 He began by recalling ‘the suspition of inequality, which did occur, while every Judge in his course, did choise at discretion what Causes to hear’, and by pointing out that it was the lords of session themselves who had ‘willingly’ and of their ‘proper motion’ initiated the procedural reform later ratified in the parliamentary regulations of 1672. He then went on: ‘As your Lordships have been equal in the Order, so these Decisions will show that you have been impartial in the matter of Justice, and it will appear that you have followed the same uniform Course of Justice’. The degree of consistency in the decisions he had reported was evidence that the judges always administered justice evenly, ‘for if personal Interest had great influence, it could not fail but the same case, would have been diversely determined amongst different Parties’. In order to enjoy their rights and possessions with a sense of security, ‘being free from fear to be over-reached, or oppressed, without remedy’, people needed to know that their rights were ‘lodged in the hands of just and judicious Judges’, and the best way of providing ‘this most desirable Security’ was to show that the judges behaved ‘suitably to themselves without interfeiring’, and that it was not their practice to make ‘Law like the Delphick Sword, bowing or bending to the several Parties, but as a firm and stable Rule, which will ply to no obliquity, but whatever must be regulate by it, must be applied to it, and be straight like it’. The best way of showing this was ‘by publishing and comparing of Decisions, whereby it may be 51 On the tendency to seek safety in numbers see Stein 1982. Although the claims Stair made bore some resemblance to those made by Coke, his reports differed crucially in saying little about the judges’ opinions. 52 Decisions, vol 1, sigg A2r–3. Stair started this new passage by restating the central claim made in the passage he had already written. ‘My Duty and Affection obliges me to Dedicate these Acts and Decisions to your Lordships, because they are your own’, he declared, noting that ‘I have only been your Servant in Observing and Collecting them’.

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386 The Revolution Court seen, that like Cases have like events, and that there is no respect of persons in Judgement’. Although not all men could ‘be Lawers’, and not many more had ‘discretion enough to understand aequum et bonum’, Stair thought that ‘few will be found to want capacity to compare Decisions, and so perceive if they be congruous and uniform’. As he had mentioned in passing in the earlier draft of his epistle, one purpose of publishing his reports was to provide laymen with evidence of the impartiality of the court’s decisions, for he felt certain that by reading his reports they would ‘be perswaded, that their uniformity could be by no other Rule than Law, and Justice’. The relationship between law and justice was clarified when Stair made the further observation that the security people craved ‘can not be attained, unless their Rights be lodged in the hands of just and judicious Judges, wherein at first they could have little more to rest on, but the Reputation that their Judges were such, nor could the Judges then have any other Rule then bonum et aequum, according to the discretion of good men’. What this meant was that judges ‘did differ little from Arbiters, until they came to have fixed Customs and Statutes, clear and known’, and since customs and statutes ‘could not come the length of a sufficient Rule for all Cases’, judges had to remain to some extent like arbiters.53 Stair’s response to the complaint that the lords of session delivered arbitrary decisions was thus to explain why it was sometimes appropriate for them to do so. It is notable that he made no attempt to claim that their decisions were not arbitrary because in the absence of customs or statutes they made the learned laws their rule. His claim was that they were justified in turning from law directly to equity and that they could be relied on to follow the dictates of justice rather than their own interests or those of their friends and relations. Whether he was as confident of this as he claimed is perhaps doubtful. In 1679, after persuading Charles II to accept that the lords of session were trustworthy, Stair had immediately written to the judges warning that it would be ‘the worst of crimes to disappoint his expectation’ and urging them to ‘be more and more carefull that, be the speedy and impartial distribution of justice, his people may find themselves in securitie and quietness’.54 In 1683 he used the letter he was attaching to his first volume of reports to warn them again that ‘the way of Truth and Justice is one, and never crosseth or justleth with it self; but the way of Error and Partiality is infinite, and can never be long consonant’. He warned especially that ‘the pretence of varying upon differences in the cases will easily be perceived, when these are not the true motives of variation, 53

More will be said about the concepts of arbitration and aequum et bonum in the next chapter. NAS, CS 1/7, f 134r (printed in Mackay 1873, p 140). By drawing particular attention in the first draft of his dedicatory epistle to his visit to London in 1679 Stair may already have been seeking to remind the judges of this earlier letter, though the interruption was thought to be significant. In his Decisions, vol 2, p 704, he wrote: ‘The King having Called up to Court the President, the Register, Justice-Clerk, the Advocat and Justice-General in May 1679, they continued there with His Majestie till August thereafter, whereby the President could observe nothing; and by reason of the Troubles at that time, there was little done that Summer-Session’. Lauder, Decisions, vol 1, p 48, remarked on the difficulty created by the absence of several judges, but he also reported several cases decided in the summer session (at pp 48–55). 54

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The Printing of Stair’s Institutions 387 nor can the greatest caution keep former Cases so in memory, as not to fall in flat contradictions in some length of time, when Justice is not the Rule’. The implication remained that the way to deliver consistent decisions was to follow the rule of justice, yet Stair at once asked whether it was any ‘wonder that inconsistencies did occur, when former Decisions were but little known, and were only Transmitted by uncertain Tradition, from the memory of Judges or Advocats’.55 Different lawyers tended to have different recollections of earlier cases, and recourse to the records was generally unhelpful since much was omitted there and ‘the Motives upon which the Lords did proceed were seldom decernable in the mass of Disputes’. ‘The contrarieties that are remarked by the judicious and industrious Lord Dury’, Stair went on to say, ‘are the more excuseable, that before his time the Decisions of Session were not much marked, and but in few hands, yea it was a long time before the Decisions observed by Dury, were become common, and were cited by Pleaders, or noticed by Judges’.56 Stair was presenting himself as a successor to Gibson—‘who did serve and observe about the same length of time that I have done’—and was suggesting that the publication of reports, quite apart from encouraging laymen to believe that the judges adhered to the rule of law and justice, would help the judges to ensure that they gave a favourable impression.57 Finally, Stair argued that complaints of judicial partiality might be regarded less as evidence of the unreliability of judges than as a reflection of the characteristic failing of litigants. ‘It is impossible’, he pointed out, ‘to evite the clamours of Parties coming short of their expectation, when they are in heat and fervency carrying on their Cause, and when they have heard the Wit and Eloquence of their Advocats, endeavouring to make their Case, if not evidently just, at least probably such’. The most that could be hoped for was that parties would ‘acquiesce and rest satisfied’ in the court’s decisions ‘upon second Thoughts, re-considering the Motives upon which the Lords proceeded, if they see that they Decided not otherwise upon the same Grounds’. The publication of reports like Stair’s would therefore encourage parties, ‘whose interest hath a secret influence to byass their first Apprehensions’, to recognise that their interest truly lay in submitting ‘to the Judgment of so many learned and experienced Judges, having no other concernment in the event of the Cause, but that Justice might be inviolable, and that no pernicious or dangerous preparative might be laid, to the common detriment of all’. ‘It is the great interest of Mankind’, Stair generalised, ‘that every man should not be Judge in his own Cause, but that there should be indifferent Judges, of good 55 Stair made it clear that he was thinking here of ‘circumstantiat Cases’ rather than those from which a ‘constant Custom’ had emerged, for by definition a constant custom was kept in memory. 56 This statement in effect confirmed the accuracy of Burnet’s expectation that Gibson’s reports would go beyond the Practicks known in his day in providing a stable basis for legal development, though not for the reason he gave. It also reflected the importance attached by Stair and the other writers of the late 1650s to rendering Gibson’s reports accessible to judges and advocates. 57 Readers familiar with the later history of legal and moral philosophy in Scotland will appreciate that the shift Stair was effectively making here from a concern with natural justice to the construction of a kind of artificial justice is of considerable interest. However, closer examination of this move will once again have to be postponed until a later volume in this series.

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388 The Revolution Court report, men of courage, fearing God, and hating covetousness, who might hear and determine the Controversies of Parties’.58 The critics of the court would have found it difficult to challenge this proposition, based as it was on scriptural authority, but they might well have contested the inference Stair proceeded to draw that all parties ‘should acquiesce in the publick judgment of Authority’. The critics might well have objected that what was at issue was whether the minor premiss could be added that the lords of session were judges of the kind specified, but having turned to the language of interest rather than justice Stair was pursuing a different line of argument.59 ‘It is no small prejudice to any Nation’, he maintained, ‘to make them believe or suspect that their Rights are not secured in just hands, for that overturns their quiet and security’. Although people could generally expect to avoid litigation, ‘most do fear that they shall be involved in Law Suits, and if they be not perswaded to find a sure Remedy by just and knowing Judges, then all is unsecure and disquieted’. It followed that the interest litigants had in obtaining just decisions must yield to the interest people generally had in believing the decisions of the court to be just. Stair concluded with shocking bluntness that ‘it is more the advantage of a Nation that their Judges were but reputed just, though they were not, then that they were just, yet were reputed unjust, for this Case toucheth and grieveth all, whereas the former can reach but a few’. Four years later he offered the second volume of his reports to the lords of session ‘upon the same motives and inclinations exprest in the former Dedication’, reminding them briefly of his main concerns.60 He hoped that his method of reporting decisions, ‘which since the Institution of the Colledge of Justice hath been generally practised by some of the most Eminent of the Lords’, would be taken up by others, ‘for besides the many uses and advantages that arises to Posterity from Records and Publick Writings, there can be no better service done to the Crown, or more grateful to the Subject, than to assure the World, that the Administration of Justice in every mans case is equal and open, without disguise or covert’. Stair reiterated his belief that the publishing of the session’s decisions, delivered consistently ‘by a Tract of so many years’, would serve both to ‘recommend or vindicat the reputation of that Judicatory’ and to ‘satisfie and convince the Liedges of their security in the matter of Justice’, adding that in the cases he covered ‘als much eminent Justice and Dexterity will appear, as in the Decisions of any other Soveraign Court of Justice in Europe’. Since 1682 he had been enrolled as a student at the University of Leiden, where he could have read several collections of reports of the decisions delivered in other countries.61 What he had certainly not done, however, though he claimed to have taken the opportunity ‘to Revise’ his reports, was to supplement them with references to the learned litera58

Cf Exodus 18.13–27. Stair’s use of the language of interest will be examined thoroughly in the third volume in this series. See generally Gunn 1969; Salmon 1980; Burke 1991; Viroli 1992; Kahn 1994. 60 Decisions, vol 2, sig †2. 61 Catalogus bibliothecae publicae Lugduno-Batavae, pp 75, 78, 81, 85 and 97–9; Album studiosorum academiae Lugduno-Batavae, col 657. On case reporting in the Netherlands see Godding 1970 and 1977; Van Holk 1970; Wijffels 1989 and 1997; De Smidt 1989; De Smidt and Verhas 1997. 59

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The Printing of Stair’s Institutions 389 ture to which he had access. It remained his position that the lords of session had authority to turn where statutes and customs were lacking to natural equity, though he had found a more sophisticated way of explaining how earlier decisions could help them to do so. ‘The variety of Cases is admirable’, he remarked, ‘so that neither Laws nor former Decisions can comprehend, or directly conclude all the Cases which from day to day occurr in Judicatories’. New decisions thus had to be made, but not entirely in a legal vacuum. ‘The Principles of Equity being fixt and permanent’, he now explained, ‘new and singular Cases, by the Analogy of Law are reduced and determined, with congruity to the course of former Decisions’. Where previously he had alternated awkwardly between promising proof that the lords of session made justice their rule and providing the means to promote a policy of consistency, Stair now felt able to explain that by working analogously from earlier decisions the judges would be making justice their rule. Moreover, by hinting that decisions might ‘directly conclude’ later cases with similar facts, he indicated that in working analogously from earlier decisions the judges would also be making a kind of legal decision.

Apologising for arbitrary decisions in 1690 Having been suspected of participation in plots to subvert the governments of Charles II and James VII throughout the 1680s, Stair finally made his commitment to regime replacement plain at the close of that decade.62 He returned to Britain with William of Orange in the autumn of 1688 and spent much of the next year advising the prince on Scottish affairs and corresponding with Scottish politicians from Lauderdale’s former residence near Richmond. When Sir George Lockhart of Carnwath, who had become the president of the session in 1686, was assassinated by a disgruntled litigant outside the Parliament House in March 1689, it was decided that Stair should be restored to his position in the court. ‘That shamfull murther of Sir George Lockhart’, he wrote to one of his correspondents, ‘touched the King much, and made him say to me he saw it now necessar that I sould resume my place againe, which I was willing, thogh it was my right, that [Lockhart] sould enjoy, being younger and abler to enduir the toyle then I’.63 In dedicating his first volume of reports to the lords of session Stair had observed that ‘the weight of the Charge I did bear, (which in a few years sunk my Predecessor Sir John Gilmour, though a man of great strength of Body and Spirit, when he undertook that Office) made me consider, that it was fit for me, before Age and Infirmity should make that burden more uneasie, to have some remnant of my Life, of which I might be Master, without Diversion, for which some of your Lordships and others knew my Resolution to retire long agoe’.64 Yet the truth was that he had 62

Mackay 1873, pp 207–46; Graham 1875, vol 1, pp 71–93; Hutton 1981a, pp 41–65. Leven and Melville Papers, p 9. See too NAS, GD 160/529/23; and, for Lockhart’s assassination, Curiosities of a Scots Charta Chest, p 47. 64 Decisions, vol 1, sig A4r. 63

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390 The Revolution Court not retired from office but had been dismissed in the ‘revolution’ of 1681, as it now proved prudent to admit. In 1689 the wheel turned again.65 John Baird of Newbyth, another of those dismissed in 1681, was restored to the bench along with Stair, but only one of the present judges was continued in office. The other twelve lords appointed in November 1689 were all new to judicial office, though most were familiar with forensic practice.66 Altogether, of the fifteen ordinary lords no fewer than ten had been advocates, among them John Lauder of Fountainhall and Colin Campbell of Aberuchill, and of the remaining five at least one had received some legal training. ‘I must say’, Stair remarked to the same correspondent, ‘ther was never so good a constitutione of Sessione, being all persons of considerable interest and naturall abilities, and most of acquyred skill, and men of integrity’.67 But if he believed that ‘the natione was never better provyded in Judges’, others complained that ‘a better choyse’ could have been made and condemned those selected as ‘the dross of the nation’.68 There was considerable dissatisfaction that William had insisted on appointing the judges himself instead of accepting that they should be selected by parliament, and that he had not left the judges to elect their own president but had installed a representative of the old regime.69 Stair was not alone in regarding the assertion of parliamentary responsibility for judicial appointments as an ‘Invasion on the Royalty’, and he feared that an attempt made around the end of 1689 to raise an appeal against a decision before parliament would prove to be ‘the first blow against the Sessione’ in a renewed campaign.70 At the time the appeal was raised an anonymous pamphlet was published in defence of the parliamentary position on appointments. It appears to have been composed by Robert Ferguson, a Scot who had contributed to the pamphlet war against the English government in the late 1670s, who had spent the 1680s conspiring in the Netherlands, and who was known to have been sent material from Scotland in 1689 to enable him, ‘as a man that naturally loved to embroil things’, to put his vicious pen to the service of Stair’s opponents.71 Ferguson complained that those who had tried to establish the responsibility of parliament for the appointment of judges had merely been seeking to reaffirm the ‘Laws, Liberties and Customs’ of the nation, and that they were unjustly branded with ‘the 65 Account of the Proceedings of the Estates in Scotland, vol 1, pp 174–8 and 181, and vol 2, pp 35–7; Acts of the Parliaments of Scotland, vol 9, app., pp 135–6; Leven and Melville Papers, pp 306–7 and 312–14; Register of the Privy Council, 3rd ser, vol 14, pp 404–5, 411–12 and 456. 66 Brunton and Haig 1832, pp 431–48. 67 Leven and Melville Papers, pp 312–14. See too the view expressed by Stair’s eldest son, Sir John Dalrymple, who had become king’s advocate, in An Account of the Affairs of Scotland, in Relation to Their Religious and Civil Rights, p 35. 68 Leven and Melville Papers, pp 52–3, 134 and 379; NAS, GD 26/13/22. 69 Balcarres, Memoirs Touching the Revolution in Scotland, pp 50 and 56; Leven and Melville Papers, pp 77, 80 and 153; Address Sign’d by the Greatest Part of the Members of the Parliament, p 6. 70 Dalrymple, Account of the Affairs of Scotland, p 3; Leven and Melville Papers, p 361; Thomson 1929, pp 98–101. 71 Annandale Family Book, vol 1, p cclxvi; Balcarres, Memoirs Touching the Revolution in Scotland, p 52; Burnet, History of His Own Time, vol 2, p 545. See too Ferguson 1887, pp 270–80; Lenman 1992, pp 256–8; MacQueen 1992, pp 178–9.

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The Printing of Stair’s Institutions 391 reproachful name of Republicans’.72 He believed that the legislative history of the relationship between the session and parliament showed that ‘it not only appertained unto the Parliament to see that Justice was duly administred, but that the Right was originally in them of nominating and ordaining the Administrators of it’.73 The assembling of the judges in November 1689 without parliamentary approval had been ‘their first setting out on the road of Arbitrariness’, and it was ominous that they had taken their seats under armed guard, ‘that what they had Arbitrarily begun, might be Violently maintained’. It seemed that William was about to repeat the mistakes of his predecessors, whose personal appointment of the president of the session had been ‘one of the first steps towards Arbitrary Power’. In Stair’s case in particular, just as his acceptance of Charles’ appointment had been ‘an Affronting, and Betraying of the known Laws of the Kingdom; so his whole Behaviour in that Station was of one piece and complexion with his entring upon it, being a continued Series of Oppression and Treachery to his Country’. Ferguson understood that ‘all his Verdicts between subject and Subject, were more ambiguous than the Delphick Oracles, and the occasion of the Commencement of innumerable Suits in place of the determining of any’. Moreover, he believed Stair to have been ‘the principal Minister of all Lauderdale’s Arbitrariness, and of King Charles’s Usurpations’, the author or at least the defender of ‘the Bloody Measures of the Times’, and a hypocrite who had performed his crimes ‘under the vail of Religion, and by forms of Law’. Since he had ‘co-operated in the late Revolution’, the nation would perhaps have been prepared to leave him ‘to stand or fall at the great Tribunal, and to have indempnify’d him as to Life, Honour and Fortune here’, but he had tempted fate ‘by crowding into the Place in which he had so heinously offended’ and would now have to be brought to justice. Further attempts to have Stair removed from office were duly made during the parliamentary session of 1690.74 In the spring of that year Stair responded to the more personal aspects of Ferguson’s attack in an Apology, remarking at the outset that there was no more ‘atrocious Crime’ than character assassination and that it was the victim’s duty to defend himself.75 The general charge of a tendency towards arbitrary government 72 The Late Proceedings and Votes of the Parliament of Scotland, Contained in an Address Delivered to the King, Signed by the Plurality of the Members Thereof, Stated and Vindicated, pp 10–12. The Address Sign’d by the Greatest Part of the Members of the Parliament, referred to above, had been presented to William on 15 October 1689 and had irritated him greatly. Ferguson suspected that he was being misled by his advocate, Sir John Dalrymple, who certainly took the line in his Account of the Affairs of Scotland, p 3, that those who persisted in promoting the parliament’s assertions were trying ‘to Amuse the unwary multitude, with the specious Pretexts of Law and Liberty’. 73 Late Proceedings and Votes of the Parliament, pp 31–45. 74 For a detailed study of the parliamentary proceedings in 1689–90 see Riley 1979, pp 22–46. 75 It is evident from the Account of the Proceedings of the Estates in Scotland, vol 2, pp 95, 101, 107 and 124–7, that Stair had written his pamphlet by 22 March 1690, in response to ‘misrepresentations made of his Lordship, in the late Pamphlet, intituled, The Vindication of the Scotch Adress’, which was how Ferguson’s pamphlet was referred to both in the Annandale Family Book, vol 1, p cclxvi, and in another pamphlet called A Wish for Peace, pp 3–5. Mann 2000b, pp 143, 151, 175 and 257, describes the ‘Vindication of the Address’ as a defence of the Humble Address and Supplication of the Cameronian Presbyterians in Scotland, written by George Hume, but at no point in the Account of the Proceedings of

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392 The Revolution Court seemed to Stair to involve a deliberate misunderstanding of his entirely proper defence of the royal prerogative. ‘As to the matter of Civil Government’, he declared, ‘I have been ever persuaded, that it was both against the Interest and Duty of Kings, to use Arbitrary Government, that both King and Subjects had their titles and rights by Law, and that an equal balance of Prerogative and Liberty, was necessar for the happiness of a Common-wealth’.76 He had himself been a victim of the arbitrary abuse of power when he was removed from his place in the session, and that his enemies had been unable at the time to find proof of his malversation in office was surely proof to the contrary of his integrity. ‘When my Sons came to the House’, he added, ‘I did most strictly Prohibite them to Solicite me in any Case, which they did exactly Observe’. Stair was alluding here to two acts of sederunt passed against soliciting in 1677 and 1679, which were renewed, reprinted and reinforced in 1690, and he drew attention again to the measures introduced by the lords of session to prevent the ‘Arbitrary Calling’ of cases, measures of which he had been ‘the first Author, and prime Promoter’.77 As for ‘concurring in all the evil things [that] were done during the Duke of Lauderdale’s Ministry’—meaning the repressive measures taken against those who resisted the return to episcopacy— Stair pointed out that he had been ‘publicly reproacht’ in the privy council for defending presbyterians and that he had never been involved in proceedings before ‘any Criminal Court’. Far from being a hypocrite, he had adhered constantly to his religious principles, ‘both in my Practice, and Profession, to these I might use freedom with’, and on no fewer than three occasions his adherence to his principles had forced him out of legal practice. In 1681 he had not been allowed to resign the presidency of the session as he had wished but had been wrongly ejected from an office to which he had been lawfully appointed and to which he had remained entitled in 1689. ‘As to the pretended obscurity of the Decisions of the Lords’, Stair further objected, ‘it is like, the ignorance of Law of this Libeller, made them so to him’. Stair had taken Ferguson’s remark about all his verdicts being ‘as obscure as the Oracles of Delphos’ to refer to ‘the Decisions of the Lords of Session which I have published’, presumably because his stated aim in reporting had been to prove that the court did not make law ‘like the Delphick Sword’.78 ‘I may say without vanity’, the Estates in Scotland, or in the Register of the Privy Council, 3rd ser, vol 15, pp 42–3, 82–3, 141, 145, 150–51 and 155, was Hume described as the writer of a pamphlet, nor is any copy of a vindication of the Cameronian address, a broadside of ‘Tedious and Rude Ryme’, known to exist. It was certainly Ferguson’s pamphlet that received a response from Stair, who took no notice of any other vindication or of pamphlets that do exist such as A Wish for Peace and A Representation to the High Court of Parliament, of Some of the Most Palpable Grievances in the Colledge of Justice. For other defences of Stair see A Wish for Peace, pp 18–21, and NAS, GD 26/13/62, pp 9–15. 76 Apology, p 4. Stair added that he had explained his understanding of political theory more fully in a separate pamphlet, a point that will be returned to in another volume in this series. 77 Acts of Sederunt (1740), pp 168–9. 78 In Euripides, Orestes, 1656, Apollo, to whom the temple at Delphi was dedicated, warned that when the son of Achilles demanded satisfaction for his father’s death he would himself die by the Delphic sword. See too Aristotle, Politics, 1252b1–5, and the Collected Works of Erasmus, vol 33, pp 173–4, where the Delphic sword was taken to symbolise anything that could be put to more than one use. It was thus natural for the Delphic sword to be associated with the ambiguous oracles of Delphi.

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The Printing of Stair’s Institutions 393 he went on, ‘that no man did so much, to make the Law of this Kingdom known and constant as I have done, that not only bred Lawers, but generally the Nobility and Gentry of the Nation might know their Rights’. It was to this end that he had reported the court’s decisions, ‘expressing mainly the Reasons that the Lords laid hold on, in all important Cases, which were not come to be incontroverted, as a beaten Path, or were obvious to common capacities’. In publishing his Decisions he had talked of reporting ‘remarkable practicks’ (perhaps in imitation of the French arrêts notables) and of concentrating on cases of ‘intricacy and importance’, meaning those ‘circumstantiate Cases’ that had not yet given rise to ‘a constant Custom’.79 Although he had also hinted there that decisions might at times ‘directly conclude’ later cases with similar facts, his aim had not been to form a record of developed law but to report decisions that might affect the handling of later cases in one way or another and so influence the future development of the law. Since he had deliberately dealt with difficult decisions it was scarcely surprising that a layman like Ferguson had found them perplexing, for it was difficult enough for lawyers to know in which direction the law might develop. In this sense it was true that all the decisions Stair had reported were obscure and ambiguous, tending to raise as many questions as they answered, but it was not true that the lords of session made law like the Delphic sword, ‘bowing or bending to the several Parties’. As he had tried to show in his Decisions, their handling of cases was governed by ‘a firm and stable Rule’, by ‘the Principles of Equity’ and ‘the Analogy of Law’, and not by any favour towards parties. Although not all men could be lawyers, nor could most have sufficient discretion to understand aequum et bonum, Stair had suggested that few would be found to lack the capacity to compare decisions and to see that the lords of session dealt with cases consistently. It was by learning in this way to acquiesce in the decisions of the court that the nobility and gentry of the nation would come to know their rights, or at least to know that their rights were secure in the hands of the judges. Most laymen could be expected simply to trust the judges to follow the rule of law and justice, for it would be in their interest to do so even if the judges were not actually trustworthy. This was of course precisely the expectation that had provoked protest in the 1670s. Stair was in effect agreeing with those who had observed then that the decisions of the session were dependent on ‘the judges consciences and wills’, for he was arguing that many cases could only be decided ‘according to the discretion of good men’, and that while those good men were obliged to follow the rule of justice, litigants were obliged to acquiesce in their exercise of discretion.80 He was not denying that to rely on the discretion of the judges would amount to ‘a direct constitutione of ane arbitrary power in the session’ but was arguing that the court ought to have such a power, if properly understood.81 What he was not accepting was the complaint borrowed from Buchanan that the judges ‘desyre no lawes to be 79 80 81

Decisions, vol 1, sig A2v. NAS, GD 406/2/635/3 and 14; Stair, Decisions, vol 1, sig A3v. NLS, MS 9375, f 9. Again, more will be said about arbiters and boni viri in the next chapter.

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394 The Revolution Court their rule but thair owne opinions, which they alter and use as they pleas’.82 In the 1650s, as was noted in an earlier chapter, Robert Burnet had agreed with Buchanan that the decisions of the session were ‘inconsistent and uncertain and liable to change at the whim of the judges’, remarking that this was likely to remain the case so long as the reports compiled by some judges received only limited circulation in unreliable manuscripts.83 Burnet’s response to the problem had not been to endorse the frequently repeated demands for the enactment of a legislative restatement of the law but to promote a transfer of learned authority from the schools of law to the session, suggesting that arbitria could be turned into iudicia if the local law was married with the learned laws, which was what he suspected Gibson had been trying to do in his reports. After efforts to improve awareness of the reports compiled by judges like Gibson, Hope and Spotiswoode had been made in the late 1650s, other judges like Nisbet and Wedderburn had tried in the 1660s and 1670s to show how the decisions of the session could continue to be understood as exercises in learning. They had drawn attention to the use of learned authority in the arguments presented by advocates at the bar, had reported the personal opinions expressed by the judges in their deliberations, and had expressed their own views on the soundness of the decisions delivered, often with reference to learned authority. Stair, by contrast, had gone out of his way to give the impression that the learned laws had no authority in Scotland, had made very little of the opinions expressed by individual judges, and had hardly ever divulged his own views directly. Instead of arguing in the prefatory materials he attached to his reports in the 1680s that the judgments of the session were not arbitrary because grounded on learned authority, he had argued that the court was appropriately authorised to deliver arbitrary decisions. If he agreed with Burnet that the improved circulation of reliable reports would help to limit the need for arbitrariness, he does not seem to have agreed that his task as a reporter was to make clear the learned basis of the court’s decisions. The principal claim Stair made for his reports when he sent them through the press was that they were a ‘sincere and authentick’ record of the decisions of the session.84 He told the judges that he had been their ‘Servant’ in collecting their ‘own’ decisions, he reminded them that they had formally granted their ‘allowance and approbation’ of the printing of his collection, and he claimed accordingly to have made a contribution to the ‘Records and Publick Writings’ of the nation.85 In his Apology he repeated his assurance that he had reported the decisions on each day that the court sat, ‘while they were fresh in my memory’, though he admitted that there had been ‘many escapes in Printing’ and that he had not always set down the interlocutors ‘in the same Terms as they were marked by the Clerks’.86 82

Buchanan, History of Scotland, vol 2, p 306; NLS, MS 9375, f 22. Craig, Ius feudale, sig A4v. 84 Decisions, vol 1, sigg A2r and A4–5r. 85 He also made it clear that the judges had been working in conjunction with the king in granting their approval and recording their grant in the books of sederunt. 86 Apology, p 6. 83

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The Printing of Stair’s Institutions 395 The reason for this, he explained, was that during the 1660s and 1670s interlocutors had been received by parties from the clerks ‘upon their Trust, without being Revised and Signed by the President, as now they are’.87 A change in the practice of the court meant that interlocutors were now authorised by the judges in their precise terms, so that in future they would need to be copied verbatim from the clerks’ records in the same way as the acts of sederunt had been copied in the collection Stair had attached to his first volume of reports, in which he had attempted to associate decreets of session with acts of sederunt. Both in the dedicatory epistle he also attached to that volume and in his Apology he drew attention to the authority the lords of session enjoyed to legislate on procedure, as well as to their practice of giving advice to parliament on legislation.88 In the letter of dedication he attached to his later volume of reports he remarked that having already published ‘the Acts and Procedure’ of the court in one decade he would now provide evidence of the ‘steady and uniform Procedure of the Lords of Session’ in another.89 In some sense, therefore, he claimed to be providing an accurate record of the exercise of legislative authority by the court. In the last chapter it was seen that in comparison with other judges Stair was relatively reluctant to record the declarations the court sometimes made of its intention to follow its decisions in later cases but was exceptionally eager to emphasise the finality of the decisions it delivered. In Nisbet’s terms, he was one of those who thought this crucial to ‘the Credit of the House, and the Security of the People’, whereas others considered that ‘the Honour of the House, and Interest and Security of the People consists in this, that Justice should be done, and no evident Iniquity should be without remedy’.90 In his two letters of dedication Stair spelled out his position on this issue and admitted to being tempted (again perhaps in imitation of some French reports) to recreate the kind of eloquent debates he had heard at the bar. It was the eloquence of the advocates, he maintained, that caused all parties to believe their arguments just and that made it hard for questions of law to be answered definitively.91 What was essential was for parties to acquiesce in the decisions of a ‘Soveraign Court of Justice’ so that ‘the private and particular opinion of Parties’ could give way to ‘the publick judgment of Authority’. The fact remains, however, that Stair had not recreated the eloquent exchanges of the advocates but had adhered to the conventional practice of reporting the decisions of the session as determinations of disputations, thus suggesting that they should be regarded less as acts of sovereign authority, designed to terminate 87 Cf Stair, Institutions, 4.2.14 and 18. Lauder, Decisions, vol 1, p 328, and Historical Notices, vol 2, p 597, indicates that the signing of interlocutors was a practice introduced ‘in the English tyme’. 88 In describing himself as the author of the rule on the orderly calling of cases, introduced by the lords of session and recommended by them to parliament, Stair was perhaps recalling the treatment of the senators of republican Rome as auctores legum. See Berger 1953, p 368. 89 Decisions, vol 2, sig †2. 90 Nisbet, Decisions, p 133. 91 Decisions, vol 1, sigg A3r and A4v, and vol 2, sig †2v. In saying that the advocates endeavoured ‘to make their Case, if not evidently just, at least probably such’, Stair moved away from the more dialectical conception of probability. This point will also be returned to in a later volume.

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396 The Revolution Court the endless flow of rhetoric, than as contributions to a dialectical process in which legal doctrine was gradually refined. He claimed that his reports went further than the clerks’ records because they made clear the ‘Reasons and Motives’ behind the court’s decisions, which were ‘seldom decernable in the mass of Disputes’ noted in the official records. If he had been selective in his reporting of the arguments presented by the advocates he promised that he had not emphasised his own ‘opinion when different from the plurality’, thus suggesting that he regarded decisions as the collective opinions of the court, and if he had made little of the views expressed by individual judges this was especially true of the reports he had collected during the 1670s, when he had been forced to adopt an increasingly defensive posture. As was noted in the last chapter, Lauder observed in 1676 that it was Stair’s practice as a judge to investigate the court’s handling of earlier cases to see whether questions had been ‘decided alreadie’ or whether ‘any parallel or contingent help’ was available, which is similar to what Stair himself said about the relevance of decisions in 1687.92 He had apparently reported decisions because he expected the judges to build on their past experience, though not by slavishly following their earlier judgments, even where questions seemed to have been directly concluded. The court was only strictly bound by its decisions where they had given rise to a customary law, at which point they no longer needed to be reported. In reporting in his own words decisions that might have had some effect on the development of the law Stair was clearly negotiating authority with his readers, but what remains unclear is with which readers. One possibility is that he was inviting the lords of session, to whom he dedicated his reports and attributed the legislative authority to regulate the court’s procedure, to confirm that they intended to make a practice of following the reasoning he had taken to motivate their decisions in similar cases. Another possibility is that he was inviting lawyers generally to confirm that they considered the reasoning he had outlined in particular cases to be sound, not perhaps on the strength of their academic learning but certainly on the strength of their professional expertise. A further possibility is that he was inviting laymen to confirm that they were prepared to acquiesce in the decisions reported and that he had devised some way of equating their voluntary acquiescence with the tacitus consensus populi traditionally taken to underpin customary law.

Responding to criticism in 1693 The third possibility could have been connected with the move towards the printing of law books, for while the efforts writers made to attract lay readers must to some extent have reflected their need to offset production costs, recent work on the printing of law books in France and England suggests that there may have been a desire to involve lay people more in the development of the law. In France, it has been argued, the writers of case reports between 1550 and 1650 aimed increasingly 92

NLS, Adv MS 24.4.1, f 270r.

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The Printing of Stair’s Institutions 397 to make ordinary people as well as professional lawyers aware of what was happening in the courts by writing in the vernacular and by explaining the relevance of decisions in the notes and headings they included in their books.93 In claiming to render decisions ‘notorious in society’, and specifically in a ‘civil society’ in which ‘public opinion’ was fashioned by active citizens, these writers tended to suggest that both lawyers and laymen were involved in the development of the law as a body of knowledge, though whether their remarks are better viewed as evidence of the early emergence of the modern concept of public opinion or of the late survival of the ancient and medieval concept of customary law is open to question.94 In England case reports continued to be written for the benefit of a primarily professional audience, with at most a supplementary function of impressing laymen with the law’s complexity and consistency, but in the late sixteenth and early seventeenth centuries many other books about law were printed there in an accessible style for the benefit of a lay audience.95 From its inception printing had been used in England to publicise legislation, royal proclamations and other policy statements, and it had also been used in the sixteenth century to instruct laymen, especially those who represented the king in local government, in their legal responsibilities. Concern had sometimes been expressed that to go beyond bare instruction by revealing the thinking behind decrees would undermine respect for the law and breed confusion, uncertainty and litigiousness, but many books were nevertheless printed in which the mysteries of the law were exposed, usually in English (or at least in Latin rather than Law French) and using as little technical vocabulary as possible, and often structured methodically in accordance with principles familiar to all university graduates.96 Lay readers were encouraged to conceive of the law as the collective memory of the nation, to envisage lawyers as the custodians of a customary inheritance that served as a bulwark against the threat of royal absolutism, and to participate themselves both in discussion of the law and in discussion of politics in terms of the law.97 Whether this encouragement is better viewed as evidence of the emergence of a new ‘memorial culture’, in which the law was refashioned as a body of knowledge memorised in the public sphere, or as evidence of a final effort to preserve the medieval understanding of the common law as the custom of the realm and the common erudition of the lawyers, is again open to question.98 If legal writers found it advantageous to remind laymen that their expert consensus represented the consensus of the 93 Hanley 2003. Although extremely interesting, this article relies on a rather simplistic conception of arrêts as ‘binding legal precedents’ and does not explain why ‘the jurisprudence of the arrêts’ was taken to be jurisprudence. See too Hanley 2001. 94 Issue is taken here with Habermas 1989, where it is argued that the French people remained merely passive recipients of instruction until the late eighteenth century. 95 Ross 1998a (partly reproduced in Ross 1998b). 96 As already promised, the connection between methodical arrangement and teaching in the arts will be returned to later. See generally Howell 1956; Ong 1958; Gilbert 1960; Jardine 1974; Reiss 1997. 97 Issue is again taken here with Habermas 1989, where it is argued that the active formation of public opinion only started in England around the beginning of the eighteenth century. On ‘custodianship’ of the law reference is made to Goodrich 1990, pp vii, 70–2, 87 and 112, and Helgerson 1992, pp 63–101. 98 For this part of the argument see too Ross 1998c.

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398 The Revolution Court nation, it need not have followed that they wished to see laymen participating actively with them in reaching that consensus. If anything, laymen may have been encouraged to accept a more passive role in the development of customary law. In Scotland, by comparison with France and England, very few law books had been printed before the 1670s.99 One stated purpose of the introduction of printing in 1507 had been to reproduce copies of the ‘actis of parliament’ and ‘bukis of our lawis’, and printers had frequently issued copies of legislation, in the form either of single acts of parliament, or of all the acts of particular parliaments, or of the comprehensive editions compiled by Sir Edward Henryson and Sir John Skene.100 The wish to have the books of the law printed had been satisfied in 1609 when Regiam maiestatem and the related texts had appeared both in Skene’s Latin and heavily annotated edition, intended like Robert Burnet’s later edition of the Ius feudale to be used by professional readers, and in his Scots edition, designed for the ‘use and knawledge of all the subjects within this Realme’.101 Like William Welwood, whose Sea-Law of Scotland had in 1590 become the first treatise on a legal topic to be printed in Scotland, Skene had reminded his lay readers that ‘all men be bound to ken the law, namely thair awne common lawe’.102 In doing so he had no doubt been intent on extending the market for his book beyond the two or three hundred lawyers with a professional interest in his subject, and no doubt the small scale of the legal profession in Scotland goes far towards explaining why so few law books were printed there, but it was also a recurring theme in the demands for reform of the law that it ought to be more widely known to the people of Scotland.103 When the lords of session agreed in 1681 that Stair’s reports of their decisions should be printed they used an expression familiar from the publication of the old books and the acts of parliament in declaring that the book would be ‘of great use and advantage not only to the Colledge of Justice but to the wholl lieges’, and it was in a similar vein that Stair later claimed to have published his reports so that ‘not only bred Lawers, but generally the Nobility and Gentry of the Nation might know their Rights’.104 This was one of the ways in which he had attempted ‘to make the Law of this Kingdom known and constant’, yet he had clearly not 99

For a brief survey see Mann 2000b, pp 154–6. On the introduction of printing see Macfarlane 1995, pp 236–7. The frequent printing of legislation is sufficiently clear from a glance through Aldis 1970. 101 Regiam maiestatem (Scots edn), sig A1r. This edition also included works like Skene’s treatise on court procedure which would presumably have been of less interest to laymen than to lawyers, though to writers as much as to advocates. As has been noted in connection with Nisbet’s reports, it was when lawyers were dealing in apicibus iuris that they were tempted to use the language and vocabulary of the learned laws. 102 Welwood, Sea-Law of Scotland, pp 44–5. Welwood’s book was strikingly different from the Latin treatise on the same subject written at about the same time by Alexander King, which had evidently been intended for the press—in a preface King warned his readers to watch out for printing errors— but had only circulated in manuscript (NLS, Adv MS 28.4.7, and MS 1948; EUL, La III 741). 103 See too the Acts of the Parliaments of Scotland, vol 4, pp 165 and 378–9, and Register of the Privy Council, vol 5, p 463, and vol 8, pp 55–6, for official recognition of the value of Skene’s editions to ‘the haill liegis of this Realme’, and for steps taken both to assist with the costs of publication and to enforce purchase of copies by all substantial families (on which see further Coutts 2003, p 16). 104 NAS, CS 1/7, f 166v; Apology, p 6. 100

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The Printing of Stair’s Institutions 399 done so by spelling out the rights and duties that people were shown to have by the cases he reported. By replacing the unreliable and mutable memories of lawyers with an authentic record, written in recent memory and printed in an authorised version, Stair may have increased the likelihood of decisions being followed in similar cases.105 That likelihood may have been reinforced when his publishers produced an authorised version of Gibson’s reports in 1690, followed in 1691 by an edition of the acts of sederunt passed in the decade since his own collection was completed.106 Nevertheless, Stair stated plainly that he regarded decisions not as laws but as more or less tentative steps towards the introduction of customs which would render the recollection of the decisions superfluous. While the record of the decisions was fixed in print, their legal significance remained to be worked out in the minds of lawyers or laymen, and the role assigned to laymen in this process seems to have been mostly passive. Stair did not expect laymen to understand the reasoning or motivation behind the court’s decisions, and although he tried to shed some light on the thinking of the judges he also tried to preserve the secrecy of their deliberations.107 After claiming in his Apology to have made the law known and constant by printing his Decisions, Stair went on: ‘And I did write the Institutions of the Law of Scotland, and did derive it from that Common Law, that Rules the World, and compared it with the Laws Civil and Canon, and with the Custom of the Neighbouring Nations’, adding that the book had proved ‘so acceptable, that few considerable Families of the Nation want the same’.108 In response to further assaults on his reputation in the early 1690s, the claim that he had done more than anyone ‘to make the Laws and Customs of this Nation plain to all Judicious Persons’ was repeated in a succession of pamphlets.109 It was in his Institutions especially that Stair claimed to have made ‘the Law intelligible and known to all the King’s Subjects’, or at least to ‘the Judicious and Sober’, those ‘persons of Honour and Discretion’ who could be expected to find the law intelligible ‘when plainly and orderly proposed’.110 Stair had presented his readers with a survey of the law written ‘in a Plain, Rational, and Natural Method’ by adapting the structure of 105 Cf Henderson 1975, pp 292–3; Baker 1978, pp 162–3; Clanchy 1993, pp 265–6; Wood 1996, pp 269–72; Musson 2004, p 114. 106 Gibson, Decisions of the Lords of Council and Session, sig ¶2v, stating that by reporting cases ‘for many years together, Judiciously, and with great exactness’, the writer had produced ‘a Book useful and profitable for the Leidges’, and opening with a title page and dedication similar to those found at the start of Stair’s reports; Acts of Sederunt of the Lords of the Session, Past since February 1681. Lauder, Decisions, vol 1, p 516, indicates that Stair had resumed his practice of reporting in 1689, but none of the reports he made of the Revolution court’s decisions appears to have survived. 107 See too Lauder, Historical Notices, vol 1, p 348, and vol 2, p 597, and Acts of Sederunt (1740), p 138, for the efforts already mentioned to ‘prohibite and discharge the printing of any Informationes, or other Papers relateing to Processes’, which was meant to discourage the discussion of decisions. 108 Apology, p 6. 109 Information of the Viscount of Stair, p 2; Information for the Viscount of Stair, p 7 (written in reply to an Information for Mr Duncan Robertson, on whom see too NAS, GD 406/1/6783); Impartial Account of Some of the Transactions in Scotland, pp 6–7. For the continuing attacks on Stair see in addition Mackay 1873, pp 264–5; Graham 1875, vol 1, pp 103–6; Riley 1979, pp 86 and 96. 110 Institutions, sig A2, and 1.pr/1.1.pr.

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400 The Revolution Court Justinian’s Institutes in accordance with the philosophical principles he had learned and taught at Glasgow University.111 He had moved from the general to the particular, beginning each title with discussion of the law of nature and working his way towards an account of the detailed provisions of Scots law by examining the civil, canon and feudal laws and the customs of neighbouring nations. In the dedication attached to his first volume of Decisions he had indicated that he expected educated laymen to have sufficient discretion to understand natural equity, and in the dedication and the preface attached to the first edition of his Institutions he had indicated that he expected his lay readers to find his discussions of natural equity intelligible and on that basis to be able to understand some of the more technical material that followed. As was noted earlier in this section, although he appears to have gone to some trouble to match the remarks made at the beginning of Mackenzie’s book on the Laws and Customes of Scotland, in Matters Criminal, he did not claim like Mackenzie to have studied all the works of the doctors, or to have consulted learned lawyers on doubtful points, or to have expressed his own opinions on the law. He appears to have gone out of his way to avoid giving any impression of having written a book that only professional lawyers would be able to understand. Mackenzie does not seem to have found Stair’s Institutions satisfactory. Professor Watson has plausibly suggested that when Mackenzie published his own Institutions of the Law of Scotland in 1684 it was in direct response to the printing of Stair’s book under the same title three years earlier.112 In a dedicatory epistle addressed to the earl of Middleton, which can be read as a series of thinly veiled criticisms of Stair’s book, Mackenzie pointed out that ‘the Natural way of Learning all Arts and Sciences, is to know, First, the Terms used in them, and the Principles upon which they are founded, with the Origins of the one, and the Reasons of the other’.113 ‘A Collection of these Terms and Principles’, he went on, ‘is in Law called, Institutions; and the Natural and Easie way of Writing these, is by going from the first Principle to a second, and from that to a third: The admir’d Method of Euclid in his Elements, though much neglected by all, who have written Institutions of Law’. Mackenzie proceeded to criticise the Institutes of Justinian for including material that could have been omitted, for omitting material that needed to be covered, and for dealing with some topics on the assumption that the reader was familiar with other topics before they had been reached. Yet his discussion of terms, principles and method must surely have been designed to remind his readers of Stair’s discussion of the same three themes at the start of his Institutions. So far as the terminology of the law was concerned, Mackenzie’s intention was not to provide the sort of philosophical definitions of basic concepts found in Stair’s opening chapter but was to explain the etymology of words by relating ‘the Terms of the Civil Law’ to ‘the Stile of Ours’. So far as the principles 111 As has again been indicated already, this topic will be returned to at length in a later volume; for the moment see Campbell 1954. 112 Watson 1989, pp 310–13. 113 Institutions, sigg A2–3.

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The Printing of Stair’s Institutions 401 of the law were concerned, his intention was to describe the established law in a series of propositions, ‘inserting nothing that is contraverted’ and ‘building alwayes one Principle upon another’. Although he was to refer occasionally in the chapters that followed to acts of parliament or of sederunt, he never referred to the decisions of the session or to issues that remained the subject of debate. So far as the method of the law was concerned, his intention was to follow ‘the Natural way of Learning all Arts and Sciences’ and ‘the Natural and Easie way of Writing’, and like Stair he thought that giving attention to the general principles and practice of education in the liberal arts might help to improve the approach taken in Justinian’s Institutes. But he was clearly not impressed with Stair’s ‘Plain, Rational, and Natural Method’. Mackenzie in fact adhered in his Institutions to the structure of Justinian’s book, the ‘easier way’ along which students had been led for centuries towards a basic knowledge of the law.114 If the compilers of Justinian’s book had not always managed in practice to write in Euclid’s elementary style, they had at least understood in theory the need to leave out the ‘denser detail’ of the law in an introductory survey. Like the Roman compilers, Mackenzie did not intend to progress beyond discussion of general principles to a detailed treatment of the law, but meant to deal succinctly with general principles alone. ‘If any Man understand fully this Little Book’, he declared, ‘Natural Reason, and Thinking, will easily supply much of what is diffused, through our many Volums of Treatises, and Decisions’. It was ‘our’ treatises and decisions that were set here against his little book, by Professor Watson’s calculations about an eighth of the length of Stair’s Institutions. The study of treatises and decisions ‘does rather distract than instruct’, he remarked, ‘and I have often observed, that moe Lawyers are ignorant for not understanding the first Principles, than for not having read many Books; as it is not the having travelled long, but the having known the way, which brings a man to his Lodging soon, and securely’. The lawyers Mackenzie had written for would only master their discipline easily and properly if they approached it along the known way, meaning the way travelled for centuries by prospective lawyers across Europe.115 In 1687 Mackenzie prepared a new edition of his Institutions for the press by asking the other members of the College of Justice whether they had a clear understanding of particular points of law.116 A year earlier he had noted at the start of his Observations on the Acts of Parliament that in certain circumstances he felt it appropriate to express ‘the ordinary opinion, though possibly it is not my own: Common opinions being still safe even when they are not well founded’.117 In this collection of annotations on the acts passed during the previous three hundred years, his most substantial work on the law of Scotland, Mackenzie had tried ‘to preserve honest men from falling into snares by their ignorance’ and had in effect ‘satisfied the 114

Institutes, 1.1.2. As Watson 1989 shows, Mackenzie had drawn many of his propositions from the learned laws. 116 Lauder, Historical Notices, vol 2, p 828 (and see too p 846). For variations in the printing of the second edition of Mackenzie’s book see Cairns 2001. 117 Observations on the Acts of Parliament, sigg A2–4r. 115

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402 The Revolution Court ardent desire our Parliaments have had to have the Laws revised’, for he had explained how far the acts remained in force and how they should be interpreted. The acts of parliament, he maintained, as printed either in the edition put together by Skene or in the updated edition recently published by Murray, formed ‘the great Body of our Laws’ and ‘the chief Pillars of our Law’, so that laymen who studied his book in connection with the acts themselves, if necessary with assistance from the index prepared for Murray’s edition, would to a large extent learn all they needed to know about the detailed requirements of the law. At the same time, however, Mackenzie had tried to write for the benefit of a professional audience. Recalling his own difficulty as a young advocate in understanding the significance of many acts, he had tried ‘to instruct my younger Brothers in a Science, by which I wish them to rise, for the service of their Countrey, and their own advantage’. He had tried to supply the acts of parliament with annotations in much the same way as Skene had supplied the old books, making copious references to the learned laws and to the laws of other nations. He had also mentioned any relevant decisions of the courts, and had drawn attention to doubts that remained to be resolved, though whether he wished to see them resolved by decisions as such is far from clear. Having withdrawn to Oxford after the Revolution, Mackenzie spent part of the last two years of his life in dictating to an amanuensis ‘A Discourse on the Four First Chapters of the Digest’, explaining among other things the relative value he attached to decisions.118 That they should not be given much credit seemed clear when it was recognised that ‘oftentimes judges are chosen by kings upon a private design, or by statesmen to maintain a faction’, that not all the ordinary lords of session could be ‘learned lawyers in so narrow a nation’, and that they were assisted by extraordinary lords who were ‘generally men of honour, but pretend not to that learning that is necessary in establishing a decision’. Since honour itself encouraged men ‘to think it a noble thing to stand for a friend’, it was inevitable that ‘relations, statesmen and malice will influence in some cases’, while in others the decisions delivered were ‘often patched up with far greater hast then is consistent with a future exemplariness’. Mackenzie had accordingly been confirmed in his belief that it would be ‘much better to have our law 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’.119 Mackenzie’s discourse on the four introductory titles of the Digest does not seem to have circulated among lawyers in Scotland, but his printed works were of course well known there and they were alluded to by Stair in the revised edition of his Institutions published in 1693, two years after Mackenzie’s death and two years before his own.120 Stair drew attention to the parallels between his book and 118

BL, Sloane 3828, ff 154v–9r. For a much later copy see too Add MS 18236. Mackenzie’s further remarks on the use that might still be made of decisions will be examined in the next section of this chapter. 120 Institutions, 4.1.pr. Even after the first printed edition of Stair’s book had appeared, the copyist of NLS, Adv MS 28.3.14, still referred to it as ‘the Laws and Practiques of Scotland, in Civil Cases’. 119

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The Printing of Stair’s Institutions 403 Mackenzie’s works on both public and private law by opening his new and extensive account of the law of actions with a reference to his publication twelve years earlier of ‘the Institutions of the Law and Customs of Scotland, as to the Constitution and Transmission of the several kinds of privat Rights, in all Matters Civil’. He proceeded to explain that he had published his first edition without the promised discussion of the cognition of rights because he had always intended to produce a revised edition so ‘that if any objections were made as to the former Parts, they might be amended in this, where I found reason for it; and that if any had Written against the Matter and Method I had followed, I might be able to give them a Reply in this’. He had replied to Mackenzie’s objections to his method in an ‘advertisement’ at the start of his new edition, where he had reminded his readers of his original intention to divide his book ‘into Three Parts, as being most congruous to the Subject matter of Juris-prudence’, dealing first with the constitution of rights, then with the conveyance of rights, and eventually with the cognition of rights.121 He had found, however, that ‘it would be acceptable to divide the Institutions of our Law into Four Books, as the Institutions of the Civil Law are divided’, and had decided to divide his treatise into the conventional number of parts, ‘The First being of Original Personal Rights: The Second of Original Real Rights: The Third of the Conveyance of both: And the Fourth of the Cognition and Execution of the whole’. He said that this division would be suitable since there was an ‘eminent distinction in our Law betwixt Heretable Rights of the Ground, and Moveable Rights’, yet this had no direct bearing on the distinction he had actually drawn between the original constitution of personal rights and of real rights (both heritable and movable). As Professor Watson has again plausibly suggested, what may in fact have prompted Stair’s decision to rearrange his material was the success of Mackenzie’s Institutions, which by running into a second edition within four years had shown how ‘acceptable’ an arrangement modelled more closely on Justinian’s Institutes would be to those interested in buying legal books.122 For his own part Stair remained dissatisfied with an arrangement accepted more for its familiarity than its suitability. He recalled that he had thought it sufficient to provide his readers with a detailed table of contents in his last edition, ‘when the Method was so Natural’, and explained that he now felt the need to provide them instead with ‘an Alphabetical Index of the whole’. As he may well have known, alphabetical indexes or abridgements of his Institutions had started to be produced in manuscript as soon as the first edition came out in 1681. One reader had drawn up ‘Ane Alphabeticall Table of the Most Remarkable Words and Matters in the First and Second Volumes of Stairs Practiques’, while another had written a more detailed ‘Abridgement of My Lord Stair His Institutions of the Law of Scotland in ane Alphabeticall Order’.123 121

Institutions, sig A3. Watson 1978, p 573, 1981, p 31, and 1983, p 185. 123 NLS, Adv MS 6.2.2, ff 158–213r (and see too f 291r, where the writer again persisted in referring to Stair’s book as his ‘Practiques’); GUL, Murray 183 (written in less than a month in 1682). 122

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404 The Revolution Court Despite being fixed in print and offered to a wider audience, Stair’s Institutions had been reabsorbed by the scribal community of the session in much the same way as the works of earlier jurists had been absorbed in the late 1650s. A copyist of the popular epitome of Craig’s Ius feudale had gone on at once to add a similar epitome of Stair’s Institutions to the same manuscript volume, and he was not alone in wishing to have a concise summary of Stair’s book available with the copious case references omitted.124 It was in the advertisement at the beginning of his second edition that Stair made the admission mentioned in an earlier chapter of having originally formed indexes of all the important collections of decisions and of having organised them methodically for his personal use as a judge. Aware perhaps that the work he had ‘Collected’ was more readily associated with the ‘Collections’ of decisions he had summarised than with the kind of ‘Treatise’ he now claimed to have ‘written’, he went on to explain that he had left out of the second edition many of the decisions cited in the first: ‘But considering that the ancient Decisions, were before these troden Paths, which have since come to be fixed Customs, and that there were not Authentick Copies of these old Collections; I thought fit in this Edition, only to relate to the later and more authentick and useful Collections’. He had actually reduced the number of case citations in the first two (or now three) parts of his book by about two hundred, though not by excising references to the ancient decisions—if this meant those from the sixteenth-century reports—nor by turning case citations into bold assertions of custom.125 ‘I have omitted no material Decision of the Lords that I found’, he tried to reassure his readers, ‘especially where they were contrary, and seemed to be inconsistent, that Judges might not be over-ruled by adducing some Decisions, where others about the same time were opposite’. This may not have reassured everyone, for Sir William Hamilton of Whitelaw, appointed to the bench in 1693 as a counterweight to Stair’s influence in the court, was to compile a collection of notes on the second edition consisting largely of references to decisions that could have been mentioned, quite possibly as an attempt to undermine respect for the book.126 Renowned as a ‘brawler of men who were not of his mind’, Hamilton did not make any notes on Stair’s new account of the law of actions, presumably because Stair had deliberately chosen to make ‘use of few Decisions in the last Part, which doth more concern the Form than the Matter of Justice’.127 Although almost a third as long again as his first edition, Stair’s second edition thus con124 NLS, Adv MS 28.3.14, which interestingly includes an abbreviated version of Stair’s acceptance of Craig’s arguments against the authority of Regiam maiestatem yet omits to mention his rejection of Craig’s arguments for the authority of the Libri feudorum. For another version of ‘Stairs Practiques Compendized’ see ML, SR 161/75574, and for a summary of the new account of the law of actions produced after 1693 see NLS, Adv MS 25.7.10. 125 On the authenticity of the ancient decisions see again Stair, Decisions, vol 2, p 258. As previously noted, Stair had cited only a handful of cases from the sixteenth-century collections. He had turned against one collection from the first half of the seventeenth century, as will be explained later in this chapter, but that explains the omission of only some seventy references. 126 ML, SR 175/187630; NLS, Adv MS 31.2.11. As already mentioned, Hamilton’s edition of Nisbet’s Doubts and Questions was to appear four years later. 127 Maidment (ed), Book of Scotish Pasquils, p 361.

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The Printing of Stair’s Institutions 405 tained significantly fewer case citations, and this was compensated for to some extent by an increase in the number of references to the Corpus iuris civilis of over eighty. Together with the division of the treatise into four parts, this shift in the balance of citations made the second edition of Stair’s Institutions seem rather more learned than the first. Nevertheless, far from now making the same kind of claim as Mackenzie had about studying the doctors, consulting learned lawyers and expressing his own views, Stair declared: ‘I have been very sparing to express my own Opinion, in dubious Cases of Law not determined by our Customes or Statutes, but have rather Congested what the Lords have done, than what my Opinion would have been in these Cases when they were free’. At the start of the new part of his treatise dealing with the law of actions he declared more precisely that ‘in the former Parts, I endeavoured rather to hold forth what had been decided by the Lords, than to give my own Opinion’, recalling that in his reports he had similarly been ‘so tender of their Honour, as not to express my own particular Judgment’.128 Although he agreed with Mackenzie that ‘a just Inclination is best seen, and with least suspicion, by giving Opinion when there is least Interest or Influence of any Party, but the case stated as between Titius and Maevius’, he did not agree that it would be preferable for judges to commit themselves to abstract opinions before they were required to determine actual cases. He observed once again that he would not have published his treatise in 1681 had he not sensed that he was soon to be deprived of office, ‘for if I had continued, my modesty would not have allowed [me] to hear any thing of mine cited, while I was present; Nor had it been fit to have given any appearance of being pre-determined in my Judgment, in Points that had not come the length of a fixed Custom’. If this implied that he had indeed given the impression that his mind was made up on doubtful points, he now tried to explain that it was only an impression. In his advertisement he pointed out that while he had refrained in the earlier parts of his treatise from revealing what his opinions would have been in cases when they were free, he had used greater ‘freedom, in opening the Fountains of Law and Justice, and the Deductions thence arising, by the Law and Light of Nature and of Reason, which is the general Rule of Justice for the whole world’. He had expressed his personal opinions, but on natural equity rather than law, with the result that he had not expressed the type of expert opinion that could be regarded as a source of law. He had not, in Mackenzie’s phrase, transmitted his professional expertise to posterity ‘as law’. ‘And I do declare’, he announced at the start of the final part of his book, ‘that I will not esteem it my Honour nor my Credit, to be Tenacious upon my own Opinion, but ever to be ready to concur with what I shall be convinced to be Just’. He had tried in the second edition of his Institutions ‘to consumat the matter’ by taking account in the earlier parts of any changes made by ‘Statutes of Parliament, Acts of Sederunt and Decisions’, and by adding a final part in which he would make less reference to these sources and would express more freely his ‘Opinion, what Emendations were 128

Institutions, 4.1.pr.

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406 The Revolution Court just and fit to be made by Acts of Parliament, or of Sederunt’. Yet even here his intention was to express his views on the equity or expediency of reforms that might be effected by sovereign legislation, views that he hoped others would examine on their merits rather than accept on his credit, for it was not his intention to express committed opinions of the type that could be taken to carry their own authority. By the end of his life, Stair was anxious to deny that he had written as a learned author. Whether this was true to his original intentions is rather less clear. In an appendix dealing with legislation enacted while the second edition of his Institutions was going through the press Stair identified one source of his anxiety.129 After commenting with approval on a series of acts passed on the recommendation of the lords of session, he dealt more critically with others which altered the court’s practice without the judges’ agreement, above all by requiring them to deliberate on cases in public.130 This ‘great alteration’ would, he feared, ‘make the Lords more lyable to the Irritation and Malice of Parties, when they hear them Reason and Vote against their Interest; and especially in the most dubious Cases, in apicibus Iuris, wherein Parties can least know what is according to Law; and when their Advocates will extend their Abilities and Eloquence for their Clients’. Although it had never been possible in a large court like the session to prevent rumours from spreading about the views and votes of particular judges, ‘yet the Parties were then calm, and had no certain Evidence that these Reports were true: but when they are at the Barr, they will be in much more certainty and fervor, which may make their grudges stick the deeper, and last the longer’. The judges would need in consequence to be more circumspect in the comments they made on cases and more consistent in maintaining their present policy of taking formal votes only where ‘two at least, be of a different Opinion from him that presides’. What this implied was that the decisions of the court generally would be, and generally had been, the opinions of the president in another guise. When Stair indicated at the start of the final part of his book that he would refrain there from citing the decisions of the session in the way he had done in the earlier parts, he added that he knew of ‘no man that ever had so much opportunity of Experience, in this Judicature, as my self, so that I should need the less to urge my Opinion by Decisions’.131 Here again the implication was that in citing the decisions of the session in the earlier parts of his book he had been trying to promote his own opinions in another guise. If he had come to believe that statutes and customs alone had the necessary authority of law, and that the learned laws actually lacked any genuinely legal authority and served only to exemplify natural equity, he also believed that decisions had some relevance as a source of law. He may have believed that they had something in common with acts of parliament or acts of sederunt, or he may have believed that they provided the foundations of customs derived from the tacit consent of the people. He may instead have believed that decisions had the probable 129 130 131

Ibid, 4.1.pr and pp 771–5. Acts of the Parliaments of Scotland, vol 9, p 305. Institutions, 4.1.pr.

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The Sources of Scots Law 407 authority previously imputed to the learned laws and that they were essentially a kind of expert opinion. The obvious place to look for clarification of Stair’s views is his discussion of the sources of Scots law in his Institutions, but since the anxieties that afflicted him as a member of the Revolution court appear to have been significantly different from those that first prompted him to write his book, the development of the text familiar to modern readers will need to be examined carefully.

THE SOURCES OF SCOTS LAW

Expressing a preference for customary laws In all the surviving versions of Stair’s Institutions the opening title starts with a series of paragraphs explaining the meaning of basic terms like law, justice, conscience and equity.132 Stair drew distinctions in these paragraphs between natural and positive law and between divine and human law, and in the next paragraph he explained why it had been found necessary to introduce human laws that sometimes deviated in detail from each other and from the strict requirements of natural law.133 He ended his discussion of this standard topic in natural law theory by remarking that those nations ‘are most happy whose Laws are nearest to Equity, and most declaratory of it: And lest altering of the effects thereof, except in cases eminently profitable’, to which he proceeded to add: ‘yea, and the Nations are more happy whose Laws have entered by long custome, wrung out from the Debates upon particular Causes, until it come to the Consistence of a fixed and known Custome’. At this point he began to move towards the account of the sources of Scots law to which his next paragraph was devoted, taking time first to explain why customary laws were in general preferable to statutory laws. Customs that gradually emerged from the handling of particular cases, he pointed out, had the obvious advantage that ‘thereby the conveniencies and inconveniencies through a tract of Time, are experimentally seen’, which meant not only that they were based on past experience but also that they did not become fixed laws until they had been tested out. Even if something were found to be convenient in some cases, ‘if in other cases afterward it be found inconvenient, it proves abortive in the womb of Time, before it attain the maturity of a Law’. By contrast, ‘in Statutes, the Lawgiver must at once balance the conveniencies and inconveniencies, wherein he may, and often doth fall short, and there do arise, casus Incogitati, wherein the Statute is out, and recourse must be had to Equity’. Statutes could not be enacted tentatively, though they could at least build on the more cautious process of customary gestation. Stair believed that the best statutes were ‘approbatory, or correctory of experienced Customs’, yet also that even statutes like these were inferior 132 133

Ibid, 1.pr-13/1.1.pr-14. Ibid, 1.14/1.1.15. This discussion will of course be returned to in the next volume in this series.

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408 The Revolution Court to customs themselves. Although he granted that in the making of customary law ‘the people run some hazard at first of their Judges Arbitriment’, he nevertheless insisted that ‘when that Law is come to a fullness and consistence, they have much the advantage in this, that what custom hath changed, is thrown away, and obliterat without memory, or mention of it; but in Statutory Written Law, the Vestiges of all the alterations remain, and ordinarily increase to such a Mass, that they cease to be Evidences, and Securities to the people, and become Labyrinths, wherein they are fair to lose their Rights, if not themselves, and must have an implicite Faith, in these who cannot comprehend them without making it the work of their life’. Several commentators have remarked on the resemblance between Stair’s professed preference for customary laws formed through the handling of particular cases and the praise typically lavished by English lawyers on their common law.134 The observation Stair made at the outset on the relationship between the law of nature and the laws of men was certainly reminiscent of the most basic assumption made by English lawyers, though it was an assumption made by lawyers throughout Europe.135 As was noted in an earlier chapter, Sir Edward Coke remarked in the postnati case that ‘before Judicial or Municipal Laws were made, Kings did decide Causes according to natural Equity, and were not tied to any Rule or Formality of Law, but did dare iura’.136 ‘This Law of Nature’, he maintained, ‘which indeed is the eternal Law of the Creator, infused into the Heart of the Creature at the Time of his Creation, was two thousand Years before any Laws written, and before any Judicial or Municipal Laws’. In the same case Lord Ellesmere stated more specifically that ‘the common law of England is grounded upon the Law of God, and extendes itselfe to the originall Law of Nature, and the universall Law of Nations’.137 As was again noted in an earlier chapter, Sir John Davies referred to the law of nature in his reports of Irish cases as ‘the roote & touchstone of all good lawes’, arguing that the law of England was aptly called the common law ‘as coming neerest to the lawe of Nature’.138 Just as the unwritten law of nature, the original ius commune, ‘being written only in the hart of men, is better then all the written lawes in the worlde to make men honest & happy in this life’, so the common law of England, ‘which is also Ius non scriptum, & written onely in the memory of man’, was superior both to ‘our written lawes’ and to ‘the Civill or Canon lawe’. John Selden agreed that English law was ‘grounded upon nature’, but he doubted whether this made it superior to other laws since ‘no nation was, that out of it took not their grounds’.139 As he saw it, the law of nature had left nations free to define and modify its implications, ‘but the divers opinions of interpreters proceeding from the weakness of mans reason, and the several con134 135 136 137 138 139

MacCormick 1981, p 148; Sellar 1981, pp 145 and 149; Postema 1986, p 8. Again, the precise understanding of the relationship, which did vary, will be returned to later. Reports of Sir Edward Coke, pt 7, f 13. Ellesmere, ‘Speech of the Lord Chancellor’, p 216. Le primer report des cases, f 2r. Works of John Selden, vol 3, col 1891.

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The Sources of Scots Law 409 veniencies of divers states, have made those limitations, which the law of nature hath suffered, very different’, with the result that ‘customs which have come all out of one fountain, nature, thus vary from and cross one another in several commonwealths’. Other English lawyers who reflected on the origins of human law were also inclined to say that ‘all Lawes are derived from the law of Nature, and doe concur and agree in the principles of Nature and Reason’, and that this left scope for positive laws to be ‘sundry and divers, according to the several and divers constitutions of particular places and countries’.140 Where at least some English lawyers developed a more distinctive line of argument was in claiming that their common law had the advantage over other positive laws of being unwritten and customary.141 In his judgment in the postnati case Coke boasted that the common law had been, ‘by the Wisdom of the most excellent Men, in many Successions of Ages, by long and continual Experience (the Trial of Right and Truth) fined and refined’.142 Elsewhere he argued that legislators should hesitate to alter the common law, ‘for that which hath been refined and perfected by all the wisest Men in former Succession of Ages, and proved and approved by continual Experience to be good and profitable for the Commonwealth, cannot without great Hazard and Danger be altered or changed’.143 Davies similarly announced in his reports that ‘the Common lawe of England is nothing else but the Common custome of the Realme’, proceeding at once to explain how a customary law ‘taketh beginning & groweth to perfection’.144 ‘When a reasonable act once done’, he wrote, ‘is found to bee good and beneficiall to the people, & agreeable to theire nature & disposition, then do they use it, & practise it, againe, & againe, & so by often iteration & multiplication of the act, it becometh a Custome, & being continued without interruption time out of minde, it obtaineth the force of a lawe’. ‘But’, he continued, ‘a Custome doth never become a lawe to binde the people, untill it hath bin tried & approved time out of minde, during all which time there did thereby arise no inconvenience, for if it had beene found inconvenient at any time, it had been used no longer, but had beene interrupted, & consequently it had lost the vertue & force of a lawe’. This was as clear an account of the customary character of the common law as was published in the first half of the seventeenth century, when Coke and Davies were exceptional in the emphasis they placed on the gradual testing and refining of their law through time and experience. They were not alone, however, in attributing to the common law the characteristics conventionally attributed to local customs.145 In 1610 Thomas Hedley told the house of commons that he had learned to regard 140 Doddridge, English Lawyer, pp 158–9; Finch, Law, or a Discourse Thereof, pp 74–6. Finch was by no means unique in adding that positive laws would be invalid if they contradicted natural law. A question to be returned to in a later volume is how seriously these warnings were meant to be taken. 141 Ferguson 1979, pp 266–76; Pocock 1987, pp 30–55 and 255–80; Stoner 1992, pp 13–26; Burgess 1992, pp 58–78; Tubbs 2000, pp 129–72. 142 Reports of Sir Edward Coke, pt 7, ff 3–4. 143 Ibid, pt 4, pp v–vi. 144 Le primer report des cases, f 2r. 145 On this point see especially Knafla 1990.

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410 The Revolution Court the common law as ‘a reasonable usage, throughout the whole realm, approved time out of mind in the king’s courts of record which have jurisdiction over the whole kingdom, to be good and profitable for the commonwealth’.146 He explained that what proved any usage to be reasonable was ‘time, which is the trier of truth, author of all human wisdom, learning and knowledge, and from which all human laws receive their chiefest strength, honor, and estimation’. The common law could thus be regarded as ‘the work of time, which hath so adopted and accommodated this law to this kingdom as a garment fitted to the body or a glove to the hand or rather as the skin to the hand, which groweth with it, for consuetudo est altera natura’. It scarcely needs stating that Stair’s observations on the strengths of customary law were indeed strikingly similar to those published in the preceding fifty years by Coke and Davies. When he went on to contrast the weaknesses of statutory law he alluded further to English legal theory by saying that under any statute casus incogitati would tend to arise in which recourse would have to be taken to equity. As was noted in an earlier chapter, although English lawyers had adopted many of their rules of statutory interpretation from the civil lawyers, it was a distinctive feature of their discourse that they talked of turning in difficult cases from the words to the equity of statutes.147 In this connection, according to Coke, ‘Equity is a construction made by the Judges, that cases out of the letter of a Statute, yet being within the same mischief, or cause of the making of the same, shall be within the same remedy that that Statute provideth’.148 It seemed to him that fewer difficult cases would arise if statutes were drafted in the first place ‘by such only as perfectly knew what the Common Law was before the making of any Act of Parliament concerning that Matter, as also how far forth former Statutes had provided Remedy for former Mischiefs and Defects discovered by Experience’.149 The best statutes were those that built on the experience of the common law, either by correcting defects that had come to light in new cases or simply by declaring what the common law required, whereas statutes that fundamentally altered the law had mostly, as Coke tried to demonstrate, proved inconvenient.150 Davies likewise observed that wherever a statute had ‘altered or changed any fundamentall pointes of the Common lawe, those alterations have beene found by experience to bee so inconvenient for the commonwealth, as that the common lawe hath in effect beene restored again’.151 The unsatisfactory interventions made by some English parliaments served to illustrate the general failings of statutes, ‘for the written lawes which are made either by the edicts of Princes, or by Counselles of estate, are imposed uppon the subject before any Triall or Probation made, whether the same bee fitt & agreeable to the nature & disposition of the people, or whether they will 146

Proceedings in Parliament 1610, vol 2, pp 174–5 and 180. The source of the terminology may however have been Justinian’s Code, 1.14.1. 148 First Part of the Institutes, f 24v. 149 Reports of Sir Edward Coke, pt 2, pp xii–xiii. 150 See too Second Part of the Institutes, p 210; Third Part of the Institutes, sig B2; Fourth Part of the Institutes, p 41; Reports of Sir Edward Coke, pt 4, pp v–vii, pt 8, pp xxiv–xxv, and pt 9, ff xii–xiiir. 151 Le primer report des cases, f 2r. 147

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The Sources of Scots Law 411 breed any inconvenience or no’. Here as elsewhere Davies expressed himself in terms that were sufficiently close to those used by Stair to raise the suspicion that someone had drawn Stair’s attention to Davies’ comments during the 1650s, when the English judges in Scotland may well have been mindful of the earlier experience of the English judges in Ireland. Once again, however, while Coke and Davies were unusual in the emphasis they placed on the failings of statutes, their views were evidently held more widely. Thomas Hedley informed the house of commons in 1610 that ‘there grows more doubts upon statute laws (which are written) than upon our common law’, adding like Coke and Davies that the unwritten character of the common law made it superior both to English statute law and to the civil law.152 Stair may therefore have learned to contrast customary with statutory law in the same way as Coke and Davies merely by talking to his colleagues in the Interregnum court. Coke, Davies and Hedley all tried to connect their accounts of the common law as the custom of the realm with the more mainstream understanding of the common law as an expression of the rational implications of natural law for the English people.153 This was what Coke had in mind when he talked in the postnati case of the law being refined ‘by the Wisdom of the most excellent Men’, as he later made clear in the first part of his Institutes, where he defined law generally as ‘the perfection of reason’ and declared that ‘the common law it selfe is nothing else but reason’.154 He stressed that he was not talking ‘of every unlearned mans reason, but of artificial and legal reason’, and explained in terms reminiscent of his judgment in the postnati case that ‘if all the reason that is dispersed into so many several heads were united into one, yet could he not make such a law as the Law of England is, because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience grown to such a perfection, to the government of this Realm, as the old rule may be justly verified of it, Neminem oportet esse sapientiorem legibus: No man (out of his own private reason) ought to be wiser than the law’.155 That ‘lawe is nothing but a rule of reason’ was also recognised by Davies, who concluded that law must be akin to ‘all other rationall sciences that are subject to argument & discourse’, and that just ‘as it is said of every Art or Science which is brought to perfection, Per varios usus artem experientia fecit, so may it properly bee said of our lawe, Per varios usus legem experientia fecit ’.156 Hedley similarly related the common law to ‘all arts, sciences, mysteries, and professions’, insisting that ‘as the rules and maxims of all arts are agreeable to reason, and grounded thereupon, so especially is that of the common law’, though he too took care to distinguish the ‘bare reason’ available to laymen from the ‘artificial reason’ available only to those ‘learned in the law’.157 As 152 153 154 155 156 157

Proceedings in Parliament 1610, vol 2, p 180. Burgess 1992, pp 37–48; Cromartie 1999, pp 81–94; Tubbs 2000, pp 148–51 and 161–7. Reports of Sir Edward Coke, pt. 7, ff 3–4; First Part of the Institutes, ff 62r, 97v and 232v. Cf Aristotle, Rhetoric, 1375b24–5. Le primer report des cases, ff 3r and 4r. Cf Manilius, Astronomica, 1.62–3. Proceedings in Parliament 1610, vol 2, pp 170–76.

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412 The Revolution Court another lawyer put it, while the common law could be regarded as ‘nothing else but common reason’, what was understood here was ‘not that which every one doth frame unto himself; but refined reason’.158 If the common law was typically understood by its practitioners to consist of ‘the light of naturall reason tried and sifted upon disputation and argument’, it was also typically understood to consist more precisely of the learning of the expert lawyers who were engaged in disputation and argument.159 ‘Hence is it’, the writer of the statement quoted continued, ‘that the Law (as hath bin before declared) is called reason; not for that every man can comprehend the same; but it is artificial reason; the reason of such, as by their wisedome, learning, and long experience are skilfull in the affaires of men, and know what is fit and convenient to bee held and observed for the appeasing of controversies and debates among men’. Stair may have been alluding to this understanding of law as reason when he wrote about practices being ‘wrung out from the Debates upon particular Causes’ until they achieved the consistency of a ‘known Custome’. It is surprising, however, given how clearly he reproduced the claims English lawyers sometimes made for the superiority of customary over statutory laws, that he did not attempt to spell out clearly the claims they more typically made for the inherent reason of their common law. Indeed it may have been his aim to detach the claims sometimes made for customary laws from the idea of artificial reason with which they were normally associated by English lawyers. As was noted in an earlier chapter, although Coke commented in the postnati case that originally ‘Kings did decide Causes according to natural Equity’, he went on to argue that it could no longer be appropriate for the king’s judges to decide cases ‘according to that which they think to be fit’ and that they must adhere to ‘the legal and profound Reason’ of their profession.160 The contrary view that it could still be appropriate for judges to turn in certain cases from positive law to natural equity and so dare iura was expressed in the same case by Lord Ellesmere, and it may have been the contrary view that Stair was thinking of when he admitted that in the making of customary laws ‘the people run some hazard at first of their Judges Arbitriment’.161 Coke’s insistence that the reason of the law was accessible only ‘by diligent Study and long Experience and Observation’ was challenged in a famous audience before the king in 1608, four years after the postnati case, in which Coke claimed to have averred boldly that while James had been blessed ‘with excellent science, and great endowments of nature’, yet he had not acquired ‘the artificial reason and judgment of law’ on which the decision of cases ought to hinge.162 James had been reluctant to accept that the reason of the law could be beyond the comprehension of ‘men which have Logicke and common sense’, and had sympathised with the complaint that lawyers who sought to ‘alleadge statutes and reserve the exposition thereof to 158 159 160 161 162

Finch, Law, or a Discourse Thereof, p 75. Doddridge, English Lawyer, p 242. Reports of Sir Edward Coke, pt 7, ff 13r, 18v–19r and 27r. Ellesmere, ‘Speech of the Lord Chancellor’, pp 215–16, 220–22 and 238–9. English Reports, vol 77, p 1343. This account of the audience was printed posthumously in 1658.

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The Sources of Scots Law 413 themselves’ expected people to trust them in the way that ‘papistes’ trusted their priests to interpret the Bible.163 It is possible that Stair had reports of this exchange at the back of his mind when he wrote about people needing to have an ‘implicite Faith’ in those who made the study of the law ‘the work of their life’, but reports of the exchange mostly remained unprinted at this stage and there was a more obvious influence on his thinking. When Craig had written about the sources of Scots law in his Ius feudale he had said that acts of parliament were ‘not observed among us with that religion which is found among the English, where no act of parliament, even in long disuse, is quite abolished except by an express later statute, but left in force it does violence at any time with impunity’.164 Craig had contrasted the English attitude of reverence towards acts of parliament with the more relaxed view traditionally held in Scotland that acts in desuetude were invalid and could be forgotten, and it seems to have been on the basis of this comparison that Stair warned of the dangers of statutes increasing ‘to such a Mass’ that people would need to have ‘implicite Faith’ in experts who could guide them through the ‘Labyrinths’ formed by the law. After reproducing the claims English lawyers made for customary law, he thus proceeded to cast doubt on how far the claims could actually be made for English law, which in some respects appeared to be a labyrinthine mass of written texts like the civil law. In 1669 an English lawyer was to provide support for this view by noting that texts extracted from Coke’s own writings were ‘generally received, and relied on by a mere implicit faith, as infallible oracles, not only by most young students and professors but most ancient sages of the law in their arguments and resolutions’.165 Ten years earlier Stair had begun work on his Institutions against the background of his experience in a court staffed with English judges like John March and William Lawrence who made it clear in the books they published that they found it hard to challenge Coke’s authority as one of ‘our great and learned Sages of the Law’ and one of the ‘two famous Fathers of the Law of England and Scotland’.166 Lawrence was to complain in 1680 that Coke and Skene had placed ‘implicit Faith’ in the canon law when dealing with the types of question he raised, and March had similarly complained in 1651 about the reluctance to expose Coke’s opinions to critical scrutiny in comparison with natural law, divine law or the civil law. Although writers like Coke and Davies found it possible to claim that their law was superior to the civil law because it was unwritten and comparable to natural or divine law, they were in effect claiming that their common law was written in the same way as the civil law in the minds of expert lawyers. Although they talked about English law consisting of statutes and customs, and associated the statutory law with the civil law in contrast to the unwritten customary law, they tended to associate the unwritten customary law with the common erudition of their profession. To Scots lawyers like Craig they appeared to have appropriated learned 163 164 165 166

Workes of the Most High and Mightie Prince, James, p 556; Usher 1903, p 669. Ius feudale, p 38. William Prynne, Brief Animadversions on the Fourth Part of the Institutes, sig A1r. March, Amicus reipublicae, sig B1v; Lawrence, Marriage by the Morall Law of God, p 146.

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414 The Revolution Court authority from the civil law so successfully that they were able to talk about their own common law as if they owed no debt to the learning of the schools, though they were actually claiming to exercise the same type of authority as the doctors in the form of an artificial reason found in expert lawyers alone. It was this exclusive claim to learned authority that other writers took exception to when they warned against implicit faith being placed in the pronouncements of lawyers, and it may have been the familiarity of this warning that Stair was taking advantage of when he appropriated arguments from his English colleagues and turned them against English law. What seems striking here is not simply that Stair made use of English thinking on customary law when he wrote the early draft of his book in the late 1650s, but that he made use of English thinking on customary law without linking it with the concept of artificial reason. He appropriated arguments for the superiority of unwritten customary law over written statutory law by repeating them without any acknowledgement of his sources and by arguing that they would have no force where statutes were observed religiously. But it does not seem to have been his intention to appropriate the learned authority English lawyers claimed to exercise, for instead of associating customary law with professional expertise he indicated that people should not need to have implicit faith in lawyers. At the very beginning of his discussion of the sources of Scots law he passed up an obvious opportunity to stress the importance of learned authority in the development of the law, perhaps because he was aware that Scots lawyers did not have educational institutions comparable to the inns of court, or perhaps because he was doubtful about the importance of learned authority.167

Explaining the origins of law in Scotland Having explained why he believed customary laws to be preferable to statutory laws, Stair began the earliest surviving version of his paragraph on the sources of Scots law by declaring that ‘the law of Scotland stands almost whollie in customes araising from the supreame court of justice in the natione, of its decisions and orders’.168 It has been seen that earlier writers like Craig and Hope had acknowledged that the enactment of law in statutory form was usually preceded by a period of customary development in which the requirements of natural law were gradually recognised in the usages people considered themselves bound to observe.169 Burnet had gone so far as to maintain that very little statutory intervention had taken place in the development of the private law of Scotland, partly because Craig had doubted whether the old books and acts were a genuine restatement of the law, and partly because few acts of parliament appeared to have had much bearing on issues of land tenure.170 Readers familiar with earlier accounts of 167 168 169 170

On the connection between the inns of court and common learning see Baker 2003a, pp 459–67. NLS, Adv MS 25.1.10, 1.20 (adjusted at some points from other manuscripts). Craig, Ius feudale, p 39; Hope’s Major Practicks, vol 1, p 4. Ius feudale, sig A4v.

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The Sources of Scots Law 415 the sources of Scots law would not therefore have found Stair’s declaration that the law of Scotland was mostly customary difficult to understand, nor would readers used to searching for the law in collections of statutes or in the practicks of the session have found it strange to be told that the customary part of the law consisted in the decisions and orders of the supreme court.171 Stair went on to explain that for several centuries before the College of Justice was instituted ‘the king in parliament’ had exercised ‘not only the legislative power of this kingdom’ but also an adjudicative power, for it had been the practice for the estates periodically to ‘name so manie of the number to hear and determine causes, which upon complaint they were readie to resume and review; and then the sessione was in effect but a comitie of parliament ambulatorie from time to time’. Hope had noted in a title of his major practicks dealing with the practice and powers of parliament that ‘the acts and decreitts pronunced betwixt privat parties per dominos causarum, seu ad iudicia contradicta et quaerelarum wer insert and registrat in the books of parliament’, alluding to the delegation of judicial business to specially appointed committees during the fourteenth and fifteenth centuries.172 Sometimes the committees had been neatly divided into domini ad causas et querelas—dealing with cases raised at first instance—and domini ad iudicia contradicta—dealing with cases heard on appeal from inferior courts—and from the fifteenth century onwards further committees had been appointed to deal with cases in the periods between parliaments. ‘The lords of session of auld wer chosen in every parliament to continue whill the nixt parliament’, Hope observed, ‘and wer called the king’s counsall through all the acts of parliament’.173 The lords of session had thus been confused with the lords of council, who had usually been the same men, appointed as a committee of the royal council to deal with judicial business when and where the king decreed. Like Hope, and mindful perhaps of the perceived parallel with the history of the parlement of Paris, Stair drew particular attention to the parliamentary origins of the session. Here again his readers would not have had any difficulty in understanding what he meant, especially after the Restoration parliament set up its committee in 1661 ‘for hearing of private complaints betwixt parties’, reminding legal observers of the ‘ancient Domini ad Quaerelas’.174 Because the decisions delivered by the first lords of session were open to correction by parliament Stair concluded that the customs they gave rise to were formed ‘in the eye and view of the parliament and alwayes subject to ther comptroul’. ‘But when our customes were so produced to a consistencie’, he then 171

For the contrasting view that Stair’s account of the sources was idiosyncratic see MacQueen

1984. 172 Hope’s Major Practicks, vol 1, p 12. See generally Rait 1924, pp 458–69; Hannay 1933, pp 1–25; Macfarlane 1995, pp 89–109, 420–23 and 441–2. 173 Hope’s Major Practicks, vol 2, pp 18–19. See too Spotiswoode, Practicks of the Laws of Scotland, p 361, a passage that may not have been available to Stair at the end of the 1650s. 174 Acts of the Parliaments of Scotland, vol 7, pp 9 and 20; Lauder, Historical Notices, vol 1, pp 1–3; Mackenzie, Memoirs, p 21. See too Rait 1924, pp 384–5; Gray 1924, pp 143–7; Young 1996, pp 316–17. It is of course possible that this part of Stair’s account of the sources, which appears in all the surviving manuscripts of his book, was written or revised as late as the spring of 1662.

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416 The Revolution Court went on, ‘the parliament rested therein, and refused and rejected al appeals from the sessione, finding it sufficient by statuts or acts of parliament to rectifie or rescind any custome introduced which might be wrong or hurtfull to the people’. As Hope had mentioned, it had been declared by an act passed in 1457 that ‘all causes perteining to the lords of session ther knowledge wer determined be them but [meaning here without] remeid of appellatione to the king or parliament’.175 From this point onwards parliament and the session had functioned as independent institutions, yet they had continued to work together in developing the law. ‘Most of our statuts’, Stair believed, ‘are correctorie of our former customes, for though customes may be brough in be judicatories, yet being once fixed and constitute they become such as they could not alter nor decide other wayes then therby, and then it pertained onlie to the legislative authoritie to alter it, which was ordinarie upon the representatione of the sessione themselves maid to the parliament’. While the lords of session may generally have enjoyed no more legislative authority than the senators of republican Rome, they did participate like those senators in the legislative process by offering advice on the statutory amendment of the law. Moreover, while the authority they exercised in making decisions may not have been the ‘legislative power’ vested in parliament, it was a facet of the sovereign authority that had at first been exercised in an undifferentiated way by parliament. The resolution of disputes between private parties had only gradually been hived off to a specialist judiciary, and customary laws had then emerged from the judges’ decisions with the tacit approval of parliament, at first through acquiescence in decisions it could have overturned and later through acquiescence in customs it could have reformed. Although Stair’s central claim in this passage was that Scots law was mostly customary, with statute merely serving (as Hope had again indicated) to reform defective customs, it is notable that he made no explicit reference at this stage to the tacit consent of the people as the basis of customary law.176 He had done so in an earlier paragraph by observing that human laws were introduced ‘either by tacit consent, by consuetude or custome, or by express Will or Command of these in Authority, having the Legislative power’, but the suggestion in his paragraph on the sources was that the consent of the people could be assumed from the acquiescence of parliament.177 In the classic treatment of the relationship between statute and custom in the Digest it had after all been said to make little difference whether the will of the people was expressed openly in response to a proposal commended by the senate to a legislative assembly or was implied in the acceptance of a customary usage.178 ‘What does it matter’, Julian had asked, ‘whether the people declares its will by voting or by the very substance of its actions?’ 175 Hope’s Major Practicks, vol 2, p 19; Acts of the Parliaments of Scotland, vol 2, p 48; Institutions, 4.1.9, 18 and 55. 176 Hope’s Major Practicks, vol 1, p 4. 177 Institutions, 1.10/1.1.10. Like the passage praising customary law, but unlike the part of the account of the sources currently under discussion, this statement appears in all the versions of Stair’s book. 178 Digest, 1.3.32.1.

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The Sources of Scots Law 417 It was here that Julian had made his remark about the suitability of allowing statutes to be abrogated ‘not only by vote of the legislature but also by the silent agreement of everyone expressed through desuetude’. Stair could have alluded to this remark as a way of reminding his readers of the distinction drawn by Craig between the religious observance of acts of parliament in England and the more relaxed attitude traditionally favoured in Scotland. In saying that Scots law was mostly customary, that customary laws were fixed and certain, and that the statutes enacted by parliament usually served to correct customary laws on the recommendation of the session, Stair confirmed that it was his intention to appropriate the claims made for English law by Coke, Davies and others.179 He confirmed that he took Scots law to match the ideal model of human law set out in his previous paragraph better than English law, and he could have taken this further by adding that while statutes were required to correct established customs, statutes were effective in Scotland only if they were received into consuetude and not left in desuetude. He may well have had this point in mind, but if so that is where it remained, for the point he wished to spell out in his paragraph on the sources was that the adjudicative authority exercised in the session was closely related to the legislative authority exercised in parliament. Although he explained that the decisions delivered by the lords of session were relevant as a source of law because customary laws could emerge from them, he did not explain how this might happen but instead emphasised that the decisions themselves were exercises of the sovereignty once exercised by the king in parliament. Although he had already contrasted the ‘tacit consent’ underlying customary laws with the ‘express Will or Command’ underlying statutory laws, he did not refer again to the tacit consent of the people but talked instead of the acquiescence of parliament in the decisions and customs emanating from the session. Although he could have pointed out that in Scotland acts of parliament were traditionally taken to be absorbed into an essentially customary system of law, he preferred not to suggest at this stage that all law was ultimately founded on what Julian had called the consensus omnium, whether tacit or express. He preferred not to recall the concept of consensus, which was usually understood to signify common recognition of the intrinsic force of laws. He made no more attempt in his paragraph on the sources than in the paragraph that preceded it to suggest that customary laws were founded on the popular or expert recognition of their force as laws. If he accepted that customary laws must be based on consent, he took this to mean not that there must be recognition of their derivation from natural law but that there must be voluntary acquiescence in their introduction. After explaining that the statutory and customary laws of Scotland were all derived ultimately from the exercise of sovereign authority, whether by the king in parliament or by his judges in the session with the acquiescence of parliament, 179 By contrasting the common law as custom with the legislation passed by the English parliaments as much as with the learned laws, Coke and Davies had effectively undermined the claims they wished to make for English law more generally. It was this weakness in their argument that Stair identified and exploited and could have exploited further.

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418 The Revolution Court Stair turned next to explaining the relevance of the learned laws as a source of legal development.180 It was at this stage that he originally made the remarks quoted in an earlier chapter about the customary laws of Scotland deriving to a large degree ‘from the Civil, Canon and Feudal Laws, from which the Terms, Tenors and Forms of them are much borrowed’, about the civil law especially having ‘great weight, namely in cases where a custom is not yet formed’, and about none of the learned sources having ‘with us the Authority of Laws’ but being ‘only received according to their Equity and Expediency’. It was at this stage too that he originally took issue with Hope’s argument for the legislative recognition of the authority of the learned sources, insisting that the references to the civil and canon laws in some acts of parliament meant ‘no more, then that these Laws are an example; after the similitude whereof, the Parliament proceeded’. At the end of the third chapter of this book it was observed that Stair could either have been arguing here that the learned laws lacked the necessary authority shared by statute and custom, while still imputing to them the probable authority conferred by learned approval, or could have been arguing that the learned laws were merely guides to the natural equity on which the decrees of sovereign legislators were founded, thus denying them any kind of authority as law. In the fourth chapter it was discovered that he had contrived to give the impression in some of his case reports that the learned laws were taken to enjoy no authority as law in Scotland, though it was also noted that in doing so he could either have been rejecting the whole idea that laws could enjoy probable as well as necessary authority, or could have been trying to displace the learned laws so that their probable authority could be appropriated more locally. In the last section of this chapter it was observed that while Stair tended to follow Mackenzie’s example in presenting the first edition of his Institutions to his audience, he did not follow his example in claiming to have studied academic texts, to have consulted learned lawyers and to have expressed his own opinions. Similarly it was observed that in publishing the two volumes of his Decisions he did not attempt to argue as others had done that the decisions of the lords of session were not arbitrary because founded on learned authority, but instead argued that the judges must be trusted to turn in some cases to natural equity. Finally, it was observed that in publishing the second edition of his Institutions he explicitly claimed never to have expressed opinions of the kind that could be considered authoritative. The question whether this claim could actually have been consistent with the way in which he had originally written about the learned laws needs now to be addressed more definitively. It has again been observed already that in dealing with areas like the law of contract, in which there had been relatively little local development, Stair’s preferred approach was to ‘interweave the Civil Law and our Customes’, adducing the texts of the Corpus iuris as evidence of the former and the decisions of the lords of session as evidence of the latter. His aim was generally to demonstrate that the 180 This was the only part of his earliest discussion of the sources that survived into the printed editions. Here, as in previous chapters, reference may be made to Institutions, 1.15/1.1.16.

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The Sources of Scots Law 419 developing law of Scotland was derived from the civil law and that the civil law was in turn derived from natural law, and where the development had barely begun he described the civil law in detail ‘because where our custome is not consumat in dubious cases it hath great weight’.181 In these cases he tried to identify the ‘question’ that needed to be addressed and where possible the ‘common opinion’ held among the learned commentators on the civil law texts. Where this was impossible, because ‘the Doctors are of divers opinions’ or ‘the opinions of the Learned be very diverse’, he tried to determine which opinion was the ‘more probable’ or to explain how he believed it would be ‘more rational to determine the case’.182 As has also been observed already, in dealing with areas like land tenure and succession Stair was able to connect his discussion of the views of ‘the Feudists’ and ‘the Canonists’ with more frequent reference to the views held by ‘our Lawyers’, again identifying where he could their ‘common opinion’, sometimes noting that there were ‘opinions of the learned and probable reasons upon both parts’, and occasionally contending that one opinion should be preferred because ‘more conform to equity, and the Law of nature, which in Dubio ought to take place’.183 In relation to contract law he occasionally argued that the solution to a problem favoured by ‘the Civil Law, and most of the Doctors’ was inconsistent with natural equity, ‘which ought to take place, unless Law or Custome were opposite, which is not with us’, or remarked that in such a case ‘we are not bounded with any positive Law or Custome; and therefore, Equity in it with us may take place’.184 That Stair did not attribute necessary authority to the civil law is certain, but the point made in an earlier chapter was that he may not even have credited it with probable authority. In his discussion of the sources he never said like Craig and others that the Scots were ‘bound’ by the civil law when it was known to be equitable, and elsewhere he declined to treat the civilian solutions to problems as legally binding even when they were supported by ‘equity and utility’, ‘good reason and equity’, or ‘much utility’.185 The most he was prepared to say was that the judges would be well advised to follow the civilian approach to solving a problem. It may therefore be concluded that it was never Stair’s intention to impute authority of any kind to the learned laws, though the possibility remains that he wished to exert as a writer authority transferred from the learned to the local laws. He certainly made reference to the literature of the learned laws, he discussed the opinions of the doctors in terms of their probability, and so far as possible he discussed the opinions of other Scots lawyers in similar terms. The claim he eventually 181 NLS, Adv MS 25.1.10, 9.17. In the printed editions of the Institutions, 9.10/1.9.10, Stair explained here instead that he had described the civil law in detail ‘because it is most equitable and expedient; and therefore is generally followed by our Custome’. 182 Ibid, 10.14/1.10.14, 10.18/1.11.2, 10.37/1.12.10, 10.65/1.14.3 and 10.71/1.15.2. 183 Ibid, 14.26/2.4.26, 17.6/2.7.6, 21.22/2.11.22, 25.42/3.3.42 and 26.35/3.4.35. As was noted earlier, Stair’s tendency was not to deal with the feudists and canonists directly but to carry forward Craig’s discussion of their opinions. Like many French writers, he found that there was less need to turn to the university professors in these areas. 184 Ibid, 10.34/1.12.7 and 10.49/1.13.2. 185 Ibid, 10.55–6/1.13.9–10 and 12.38/2.1.39.

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420 The Revolution Court made to have refrained from expressing his own opinions clearly cannot be taken literally, and to the extent that he did instead report and cite the decisions of the session he seems to have been trying to promote his own opinions in another guise. In his Decisions he reported the judges’ rulings as public determinations of disputations, and he implied at several points in his Institutions that disputed questions could also be determined by the private expression of opinions. Yet the remarks he made in the paragraph he devoted to discussion of the sources of Scots law and in the paragraph immediately before it did little to sustain the belief that learned authors could contribute to the development of the law. That Stair did not suggest in these paragraphs that the opinions of lawyers should be regarded as a source of law is not in itself significant, for even those who openly subscribed to this belief seldom supported it in this way. The significant point is rather that he failed to exploit the opportunities left open to him by those who influenced his writing of these paragraphs. In the early draft of his paragraph on the sources of Scots law he appears to have been influenced especially by the handling of the same topic in Hope’s major practicks, where the laws of Scotland were related either through statute to legislative authority, or through custom to the tacit consent of the people, or through the civil and canon laws to learned authority. Stair rejected Hope’s arguments for recognising the authority of the civil and canon laws, and he does not seem to have done so in order to relocate the same authority more locally. It cannot have been his intention to focus on the opinions expressed by practitioners to the neglect of those expressed by professors since it has been seen that he actually made a great deal more reference to civilian and canonist literature than the other Scots lawyers who were writing at the same time. It was other writers who seem in comparison with Stair to have regarded the transfer of learned authority from the schools to the courts as a fait accompli. Stair’s conception of forensic disputation seems to have owed less to the connections drawn by civilians and canonists between the practices of the schools and the courts or between the roles of practitioners and professors than to the defence of the case law method devised by common lawyers in England. He presented his discussion of the sources of Scots law against the background of the English understanding of adjudication as the testing and refining of emerging customs through a period of time, yet again he failed to grasp the opportunity offered by his sources to show how this process could be taken to depend on the exercise of learned authority. It evidently was his belief that the best laws were those produced by a disputational process in which courts received advice from expert practitioners, and it may well have been his aim in writing his Institutions to provide the same type of advice on disputed questions as advocates provided in their pleadings before the courts. What is becoming more apparent, however, is that he never meant his learned advice on how questions should be dealt with to contribute directly to the development of the law. It may always have been his intention to express opinions on the law, and it may always have been his intention to express opinions of the probable type that could contribute to a body of learning, but as he saw it this learning was not in the law of Scotland but in the law of nature. As he saw it advice on how questions should be

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The Sources of Scots Law 421 dealt with in the absence of either statute or custom was advice on how the law should be developed by statute or custom and was not itself, however persuasive it might prove to be, part of the process through which the law could be developed.186 Stair ended his discussion of the sources by declaring confidently that ‘the Law of Scotland in its nearness to Equity, plainness and facility in its Customes, Tenors and Forms, and in its celerity and dispatch in the Administration and Execution of it, may well be paralleled with the best Law in Christendom’, promising that in his later titles this would ‘plainly appear when the proportion and propinquity of it to Equity shall be seen’.187 He thus ended as he had started by matching the claims made for English law by Coke and Davies, who had boasted that of all laws theirs was the ‘most equal and most certain, of greatest Antiquity, and least Delay, and most beneficial and easy to be observed’, and that in comparison with natural equity their law was ‘farre more apt & agreeable, then the Civill or Canon lawe, or any other written lawe’.188 As was mentioned in an earlier chapter, William Lawrence was later to acknowledge that the judges sent to Scotland during the 1650s were impressed with the relative informality, facility and celerity of the procedure they found in use there. What Stair was trying to insist on at the close of the same decade was that it should also be recognised that in substance Scots law, which like English law was essentially customary, was a reliable restatement of the requirements of natural law suited to the particular needs of the local people. On the one hand, he wished it to be recognised that the established laws of Scotland, having been proved convenient by the trial of time and experience, would need little correction from equity and good conscience. On the other hand, he wished it to be recognised that where recourse did need to be taken to equity and good conscience it would be to the natural equity and divine law from which all laws were originally derived. Writing at a time when there had been some doubt about whether the session would be restored, Stair would have had reason to draw a sharp distinction between the necessary force of laws, based in some way on the exercise of sovereign authority, and the probable force of opinions, based on learned authority but in no way equivalent to the force of laws. How exactly Stair believed that customary laws could emerge from the sovereign determination of disputes was not made clear, but what he did spell out was the need for some kind of combination of adjudication by sovereign judges and acquiescence in their decisions by the people. Until cases were decided by sovereign judges, he maintained, there could be no law but only learned discussion of how the law should be developed.189 He contributed in his Institutions to this learned discussion, but he appears to have been correct in later claiming that it had never been his intention to express the type of learned opinions that could be taken to develop the law. In 186

Stair thus appears after all to have had less in common with Coke or Davies than with Selden. Institutions, 1.15/1.1.16. 188 Reports of Sir Edward Coke, pt 2, pp vii–viii; Davies, Le primer report des cases, f 2v. It ought to be noted that Stair said nothing here about the antiquity of Scots law, a topic that will be returned to in the next section of this chapter. 189 In comparing the civil law with natural law he was thus doing precisely what he said: reviewing it as an example of equity, not seeking to displace it from a position of legal authority. 187

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422 The Revolution Court the setting in which he began to write his book it may have seemed dangerous to give any hint that cases could be decided on the strength of professional expertise, and for whatever reason he ended up presenting an account of the sources of Scots law that was similar in its details to earlier accounts but distinctive in its overall effect.190 Whereas earlier writers had attempted to show that written law could be introduced in Scotland without the exercise of sovereign authority, Stair attempted to show that the exercise of sovereign authority was possible without the introduction of written law.191

Revision of the text in the later 1660s When he resumed work on his book in 1666 and 1667 Stair added new material to his paragraph on the sources, apparently in two stages. In most of the later manuscripts, as well as in the printed editions, a passage can be found, between the treatment of the learned laws and the concluding assertion of the propinquity of Scots law to equity, in which notes were listed on cases dealing with the law applicable to disputes involving a foreign element.192 These notes indicated that while the formal validity of bonds and deeds was normally governed by the law of the place in which they were made, other matters, such as the inheritance of property in Scotland, might be governed by the law of Scotland even though the parties were foreigners or were resident abroad, or though a will had been made abroad. In a case reported in 1665, in which the lords of session had been forced to decide between the claims of an executor appointed by court order in England and the person entitled to serve as executor in Scotland, attention had been drawn to a report of a much earlier case in which the earl of Haddington had observed ‘that by act of parliament it was ordained, that the King’s subjects should be ruled by the King’s laws, and by no other law of any other prince; and that it was not expedient that lands or goods within this country, should be ruled by the laws and custom of any other prince or state’. Having just cited the same act of parliament as part of his reply to Hope’s argument for the statutory approval of the learned laws, Stair referred to the report in Haddington’s practicks and then summarised the other related cases, perhaps because the case he had himself reported in 1665 had reminded him of the need to list the decisions on the conflict of laws somewhere, and also perhaps because he wished to clarify the relationship between the laws of Scotland and England. In 1663 another relevant decision had been delivered in a case that had not struck any of the reporters at the time as being 190 Along with the observations of Craig, Burnet and Hope already mentioned, reference might be made to Skene’s Regiam maiestatem (Latin edn), sig A3r, which will be commented on later. 191 As will be remarked on below, in talking of the ‘decisions and orders’ of the session and of customs being ‘fixed and constitute’ (emphasis added), he may have been hinting at the connections between decreets of session and acts of sederunt, and established customs and enacted legislation. The main thrust of his argument, however, was that Scots law, like English law, was essentially unwritten. 192 Institutions, 1.15/1.1.16; Morison, Decisions of the Court of Session, vol 6, pp 4481–2; Gibson, Decisions, pp 88–9, 319, 493, 691–2 and 723–4; Stair, Decisions, vol 1, pp 236–7, 252–3 and 382–3.

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The Sources of Scots Law 423 worthy of notice.193 When Nathaniel Eldred, a merchant who had served as the commissary of supply to the English army in Scotland during the 1650s, had been found to be a thousand pounds in debt, an estate he had acquired in Scotland, which was worth over three thousand pounds, had been seized following the standard procedure for the recovery of unpaid debts.194 Eldred had at once petitioned the king, pointing out that he had already been discharged of any debt by the court of exchequer in England and that the lords of session had chosen to ignore this decree when it was presented to them. Charles had then invited the Scottish parliament to intervene, but in 1663 the lords of the articles had advised him, after consulting the lords of session, that the case had been correctly handled in accordance with the law of Scotland, under which there could be no appeal against a decision of the lords of session since ‘if their sentence be not ultimatly definitive, it may open ane way to unsecure your Majesties subjects in their rights & properties’. In 1665, and again in 1667, Eldred had renewed his complaint to the king, who had taken advice from his English council and ordered his advocate, Sir John Nisbet, to do whatever was necessary to have Eldred restored to his estate in Scotland. Stair may not have been aware of this order when he revisited his paragraph on the sources, and he would certainly not have known that Eldred was about to take his complaint to the English parliament, but he would have been aware of the earlier attempt to have the tenure of land in Scotland regulated from England. By the end of 1667 Stair had made another addition to his paragraph on the sources. In some of the later manuscripts there is a lengthy passage, after the notes on the cases on the conflict of laws, which appears in the printed editions in three separate parts.195 As printed it begins by declaring that ‘the Law of Scotland, as of all other Nations, at first, could be no other, than equum & bonum, Equity and Expediency; for it is not to be supposed, that any Nation at their first association and owning of Government, did appoint positive Laws, nor could they have Customes anterior to their Constitution’.196 Stair acknowledged that in theory ‘some Cities at their first Constitutions, might have enacted Laws’, but he insisted that ‘it cannot be found in all the Records of Antiquity, that ever any Nation or Countrey did so, whatsoever be said of the Salique Law of the French, which they hold so ancient and fundamental’. What had happened was rather that nations had recognised a need to ‘be Governed by a Law, which could be understood no other, than what their Soveraign Authority should find Just and Convenient’. Stair explained that ‘as in Arbitriments, parties are understood to submit themselves to Arbiters, Secundum 193 For details of the case see NAS, PA 7/10/25, and GD 28/1962; Acts of the Parliaments of Scotland, vol 7, p 500; Eighth Report of the Royal Commission on Historical Manuscripts, pt 1, p 115. 194 It is said in Tompson 2000, pp 40–1, and repeated in Jackson 2003, p 85, that Eldred had served as a judge in a commissary court, but this appears to be a misunderstanding of the references to him in the records as ‘commissary Eldred’. See Scotland and the Commonwealth, p 288; Scotland and the Protectorate, pp 299–300, 317–18 and 398; Calendar of State Papers (Domestic Series), 1649–60, vol 2, pp 306, 342 and 356–7, vol 4, p 319, vol 5, pp 315–16 and 323, and vol 8, pp 143, 303 and 343. 195 See, eg, NLS, Adv MS 25.3.2; NAS, GD 45/26/62; AUL, MS 2097; HLS, AHZ 6947. 196 Institutions, 1.15/1.1.16.

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424 The Revolution Court Arbitrium boni viri; So Nations of old submited to their Princes, choosing rather to refer their Interests and Differences to the Determination of their Soveraign, than that every one should be a Judge to himself, and should take and hold by force, what he conceived to be his Right, without any Superiour Judge than himself to appeal to, and thereby live in perpetual War’. The first step towards government by law had thus been ‘a yielding and submitting to the Determination of the Soveraign Authority, in the differences of the people, though one, or either party should conceive themselves injured, that thereby private opinion may give place to publick Authority, although they had natural power, sufficient to withstand the same’. If nations already governed by law declined to abide by the judgments of their rulers, Stair warned, they would in effect ‘dissolve Authority and Society, and return to the Soveraignity of their private judgment, and their natural force, from which they did flie unto the Sanctuary of Government; which though it may sometimes err, yet can be nothing like to these continual errors, when every one owns himself as Soveraign Judge in his own Cause’. The need for submission to the sovereign authority of a public judge thus continued, with the implication that it could still provide an effective basis for law making. The assumptions elucidated in this passage had been sketched out more privately by Stair on a previous occasion. In 1662, apparently in an attempt to prevent the earl of Lauderdale and other former ‘covenanters’ from pursuing political careers, an act had been passed by the Scottish parliament requiring all holders of public office to make a declaration that it was unlawful for people to make covenants or to take up arms against the king, that the National Covenant and Solemn League and Covenant had thus been imposed on people against the ‘fundamentall lawes’ of the kingdom, and that neither document could be understood to impose any obligation on its signatories to promote reform in ecclesiastical or civil government.197 Lauderdale had in the end been able to make the declaration without compunction, but Stair had not felt so free to renounce his former commitments. He had written to Lauderdale in August 1663 explaining that while he felt obliged to give up his seat in the session, he hoped that this would not to be taken to imply opposition to monarchy or disloyalty to the king.198 ‘I am also clear’, he had observed, ‘that it is the basis of government that private opinion must yield to publick, and that without force and resistance to authority; the very antithesis of government being that parties do not submit to a common judge or authority, but wrasle out their opinions and interests by force’. He had absented himself from the court in the winter session of 1663 to 1664, and had refused to comply with a request from the president to attend and make the declaration, explaining that he had already resigned his seat in a letter to the king.199 In fact the 197 Acts of the Parliaments of Scotland, vol 7, pp 405–6; Burnet, History of His Own Time, vol 1, pp 95–6; Mackenzie, Memoirs, pp 63–5. The exclusion of Sir George Mackenzie of Tarbat from the session was connected with this episode. 198 EUL, La III 354(1), f 17, printed in Graham 1875, vol 1, pp 21–3. 199 NAS, CS 1/6/1, pp 115, 122–6 and 138–9, and GD 1/520/1; NLS, Adv MS 81.1.12, ff 16–17; BL, Harleian 4631(1), ff 102v–3r; Fifth Miscellany of the Scottish History Society, pp 177–9.

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The Sources of Scots Law 425 king had not been prepared to accept Stair’s resignation but had called him to London where he agreed in an audience that he could make the declaration with the rather elusive qualification that he was renouncing ‘whatever was opposite to his Majesties just right and prerogative’. After visiting France for a month Stair had returned to the court in June 1664, but it had not been long before his loyalty was tested again.200 When the covenants were renewed by presbyterian insurgents in November 1666, during what came to be known as the Pentland Rising, the response of the privy council had been to propose that ‘the heretours of the severall countyes, especially these of the southerne and westerne shyres and such others as his Majesties Councill shall think fitt, be presently requyred to sign the Declaration concerning the Covenant’, the reasoning being that this would be ‘a ready mean to discover who are weill or ill affected to his Majesty’, and that any who refused or hesitated to make the declaration should be ‘secured and looked upon as enemies to his Majesties authority and government’.201 The proposal was not implemented, but as a heritor in the south west Stair may have felt the need, when he continued the revision of his book in 1667, to insert a passage elaborating on the views he had expressed privately in 1663.202 Stair had started his visit to France in 1664 by spending time in Paris, where he had ‘seen the Luvir and some other fyne places of this great citie’.203 It seems very likely that one of the places he had gone to see besides the Louvre was the Palais de Justice on the Ile de la Cité, where he would have found lawyers rubbing shoulders with book sellers and other traders in much the same way as they did in the Parliament House in Edinburgh.204 Here he could have learned about the Salic law restricting succession to the French throne to heirs related through the male line, which the parlement of Paris had declared to be une loi fondamentale in a famous arrêt issued in 1593, thus paving the way for Henry IV’s accession.205 He could have learned about the attempts writers had made to trace this law back to enactments passed by the mythical king Pharamond or to customs already in existence before he became the first king in France, and also about the discovery other writers had made that the connection drawn between the law regulating succession to the throne and the much earlier laws of the Salian Franks was spurious.206 As Stair 200

NAS, GD 1/520/2; Life of Mr Robert Blair, p 469; Maidment, Book of Scotish Pasquils, p 180. Law, Memorialls, pp 15–16; Kirkton, History of the Church of Scotland, pp 136–7; Register of the Privy Council, 3rd ser, vol 2, pp 211–12. On the Pentland Rising, which had actually started in the south west, see Cowan 1976, pp 64–72; Buckroyd 1980, pp 65–7; Hutton 1991, pp 244–5. 202 In the first chapter above it was suggested from the dating of his citations that Stair made a thorough revision of the first part of his book between March and May 1666, that he made a similar revision of the second part between August and October of the same year, and that he made some additional adjustments in the following year. 203 NAS, GD 1/520/2. His high expectations had, at least to begin with, been disappointed. 204 Poëte 1924–31, vol 2, pp 306–7; Shennan 1998, pp 101–3; Hanley 2003, pp 34–5. 205 Recueil général des anciennes lois françaises, vol 15, p 71; Du Vair, Actions et traictez oratoires, pp 110–44; Procès-verbaux des états généraux de 1593, pp 742–50. For discussion of the decision in its political context see Salmon 1975, pp 268–9; Baumgartner 1976, pp 194–6; Wolfe 1993, pp 83–4; Bakos 1994, pp 100–01; Roelker 1996, pp 407–9. 206 Potter 1937, pp 247–53; Church 1941, pp 82–93; Giesey 1961, pp 17–22; Baumgartner 1976, pp 56–71; Hanley 1996, pp 78–82. 201

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426 The Revolution Court himself put it, however ‘ancient and fundamental’ some French writers believed their loi Salique to be, ‘it is either fictitious or long posterior to their constitution, into a Nation’.207 The crucial lesson he had learned from French writers was that laws could not begin to take shape until nations submitted themselves to the sovereign authority of a public judge, and he appears to have learned this lesson more immediately from an English writer. After living in France for over a decade, Thomas Hobbes had published his most influential work on political theory— Leviathan, or the Matter, Forme, & Power of a Common-wealth Ecclesiasticall and Civill—in 1651.208 In an effort to persuade his compatriots to stop fighting about which particular form of ecclesiastical and civil government should be established, Hobbes had explained that until societies were formed people lived in a natural condition ‘of Warre, where every man is Enemy to every man’, where ‘every one is governed by his own Reason’, and where ‘every man has a Right to every thing’, and he had argued that it was to escape from this condition that men had agreed ‘to conferre all their power and strength upon one Man, or upon one Assembly of men’, and ‘to submit their Wills, every one to his Will, and their Judgements, to his Judgement’, hence subordinating themselves to the ‘Soveraigne Power’ of government.209 Although Stair indicated elsewhere that he was far from convinced by every aspect of Hobbes’ political theory, he alluded to it plainly enough in writing about a natural condition of ‘perpetual War’ from which people had fled into the sanctuary of government by surrendering ‘the Soveraignty of their private judgment, and their natural force’.210 Like Bodin before him, Hobbes had insisted that ‘Law in generall, is not Counsell, but Command’, and that lex should be distinguished from ius since ‘Right is Liberty, namely that Liberty which the Civil Law leaves us’, whereas ‘Civill Law is an Obligation; and takes from us the Liberty which the Law of Nature gave us’.211 Stair was thinking along similar lines when he wrote that laws could only take shape after one man’s view of what was right was agreed to be obligatory. Like Bodin again, Hobbes had observed that ‘when long Use obtaineth the authority of a Law, it is not the Length of Time that maketh the Authority, but the Will of the Soveraign signified by his silence’.212 He had gone further than Bodin in maintaining that the only meaningful use of the expression ‘Fundamentall Law’ 207

Institutions, 1.15/1.1.16. Tuck 1989, pp 24–7; Sommerville 1992, pp 19–23; Malcolm 1996, pp 28–33; Martinich 1997, pp 10–13; Skinner 2002, vol 3, pp 9–15. 209 Leviathan, pp 60–80 and 85–8 (1651 pagination). 210 In his Physiologia nova experimentalis, p 17, Stair was to denounce the horrendus Hobbesius as an atheist ‘who subverted all moral and political principles, and substituted in their place natural force and human agreement as the first principles of morality, society and political government’. Stair’s political theory will be returned to in a later book but is discussed briefly in Ford 1988, pp 120–26. 211 Leviathan, pp 136–50. In Behemoth Hobbes was to emphasise the part played by the presbyterians in bringing about the English Civil Wars, and it was of course no mere coincidence that Bodin had devised his theory of sovereignty at the height of the French Wars of Religion. For the view that the English conflict should be regarded as ‘the last of the Wars of Religion’, fought both within England and against Scotland and Ireland, see Morrill 1993, pp 33–175. 212 Cf Bodin, Six Bookes of a Commonweale, pp 160–1. 208

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The Sources of Scots Law 427 was to signify the constitutional provisions ‘by which Subjects are bound to uphold whatsoever power is given to the Soveraign’, and in a rare passage in his book in which another author was explicitly cited he had dismissed Coke’s notion of ‘an Artificiall perfection of Reason, gotten by long study, observation, and experience’, as one of several ‘foolish opinions of Lawyers concerning the making of Lawes’.213 How far Stair was in sympathy with all of these sentiments is uncertain. In the second part of the passage he seems to have inserted into his discussion in 1667 he remarked that ‘next unto Equity, Nations were ruled by Consuetude, which declareth Equity and constituteth Expediencies’, and he then continued: ‘In the third place, positive Laws of Soveraigns became accustomed; Customes always continuing, and proceeding, so that every Nation under the name of Law, understand their ancient and uncontroverted Customs, time out of mind, or their first and Fundamental Law’. The impression given here was that customs emerged as soon as men agreed to accept their sovereign’s determinations of what equity required and before the positive laws of the sovereign became accustomed as a kind of ancient and fundamental law. What precisely Stair had in mind is by no means obvious, but what does seem clear is that he attached some significance to the notion of ancient and fundamental law, as he proceeded to confirm. ‘So the Romans’, he wrote, ‘accounted their Laws of the twelve Tables, and when they did express any thing to be ipso iure, they meaned it to be such, by that ancient Law, in opposition to their recent Customs, introduced by their Pretors and Constitutions of their people, Senate and Princes’. In much the same way, he added, ‘the English also, by their Common Law, in opposition to Statute and recent Customs, mean their ancient and unquestionable Customs’. The standard English distinction between the common law, statutes and recent customs, to which Stair had already referred in an earlier paragraph mentioned in the third chapter above, was being extended here to Roman law, and as Stair had indicated in his earlier paragraph, he believed that it could also be extended to Scots law.214 ‘In like manner’, he went on, ‘we are ruled in the first place, by our Ancient and Immemorial Customs, which may be called our Common Law’. Although that name was sometimes given to ‘Equity, which is common to all Nations; or the Civil Roman Law, which in some sort is common to very many’, in Scotland the name could also be given to the body of long established customs that lay behind ‘our Primogenitur, and all degrees of Succession, our Legittime Portion of Children, Communion of Goods betwixt Man and Wife, and the division thereof at their death; the Succession of the nearets Agnats, the Terces of Relicts, the Life-rent of Husbands by the Courtesie, the exclusion of Deeds on Death-bed, which are anterior to any Statute, and not comprehended in any, as being more solemn and sure than those’. The rather puzzling observations Stair made in this part of his discussion will be examined further in the third section of this chapter, together with the observations 213 On the tension between Bodin’s notions of sovereignty and fundamental law see especially Franklin 2001b. Hobbes was later to elaborate on his opposition to Coke’s thinking in A Dialogue between a Philosopher and a Student of the Common Laws of England. 214 Institutions, 1.10/1.1.11.

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428 The Revolution Court he made elsewhere in his book about fundamental law, ancient law and the common law. In the third part of the passage he appears to have added in 1667 Stair reworked the ground covered in his original discussion of the sources, initially making three claims about the relationship between statutory and customary laws.215 ‘In the next place’, he began, ‘are our Statutes, or our Acts of Parliament, which in this are inferiour to our ancient Law, that they are lyable to Desuetude, which never Incroaches on the other’. Here at last he was expressly making the point that he appears to have kept in mind in writing his first draft, as he made clear by commenting that ‘in this, we differ from the English, whose Statutes of Parliament, of whatsoever Antiquity, remain ever in force till they be repealed, which occasions to them many sad debates (publick and private) upon old forgotten Statutes’. As an example he referred to a Scottish statute requiring reductions of infeftments to be accepted by way of defence, explaining that ‘the Lords seeing that this is inconsistent with the necessar and ordinar form of Process, whereby Rights cannot be annulled or reduced, till the parties and their authors be called’, had declined to accept reductions by way of defence, ‘notwithstanding of the said Statute’. This example seems to have been carefully selected to connect with the second claim Stair wanted to make, which was that ‘the Lords of Session, being by their Institution, Authorized with Power to make Rules and Statutes, to be observed, in the manner and order of Proceeding, and Administration of Justice’, had authority extending ‘not only to the Interpretation of Acts of Parliament, but to the Derogation thereof; especially so far as concerns the Administration of Justice, which is specially committed to them’. In his earlier discussion he had talked about customary laws arising from the supreme court of justice ‘of its decisions and orders’, but he had not made anything more of the legislative authority delegated to the lords of session. He now drew attention to their specifically legislative authority and connected this further with the third claim he was intent on making. ‘Their Decisions’, he again pointed out, ‘are finall and irrevocable, when solemnly done, in foro contradictorio; and thereby, recent Custome or Practique is established, both by their Acts of Sederunt and Decisions’. Since the decisions of the lords of session were no longer open to review by parliament, they had an authority closely related to the authority exercised when acts of sederunt were passed, though in either case what emerged from the session was recent custom or practick. Stair noted that there was ‘much difference to be made betwixt a custome by frequent Decisions, and a simple Decision, which hath not the like force, especially if it be invested with many Circumstances of Fact’, adding that isolated decisions would be ‘more effectual, if they be in any abstract point of Law, especiallie if the lords second them with acts of sederunt declaring their resolution so to 215 See Ferguson 1987a, pp 48–9, for the illuminating suggestion that Stair was weaving together here different lines of argument which need to be disentangled before this difficult passage can be fully understood. Whether Dr Ferguson would agree with the analysis that follows is perhaps doubtful, but his insight is an important one.

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The Sources of Scots Law 429 decide in all time comeing, as some times they have done’.216 In conclusion he remarked that ‘frequent agreeing Decisions, are more effectual than Acts of Sederunt themselves, which do easily go into Desuetude’, on the one hand emphasising that the law emanating from the session was essentially customary while on the other hand indicating again that the authority exercised in the session was closely related to the authority exercised in parliament. Having remarked further on the relationship between statutory and customary laws, Stair returned finally to the relationship between the learned and local laws, recalling that ‘how far the Civil, Canon, and Feudal Law have place with us, hath been already said’.217 It was here that he rejected Craig’s claim ‘that the Feudal Law is our proper Law’ and accepted his claim ‘that these Books called Regiam Maiestatem, are no part of our Law’. What he may have been trying to do at this stage was considered in the third chapter above and will be considered again in the last section of this chapter, for he was clearly concerned once more with clarifying the sense in which the Scots could be thought to have a common law. Craig had advised Scots lawyers to seek solutions to their problems first in the statutory law contained in their acts of parliament, then in the customary law developed in the decisions of the session, and finally in the learned laws, beginning with the feudal law because it lay on the boundary between the proper law of Scotland and the common law of Europe. He had shown that instead of Scots lawyers needing to turn in novel cases to natural equity they could turn to the learned laws in the expectation that they would find genuinely legal answers to their questions there and hence avoid engagement in the sort of moral and political debate more appropriate in parliament. What Stair said in the new passage added to his paragraph on the sources was rather different but also rather ambiguous. He said that ‘where our ancient Law, Statutes, and our recent Customs and Practiques are defective, recourse is had to Equity, as the first and universal Law, and to expediency, whereby Laws are drawn in consequence, ad similes casus’. To begin with he seemed quite clearly to be indicating that the lords of session still had the authority to behave like arbiters in dealing with the novel issues raised before them, so that in turning to the learned laws they would be seeking no more than guidance on the exercise of their sovereign power to interpret natural equity in a decisive way. Yet he also indicated that in dealing with novel issues the lords of session would be proceeding by analogy, which is what Craig had said they ought to do before turning to the learned laws. Although, unlike Craig, Stair connected reasoning by analogy with reverting to equity, he then suggested that what he had in mind was the English notion of the equity of the statute by adding that the lords of session would not take acts of parliament to cover new cases ‘if it appear, that such cases have been of purpose omitted by the Parliament’. By way of example he recalled the decision reported by Gibson in which the lords of session had refused 216

Only part of this statement survived into the printed editions, as will be noted further below. The first printed edition actually has here ‘the Civil, Common, or Feudal Law’. It seems clear from the manuscripts and the second printed edition that this was a mistake, though what follows suggests that it was not an uninformed mistake. 217

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430 The Revolution Court to extend an act on apprising to cover cases of adjudication because when it had been passed by the 1621 parliament an act on adjudication had also been passed without the inclusion of a parallel provision.218 Similar ambiguity has already been encountered in the dedicatory epistles attached to Stair’s two volumes of Decisions, where he first remarked that the lords of session had been trusted to exercise discretion and so ‘did differ little from Arbiters, until they come to have fixed Customs and Statutes, clear and known, which could not come the length of a sufficient Rule for all Cases, for there will ever be new Cases occurring’, and then explained that ‘the Principles of Equity being fixt and permanent, new and singular Cases, by the Analogy of Law are reduced and determined, with congruity to the common course of former Decisions’.219 It is at least now clear that the statements Stair made in the dedicatory epistles he wrote in the 1680s and 1690s were not simply a response to the pressures that had begun to build up during the 1670s. The emphasis he placed on the need for people to acquiesce in the decisions of sovereign judges and for sovereignty to be exercised before laws could emerge from natural equity had been central to his discussion of the sources of Scots law since it was first drafted in the late 1650s. By the end of 1667 he had spelled out more emphatically his understanding of the necessity for submission to sovereign authority and had clarified his understanding of the sovereignty of the session. He had explained that for people to live peacefully their private opinions must give way to the public decisions of the judges, and having previously connected the adjudicative power of the session with the legislative power of parliament, he had tried in his later draft to connect this adjudicative power further with the legislative power delegated to the judges by parliament. He had made it even clearer that he took the law of Scotland to be largely founded on popular acquiescence in the exercise of sovereign authority by the lords of session and had made little effort to suggest that it was founded on popular or learned consensus about the requirements of natural law. Nevertheless, in the later version of his discussion he had also exposed more plainly two ambiguities in his thinking. In the first place, although he had taken the same line as Bodin and Hobbes in insisting that laws could not begin to be created until sovereign authority was established, he had also continued to give the impression that customary laws owed their strength to the passage of time and had added that old laws could in some sense be fundamental. The relationship between Stair’s claim that Scots law was essentially customary and his insistence on the exercise of sovereignty remains puzzling. In the second place, although he had distinguished further between the exercise of sovereignty and the ethical enquiry on which it should be based, he had also given the impression that the ethical enquiry could be informed by the sovereign decisions of the court. The relationship between private opinions and public decisions in Stair’s thinking again remains puzzling. 218 219

Gibson, Decisions, p 819. Decisions, vol 1, sig A3v, and vol 2, sig †2v.

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The Sources of Scots Law 431 Further revisions in 1681 and 1693 When he prepared his text for the press in 1681 Stair made two further changes to his paragraph on the sources of Scots law. The first, and most dramatic, was the excision of his original discussion of the relationship between the statutory and customary laws of Scotland, so that the paragraph began in the printed editions with his account of the relationship between the local and learned laws. He may have felt that the discussion of the relationship between statute and custom in the passage added in 1667 had made the original discussion superfluous, but as he had not covered the same ground in the two passages, and as the omission of the original discussion obscured the connection between his paragraph on the sources and his preceding treatment of the advantages of customary law, it seems more likely that he had another reason for making the change. In 1674, it may be recalled, the advocates who had been suspended from practice after appealing against a decision of the session to parliament had argued that the king and estates had ‘not only a legislative power, but a judicial and judicative power’, that this judicial power was ‘supreme, and the Session subordinate to the same’, and thus that ‘the Parliament, if they find just cause, may rescind decreets of the Session’.220 They had argued that the act passed in 1457 to refuse appeals ‘did only relate to the Session as it was at that time; which was a Committee of Parliament, from whom there could not lye any appeal to the Parliament itself; which could not be extended to the College of Justice, which was thereafter erected a Judicatory’. Appeals against the decisions of the session, at least in the form of protestations for remeid of law, had been allowed in the sixteenth century, and nothing in the letter written in relation to the Eldred case had been intended ‘to give the Lords of Session greater power and authority than they had by former laws’. Paradoxically, the advocates had also argued that a ‘Parliament might have reviewed and rescinded the decreets of Session, when it was a Committee of Parliament; which is undeniable, seeing a Parliament may rescind its own decreets; and therefore it must much more hold, that the Parliament may review or rescind the decreets of the Lords of Session’. In replying to the advocates the judges had denied that they ever intended ‘to encroach upon the power of parliament’, and Stair himself had spoken of an adjudicative power being exercised by the session as a committee of parliament. His own arguments were being turned against him, however, as they were by advocates who questioned the authority of the lords of session to review the rulings of other courts established by parliament on the ground that the session had itself been no more than a committee of parliament when it was first established.221 It may have been for this reason that he excised his original discussion of the relationship between statutory and customary laws.

220 Mackenzie, Memoirs, pp 285–9; Register of the Privy Council, 3rd ser, vol 4, pp 354 and 626–7; BL, Add MS 23137, f 27. 221 Mackenzie, Laws and Customes, 2.3.3; Lauder, Historical Notices, vol 1, pp 135–6.

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432 The Revolution Court The second change Stair made in 1681 was to remove his comment about the lords of session sometimes passing acts of sederunt to declare their intention of following decisions in all time coming. Since this left a glaring non sequitur in his argument it may be that the omission was made mistakenly by the printer, but the remark was not restored in the second edition and there is another possible explanation.222 In the book on criminal law that Mackenzie had seen through the press in 1678 remarks had been made about the relevance of the decisions of the justiciary courts ‘as of all our other’, and some remarks had related specifically to the lords of session.223 Mackenzie’s line had been that decisions should be followed ‘rather out of decency, then necessity; for nothing tyes Judges but Laws, and none can make Laws, but the Parliament’. He had cited Roman law texts in support of his view and had added that ‘if we consider how much circumstances influence particular cases, how Judges may fail where parties are nam’d, and that decisions pass necessarily upon less premeditation then is necessary to Laws; it will be found reasonable not to trust decisions too much’.224 ‘Likeas’, he had then continued, ‘our Judges, do make express Acts of Sederunt, as we call them, when they resolve to regulat future cases; which were unnecessar if all decisions did of themselves bind’. When Stair had mentioned the acts of sederunt passed to declare the intention of adhering to decisions he had been seeking to emphasise that decisions made in abstract rather than circumstantial cases could serve to clarify the law, but his attempt to associate the adjudicative with the legislative power of the session had been undermined by Mackenzie’s argument, and this may have been why he chose to omit his remark about acts of sederunt. Mindful perhaps of Stair’s attempt to associate the adjudicative power of the session with the legislative power of parliament, Mackenzie had immediately added: ‘nor doth the decisions of the very Parliament of Paris, bind even the pronouncers themselves for the future, as Conan observes’. He had referred here to a commentary on the civil law by Franciscus Connanus, one of the professors praised by the younger Bodin for combining his study of the civil law with an interest in French practice.225 When new issues arose for decision in nostro senatu, Connanus had written, all the judges of the court were consulted, ‘yet a decision in one chamber does not impose a law requiring similar judgment on the others; indeed, what is once decided in one chamber does not necessarily bind those who will later give judgment in the same chamber’. Mackenzie had provided the explanation that the judgments of men were so feeble, ‘especially where votes are numbered, and not weigh’d: or where experience may discover the errors, which the sharpest reason could not foresee’, that judges should be no more constrained to adhere to ‘their decisions, then 222 In the advertisement he attached to his second edition Stair was to complain that in 1681 ‘the Printer had not provided a skilful Corrector, whereby several escapes in the Impression occurred, and some parts of Sentences in the Copy were left out’. But he claimed to have amended the errors he found. 223 Mackenzie, Laws and Customes, 1.1.3. 224 Code, 1.14.12 and 7.45.13. 225 Connanus, Commentariorum iuris civilis libri x, f 64v; Bodin, Method for the Easy Comprehension of History, pp 4–5.

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The Sources of Scots Law 433 Philosophers to continue in the errors of their Youth’.226 Nevertheless, Connanus had proceeded to say that while the decisions of the parlement were strictly binding only on those party to the actions, ‘yet they ought to have great weight in like cases’, and Mackenzie had similarly gone on: ‘yet when the arguments pro and contra weigh equally, and reason seems puzled where to encline, the authority even of our former decisions, should cast the balance, especially where the same reason then urg’d, was there pressed’. He had agreed with Craig that ‘in the interpretation of Laws (of which decisions are the best interpreters) if a whole tract of decisions can be produced, it would infallibly bind’, he had referred like Connanus to the text in which Pomponius had talked of interpretatio, prudentium auctoritas and disputatio fori, and he had referred to the case reported by Gibson in which the lords of session had been ready to reverse a decision ‘which they had pronounced, when no Advocats were compearing’.227 While Stair may have tried to reinforce his defence of the sovereignty of the session in response to the appearance of Mackenzie’s book, it is significant that he did not try to develop an argument like Mackenzie’s that decisions could be authoritative if they had ‘proceeded upon a debate; by which the reason of Judges is much ripened, and the future inconveniences fully considered’. That Stair had the example of Mackenzie’s book before him when he prepared his own book for the press in 1681 was seen in the last section of this chapter, where it was found that his prefatory remarks were largely modelled on those made by Mackenzie and Craig. Among other things Stair adopted Craig’s claim that because the procedure of the Scottish courts was relatively simple and expeditious, ‘the generality of the Judicious, have with little pains much insight in our Law, and do with the more Securitie enjoy their Rights and Possessions, which by our publick Records are better known then any where’.228 He went to some length in dedicating his Institutions to the king to explain the advantages of the Scottish system of land registration, aware no doubt that Interregnum proposals for the introduction of registration in England had been revived in the late 1660s and again in the late 1670s, when attention had been drawn to the Scottish example.229 Stair compensated at this point for the omission of material from his paragraph on the sources of Scots law by reaffirming his conviction that ‘we are happie in having so few and so clear Statutes’, so that ‘our Law is most part Consuetudinary, whereby, what is found inconvenient is Obliterat and forgot’. ‘We are not involved’, he explained further, ‘in the Labyrinth of manie and large Statutes, whereof the Posterior do ordinarlie Abrogate, or derogate from the Prior’. Where 226

Cf Aristotle, Rhetoric, 1354a31, and Aquinas, Summa theologiae, 2a2ae, 95.1. Craig, Ius feudale, p 39; Digest, 1.2.2.5 and 1.3.38; Gibson, Decisions, pp 706–8. 228 Institutions, sig A3. The discussion of the public records appears from the flow of the argument to have been inserted into an earlier draft. 229 Treatise, Shewing How Usefull, Safe, Reasonable and Beneficial, the Inrolling and Registring of All Conveyances of Lands May Be (cf Cromartie 1995, pp 71–2); BL, Add MS 23132, ff 162–4 (paper by Nisbet, written in November 1669); Pretended Perspective-Glass (1669); Mackenzie, Pleadings, pp 221–32 (response to the preceding pamphlet); Nicholas Phillpott, Reasons and Proposals for a Registry (1671); Reasons for a Registry (1678); Reasons against a Registry (1678). See too Ockrent 1942, pp 22–4. 227

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434 The Revolution Court laws were set down in writing and were adhered to religiously it required ‘a great part of a life to be prompt in all these windings, without which, no man with sinceritie and confidence, can Consult or Plead; much less can the Subjects by their own Industrie, know where to rest, but must give more Implicite Faith to their Judges and Lawers, then they need or ought to give to their Divines’. Stair drew his observations together by saying that ‘we do alwais prefer the Sense to the subtilitie of Law, and do seldom trip by niceties or formalities’, and he then reverted briefly to the history of the session. ‘The greatest Fixation and Improvement of our Law’, he wrote, ‘hath been by the Establishment of the Supream Civil Judicature of the Kingdom, by King James the fifth, in the Institution of the Colledge of Justice, consisting of fifteen ordinarie Senators, in place of the Kings daily Council, which followed His Residence and Court, and of the Lords of Session, who came in their place, and were nominated of the Estates of Parliament Ambulatorie’. Instead of emphasising the parliamentary origins of the session as he had previously done, Stair now maintained that there had been lords of council before there were lords of session and that ‘the Senators of the Colledge of Justice were Invested with the Powers of both’. In another passage added to his book in 1681 he insisted that the lords of session had the authority to review the sentences of lower courts, ‘for as they are the Kings ordinar Council, all matters, not belonging to the Jurisdiction of another Court, belongeth to them’.230 In revisiting some of the themes discussed in the earlier version of his paragraph on the sources of Scots law in his dedicatory epistle Stair introduced his remarks in a way that might have been taken to indicate that he believed the customary law of Scotland to consist in the learning of his profession. Having boasted of the military exploits of the many Scots who had served in continental armies, he added that the Scots had also been renowned for their learning and went on: ‘And as every where the most Pregnant and Active Spirits, applie themselves to the studie and practice of Law; so these that applied themselves to that Profession amongst us, have given great Evidence of sharp and piercing Spirits, with much readiness of Conception, and dexterity of Expression; which are necessarie Qualifications both of the Bench and Bar, whereby the Law of this Kingdom hath attained to so great Perfection, that it may without Arrogance be compared with the Laws of any of our neighbouring Nations’. As he then made clear, the neighbouring nation he was thinking of especially was England, where a system of customary law was claimed to have been brought to perfection by the refinements of successive generations of expert lawyers. It has been plausibly suggested that Stair’s Decisions and Institutions were intended to be a Scottish equivalent of Coke’s Reports and Institutes, though if so the equivalence was far from precise.231 While the claims Stair made for his Decisions were similar in several respects to those Coke had made for his Reports, it had not been Stair’s aim to record the personal views of the judges. His Institutions, moreover, differed significantly from Coke’s Institutes. In 230 231

Institutions, 12.44/2.2.5, as well as 27.43/3.5.43; and see again Decisions, vol 2, pp 511–12. Sellar 1981, p 149.

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The Sources of Scots Law 435 response to a proposal made by Bacon to have English law reduced to ‘a better Method’, Coke had objected that ‘Abridgments in many Professions have greatly profited the Authors themselves, but as they are used, have brought no small Prejudice to others’.232 While accepting that abridgements might have some value ‘as Tables to find the Cases in the Books at large, or Records’, Coke had maintained that ‘the right Way to enduring and perfect Knowledge’ was ‘the advised and orderly Reading over of the Books at large’. As already noted, the first part of his Institutes had been an edition of Littleton’s book on tenure, with commentary filling the margins of most pages in the same way as in a glossed edition of Justinian’s Institutes.233 The commentary had dealt with topics only tangentially related to the text in the order accidentally suggested by Littleton, and the later parts of Coke’s Institutes had not been notably more methodical. Stair’s aim, by contrast, had primarily been to abridge the existing books on Scots law and to present his findings in a methodical order. It was this methodical approach that he drew to the attention of his readers in 1681, when he claimed that educated laymen would be able to make sense of much of what he had written. ‘Happy were arts’, Coke had declared, ‘if their professors would contend, and have a conscience to be learned in them, and if none but the learned would take upon them to give judgment of them’.234 It was also Stair’s hope that Scots lawyers would be conscientious in their pursuit of learning, but the learning he had turned to in organising the material he had abridged was not taken to be the peculiar province of his profession. In the dedicatory epistle attached to the first edition of his Institutions, as in the passage he had written twenty years earlier on the benefits of customary laws, Stair claimed that Scots law was intelligible to laymen who did not need to trust their lawyers in the way that Catholics were thought to trust their confessors.235 When he prepared the second edition of his Institutions for publication in 1693 Stair made three further alterations to his paragraph on the sources of Scots law.236 He first excised his remark about the decisions of the lords of session being irrevocable when solemnly done in foro contradictorio, so that recent customs were established by their decisions as well as their acts of sederunt, and remarked instead that ‘as to the matter of Justice, their Authority by their Institution, is utterly to decide and determine, but Appellation to the King or Parliament’, referring to the act of 1457 and explaining that ‘the Lords Decreets upon Debate, being formal, are irreducible upon Alleadgeance of Iniquity’.237 Part of his purpose in 232

Reports of Sir Edward Coke, pt 4, pp x–xi, and pt 10, ff 41v and 117v; First Part of the Institutes, f 395r. Seipp 1991, pp 79–81; Helgerson 1992, pp 92–6; Cromartie 1995, pp 14–15; Boyer 1997, pp 29–31; Baker 2002, pp 189–90. 234 Reports of Sir Edward Coke, pt 2, p x. 235 The theological background to Stair’s views will be returned to in a later volume in this series, along with the connection between his methodical approach and his membership of the 1649 law reform commission. 236 Institutions, 1.1.16. 237 An obvious misprint is corrected here, but ‘formal’ is not taken to mean ‘final’, as Ferguson 1987a, pp 48–9, proposes, for Stair was evidently restating his claim that the decisions of the session were irrevocable when ‘solemnlie done’. Similarly, Stair clearly meant to use the word ‘but’, as that was the word used in the act of 1457, though in the old sense of ‘without’. Cf Institutions, 4.1.18 and 55. 233

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436 The Revolution Court making this change may have been to recover more of the argument lost when he excised his earlier discussion of the relationship between statute and custom, but he may also have been responding to more specific challenges. It has been observed that during the 1670s and 1680s Stair had gone to some trouble to promote a particular understanding of the significance of decisions delivered in foro contradictorio, in opposition to the understanding endorsed by Mackenzie in his Laws and Customes, where he had mentioned Gibson’s report of the judges’ willingness to do precisely what the new procedural regulations were supposed to prevent them from doing.238 In the passage he inserted into his discussion in 1693 Stair stressed that what mattered about ‘Decreets upon Debate’ was their formality, since it was this that made them decisive regardless of their intrinsic quality. It was the formality of decreets in foro contradictorio that made them similar to the acts of sederunt the lords of session had been authorised to enact. In his rival Institutions, printed twice since Stair’s first edition had appeared, Mackenzie had distinguished forcefully between the written and unwritten laws of Scotland, placing acts of sederunt in one category and the decisions of the session in the other.239 Acts of sederunt, he had explained, were statutes passed by the lords of session on the basis of delegated authority ‘to make such constitutions as they shall think fit, for ordering the procedur, and forms of Administrating justice’. Stair had written about the lords of session being given authority to make rules ‘to be observed, in the manner and order of Proceeding, and Administration of Justice’, and had taken this broad authority to regulate not only procedure but the administration of justice more generally to explain why formal decreets were also a source of customary law. Mackenzie had blocked the movement from acts to decreets by emphasising that the delegated authority was only to regulate the ‘forms of Administrating justice’, and it may well have been in response to this that Stair amended his paragraph to read that since the lords of session had been given authority to regulate ‘the manner and order of proceeding in, and administration of Justice, Par. 1537. Cap. 43. Par. 1540. Cap. 93, therefore, as to the matter of Justice, their Authority by their Institution, is utterly to decide and determine’.240 A distinction between the ‘Order’ or ‘Form’ and the ‘Matter of Justice’ has already been encountered both in the dedication Stair attached to his first volume of Decisions and at the beginning of the final part of his Institutions, where he took the opportunity to say more about the history of the session.241 He was concerned that the assertion in the Claim of Right presented to William and Mary in 1689 of the liberty of subjects to make ‘Protestations for Remeid of Law, from the Session to the Parliament’, would be mistaken as meaning that ‘all the Sentences of the Session might thereby warrantably be brought into the Parliament’, and he there238 As already noted, Mackenzie’s pursuit of a similar line of argument at the bar was recorded in Stair, Decisions, vol 1, pp 529–31, and Mackenzie, Pleadings, pp 120–30. 239 Institutions, 1.1. See too Mackenzie’s Observations on the Acts of Parliament, p 133. 240 The word ‘in’, it ought to be noted, was also inserted here after ‘Proceeding’, reinforcing the critical distinction between the authority to regulate procedure and the authority to administer justice. 241 Decisions, vol 1, sig A2v, and Institutions, 4.1.pr.

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The Sources of Scots Law 437 fore embarked on a detailed review of the legislation governing the court.242 The judges were known as the lords of council and session, he explained, ‘because they have all the Authority and Powers of the Session institute by King James 1, or of the daily Council erected and regulat by Kings James 3d and 4’, the daily council being taken ‘in distinction to the Privy Council’.243 Stair now declared it ‘a great mistake in some, who pretend, that the Session at first was a Committee of Parliament’, repudiating the view he had previously expressed himself and resisting the emergence of a new consensus that the session had been ‘a committy of Parliament’ until its reestablishment in 1532 ‘after the modell of the Parliament of Paris’.244 This view of the origins of the court had been rehearsed in support of calls both for the scrutiny of judicial appointments and for the review of judicial decisions by parliament, both of which Stair continued to oppose. He maintained that attempts to appeal against decisions resulted ‘from the Prejudices and Passions of Parties, and their Litigiousness, and had great Inconveniences: for Parties are ordinarly byassed by their own Interest, and when they have advice of their Lawers, and have heard them plead probable and favourable Alledgances, they are apt to trust their Opinion, or their Reasons, more than the deliberate Sentences of indifferent Judges, whom Conscience and Honour oblige to be signally just, Justice being their peculiar Character’.245 This was not, however, to deny that protestations for remeid of law, as opposed to appeals, were ‘sometimes Just and necessar, as when the Lords of Session Determine without, and beyond their Authority, and Jurisdiction’.246 Turning the debate to his advantage, Stair gave the further example that protestations would be required if the judges tried to ‘Reduce or alter their own Decreets in foro contradictorio, upon Iniquity’. The next change made to the paragraph on the sources of Scots law in Stair’s new edition of his Institutions was the omission of his observation that an isolated decision would not have the same effect as a line of decisions, ‘especially if it be invested with many Circumstances of Fact’, which had allowed for isolated decisions being ‘more effectual, if they be in any abstract point of Law’. Having already omitted the further observation that abstract decisions would be more effectual ‘if the lords second them with acts of sederunt’, Stair may have felt that the impression left was misleading. In the last chapter it was found that he was less inclined than other reporters to record the resolutions the judges made to follow their decisions in leading cases, and that he was more inclined to record their intention to pass acts of sederunt declaring that decisions would be adhered to in the future. 242

Ibid, 4.1.1; Acts of the Parliaments of Scotland, vol 9, p 40. Institutions, 4.1.18 and 22. Hannay 1922, pp 104–5, and 1933, pp 18–21, maintains that what came to be called the daily council was actually a relatively insignificant institution. Stair may, however, have been eager to draw a distinction between the council he was referring to and the privy council because of remarks Mackenzie made about the latter, of which more will be said in the next chapter. 244 Mackenzie, Institutions, 1.3, and Observations on the Acts of Parliament, pp 18, 52, 75–6 and 132; [Ferguson], Late Proceedings and Votes of the Parliament, p 34; Representation to the High Court of Parliament, p 1; A Breviate of the State of Scotland, p 5. See too Forbes, Journal of the Session, p i. 245 Institutions, 4.1.33. As will be seen, Mackenzie was also opposed to appeals, but for other reasons. 246 Ibid, 4.1.56 and 59. 243

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438 The Revolution Court The omission of the statement contrasting abstract with circumstantial cases may therefore have been no more than a further adjustment to a modification already made to the text in response to an argument encountered in Mackenzie’s Laws and Customes, though it has understandably been suggested that at this stage Stair revealed a change in his thinking about the force of decisions.247 The problem is that he never did make it entirely clear in his paragraph on the sources how he believed the law could be developed through decisions. He made the conventional observation that decisions could give rise to customary laws, explaining that what was involved was a combination of judicial sovereignty and popular acquiescence, but he never explained more exactly how customs could emerge from decisions. At no stage did he provide an account of decisions as learned exercises of the kind that Mackenzie appears to have adopted from Connanus and Craig from Gomesius, or that he might himself have adopted from Coke and Davies, yet he wrote ambiguously of the relationship between decisions and the opinions he took to constitute learning in natural equity. He argued that the lords of session must be trusted to rely on natural equity in cases left open by statute and custom, and he admitted to expressing his personal opinions on questions ‘when they were free’.248 Yet he also argued that in turning to natural equity the lords of session would be working by analogy from their earlier decisions, and he gave the impression that once decisions had been delivered the cases affected would no longer be free. He claimed in these cases to have concentrated on what the judges had done and to have refrained from expressing his own opinions, yet in adding that he had not felt much need ‘to urge my Opinion by Decisions’ he gave the further impression that his aim in reporting and citing decisions had been to promote his own views. If it had not been his intention in remarking on how the law should be developed to contribute directly to the development of the law, that may nonetheless have been his intention in remarking on how the law actually was developing. The third change Stair made to his paragraph on the sources of the law in 1693 was to remove from his list of examples of the ancient customs of Scotland ‘the exclusion of Deeds on Death-bed’. That this was not an accidental omission is confirmed by an alteration made at the same time to a later title, in which Stair had made the statement already quoted about Regiam maiestatem forming ‘no part of our Law’, having ‘been compylled by some Stranger, who hath not fully known our Law’.249 In this later title the rule that the interests of heirs could not be prejudiced by deeds subscribed in lecto aegritudinis was said to have been introduced ‘by Ancient Custom, time out of mind, and not by Statute, or written Law’, which was precisely the point Stair had made in the passage inserted into his paragraph on the sources in 1667. Four years before then he had reported a case in which the 247

Watson 1981, pp 34–5, and 1984, pp 72–5. Institutions, 4.1.pr. 249 Ibid, 26.27/3.4.27. Sellar 1981, pp 145–6, and 1988, p 91, points out that all of Stair’s examples of ancient customs derived not only from Regiam maiestatem but from those parts of the book most heavily indebted to the treatise attributed to Glanvill. More will be said about this important insight in due course, but what it does not begin to explain is why Stair changed his text in 1693. 248

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The Fundamental Laws of Scotland 439 lords of session had recognised ‘the maxime that no deed upon Death-bed can be prejudicial to Heirs’ as ‘a special part of our common Law, anterior to either Act of Parliament, or Practique’.250 In earlier cases the rule had been connected generally with ‘the law of the Majesty’, and more specifically with the Leges burgorum, but this had not prevented it from being treated as a ‘maxim’ arising de consuetudine.251 Several writers, however, had also made reference to the Statuta Wilhelmi regis, and it was this source alone that Mackenzie had cited as authority for the rule in his Institutions.252 Stair may have become concerned that his claim for the essentially customary character of Scots law was in danger of being weakened by the inclusion among his examples of ancient law of a rule that could be traced back to the old acts rather than the old books. Mackenzie himself had conceded that ‘the books of Regiam Maiestatem, were originally but the works of one private Lawyer, writing by way of Institution’, but he had claimed nevertheless that they were ‘generally looked upon as a part of Our Law’ and had described them as part of ‘Our written Law’.253 In the new edition of his Institutions Stair removed his assertion that Regiam maiestatem formed ‘no part of our Law’ and remarked instead that the deathbed rule had not been ‘introduced’ by the old books in which it had been recorded. His understanding of the old books and acts, of the customs and maxims of the ancient law, and of the common and fundamental laws of Scotland, may have been changing and needs now to be closely considered in comparison with the use generally made of these sources and concepts.

THE FUNDAMENTAL LAWS OF SCOTLAND

Revisiting the significance of ‘the common law’ In the earliest surviving version of his discussion of the sources of Scots law Stair had written about statute, custom and the learned laws, using as the basis of his discussion a standard trichotomy of sources derived by civilians from the text on customary law attributed to Julian in the Digest. Even in the later decades of the seventeenth century writers of historical or chorographical surveys of Scotland tended to rehearse the same trichotomy in mos Italicus terms.254 These writers tended to observe that ‘the Law of Scotland is made up of the Municipal and Civil Laws’, and to explain further that ‘the Municipal consists either of Acts of 250

Decisions, vol 1, pp 186–8. Morison, Decisions of the Court of Session, vol 4, pp 3205–6 and 3208–9; Regiam maiestatem (Latin edn), pt 1, f 44; Acts of the Parliaments of Scotland, vol 1, p 41. 252 Balfour, Practicks, vol 1, pp 163–5; Craig, Ius feudale, p 85; Hope’s Major Practicks, vol 1, pp 285–6; Mackenzie, Institutions, p 310; Regiam maiestatem (Latin edn), pt 2, pp 7–8. 253 Mackenzie, Institutions, 1.1. A great deal more will be said about Mackenzie’s views on the sources of Scots law, partly in the last section of this chapter and partly in the first section of the next. 254 For brief descriptions of chorography, about which more will be said in the final section of the next chapter, see for instance Levy 1964, pp 74–5; Helgerson 1988, pp 347–9; Mendyk 1989, pp 21–4; Cormack 1997, pp 164–5; Klein 2001, pp 137–8. 251

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440 The Revolution Court Parliament, or of the Custom, and Practices of the Colledge of Justice’, and that ‘when neither of these contradicts, the Civil Law is of force’.255 As earlier chapters of this book have shown, those who wrote about the law for a professional audience were more inclined to handle the trichotomy in the way in which it would have been handled by continental contributors to what was to become known as the usus modernus Pandectarum. In particular, instead of observing that the civil law was ‘of force’ whenever it was not contradicted by local statutes or customs, they were more inclined to observe that it was binding to the extent that it was found to be equitable.256 What this implied was not merely that the Scots were bound by the learned as opposed to the legislative authority of the civil law, but that they had a part to play themselves in the process of identifying and developing the inherent reason of the law. In turning to civilian sources Scots lawyers themselves began to exercise the authority of the learned laws and to transfer it into their own law, and to advance this transfer of authority further they paid close attention to the interface between the local and learned laws. Thus Craig argued both that the civil law was binding in Scotland to the extent that it was found to be equitable and that the feudal law, which he took to be a branch of the civil law, could be regarded as the proper law of Scotland as well as the common law of Europe. When this local and learned, customary and written law was received in Scotland, its authority was appropriated in a way that enabled the law to be developed further by the expert lawyers involved in the practice of the session. Two years after Craig presented his treatise on the feudal law to James VI and I, the sources of the law were summarised again by Skene when he presented the same king with the edition of the old books and acts that he had prepared for the use of lawyers, explaining that ‘the written law ought to be followed first, the second place is due to practice and inveterate custom, and lastly there should be recourse to foreign laws and the practice of other nations’.257 Skene tended to talk in terms of the contrast between the lex municipalis and the ius commune, yet it has again been found that he qualified his use of the conventional contrast in two ways.258 First, perhaps under the influence of his teachers in Saxony, he tried to reduce the need for recourse to the common law by expanding the lex scripta to include the old books and acts as well as more recent legislation, supporting these ‘auld lawes and constitutions’ with a myth of legislative authorisation and supplementing them with learned commentary so that the essentially written lex municipalis would more often provide satisfactory solutions to problems. He urged 255 Joan Blaeu, Theatrum orbis terrarum, vol 5, pp 28–9 (www.nls.uk/digitallibrary/map/early/ blaeu/ 921); [Alexander Mudie], Scotiae indiculum, p 16; William Alexander, Medulla historiae Scoticae, p 214. 256 For a very clear statement of the view that the Scots were only bound by the civil law when it was equitable, but were then certainly bound by it, see Adam Blackwood, Adversus Georgii Buchanani dialogum, De iure regni apud Scotos, pro regibus apologia, p 104. Blackwood had been a professor of the civil law in France during the latter half of the sixteenth century. 257 Regiam maiestatem (Latin edn), sig A3r. 258 The popular epitomist of Craig’s Ius feudale, it may be recalled, had actually summarised his views in terms of the same contrast. See again NLS, Adv MS 25.6.1, ff 8–9.

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The Fundamental Laws of Scotland 441 other lawyers to study the indigenous sources in the way they had learned to study the civilian sources and set out himself ‘to marry the foreign with the domestic’. Secondly, Skene tended to characterise the ius commune as foreign rather than learned law, partly to avoid giving the impression that the local law was less learned, partly to encourage recourse to more than the standard civilian sources, and partly to emphasise like Craig that there was an area in which the local and learned laws merged into each other. Unlike Craig, however, Skene listed the components of the ius commune as the civil, canon and Norman laws, connecting Norman with English law and thus locating the Anglo-Norman law that had influenced the development of the Scots law of land tenure and succession in the place normally assigned to the feudal law. In doing so he encouraged other lawyers to show more interest in the customs and practices of their immediate neighbours, which on one interpretation was what Julian had been thinking of when he referred to quod proximum ei est, but he also encouraged them to focus on the context in which the old books of their law had been written instead of the context in which the books of the feudal law had been written.259 He drew attention like Craig to the feudal setting in which learned authority had first been transferred to Scotland, but in a manner that emphasised the possibility of exercising learned authority without constant reference to the learned sources. His example may have persuaded Hope not to adopt Craig’s account of the authority of the feudal law in Scotland, though Craig’s rejection of the authority of the old books seems to have prevented Hope from simply adopting Skene’s approach instead. What Hope did do was loosely connect passages from the old books with passages from a commentary on the custom of Normandy as well as with passages from the books by Balfour, Craig and Skene himself. In accordance with the instructions given to the reform commissioners in 1633, Hope treated the old books as a record of ‘the auncient lawes and customes’, or of what he preferred to call the ‘ius antiquum’, ‘the comon law’ or ‘the fundamentall lawes’.260 The result, so far as the arrangement of his materials was concerned, was a new trichotomy of sources, beginning with the common law found in the various books lawyers read, continuing with the statutory law contained in the records of parliament, council and session, and ending with practical observations on the decisions of the courts. It has been seen that French lawyers similarly moved towards dividing the sources of their law into redacted customs, royal ordinances and judicial decisions, relegating the learned laws to the level of a historical source of some customs or ordinances and a residual source of the authority that was sometimes taken to reside in decisions. The medieval commentators on the regional customs of France had initiated the process of turning unwritten into written laws, and the codification and reform of the customs in the sixteenth century had brought the process to fruition. The medieval commentators had also begun to extract a common law 259 At the start of the 1680s Lauder was still taking a keen interest in a new commentary on the custom of Normandy in which reliance was placed on ‘Glanville for the English law and Skeen for the Scots’ (NLS, Adv MS 6.2.15, pp 26–33). 260 See again Hope’s Major Practicks, vol 1, pp 8, 79, 98 and 243.

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442 The Revolution Court of France from the customs, and this process too had been carried forward in the sixteenth and seventeenth centuries by a new wave of commentators. The medieval commentators had worked in much the same setting as the writers of the treatise ascribed to Glanvill in England and of Regiam maiestatem in Scotland, but the formal redaction of the French customs had made it easier for the later commentators to treat their common law as written law. French authors were not therefore inclined to claim like English authors that their common law was essentially unwritten, and nor were they inclined to call it fundamental law. The expression lois fondamentales appears to have come into use towards the end of the sixteenth century in connection with the emergence of claims for the contractual basis of government.261 It had then been applied to more conventional claims for the necessity of royal descent through the male line and of preserving the king’s inheritance.262 Those who realised that the Salic law governing succession to the throne was not in reality based on early legislation tended to say that it was no less authoritative for being based on custom.263 They tended to point out that customary laws were voluntarily adopted by the people, not imposed on them from above, and that having been preserved without interruption since time immemorial they were recognised in the courts as being convenient. These writers tended to speak in terms of the tacita civium conventio and iudicia contradicta referred to in the Digest, but they recognised the same virtues in customary law as the English writers, and like them they sometimes suggested that the king was required to rule in accordance with the customs of the realm, of which the parlements were taken to be the guardians. Nevertheless, the expression lois fondamentales was mostly used to denote the constitutional constraints that some writers wished to impose on the king rather than the customary or common law that was accepted as binding by the people. It was this French use of the expression that James VI and I attributed to the Scots when he told his English parliament in 1607 that all they understood by ‘fundamental laws’ were those ‘whereby confusion is avoyded, and their Kings descent mainteined, and the heritage of the succession and Monarchie’, adding that they could not use the expression, ‘as you doe, of their Common Law, for they have none’.264 In England the expression was indeed used to denote the common law, with the implication both that the king was required to rule in accordance with the customs of the realm, and that the constitution was founded on ancient custom, preserved without interruption since time immemorial and resistant to change on the strength of its proven reason.265 Although similar to the claims made by some French writers in relation to their constitution, the claims made by English lawyers 261

Höpfl and Thompson 1979; Höpfl 1986; Thompson 1986. Lemaire 1907; Church 1941; Franklin 1973; Baumgartner 1976; Keohane 1980. 263 Du Haillan, De l’estat et succez des affaires de France, ff 190v–92r; Hotomanus, Francogallia, pp 272–5; De Belloy, Examen du discours publie contre la maison royalle de France, pp 176–8, 183–4 and 204–7; Opuscules françoises des Hotmans, pp 276–70; Oeuvres de Le Caron, vol 1(1), p 4. 264 Workes of the Most High and Mightie Prince, James, p 520. Cf Gough 1955, pp 52–3. 265 Ferguson 1979, pp 259–311; Pocock 1987, pp 30–69; Weston 1991, pp 375–95; Burgess 1992, pp 3–78; Sommerville 1999, pp 81–104. 262

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The Fundamental Laws of Scotland 443 were more closely connected with their conception of the common law and were less obviously indebted to the civil law, for whereas French writers were inclined to claim that their law was written even when it was not, English writers, who had long since passed beyond the stage of needing to appropriate learned authority from the civil law, were inclined to claim that their law was unwritten even when it clearly did have a textual basis.266 As was seen earlier, James told his English parliament that the Scots were not as indebted to the civil law as was often imagined and made it clear that in saying they had no common law he meant no ‘Common Law of their owne, but such as in effect is borrowed from yours’.267 Whether or not James was correct that the land law of Scotland was largely ‘drawen out of the Chauncerie of England’, the appearance of Skene’s editions of the old books and acts two years later provided ample evidence to reinforce the assertion. In the fourth part of his Institutes, published in 1644, Coke drew attention to the evidence Skene had provided to support the proposition that ‘in ancient time’ the same law had been followed in both England and Scotland.268 It was in further support of the same proposition that Coke made the observation mentioned earlier that ‘the Laws of Scotland are divided as the Laws of England be into the Common Laws, Acts of Parliament, & Customes’.269 The acts of the Scottish parliaments, he proceeded to explain, had introduced so many changes in the law that it would have been impossible for the two kingdoms to be ruled, as James had wished, secundum legem et consuetudinem Britanniae, yet so far as the Scots did follow ‘the old law’ it was the common law once shared with England. It is scarcely surprising that an English lawyer like William Lawrence, in recalling his experiences in the Interregnum court in Scotland, was ready to embrace the concept of British law and to talk in the singular of the common law of England, Scotland and Ireland, much as Skene had talked about ius regnorum Angliae et Scotiae. As has again been seen already, the Scots were also taken to possess a common law in a book published in 1618 by John Selden, who had made particular reference to the evidence printed in ‘Malcolms Laws or the Quoniam Attachiamenta’.270 In fact it was Selden’s belief that ‘everie Christian State hath its owne Common Laws’, and that the laws of every state in western Europe could thus be classified as ‘Customes, Statutes and Common Laws’. His purpose in saying this had been to contest the claims made by civilians that their law was the common law of Europe, whether on the basis of the legislative authority imputed to the emperors or the learned authority imputed to the doctors. As has been noted repeatedly, Selden described the learned laws as examples that had influenced law making in the same 266 Du Haillan, De l’estat et succez des affaires de France, ff 189v–90v, still felt the need to preface his account of the customary constraints on the king with an explanation of how the French had learned from the Romans in the same way that the Romans had learned from the Greeks, not by subjecting themselves to the authority of the Romans but by recognising the equity and reason of their laws. 267 Workes of the Most High and Mightie Prince, James, pp 521–2. 268 Fourth Part of the Institutes, pp 345–8. 269 Coke may have been influenced here by James’ speech, where it was this trichotomy of the sources that was effectively put forward. If so, however, he did not acknowledge the debt. 270 Historie of Tithes, pp 477–81.

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444 The Revolution Court way as the writings of poets, philosophers and historians. He believed that they had not influenced law making in England to the same extent as elsewhere, but he did not believe that English law could be claimed to be more excellent than other laws on the strength of its indigenous development since time immemorial. Given that all human laws, he argued, were attempts to give effect to natural equity in accordance with the needs of the local people, it followed that all laws must be taken to be equally ancient in their origins and equally rational in their effects.271 As all nations must have started to develop laws suited to their needs as soon as they constituted themselves into states, ‘little then follows, in point of honour or excellency specially to be attributed to the laws of a nation in general, by an argument thus drawn from difference of antiquity, which in substance is alike in all’. The antiquity of one nation’s laws could not prove them to be more rational than those of another, and nor did Selden believe that the proven reason of laws could as such make them laws. He attributed the force of English law to ‘the allowance of Customs, and Parliamentarie Statutes’, explaining that all laws were based on the popular consent disclosed tacitly in customs or expressly in statutes, and meaning by consent the voluntary acceptance rather than the rational approval of laws.272 Accordingly, while Selden argued that every nation had a common law of its own, he did not mean by this that every nation had a body of law based on the learned authority traditionally claimed for the civil law. While he went to great lengths in his voluminous writings both to trace the antiquity of the laws of England and to draw the attention of his countrymen to continental advances in the study of natural equity, it was his position that historical or ethical enquiry could only contribute to legal development if it persuaded people to make laws by agreement.273 By the start of the 1680s Lawrence had also accepted the need to draw a categorical distinction between natural equity and positive law, though his radical aim had at this stage become the replacement of reliance on the latter with reliance on the former. By then Stair had moved away from his initial survey of the sources of Scots law in terms of statute, custom and the learned laws and had come to write in terms of ‘our ancient Law, Statutes, and our recent Customs and Practiques’, or of (as he said in presenting his first printed edition to the king) ‘our Statutes, our ancient Customes, and the more recent Decisions of our Supream Courts’.274 By leaving his early discussion of statute and custom out of the paragraph on the sources in his first printed edition, Stair gave more prominence to his explanation of how ‘positive Laws’ began to replace ‘Equity’ when nations submitted themselves to ‘Soveraign Authority’ and formed ‘ancient and uncontraverted Customs, time out of mind’. The XII Tables of the Romans had been ‘ancient Law’ or ‘Fundamental Law’ of this type, as had the common law of England, and the Scots 271

Works of John Selden, vol 3, cols 1890–93. Tuck 1982, pp 139–42; Cromartie 1995, pp 31–2; Christianson 1996, pp 239–40 and 298; Roslak 2000, pp 348–9; Tubbs 2000, pp 146–7. 273 The influence of Selden’s natural law theory in Scotland will be examined in a later volume. 274 Institutions, sig A2v and 1.15/1.1.16. 272

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The Fundamental Laws of Scotland 445 likewise had ‘Ancient and Immemorial Customs’ which could be called their ‘Common Law’. The examples Stair proceeded to list, it has been pointed out, could all have been traced back not only to Regiam maiestatem but to those parts of it that had most obviously been borrowed from the treatise ascribed to Glanvill.275 They were examples of what Stair had already been in the habit of referring to in later titles of his book as ‘the ancient Law’, ‘our ancient Custom’, or ‘our Common Law, which is our most ancient Custom’.276 In an earlier paragraph of his introductory title he had already remarked on the English use of the expression ‘Common Law’ to denote ‘the common Current of their Civil Law, as opposite to Statute and their late Customes’, and he had added that the expression was ‘sometimes so taken with us’.277 Since these passages can be found in every version of Stair’s book, the most he can have intended in preparing his first edition for the press was a shift of emphasis from one trichotomy of sources to another. Indeed, in 1681 he weakened the impact of his statement about the Scots sometimes referring to the common law in the English sense by adding that ‘oft-times by the Common Law, we understand the Roman Law, which in some sort is common to many Nations’.278 It was apparently his intention here to provide a better link with his next paragraph, in which he had discussed the history of the civil law and had already spoken of the XII Tables providing the Romans with ‘the Foundation and Principles of all that great Body of Law, which afterwards they had’.279 It had always been his understanding both that the Scots were indebted to the learned laws as the ius commune of Europe and that they had ancient customs comparable to the XII Tables of Rome and the common law of England. In the passage he added to his paragraph on the sources in 1667 Stair also remarked that when the expression ‘common law’ was used in Scotland it was sometimes taken to signify ‘Equity, which is common to all Nations’. In the earlier paragraph in which he had already discussed the meaning of the expression he had actually remarked that it was ius naturale et gentium that was ‘chiefly understood, when the Common Law is named amongst us’.280 Although this was probably untrue so far as the understanding of professional lawyers was concerned, the emphasis Stair placed in this paragraph on the original Roman understanding of 275

See again Sellar 1981, pp 145–6, 1988, p 91, and 1997, pp 154–5. Institutions, 14.27/2.4.27, 15.8/2.5.8, 16.12/2.6.12, 16.17/2.6.17, 16.19/2.6.19, 17.10/2.7.10, 20.19/ 2.10.19, 22.12/2.12.12, 25.47/3.3.47, 26.27/3.4.27 and 26.33/3.4.33. 277 Ibid, 1.10/1.1.11. 278 As already noted, this usage had already been remarked on in the passage added to the paragraph on the sources in 1667. 279 The original link had been with the reference to the common current of the English ‘Civil Law’, for the next paragraph began: ‘The Law of each Society of People under the same Soveraign Authority is called, The Civil Law, or the Law of the Citizens of that Commonwealth’. In adding that the term was ‘appropriate to the Civil Law of the Roman Commonwealth, or Empyre, as the most excellent’, Stair was perhaps hinting at the way in which the expression ‘Common Law’ had been appropriated to English law. Selden, Historie of Tithes, p 479, had said that ‘the Common Law of England also is the Ius Civile Anglorum’, supporting his claim that every state had a common law by saying that ‘it were but the same to talk of Civill and Common Law’. He had also referred to the XII Tables as the historical foundation of Roman law. 280 Institutions, 1.10/1.1.11. 276

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446 The Revolution Court ius commune reinforced the claim he repeatedly made that the Scottish judges were entitled to turn in novel cases to natural equity.281 It was in doing so, he maintained, that they would take account of the civil, canon and feudal laws, yet as he saw it no amount of academic learning could change equity into law, and nor could any amount of professional expertise. It was Stair’s position that the learned laws were common only in the negative sense in which the laws of nature and nations were common, and that common law in a more positive sense could only be introduced after nations submitted themselves to sovereign authority. He therefore rejected both Craig’s claim for the authority of the Libri feudorum and Skene’s claim for the authority of Regiam maiestatem, insisting that the most either source could be taken to provide was an account of law that the Scots had chosen to adopt. Stair knew perfectly well that the ancient law of Scotland had been adopted from England, but by insisting that what made it law was its voluntary adoption he resisted any tendency to suppose that the customary and statutory sources of Scots law could be integrated into a body of legal learning common to the whole of Britain. In appropriating from Coke and Davies a distinctive and forceful defence of customary law he took care to neglect or even to detach it from the emphasis they had placed on the artificial reason of their profession. In appropriating further the English conception of ancient customary law as common law or fundamental law he took care to handle these concepts in the same way as Selden had done, distinguishing ancient from recent custom without implying that antiquity provided proof of rationality. Stair had spelled out his basic position quite clearly by the time he completed the revision of his early draft in 1667, though he had still left a few details obscure. He had, for example, referred to the fundamental laws of Scotland as ‘uncontroverted’ customs, and to those of England as ‘unquestionable’, which suggested that he took these customs to be distinguishable from others by more than their antiquity. The idea that there might be fundamental laws immune from any alteration was to be revived by Scots lawyers during the next three years.

Negotiating a closer union in 1670 The failures of domestic policy in Scotland and foreign policy in England during 1666 and 1667 resulted both in a significant political realignment within each nation and in an important reassessment of international relations.282 The ministers who collectively replaced the earl of Clarendon in England pursued a policy of rapprochement with the Dutch and their Swedish allies and eventually concluded a Triple Alliance against the French at the beginning of 1668.283 For these minis281

As the next volume in this series will explain, Stair probably had lay usage in mind here. Lee 1965, pp 70–118; Haley 1968, pp 266–86; Jones 1987, pp 79–107; Hutton 1991, pp 254–86; Miller 1991, pp 142–74. 283 These ministers were of course Sir Thomas Clifford, the earl of Arlington, the duke of Buckingham and Lord Ashley, who along with the earl of Lauderdale were said to form the Cabal. 282

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The Fundamental Laws of Scotland 447 ters, the improvement of relations with Scotland, which had been damaged by the enactment of restrictive regulations on trade in the early years of Clarendon’s administration, was obviously more attractive than the proposals then being made for a renewal of the alliance between Scotland and France.284 In a paper written for the convention of the royal burghs, George Mackenzie argued that it would be in the French national interest to restore the trading privileges recently withdrawn from the Scots since ‘the Kingdoms of Scotland and England may come to divide by the failure of the Scottish line in England’. He anticipated the reply that the privileges had been forfeited by explaining that ‘the denouncing of War by us was only the effect of a necessary obligation upon us, as being a part of Great Britain, and not a War enter’d into by Scotland upon any National account’. The Restoration parliament, however, had conceded responsibility for foreign policy to the king, and it was the king’s English ministers who would continue to negotiate alliances with other nations, though not always with a clear understanding of the king’s own ambitions. It only gradually became apparent to Charles’ ministers that he was himself intent on an alliance with the French, which he finally achieved in the Secret Treaty of Dover and its false reflection, the traité simulé, in 1670. Given the secrecy of the negotiations, it inevitably remains unclear what motivated Charles. The seriousness of his professed intention to declare himself a Catholic has been doubted, but not his desire for French funding that would enable him to rule England without recourse to parliament. Some historians at least have concluded that contemporary critics were correct in suspecting that his aim was to introduce absolute monarchy on the French model, using Scotland as a testing ground for controversial policies like the enlistment of standing armies.285 Charles certainly did admire Louis’ style of government, and he was presumably also conscious of the comparisons that were being drawn with another ruler. At least part of his motivation for committing himself to another war against the Dutch may have been a desire to prove that he could be as successful as Cromwell had been in the war of 1652 to 1654. A similar desire to prove that he could be as successful as Cromwell had been in promoting his grandfather’s project of a closer union in Britain may partly explain why he encouraged his ministers to negotiate a closer union between Scotland and England while he was himself engaged in negotiations for what the French called ‘une estroite union entre la France et l’Angleterre’. The earliest known reference to the union project is in a letter sent on 7 September 1667 by the earl of Tweeddale to the earl of Lauderdale in which it was suggested that the moment had arrived to diminish the power of the earl of Rothes, who as the king’s commissioner to parliament was being blamed for the

284 Records of the Convention of the Royal Burghs, vol 3, pp 589–94; Mackenzie, Observations on the Acts of Parliament, pp 160–64. 285 As already noted, Charles may have tried to regulate the supreme courts of Scotland in imitation of the regulation of the French courts by Louis XIV, whose new ambassador in England was related to the minister responsible for the reforms. The quotation at the end of this paragraph comes from the instructions given to the ambassador in 1668, now copied in PRO 31/3/120.

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448 The Revolution Court repressive religious policy that had provoked the Pentland Rising.286 According to Tweeddale, Rothes had also been ‘this countrys smal frind’ in the promotion of improved trade with England, ‘and wold have been in the unione or any thing tending that way’. ‘The obstructione removid’, Tweeddale went on, ‘I trust the work will be easy and may be cheerfully gon about’. Rothes was not dismissed or driven into exile like Clarendon, but his change of office from commissioner to chancellor, along with the suppression of the London branch of the Scottish privy council in which Clarendon had sat, greatly enhanced Lauderdale’s personal control over Scottish affairs.287 In 1667, as in 1655, the conciliar government of Scotland was relocated to Edinburgh, though subject to direction from London. In 1667, again as in 1655, the financial administration in Scotland was reformed.288 The treasury was placed in the hands of a commission, of which Tweeddale was the most active member, and the commissioners immediately set about improving the finances of the king in a way that might enable him to rule without summoning parliaments.289 It appears to have been Tweeddale’s concern with the royal revenues that inspired his enthusiasm for a closer union with England, which he recommended to Lauderdale in several other letters written in 1667 and 1668.290 The discussions that Lauderdale was having with English ministers about relaxing the restrictions on Scottish trade would, Tweeddale hoped, ‘fayrly introduce the consideratione of ane unione’, as indeed some tentative soundings taken in the autumn of 1667 suggested they would.291 Lauderdale reported in particular the encouraging response he had received from Sir Orlando Bridgeman, the new lord keeper of the great seal of England, who had directed his attention to papers recording the union debates of 1604 to 1607. From the tenor of the letters exchanged at the end of 1667 it appears that a closer union with England had been talked about in Lauderdale’s circle for some time, though not in great detail.292 Early in 1668 commissioners representing the two nations met formally in London to address the question of trade.293 The Scottish commissioners com286 The editor of the Lauderdale Papers, vol 2, p 46, was unsure that the letter used the word ‘union’, but close comparison with the words ‘countrys’ and ‘obstructione’ in BL, Add MS 23128, f 17v, shows clearly that it did. 287 Buckroyd 1980, pp 68–9; Hutton 1997, pp 77–8; Lee 2003, pp 15–16. 288 Sir William Purves, who had become a clerk of the exchequer in 1655 and an advocate in 1662, was commissioned to write a report on the royal finances in 1667, which he reworked as the Revenue of the Scottish Crown in 1681. It may have been more than a coincidence that Purves wrote about the jurisdiction of the exchequer at the time when other advocates were writing about the law, and that he revised his book at the time when efforts were being made to have law books printed. 289 The reform of the treasury is the central theme explored in Lennox 1977, an oddly neglected study, and the particular need for revenue to finance an army is stressed in Lee 1995. These theses seek to promote the view that 1667 marked the beginning of a move towards ‘absolutism’ and the ‘militaryfiscal state’ in Scotland. Even historians of France, however, are now wary of using these terms. 290 BL, Add MS 23128, ff 56 and 76, and Add MS 23129, f 146. 291 NLS, MS 7023, f 100; Lauderdale Papers, vol 2, p 75. 292 As well as needing advice from Bridgeman on where to find relevant papers, Lauderdale had needed to ask the clerk register in January 1668 to provide him with a copy of the act of union passed by the Scottish parliament in 1607. See BL, Harleian MS 4631(1), ff 96v–7r. 293 On the trade negotiations see the original papers in Bruce, Report on the Union, vol 2, pp ccxlviii–cccvi, quoted below, together with the review in Hughes 1927.

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The Fundamental Laws of Scotland 449 plained about the legislation preventing their merchants from trading freely with the English in the way they had before the Restoration and in the way still open to ‘all his Majesties subjects in Ireland, Wales, &c’. The English commissioners explained in response that ‘all his Majesties subjects in Ireland, Wales, &c. are not only subject to his Majestie, but also to the Crown of England, and are subject to the lawes of the same, and to the power of the Privy Councell heer, and that great seale of England’. Further debate was delayed until a thorough search was made for records of the negotiations in James’ reign, and what this turned up was a document that seemed to the English commissioners to pose an insuperable obstacle to progress.294 The commissioners who had been appointed to represent Scotland in the negotiations following the union of the crowns had proposed then that ‘the lawes and customes civill, criminall and ecclesiasticall, judicatories and officers of either kingdome be preserved and remaine intire in all tyme coming as they are before the union’, adding that no court actions arising in Scotland should be heard ‘in England in the first instance or by way of appeale’.295 The Scots had thus declined to submit themselves to the rule of English law in 1604, and in 1668 they made little headway in pointing out that this had not been found to prevent them from sharing the same privileges as the king’s English subjects ‘in the case of Robert Colvine, and all the post-nati in England, which may be seene in the speech of Chancellour Bacon on that subject, in my Lord Chiefe Justice Cooke’s Reportes, and summed up in my Lord Chauncellour Ellesmere’s speech’. By the autumn of 1668 Tweeddale was beginning to despair of any agreement being reached on trade and to suspect that ‘the matter of unione was proposed to divert it’.296 ‘As for the matter of the trade, I have some hopes of it’, Lauderdale tried to reassure him, ‘but more of the union, in which all seem most earnest’. After dining privately with Bridgeman in October, Lauderdale reported that he especially was ‘still zealous for our trade, but more earnestly zealous for the union, of which he is very very confident’. Tweeddale himself remained keen on ‘any thing that wold bring the unione on foot’. Towards the end of that month the king told Lauderdale that he had been talking about the prospects for a closer union with Bridgeman, the duke of Buckingham and, significantly, the duke of Albemarle, as George Monck had become.297 As they all seemed ‘equally zealous for the union’, Charles instructed Lauderdale and Bridgeman to start working up a more concrete set of proposals. A series of informal meetings was held over the next six months at which a paper drafted by Lauderdale was considered and revised.298 At the end of May 1669 294 PRO, SP 29/233, ff 96–8 and 140; NLS, MS 2955, f 22, and MS 7023, f 120; Miscellanea aulica, pp 199–202. 295 PRO, SP 29/233, f 142. No trace of this document can now be found in the records of the English privy council, but they are far from complete for the period and it may be that what was produced in 1668 was actually the original. 296 BL, Add MS 23130, ff 18 and 70; NLS, MS 7023, ff 165, 203, 206 and 210; Lauderdale Papers, vol 2, p 119. 297 NLS, MS 7023, f 212. 298 Sixth Miscellany of the Scottish History Society, pp 168, 170–75 (along with pp 237–8, which appear to have been misplaced) and 180; BL, Add MS 23130, ff 104 and 108, and Add MS 23131, f 16.

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450 The Revolution Court Lauderdale presented his paper to a meeting of the committee of the English privy council dedicated to foreign affairs.299 He recommended that the two parliaments should again authorise commissioners to discuss terms and that some ‘fundamentalls unalterable’ should be agreed on, among them that the two kingdoms ‘be unalterably united into one monarchie’ and that in future ‘one parliament represent both’. Lauderdale also recommended that ‘because the lawes ecclesiastick, civill and criminall, together with the judicatures and formes of proces in the two kingdomes are very much different, that therfor whatsoever concerns church matters, or propertie in Scotland, and whatsoever shall be done by any persons in Scotland, shall be tryed and determined in Scotland, according to the lawes and customes of Scotland’. During the discussion that followed it was proposed that this clause should be altered to say that the Scots would continue to be governed by their own laws ‘till by act of parliament commissioners meet and agree of one lawe, one procedure &c., in all Great Britaine’. A duly altered version of the paper was produced and does not appear to have caused alarm in Scotland, where an edition of Bacon’s tracts making much the same proposal was printed in the following year in support of ‘the Union of the two Kingdoms now happily intended’.300 It is not clear, however, which version of the paper was finally approved by the foreign committee on 10 June 1669, or what relation this paper bore to the ‘nineteen articles, fundamentall in order to the union of the two kingdomes’, to which the committee returned a fortnight later in the presence of the king.301 By early July the ambassadors of France and Venice were reporting the king’s decision to call both parliaments simultaneously for the specific purpose of authorising commissions, though they doubted whether the project would gain approval in England.302 In Scotland opposition was also building up against the idea of a closer union.303 If it seemed to the ministers involved that signs of reluctance in Scotland might actually have the beneficial effect of stimulating interest in England, they were to have greater difficulty in carrying the project forward than they expected. On 19 October 1669 the two parliaments were opened with speeches from Lauderdale and Bridgeman couched in virtually identical terms.304 The parliaments were told about the breakdown of the trade negotiations, were reminded of the progress made in the reign of the first British king and of the decision in the 299

PRO, SP 29/271, f 45r, and SP 104/176, ff 155 and 157; NLS, MS 597, ff 232–4 and 238. The Union of the Two Kingdoms of Scotland and England: or, The Elaborate Papers of Sir Francis Bacon, sig A2r. See too Lauder, Journals, p 283, and NLS, MS 6505, ff 25v–6r. 301 PRO, SP 104/176, ff 161 and 176–7. 302 PRO 31/3/122, ff 315 and 321; Calendar of State Papers (Venetian Series), vol 36, pp 72–3. 303 NLS, MS 7024, ff 167 and 173; Sixth Miscellany of the Scottish History Society, pp 213–14. 304 PRO, SP 104/176, f 197; BL, Add MS 23132, ff 93 and 97; NLS, MS 597, ff 214–15; Acts of the Parliaments of Scotland, vol 7, pp 551–2; Lauderdale Papers, vol 2, pp 141–2; Bruce, Report on the Union, vol 2, pp cccxi–cccxiii; Calendar of State Papers (Domestic Series), 1668–69, pp 538 and 546; Parliamentary History of England, vol 4, cols 428–30; Journals of the House of Commons, vol 9, pp 97–8; Journals of the House of Lords, vol 12, pp 251–2; Chandler, History and Proceedings of the House of Commons, vol 1, pp 127–9; Cromwellian Union, pp 223–4. 300

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The Fundamental Laws of Scotland 451 postnati case, and were invited to empower Charles to nominate commissioners to negotiate the conditions for a closer union. Nothing was said, however, about the consideration already given to the conduct of the negotiations proposed, nor was the Scottish parliament invited to do anything more than approve a letter drafted in broad terms by the lords of the articles. When the letter was produced for approval on 21 October objections were raised by three of the advocates elected to represent the shires.305 Robert Dickson, who had only been admitted to the bar three years earlier, suggested that it was an insufficient safeguard for the commissioners to be required to report their conclusions to another parliament and urged the addition of a formal reservation of ‘the fundamental laws and rights and priviledges of particular persons’, as there had been in the instructions issued in 1604.306 George Gordon, who had been admitted to the bar just one year earlier, so infuriated Lauderdale by raising the matter of ‘the successione to the crowne of Scotland if the lin of King Jams should fail’, that the parliament was adjourned until the following day.307 George Mackenzie then took the opportunity to present a much extended version of the arguments he had begun to develop the day before, reiterating the contention that care should be taken to preserve ‘our liberties, laws, and privileges, as in the Commission 1604’, and insisting that ‘so great an affair should have some other basis than the transient mentioning in a letter’, not least where the effect of the proposal would be ‘to subvert the fundamental laws of our country’.308 However, although Mackenzie’s arguments were endorsed by Peter Wedderburn, he was the only person to resist the proposal when it was voted on later that day. For three frustrating months the Scottish ministers then waited in vain for the English parliament to turn its attention to the matter.309 At the end of the year Lauderdale returned to London, complaining to the Venetian ambassador of the plight of his country, ‘deprived of trade and reduced to be governed rather as a province than ruled by its natural king’, and explaining the ‘infinite importance to the Scots to unite the kingdoms under a single politic government and a single parliament, leaving civil matters to the customs of the country’.310 After the English parliament finally passed an act authorising the appointment of

305 Lauderdale Papers, vol 2, pp 143–5; Kirkton, History of the Church of Scotland, pp 174–5; Sixth Miscellany of the Scottish History Society, pp 223–6. 306 Grant 1944, p 56; Young 1992–3, vol 1, p 185. As Dickson died just five years later, he did not have much opportunity to make his mark at the bar. 307 Dunn 1851, pp xv–xlix; Cokayne 1900–09, vol 2, p 451; Balfour Paul 1904–14, vol 1, pp 82–9; Grant 1944, p 83; Young 1992–3, vol 1, pp 285–6. It was Gordon who was to replace Stair as the president of the session in 1681. 308 BL, Add MS 23132, ff 135–6; Mackenzie, Memoirs, pp 149–55. 309 PRO, SP 104/176, ff 210 and 217–18; NLS, MS 7024, ff 186 and 188; EUL, La III 354(2), f 79; BL, Add MS 23132, ff 150, 158, 180 and 192; Lauderdale Papers, vol 2, pp 147–50, 154–63 and 165; Calendar of State Papers (Domestic Series), 1668–69, pp 566–7 and 592; Acts of the Parliaments of Scotland, vol 7, pp 565–6; Bruce, Report on the Union, vol 2, pp cccxv–cccxvii; Cromwellian Union, pp 223–4. 310 Calendar of State Papers (Venetian Series), vol 36, p 160. Though the ambassador made this report early in 1670, he may have been recalling remarks Lauderdale made before he went to Scotland.

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452 The Revolution Court commissioners in April 1670, Lauderdale went back to Edinburgh and secured a corresponding act from the Scottish parliament at the end of July.311 On 17 September 1670 commissioners to treat for union assembled formally for the first time at Somerset House, with the delegations led by Lauderdale and Bridgeman seated around a large table.312 Among the Scottish delegates were not only statesmen like Tweeddale but also lawyers like Stair, Nisbet and Baird, who had been briefed on the background to the negotiations two days earlier. At their first formal meeting the delegates received a letter from the king indicating what he hoped would be achieved, modelled closely on the desiderata drawn up for the 1604 commission rather than on the paper drafted by Lauderdale in the previous year.313 Instead of setting out certain ‘fundamentalls’ on which discussion might be built, the letter set out less prescriptive ‘heads’ for debate. The commissioners agreed quite quickly on ‘the uniting of the two kingdoms into one monarchy’, and they then turned, at the request of the Scots, to the question of ‘preserving to either kingdom their laws, civil and ecclesiastical, entire’.314 Asked what they took this to mean, the Scots fell back on the position taken by their predecessors, declaring that their laws must ‘remain intire in all time coming’ and that cases must not be judged ‘in England in the first instance or by way of appeal’. When the duke of Buckingham sought reassurance that the aim was not to prevent appeals to parliament, he was informed that this was precisely what the Scots had in mind. Since appeals were not permitted ‘to our owne parliament from the session’, they explained, ‘there was much more reason to provide against it in this case wher both our distance and their ignorance of our laws wold make our case much harder’. In response to this the English delegates explained that their parliament ‘judged according to the laws of the place from whence the appeal is made, as in the case of Ireland, Kent, Wales, and divers others where the lawes are different from the ordinary laws’. Not surprisingly, this did not relieve the Scottish delegates of their anxieties, though they did recognise that it would be strange for Scottish 311 NAS, GD 406/1/9793; NLS, MS 597, ff 212 and 226–7, MS 5050, ff 163 and 168, MS 7004, f 91, MS 7023, ff 232–9, and MS 7025, ff 10 and 13; PRO, SP 104/176, ff 245, 251 and 259; BL, Add MS 23125, f 224, and Add MS 23134, f 77; Parliamentary History of England, vol 4, cols 441–3 and 448; Journals of the House of Commons, vol 9, pp 121–2, 124, 126, 130, 132, 135–6, 149–50 and 155–6; Journals of the House of Lords, vol 12, pp 287–8, 295–6, 298, 324, 326–7 and 349–51; Bulstrode Papers, pp 133 and 143–5; Chandler, History and Proceedings of the House of Commons, vol 1, pp 133–5; Statutes of the Realm, vol 5, pp 663–4; Lauderdale Papers, vol 2, p 184; Bruce, Report on the Union, vol 2, pp cccxvii–cccxxi; Twelfth Miscellany of the Scottish History Society, pp 97–8; Acts of the Parliaments of Scotland, vol 8, p 6–7. 312 ‘Transcript of the Treaty’, pp 21–2; Cromwellian Union, pp 188–97 and 208–10; Baird, ‘Minutes of the Transactions’, pp 193–8; Sixth Miscellany of the Scottish History Society, pp 227–9; Bulstrode Papers, pp 149–51; Calendar of State Papers (Venetian Series), vol 36, p 282; First Triple Alliance, pp 277–8, 282, 286–9 and 301–3; Bruce, Report on the Union, vol 2, pp cccii–ccciv. 313 PRO, SP 14/9A/35–6, and SP 29/278, ff 239–41; Cromwellian Union, pp 196–7; Bruce, Report on the Union, vol 2, pp cccxxv–cccxxvii. 314 ‘Transcript of the Treaty’, pp 23–7; Cromwellian Union, pp 198–201 and 210–14; Baird, ‘Minutes of the Transactions’, pp 198–204; PRO, SP 29/278, f 266; Sixth Miscellany of the Scottish History Society, pp 230–36; Manuscripts of the Marquess of Abergavenny, pp 180–81; Bulstrode Papers, p 152; Arlington’s Letters, vol 2, pp 305–6; NLS, MS 7004, ff 151, 161–2 and 165, MS 7023, f 246, and MS 7032, f 247.

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The Fundamental Laws of Scotland 453 peers to sit in the house of lords hearing appeals from English courts when no appeals were heard from Scotland. On 24 September it was agreed that time was required to reflect further on this ‘ticklish’ point and that the discussion should be resumed in October. The Scottish commissioners returned to the point at two private meetings, and then reaffirmed their belief that ‘there could be no appeals from the council and session to the parliament of Great Britain’, but when discussion was eventually resumed with the English commissioners on 20 October a different question was raised.315 Bridgeman asked the Scots to explain what they meant by saying that all their laws must ‘remain intire in all time coming, as they are before the union’, for the implication appeared to be that ‘the parliament which will be for Great Britain, will have no legislative power to alter or change any laws, how grievous soever’, so that ‘there will be no power any where to alter the laws in Scotland, though the subjects in Scotland should desire it’. The Scots replied that it was obviously not their intention ‘hereby to determine every particular law of Scotland to be unalterable’, but they refused to explain how their law might be altered until there was agreement on the next head of discussion, concerning ‘the reducing of both parliaments into one’. In the paper drafted by Lauderdale a year earlier the suggestion had been that Scottish members would be elected or selected to sit in the parliament at Westminster in the same numbers and manner as they had been during the Interregnum. On 22 October, however, the Scottish commissioners agreed to propose that the two parliaments should be preserved, with the possibility of joint meetings to discuss matters of mutual interest, and three days later they agreed that it would be better simply to propose a merger of the two parliaments. It was this wholly implausible proposal that was put to the English commissioners when the next formal meeting was held on 1 November, with the explanation that the Scots could not agree to the abolition of their parliament without undermining the source of their authority to negotiate.316 While the Scots claimed that they were merely taking the king’s head of discussion to mean exactly what it said, they knew that the English commissioners were correct in believing that there was not the slightest prospect of their two houses of parliament agreeing to an influx of disproportionate numbers of Scottish members. On 11 November the king instructed the commissioners to adjourn until March 1671. They were not recalled then or later. The failure of the union project puzzled commentators at the time and has puzzled historians since. On one view, Lauderdale deliberately sabotaged the negotiations on the orders of the king, who had never seriously wished the scheme 315 ‘Transcript of the Treaty’, pp 27–9; Cromwellian Union, pp 201–5 and 214–17; Baird, ‘Minutes of the Transactions’, pp 204–8; PRO, SP 29/279, ff 206–7; NLS, MS 597, ff 236–7, MS 7023, f 248, MS 7025, f 31, and MS 7032, f 250; Calendar of State Papers (Domestic Series), 1670, p 497; Bulstrode Papers, p 155. 316 ‘Transcript of the Treaty’, pp 29–30; Cromwellian Union, pp 205–7 and 217–18; Baird, ‘Minutes of the Transactions’, pp 208–11; PRO, SP 29/280, f 75; NAS, GD 86/679, and GD 406/1/2703; BL, Add MS 23134, f 224, and Add MS 23135, ff 9 and 19; Register of the Privy Council, 3rd ser, vol 3, p 306; First Triple Alliance, pp 342–3; Calendar of State Papers (Domestic Series), 1670, pp 526 and 533.

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454 The Revolution Court to succeed and had by the autumn of 1670 secured his desired alliance with France.317 On another view, a clumsy attempt to dilute the power of the English parliament had been easily defeated by its vigilant representatives.318 On a third view, for which there is much to be said, a sincere effort to promote closer union had been frustrated by internal divisions among the Scottish commissioners, reflecting a lack of genuine consensus in Scotland.319 The appointment of the union commissioners had been opposed in the 1669 parliament by lawyers who were known to have articulated the concerns shared by ordinary people, for whom ‘the remembrance of their oppression from the Usurper was yet fresh’. The objections aired in 1669 were vigorously restated in 1670 by Sir John Nisbet, who had always been opposed to the project.320 At a private meeting on 20 September he made ‘a long and studied speech against any union on any terms’, telling the other Scottish commissioners that the proposals adumbrated in the king’s heads of discussion could not even be considered since they were ‘destructive to the fundamental government of the kingdom of Scotland’. In particular, he insisted that not even the parliament could divest itself of authority, let alone its representatives, and warned that it would amount to nothing short of treason to attempt it, citing one of the acts on which Spotiswoode’s prosecution had been based. Although it is clear that Nisbet’s views were thought by the other commissioners to be rather extreme, it was Buckingham’s impression a few days later that the Scots were ‘very coldryfe in the bussines, especialy the advocates’, and that even Lauderdale had developed ‘a soul aversione to it’.321 His own revelation on 24 September that the laws of Scotland were expected to be accommodated within ‘the ordinary laws of the rest of England’, like the customs of Kent, Wales or Ireland, cannot have helped to keep minds open. Whatever commitment the Scots may at first have felt to carrying the project forward, they must at this stage have doubted whether a closer union really would serve to prevent the treatment of Scotland as a province of England. Nisbet had argued that the only way for the commissioners to interpret their instructions consistently with the law was by reading into them the clause included in the 1604 instructions about preserving the fundamental laws of the nation. In the end it was his advice that was followed in the firm stance taken on the preservation of both the laws and the parliament of Scotland.322 317 Burnet, History of His Own Time, vol 1, p 191; Lang 1909, pp 91–3; Robertson 1922, pp 142–4; Ogg 1955, vol 2, p 413; Ferguson 1977, pp 154–7; Macinnes 1999, pp 50–2. 318 Kirkton, History of the Church of Scotland, p 178; Mackenzie 1923, pp 288–9 and 295–301; Lee 1965, pp 43–52; Riley 1978, pp 5–6. 319 Mackenzie, Memoirs, pp 137–41 and 211–13; and see now MacIntosh 2005, p 178. 320 BL, Add MS 23132, f 79; Baird, ‘Minutes of the Transactions’, p 199; NLS, MS 7004, f 161, and MS 7023, f 246. 321 NLS, MS 7004, f.151. 322 The Scots may not have been aware that manuscript copies of Hobbes’ Behemoth—in which it was said that Cromwell had ‘at last brought the Scots to a pretty good habit of obedience for the King, whensoever he should recover his right’, partly by building citadels in Scotland ‘for the bridling of that stubborn nation’—had begun to circulate at the end of the 1660s. But they were certainly aware of the publication then of Prynne’s History of King John, King Henry III, and the Most Illustrious King

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The Fundamental Laws of Scotland 455 It was the experience of the union negotiations that was thought to have encouraged Lauderdale to take Nisbet’s expressions of reluctance to accept the presidency of the session at face value and to recommend instead the appointment of Stair, who, ‘by his wit and address’, had made a favourable impression on the secretary ‘whilst he was a Commissioner for the Union’.323 It has been suggested that Stair was the person who persuaded the other Scottish commissioners to insist on the preservation of their laws, and while this does not appear to have been the case, he may at least have provided a more moderate basis for doing so than Nisbet.324 After his return from France in 1664 he had sent a copy of his ‘book of observationes on our customes’ to Lauderdale, who seems consistently to have maintained that since Scots law was ‘very much different’ from English law, ‘civil matters’ must be left to ‘the customs of the country’.325 This need not mean that either Stair or Lauderdale was necessarily committed to preserving the customs as ‘fundamentalls unalterable’. It may be that neither had much difficulty in accepting that new British laws might in due course be introduced by a new British parliament, for that would have been quite different from accommodating the laws or parliament of Scotland within existing English institutions, as if Scotland was another ‘province’ brought under English control like Wales or Ireland. Lauderdale appears to have had a genuine interest in promoting union, and Stair managed to conduct himself during the negotiations in a way that did not alienate Lauderdale, who regarded Nisbet and the other advocates ‘as persons who design’d to divide the Commissioners for the Union, by their fantastick whimsies’.326 Stair may also have been on favourable terms with Bridgeman, whose seal-bearer, a man from Ayrshire called John Snell, was already making generous benefactions to the University of Glasgow in gratitude for the education he had received there ‘under the tutorage of the truly honourable and eminent Sir James Dalrimple’.327 In the revised version of his Institutions Stair had in fact made it quite clear that while he believed it was possible for nations to establish fundamental laws when they constituted themselves into states, he did not believe that the Scots had actually done so. In 1689 he was to be among the chief promoters of a renewed call for closer union ‘in Trade, Parliaments and Sess, but neither in Law nor Gospel’.328 In answer to the objection Edward I—which sought to demonstrate ‘the Ancient Soveraign Dominion of these and other of our kings over the Realm of Scotland’. A reply by Mackenzie to this ‘Rhapsody’ can be found in BL, Add MS 32094, ff 246–59, and in printed form as the third chapter of his Observations upon the Laws and Customs of Nations, as to Precedency. See too the letter in First Triple Alliance, pp 209–10. 323 Mackenzie, Memoirs, p 214. 324 Ferguson 1977, p 156; Hutton 1981a, pp 11–12; Walker 1985, pp 110–11. 325 BL, Add MS 35125, f 103. 326 Mackenzie, Memoirs, p 213. 327 Munimenta alme universitatis Glasguensis, vol 3, pp x, 97–8 and 434; Wood, Athenae Oxonienses, vol 2, col 883; Addison 1901, pp 3–7 and 10–12; Mackie 1954, pp 128–9; Stones 1984, pp 153–4. Unfortunately, the surviving Bridgeman correspondence in SRO, D1287/18/3 does not touch on the union negotiations. 328 Account of the Proceedings of the Estates in Scotland, vol 1, pp 42, 46, 50–2 and 109; Acts of the Parliaments of Scotland, vol 9, pp 9, 20 and 60; Balcarres, Memoirs Touching the Revolution in Scotland, pp 32–3; Leven and Melville Papers, pp 10–11; Ferguson, Late Proceedings and Votes, pp 6–7; Smout 1969, pp 181–2; Riley 1979, pp 50–3; Hutton 1981a, pp 53–4; Rose 1999, pp 245–6; Jackson 2003, pp 206–8.

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456 The Revolution Court that ‘it was not in the power of any Parliament to alter a fundamental Constitution, more ancient then Parliaments’, he had explained already that no nation could have ‘Customes anterior to their Constitution’ and that in Scotland laws had only gradually been introduced after the constitution of ‘Sovereign Authority’ in the parliament and session.329

Mackenzie’s understanding of ‘the ancient law’ Within a year or so of the collapse of the union negotiations Mackenzie wrote a brief Discourse Concerning the Three Unions between Scotland and England in which he dealt first with the union of the crowns, then with the discussions that had followed in the next five years, and thirdly with the discussions that had just ended, explaining in his own words what he understood the central arguments on each side to have been.330 Those who had sought to promote a closer union in 1670, he explained, believed that it would have been to the economic advantage of both nations and that it would have provided some protection against the tendency of the English to ‘make a Province of Scotland’, if not by military conquest then at least by exercising undue influence over rulers who were ‘constant Residenters in England, and were Strangers to the Interest of this Nation’.331 Mackenzie did not himself believe either that a closer union would have been economically advantageous or that it would have prevented Scotland from becoming ‘to Britain the same Thing that Strathnaver, Sutherland and Cathness are at this Time to Scotland’. Nor did he believe that a new British parliament would have been properly equipped ‘to make Laws for Scotland, since the far greatest Part of the Members of that Society are ignorant of our Laws’. He assumed that new laws could only be made reliably by parliaments attended in large numbers by those expert in the existing laws, and he doubted whether the Scots would have managed to send many of their advocates to London.332 By the same token, he doubted whether a parliament in London could have been suitably advised on cases appealed from the Scottish courts and argued that the current rule against appeals to parliament ought to be maintained, partly because suits might otherwise be endless, and partly because laymen were less likely to deal reliably with legal disputes than professional judges who delivered their decisions after hearing ‘Advocates debate, and lay open all the Difficulties of a Case, and after they have debated them afresh amongst themselves’.333 Finally, Mackenzie explained that 329

Some Weighty Considerations, Humbly Proposed, p 5. Although first printed in 1714, and then reprinted in Mackenzie’s Works, the Discourse was clearly written before the outbreak of the third Dutch war in March 1672 (see Works, vol 2, p 664), and it may well have circulated in manuscript before then. NLS, Adv MS 31.7.7 is an eighteenth-century copy, but Adv MS 31.7.13 seems to have been made earlier. 331 Works, vol 2, pp 660–70. 332 On this point see too Mackenzie, Observations on the Acts of Parliament, p 237. 333 On this point see too Mackenzie, Memoirs, pp 280–308, Observations on the Acts of Parliament, p 52, and BL, Sloane MS 3828, f 140r. 330

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The Fundamental Laws of Scotland 457 the commissioners sent to London in 1670 could not have consented to any change in the constitution of the Scottish parliament. ‘All Nations’, he remarked, ‘considering the Frailty of their Representatives, and that some Ages and Generations do too easily quit what is fit and necessary for securing their Liberty, have therefore thought fit to declare some Fundamentals, to be above the Reach of their Power’. It was obvious that fundamental laws could not be changed simply ‘because these were not Fundamentals, if they could be overturned, that being the true Difference betwixt Fundamental and other Laws’. Furthermore, if the Scots could have agreed to change the fundamental constitution of their own government, what security could there have been in any new constitution, for surely then the British parliament would have been equally free to ‘overturn any Fundamental that shall be condescended on’? It seemed to Mackenzie as well as Nisbet that to have attempted any change in the fundamental laws of Scotland would have been treasonable.334 In claiming that the Scottish parliament had been constituted by a fundamental law, Mackenzie was mindful that James VI had condemned the exclusion of bishops from its membership in these terms, as had been recalled when episcopacy was restored for a second time in 1661 and when the declaration against the covenants was imposed on office holders in 1663.335 In 1684 Mackenzie argued in another book that the supremacy of the monarchy and the succession to the throne were also governed by ‘Fundamental, and Unalterable Laws’, concluding that ‘any Statute made excluding the Legal Successor, would be null and void’.336 Indeed in this book he suggested that no parliament could ‘arbitrarily debar the eldest Son of a private Family, and devolve the Succession upon the younger’, concluding again that ‘if they did so, their Acts would be null’.337 Two years later Mackenzie restated most of his remarks on the fundamental constitution of the Scottish parliament and monarchy in his Observations on the Acts of Parliament, in which he argued further that while a convention of the estates could consent to the imposition of an established form of taxation, it did not have the ‘power to alter or take away the fundamental Laws and Customs of the Kingdom’.338 At the start of 1667 the king had asked a convention of the estates to approve the raising of revenue to support the ‘standing Troups’ he needed to win the war he was waging against the Dutch and French while protecting Scotland against the threat revealed in the Pentland 334 Mackenzie’s arguments, as restated in his Observations on the Acts of Parliament, pp 315–18, were reprinted in 1706 by Robert Wylie, along with a passage from Nisbet’s Doubts and Questions, p 17, in A Letter Concerning the Union, pp 8–19. It was evidently appreciated then that ‘these two Great Oracles of Law’ had argued along similar lines. 335 Workes of the Most High and Mightie Prince, p 159; Acts of the Parliaments of Scotland, vol 4, pp 130–31, and vol 7, pp 370–71 and 405–6; Mackenzie, Observations on the Acts of Parliament, pp 219 and 411; Burns 1996, pp 287–8; Goodare 1999, p 19; Jackson 2003, pp 101–2. 336 Ius regium, pp 160–63. In this book, and again in the following year in A Defence of the Antiquity of the Royal Line of Scotland, Mackenzie combined a historical argument about the positive law of the constitution with a philosophical argument about the law of nature and nations, on which more will be said in the next volume in this series. 337 Ius regium, pp 188–9. 338 Observations on the Acts of Parliament, pp 304–9.

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458 The Revolution Court Rising, to which he had referred as ‘this late Phanatick Rebellion’.339 What had been proposed, however, was the reintroduction of the monthly maintenance or cess that had proved to be an efficient form of taxation during the Interregnum, and it was this aspect of the proposal that had been criticised in some detail in a paper reproduced in Mackenzie’s book.340 The writer of the paper had argued that the traditional system of taxation had not only been sanctioned by acts of parliament but had originally been ‘authoriz’d by ancient and uncontroverted Customs in all ages, and beyond memory’, explaining that ‘ancient National Custom is Law, and of as great force as Statute’. While no system of taxation could ever be perfect, he had argued, ‘yet there is more reason to presume for the justice and equity of a legal way, venerable for antiquity, warranted by express Laws and immemorial Custom, which for any thing known, had its beginning in the time of Freedom, and has been continued in the best, most peaceable and purest times, notwithstanding any endeavours to the contrary, than for a way contriv’d and hatch’d in the Heart and fury of Trouble and Distempers’. The writer had doubted the wisdom of taking ‘a pattern and rise from the Usurpers’, and had emphasised ‘the danger and inconveniency of the alteration of ancient Laws and Customs’, yet he had not gone the length of denying that the ‘fundamental Law’ he was dealing with could be altered by a properly assembled parliament.341 It has already been seen that Mackenzie wrote in similar terms about the procedural styles of the courts forming ‘a great part of our Fundamental Law’, complaining that it was ‘strange’ for laymen to enact regulations in this area but not denying that they had the authority to do so when assembled in a parliament.342 Court procedures could be ‘abrogated or restricted’ like other laws, he conceded in one of his printed pleadings, but they were not to be altered lightly since ‘stiles are the product of common consent, and are introduced after much experience, by such as understand’. A proposal to alter the law by allowing prosecutions to be conducted in absentia, he advised the members of the 1669 parliament in another pleading, ‘ought to be seconded by very convincing arguments, before we pass it into a Law, seing it innovats a custom, which is as old as our Kingdom, and older then our positive Laws’.343 In Mackenzie’s view ‘customes, like men, may be thought to have had excellent constitutions when they last long’, and the custom in question had ‘maintained it self for many hundreds of years, by its own reasonablenesse, without the necessity of being fenced with any other Authority’. If it had to be admitted that in this instance the evidence of the custom was the absence of 339 Acts of the Parliaments of Scotland, vol 7, pp 538–9. In BL, Add MS 23125, f 171, the rising had been referred to by Lauderdale’s brother as ‘the allarme off the whiggs’. 340 A copy of the paper can also be found among the earl of Tweeddale’s papers in NLS, MS 7033, ff 43–4. 341 For the act that was in fact passed by the convention of the estates approving the revival of the cess see Acts of the Parliaments of Scotland, vol 7, pp 540–47. And see generally Lennox 1977, pp 291–308. As a commissioner for supply (Acts of the Parliaments of Scotland, vol 6(2), pp 841, 854 and 884), Stair was one of those responsible for gathering the tax. 342 Observations on the Acts of Parliament, pp 179, 220–21 and 445; Pleadings, pp 151 and 164–7. 343 See too Mackenzie, Memoirs, pp 173–5. It was on this question that the lords of session had agreed to offer advice as the king’s ordinary council in law, and it was their advice that was accepted.

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The Fundamental Laws of Scotland 459 a style, it could still be contended that ‘a negative Practique being so old and uniform as this, is most binding, especially where all the conveniences, reasons and advantages which are now prest, were then obvious’. In a pleading presented before the lords of session two years later Mackenzie began: ‘I know, that Legis est iubere, non suadere, and that omnium quae fecerunt maiores nostri, non est reddenda ratio; yet, this Law, or rather ancient custom, whereby persons upon death-bed can do nothing in prejudice of their Heirs, can justifie it self equally well, by Reason and Authority’.344 The law had been authorised in the old books and acts, but Mackenzie was keen to show that it had also been established as an ancient custom on the strength of its reason. Here, as in his pleading against prosecutions in absentia, he took some trouble to demonstrate that the custom did not ‘want all foundation either in common, feudal, or the Laws of other Nations’, comparing it with the Roman querela inofficiosi testamenti and with a Spanish rule against noblemen alienating their estates. ‘But though no Nation joyned with us in this Law’, he then suggested, ‘this should rather induce us to maintain it, as being truly a Scots law’, for it was not to be supposed that previous generations would have deviated from the practice of other nations ‘without very cogent motives’. It was surely not too much to expect the judges to be ‘as carefull of our fundamental Lawes, as the Spaniards are of their privat Estates’.345 In 1667, at about the time that Stair was revising the paragraph of his Institutions on the sources of Scots law, Mackenzie was pleading in a well-known case in which the authority of the old books and acts was considered. The justiciary court was urged on this occasion to reject the findings of an inquest since it had not consisted entirely of peers of the accused, contrary to the pares curiae rule which was praised as ‘a just and rationall law’, an ‘ancient law’ and one of ‘the great and fundamentall securities of the lives and fortunes of the subjects’.346 After Sir George Lockhart reminded the judges that the rule could be traced back to a passage in Quoniam attachiamenta, Mackenzie added that Skene had drawn from this text and an act passed in the reign of Alexander II the ‘generall conclusion that no man should be judged be another of inferior state’, and further that Craig had also shown how ‘this conclusion is founded on the feudall law and reason’.347 As king’s advocate Nisbet then reminded the court that Craig had actually condemned the old books as ‘a rapsodie of pretended customs of the Laws of England’, adding that until they were revised and approved by a parliament ‘the saids books can be looked on but as apocrypha and opinion of private lawers’, and that the act passed in Alexander’s time in relation to knights alone had been required precisely because the pares curiae rule had not become ‘the common received law’. Lockhart and Mackenzie replied that it scarcely mattered ‘whether Quoniam attachiamenta falls under the 344

Pleadings, pp 92–4; Seneca, Epistulae morales, 94.38; Digest, 1.3.20. For the response of the judges see Morison, Decisions of the Court of Session, vol 7, pp 3292–6. 346 Proceedings of the Justiciary Court, vol 1, pp 200–12. 347 Quoniam attachiamenta, p 319; Regiam maiestatem (Latin edn), pt 2, f 23, and (Scots edn), pt 2, f 174r; Ius feudale, pp 378–9. As will be seen below, Mackenzie generally tried to synthesise the approaches taken by Skene and Craig. See too his Laws and Customes, 2.23.7. 345

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460 The Revolution Court word Statute or not’ so long as it was understood to ‘contain the word of our ancient Custom and Laws’. Craig had himself acknowledged that ‘his opinion therein was singular’, Skene had expressed the more standard view clearly enough, and it had been reflected further in the legislation appointing commissioners to review the book, ‘presupposing the authority thereof’. Nisbet insisted that Quoniam attachiamenta was not referred to in these acts ‘as positive and authentick law, having force and strength of authentic Law, but in a generall sense that a Book of Law uses to be taken, that is for a Book treating of Law or containing the opinion of Lawyers, in which sense wee usually call the Books of Craig, Balfour and Dury, Books of Law’. If the choice was between ‘the opinion of Craig’ and ‘Skene’s authority’, it would be found that Craig’s opinion was borne out by a reading of the old books, ‘which contain a rubbish of most gross positions and tenetts contrary to law and custom, so that if there be anything of authority among them it is cum multo stercore’. Elsewhere Nisbet put the same point more positively and revealed that his disagreement with Lockhart and Mackenzie was less radical than it appeared. In commenting on the deathbed rule he observed that it was repeatedly restated in the old books and went on: ‘our kings have not denied this accolade to them, that they are our books of law, and not undeservedly since I would say, with respect to that very learned man Craig, that he was a little unfair to them; for just as Virgil gathered gold from the muck of Ennius, so do students of law from these books (and not so much from muck as from the rubble and rudiments of our old law), granted that the many things to collect are golden and, by statute, neither unlovely nor useless’.348 Nisbet thus emphasised the need to extract authentic material from the old books, whereas Lockhart and Mackenzie preferred to stress the legislative intention to have the inauthentic material removed. The difference was largely in emphasis, for it was assumed on both sides that expert lawyers would need to assess the merits of any statements made before their authority could be recognised.349 Ten years later Mackenzie identified the old books and acts as the fourth source of the law he was writing about in his treatise on the Laws and Customes of Scotland, in Matters Criminal, after the acts of parliament, the decisions of the courts and the civil law, mentioning the pares curiae rule as one of ‘many other maximes’ for which there was ‘no other warrand besides what is contained in these Books’.350 He observed that the books were ‘lookt upon as authentick’ and wondered why anyone should question their authority when they were ‘cited as such’ in many acts of 348 Doubts and Questions, p 113. Cf Cassiodorus, Institutio divinarum literarum, 1.1.8. ‘Rubble’ here translates rudus, which gives some inkling of what Nisbet had in mind when he referred to ‘rubbish’ in his pleading. The idea was that material extracted from ancient ruins could be put to good use in building the modern law. 349 It may be worth recalling that Franciscus Curtius talked similarly of the need to distinguish between the authentic opinions and the ‘dross’ found in Gratian’s Decretum in his explanation of the status of the Libri feudorum. 350 Laws and Customes, 1.1.3. On the other example Mackenzie gave, the rule that the principal had to be tried before the accessory, which he attributed at 1.35.9 to ‘the fundamental Law of the Nation’, see Proceedings of the Justiciary Court, vol 2, pp 32–51.

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The Fundamental Laws of Scotland 461 parliament.351 In much the same way he drew attention to ‘several Acts of Parliament, wherein the Civil Law is called the common Law’ as evidence that it was followed by the Scottish courts in criminal cases, though he also quoted several lawyers and historians who had declared more broadly that ‘the Civil Law is our rule, where our own Statutes and customs are silent, or deficient’. When Sir Robert Sibbald, after being appointed geographer royal of Scotland in 1682, announced his plan to compile a new atlas of the country, he was presented by Mackenzie with a brief ‘Account of the Law and Government’ in which the relationship between the local and learned laws was outlined in the manner usually favoured in descriptions written for lay audiences.352 It was noted first that just as the civil law was ‘much respected generally over all Europe, so it is received in Scotland, except where express Law or Custome has receded from it’, which was why it was the civil law that was called ‘the Common Law in our Acts of Parliament’.353 The canon law, it was further noted, ‘has here no positive Authority since the Reformation’, yet ‘because many things in that Law were founded upon Justice and Equity’ it continued to be ‘much respected amongst us’. The ‘Municipal Law’, it was then explained, was partly written and partly unwritten, with ‘the Books of Regiam maiestatem which are generally lookt upon by us as a part of our Law’ in the first category, and with ‘these Customes which have been universally received amongst us’ in the second. That ‘the Old Books of our Law’ belonged in the first category was clear from the references to them in these terms in many acts of parliament, even though they had originally been written as institutional treatises by private authors and had not always been followed in practice.354 It was this account of the sources that Mackenzie published in his own institutional treatise in 1684, except that instead of simply remarking that the civil law was received in the absence of contrary statutes or customs he reminded lawyers there that it had ‘great influence in Scotland’.355 He also added that the universally received customs could be called ‘Ancient customes’, and in a later passage he used the phrase ‘common Law’ with reference to the same source.356 Mostly, however, it was the civil law that Mackenzie had in mind when he used this phrase.357 351 Curiously enough, although Mackenzie did not mention the myth of their authorisation by David I, he did say that ‘King James the 1. hath brought down some of these collections from England with him’. This point will be returned to soon. 352 Sibbald, Account of the Scottish Atlas, pp 6 and 9; Mitchell 1907, p v; Ouston 1987, pp 14–16; Withers 2001, pp 72–6. 353 Macfarlane’s Geographical Collections, vol 3, pp 70–82. 354 See too Mackenzie, Observations on the Acts of Parliament, pp 18, 77 and 94. 355 Institutions, 1.1. It is clear from the remark about adhering to Justinian’s method that the ‘Account’ Sibbald had received by 1683 was always meant to form the basis of a larger work, which bears out Professor Watson’s suggestion that the stimulus was the printing of Stair’s Institutions in 1681. 356 Institutions, 4.4. This seems to be the only other place in the book in which the phrase was used. A distinction drawn throughout, however, was between ‘the Law’, meaning the learned laws, and ‘Our Law’, meaning the law established by statute or custom. 357 The phrase was used with reference to the ancient customary law in his Laws and Customes, 1.14.2, 1.29.6 and 2.23.12, and his Observations on the Acts of Parliament, pp 57, 200, 228, 255 and 271. By contrast, it was used with reference to the learned laws in his Laws and Customes, 1.3.pr, 1.4.4, 1.6.22–3 and 25, 1.19.14, 1.24.5, 1.25.pr, 1.27.8, 1.31.1–4, 1.32.2, 1.33.1, 2.19.2, 2.22.1, 2.28.4 and

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462 The Revolution Court Mackenzie’s tendency in writing about the sources of Scots law was to reconcile so far as possible the approaches taken by Skene and Craig. On the one hand, he did not refer to the feudal law in explaining the authority of the learned sources and did refer to the old books in itemising the local sources. On the other hand, he claimed that the old books were a written source only because they had been approved as an authentic record of the ancient law, which he elsewhere took to be founded on the feudal law.358 ‘Our Heritable Rights are Regulate by the Feudal Law’, he affirmed in a later title of his Institutions, where he both accepted that feudal tenure had been introduced in the distinctive way described in the Leges Malcolmi Mackenneth and accepted that it was derived from the learned laws in the way described by Craig.359 It may not have been mere inadvertence that led Mackenzie to attribute the Leges Malcolmi to Malcom III here, for in another treatise, after noting how parallels between tailzies and institutions of the civil and feudal laws showed that ‘Topicks from these may be urged in Debate concerning Tailies with us’, he claimed to agree ‘with Craig, that our Tailies proceed immediately from the English Entails, as they derived their Entails from the Norman Customs, whose Authors upon this Subject must best instruct and direct us’.360 While he did not in fact make much reference to the works of Norman or English authors in this treatise, where he did make frequent reference to civilian sources, his assumption clearly was that by acknowledging the English origins of the common law of Scotland he would extend the range of learned sources he could draw from beyond the texts and commentaries of the schools. Alongside these learned and foreign sources he referred to the opinions of other Scots lawyers, noting where they were ‘much favoured by the Practicks’ or were rejected in ‘the constant Tract of Decisions’, but generally treating the decisions of the judges as themselves a kind of opinion. ‘I love not the Decision’, he remarked after citing one case, and after recalling the pursuer’s success in another he added: ‘which Decision Sir George Lockhart his own Advocate, upon our private Reasoning, when thereafter President, overturned, and very justly’. At the beginning of another book Mackenzie explained that it was while he was studying in France that he had first learned how important it was ‘to joyn the Theory with the Practice’ of any subject, meaning in this instance ‘the Theory of our Civilians’ with ‘the practical and common knowledge of Blazoning’.361 He returned to the same theme at the beginning 2.30.5, and in his Observations on the Acts of Parliament, pp 1–2, 12, 14–16, 21, 23, 29, 31, 44, 49, 67, 101–2, 114, 123, 136, 209, 218, 222, 314, 324, 333, 339, 415–16, 448 and 466. 358 In their different ways, lawyers like Hope, Lockhart, Mackenzie and Nisbet all placed the old books in the same category as the books by Balfour, Craig, Skene, Gibson and others. They did not find it necessary to adhere to the myth of legislative authority when learned authority could be identified. 359 Institutions, 2.3–5. The idea that Malcolm II had invented the casualties of ward and relief was still accepted in the commentary on the custom of Normandy studied by Lauder in the early 1680s. 360 Works, vol 2, pp 484–91. 361 Science of Heraldry, sig A3r and p 98. And see too EUL, La III 354(1), f 70, where Mackenzie told Lauderdale that he had found it necessary to correct the English in ‘the theoretick part’, which they misunderstood ‘being meer strangers to the civill law and doctors’. Since Squibb 1959 shows that before 1640 questions of heraldry had usually been dealt with by civilians in England this was hardly justified. On the civilian theory see Cavallar, Degenring and Kirshner 1994.

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The Fundamental Laws of Scotland 463 of an unfinished treatise on court procedure which he worked on in the 1680s.362 The medieval commentators, he pointed out, had failed to lay bare the Roman foundations of later civilian practice, while the humanists in exposing the foundations had become strangers to the procedure commonly followed in most European courts. ‘But neither the Theory of the One, nor the Practice of the other’, he continued, ‘can signify to us, except a man understand our Stile Book, and take notice of the leading of Processes’. It was necessary to join theory with practice in the way the commentators had started to do, but with due regard both to the theoretical advances made by humanist scholars and to the practical adaptations made in local courts. In the spring of 1689 Mackenzie withdrew from practice, complaining that since the death of Lockhart ‘all the lawyers now alyv in Scotland put together know not how to resolve one difficult case by a sure rule’, and expressing relief that he had ‘spent much of these thrie last years in debating and setling with him what difficulties I found or hee found in our law’.363 By the early summer Mackenzie had retired to Oxford, where he dictated from his deathbed the discourse on the initial titles of the Digest in which he declared a preference for juristic opinions over judicial decisions as a source of law.364 After first outlining his understanding of the law of nature and nations he went on to consider ‘from what other positive lawes, as from their fountains, our municipal lawes do flow’, explaining how the law bestowed directly by God on the Israelites had been transferred to the Egyptians and from them to the Greeks and Romans, and concluding that ‘the old customs of Scotland are originally derived from the Roman law in what concerns movables, from the feudall in what concerns heritage, and from the canon in what concerns ecclesiastical matters’.365 ‘These our customs’, he at once added, ‘have been very much augmented by the books of Regiam maiestatem’, which had survived Craig’s criticisms and were ‘daily cited, and (except they be overbalanced with most pregnant reasons) followed’. What the old books of Scots law showed was that many ancient customs were shared with the English, who had learned more from the schools than they now admitted and whose own old books were ‘but compends of civil lawes’. Mackenzie maintained that the laws of Scotland had received three waves of influence from the south. First, he had come to believe that Regiam maiestatem was written ‘by the command of King Malcolm 2d, who was bred in England where he sheltered himself upon the murther of his father by Macbeth, and that after his return from there he caused to compile a book of lawes agreeing much with the English lawes’. The king he had in mind was of course Malcolm III, to whom he had already ascribed the leges Malcolmi. ‘The second great augmentation of our customs’, he went on, ‘came from King James 1st his bringing us the forms of chancery out of England about the year 1430, he having been likewise bred there’. This was of course the claim James VI and I had made in 1607, and it is a 362 363 364 365

Works, vol 2, pp 492–510. More will be said about this treatise in the next chapter. BL, Add MS 34516, f 61. BL, Sloane 3828, f 124r, and NLS, MS 1393, f 45. BL, Sloane 3828, ff 130–34.

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464 The Revolution Court claim of which more will be said in the next chapter. Thirdly, Mackenzie maintained that ‘our statutory law has either been forced upon us by emergent necessities, or copyed of old from the French lawes when we were in league with them, or from the English since the union; and since we both hope and expect an union with the English, we should be always drawing as near their lawes and customs as can be’. This last remark constituted a dramatic volte face for a writer who had previously advocated the revival of the old alliance with France, had opposed a closer union with England, and had insisted on the preservation of the fundamental laws of Scotland. Yet it did not involve a change in his understanding of the pattern of legal development. A little later Mackenzie observed that in new cases a solution should be sought from the civil law or, ‘if we copied our law from England or any other nation to which that law was peculiar’, from that nation.366 Like Craig he believed that recourse should be taken to the immediate source of the law, but unlike Craig he did not think it necessary to examine the learned origins of the particular law at issue.367 It was enough for Mackenzie, as it may have been for Skene, that learned authority had been successfully appropriated from the civil law in England. It had become Mackenzie’s position that ‘if Scotland and England should enter into a union, the articles agreed on by mutual contract could not ever after be abrogated by the parliament of both nations’.368 ‘A fundamental law’, he now declared, ‘is properly that law on which the acts of parliament depend, and which was itself prior to acts of parliament, and was the cause of them, and consequently since it hath not its authority from acts of parliament it cannot be abrogated by them’. Although he still understood the parliament of Scotland to be constituted by a fundamental law, he did not attempt to solve the problem identified in his earlier discourse of explaining how a parliament could alter its own constitution without undermining the very idea that there could be a fundamental law. He had instead become preoccupied with a difficulty encountered in the works of Coke and Bacon, who had both argued that the legislative sovereignty of parliament must be unlimited.369 It was in answer to this argument that Mackenzie took every parliament to be constituted by a law that it could not have the authority to alter since it was the source of the authority to legislate. There consequently had to be a fundamental law in the strict sense in which the notion was understood ‘in France’, and Mackenzie thought that there was also a fundamental law in Scotland in the looser sense understood ‘in England, under which notion the whole common law passes for a fundamental law’. This type of law could be altered, but subject to the warning in the Digest that ‘in determining matters anew, there should be some evident utility so as to justify departing from a rule of law which has 366

BL, Sloane 3828, f 142r. As Mackenzie’s position was essentially the same as Craig’s, the distinctions drawn in Cairns 1997, pp 200–11, cannot be sustained. Nor is there much to be said for use of the barbarous expression ‘Roman-Scotch law’. 368 BL, Sloane 3828, ff 149–51r. 369 Coke, Fourth Part of the Institutes, pp 42–3; Works of Francis Bacon, vol 6, p 160. 367

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The Fundamental Laws of Scotland 465 seemed fair since time immemorial’.370 This requirement of evidens utilitas— which was eventually to be built into the terms of the union agreed in 1707—was taken by Mackenzie to mean that the Scots were ‘in honour and duty obliged to think well of what pleased our predecessors’.371 As he had often argued at the bar, laws that had withstood the test of time could be presumed to be soundly based and to require no authority beyond their own reasonableness. It was the antiquity of these laws that proved them to be reasonable and it was their proven reasonableness that made them binding as laws. Such laws could be abrogated by the exercise of sovereign authority, but they should not be unless cogent reasons could be adduced to justify the change. It was the ‘great Art of Reasoning’, as he described his own calling elsewhere, that Mackenzie hoped to see at the heart of legal development, as it had been in England.372 By the end of his life he had come to appreciate that the style of legal development he favoured, in which reliance was placed on the exercise of learned more than sovereign authority, was the style that had tended to be favoured south of the border. While he found the English concept of parliamentary sovereignty unattractive, and regretted the tendency of English lawyers to disguise their debt to the civil law, he recognised that the common law of England had been largely shaped by the expertise of a learned profession. Despairing of the expertise of his colleagues in Scotland, he seems to have concluded that the best way to promote his favoured style of development would be through a closer union with England and the assimilation of Scots law to English law.

Identifying the principles of the law In August 1607 the Scottish parliament had written to James VI reassuring him that he had correctly interpreted the reference to fundamental law in the act passed three years earlier to appoint commissioners to treat for union.373 The term had only been used, it was explained, because it had appeared in the act passed by the English parliament on which the Scottish act was closely modelled, and it therefore seemed disingenuous for the English parliament to claim that it was the Scots’ insistence on the preservation of their fundamental laws that was obstructing progress towards a closer union. In April 1604 James had sent a message to the English parliament disavowing any intention ‘to alter or innovate the fundamental Laws, Privileges, and good Customs’ on which both his ‘Princely Authority’ and the ‘Lands, Livings, and Privileges’ of his subjects were believed to depend.374 The English parliament had gratefully received ‘his Majesty’s faithful Promise, not 370

Digest, 1.4.2 (translation adjusted). BL, Sloane 3828, f 144v. 372 Observations upon the Laws and Customs of Nations, as to Precedency, sig A2v. 373 Register of the Privy Council, vol 7, pp 534–7. 374 Journals of the House of Commons, vol 1, pp 180–81; Letters and Life of Francis Bacon, vol 3, pp 204–6. 371

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466 The Revolution Court to alter the Laws’, and had incorporated it into the act copied in Scotland, so that the Scottish act had actually referred to the fundamental laws behind not only the ‘princelie authoritie’ of the king but also the ‘landis and levingis, richtis, liberteis, officeis and digniteis’ of the people.375 The negotiations in London had been confined to discussion of the abrogation of hostile laws, the improvement of trade, and the availability of offices, and the question of legal union as such had not been on the agenda.376 The English laws hostile to Scotland had however been reviewed under the headings ‘common or fundamental lawes’, ‘statute or act of parliament’, and ‘customs or usages’, and the English commissioners had proved reluctant to make concessions on trade and offices when the Scots were unwilling to submit themselves generally to their law.377 It has indeed been suggested with some plausibility that it was the known reluctance of the Scots to live under English law that had caused James to accept that the fundamental laws of each nation would have to be preserved, at least for the time being.378 The bills presented to the two parliaments in 1607 rested on the assumption that separate legal systems would survive, which was why the English parliament was only prepared to pass an act dealing with hostile laws.379 Attempts to move the union project forward over the next few years were impeded by the continuing insistence of the English on Scottish submission to their law and by the resolute refusal of the Scots to comply with the English demand.380 In the preface he wrote for his Ius feudale in 1607 Craig referred to the king’s plan to call a conference of lawyers to examine the possibility of a legal union.381 The plan was to have the law of each nation summarised in ‘principles’ or ‘propositions’ suited to easy comparison, and it seems to have been to this end that Francis Bacon drafted a paper summarising some aspects of English law in ‘brief articles’.382 James responded by circulating ‘a brief of the laws of Scotland’ that he had in his possession, possibly the ‘Relation of the Manner of Judicatores’ from which he seems to have drawn in the speech he made to the English parliament in 1607.383 As has been noted already, the writer of this paper, in remarking that there was ‘noe common lawe in Scotland’, had at once qualified his statement by adding that in the area of land tenure and succession there were ‘many conclusions 375 Journals of the House of Commons, vol 1, pp 196–7; Statutes of the Realm, vol 4(2), pp 1018–19; Acts of the Parliaments of Scotland, vol 4, pp 263–4. 376 BL, Add MS 26635; Craig, De unione regnorum Britanniae, pp 46–55 and 268–80; Letters and Life of Francis Bacon, vol 3, pp 240–42. See generally Galloway 1986, pp 58–78. 377 BL, Harleian 292, ff 137–8. 378 Galloway 1986, p 23, relying on the less than compelling evidence in BL, Add MS 30640, ff 63r, 71r, 72v and 157r. The document preserved among the papers of the 1668 trade commissioners in PRO, SP 29/233, f 142, adds some strength to the argument. 379 Journals of the House of Commons, vol 1, pp 318–23. 380 Calendar of State Papers (Venetian Series), vol 11, pp 172, 188 and 390. 381 Ius feudale, sig A2v. Galloway 1986, pp 145–7, notes that Craig’s preface is the only evidence that the conference did take place. In fact, the only evidence is Lord Clyde’s misleading translation. 382 Works of Francis Bacon, vol 7, pp 727–43; Calendar of the Manuscripts of the Most Honourable the Marquess of Salisbury, pt 19, pp 275, 355, 363 and 440–41. 383 More will be said about the relationship between James’ speech and this paper in the next chapter.

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The Fundamental Laws of Scotland 467 as verie Axioms never contraverted uppon’.384 James’ assumption that the Scots had followed the common law of England in this area was reinforced by Craig’s identification of many ‘axioms’, ‘maxims’ and ‘general rules or propositions’ of English law that might also have been taken to sum up Scots law.385 His impression that the common law of England consisted to a considerable extent of axioms and maxims was borne out by the literature of English law.386 General rules of this kind, according to Christopher St German, ‘have ben alwayes taken for law in this realme, so that it is not lawfull for none that is lernyd to denye them, for every one of those maxymes is suffycyent auctorytie to hym self to such an extent that it is fruitless to argue with those who deny them’.387 While at times equated with the common law itself, maxims were distinguished from general customs as rules familiar only to those learned in the law.388 Legal maxims were identified with the axioms or principles that were believed to underpin every art or science, for they were regarded as propositions that had been found through disputation to be beyond disputation.389 Many had been derived directly from learned sources, and others had been deceptively stated in Latin, but what seemed more important was their local recognition as fundamental principles of reason.390 They were defined as ‘the Foundations of the Law, and the Conclusions of Reason’, and it was these maxims that English lawyers usually had in mind when they warned against the dangers of altering the ‘Fundamental law of this Realm’.391 As has again been noted already, broadly similar remarks were made in relation to French law by Bernard de la Roche Flavin, who cited the same philosophical principle as many English writers that contra negantem principia non est disputanda.392 ‘In the Palais’, he advised, ‘one must never express an opinion contrary to the maxims, still less to the styles and regulations of the court, nor dispute against them’. The learned laws were referred to more openly by French than English writers both in identifying maxims and in explaining their nature, but in France too maxims were extracted from local sources, especially as a means of promoting legal unification.393 Louis Le Caron had included a collection of ‘regles du droict françois’ in the Pandectes ou digestes du droict françois he published in the 1580s, drawing heavily on the regulae iuris listed in the last title of the 384

‘Manner of Judicatores’, p 268. Workes of the Most High and Mightie Prince, James, pp 521–2; Craig, Ius feudale, pp 32–4, and De unione regnorum Britanniae, pp 84–8 and 321–5. 386 Pound 1921, pp 827–36; Jolowicz 1954, pp 214–21; Stein 1966, pp 148–55; Burgess 1992, pp 30–7; Tubbs 2000, pp 173–8. 387 Doctor and Student, pp 56–9. 388 Ellesmere, ‘Speech of the Lord Chancellor’, p 218; Doddridge, English Lawyer, p 194; William Noy, Treatise of the Principall Grounds and Maximes of the Lawes of this Kingdome, pp 20–1. 389 Fortescue, De laudibus legum Angliae, pp 20–5; Doddridge, English Lawyer, p 242; Proceedings in Parliament 1610, vol 2, pp 172 and 176. 390 Vinogradoff 1928, vol 2, pp 244–7; Pollock and Maitland 1968, vol 1, p 218; Baker 2001, p 55. 391 Plowden, Commentaries, or Reports, vol 1, p 27; Rastell, An Exposition of Certaine Difficult and Obscure Words, and Termes of the Lawes, ff 150v–51r; Coke, First Part of the Institutes, ff 10v–11r and 67r, Second Part of the Institutes, p 210, and Fourth Part of the Institutes, p 41. 392 Treze livres des parlemens de France, p 560. 393 Van Kan 1929, pp 96–7; Reulos 1935, pp 46–8; Chêne 1982, pp 268–9. 385

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468 The Revolution Court Digest.394 In 1600 René Chopin prefaced his commentary on the custom of Anjou with a collection of ‘universal axioms of the French customs’, after first emphasising the importance of disputatio fori as a way of combining theory with practice.395 Reference has already been made to Antoine Loisel’s endeavour to collect rules of customary law together in his Institutes coutumières, which was published in 1607, five years before Pierre de l’Hommeau’s ‘abridgement of French law reduced to general maxims’ was presented to Louis XIII as ‘a summary of the French laws’.396 In de l’Hommeau’s book the maxims were backed up with commentary and illustrations, to which Paul Challine added notes and observations in 1657, a year after publishing a new edition of Loisel’s book in which attention was drawn to relevant customs.397 In his own Method générale pour l’intelligence des coutumes de France Challine set out to provide ‘an abridgement of the main rules that are necessary for the understanding of the customs of France’.398 ‘All sciences and arts’, he stressed, ‘have certain general notions and some universal principles, which are called by Aristotle common axioms’. Explaining that lawyers built on principles much as architects built on foundations, he pointed out that many of the principles they needed to know had been identified in the works of Dumoulin as well as Chopin, Loisel and de l’Hommeau. These authors had all assumed that they could use their expertise to extract binding rules of law from the redacted customs, even though no custom had legislative force outside the territory to which it applied. They assumed that maxims could be extracted from customs in the way that de la Roche Flavin had talked of them being extracted from decisions.399 Similar assumptions may have led the compiler of one Scottish compendium of the decisions of the session to entitle his book ‘Paralipomena, or ane Abridgment of Some Axioms of Law Omitted out of Duries Practiques, Which Were in Haddingtounes and Balmanoes Practiques and Some Other Miscellanies’.400 Since many of the decisions summarised by the compiler in brief propositions of law had actually been reported by Gibson, the point presumably was that they had been omitted from a compendium of Gibson’s reports already made by someone else.401 The miscellanea chiefly relied on to supplement Gibson’s reports appears to have been Spotiswoode’s practicks, which suggests that the ‘Paralipomena’ was written in the late 1650s, after Gibson’s reports and Spotiswoode’s practicks had entered circulation but before Spotiswoode had been recognised as the author of the latter. In style this compendium was of course similar to many of the other books produced in the late 1650s and early 1660s, except that the propositions it 394

Oeuvres de Le Caron, vol 1, pp 663–90. De legibus Andium municipalibus, pp 1–2, 6 and 39. 396 Maximes generalles du droict françois, sig A2v. See too Pound 1921, pp 825–6; Jolowicz 1954, p 221; Reulos 1963, pp 130–31. 397 Michaud 1843, vol 7, pp 410–11, and Prevost 1933–2000, vol 8, col 213. 398 Methode generale pour l’intelligence des coustumes de France, sigg A4r–B3v and pp 198–9. 399 Treze livres des parlemens de France, pp 306–7, 390 and 397. 400 EUL, La II 12. 401 Some of the decisions dealt with are only known to have been reported by Gibson. 395

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The Fundamental Laws of Scotland 469 listed were presented in chronological rather than alphabetical order. It was in some sense at least a central aim of writers in this period to extract ‘Axioms of Law’ from the sources to which they were gaining access, and the same aim was still being pursued by one writer as late as 1669. A copy of his book was made later in the century under the title ‘Ane Abridgment of those Practiques Collected by that Famous Juris-Consult Sir P:W: Epitomized by that Learned Lawier Sir Thomas Nicolsone of Carnock, 1669’.402 The only ‘Sir P:W:’ who could plausibly have been described as a famous jurist at this time was Sir Peter Wedderburn, who began to compile his reports of decisions after becoming a lord of session in 1668. Clearly, however, these reports could not have been epitomised in 1669 or at any other time by the only Sir Thomas Nicolson of Carnock who could have been described as any kind of lawyer, for he had died in 1646.403 It has quite reasonably been surmised that it must actually have been Wedderburn who had epitomised the reports Nicolson had written in the early 1640s, but the problem with this is that the epitome bears no relation to these reports, either in its arrangement or in the cases it covers.404 It seems rather to be another epitome of Gibson’s reports, though oddly structured, with decisions from the 1630s summarised in chronological order under each heading before those from the 1620s.405 It is known that Wedderburn had in his possession a copy of the first of the two volumes in which Gibson’s reports circulated, and in this copy the decisions were mostly summarised in brief propositions in the margins.406 In may be that Wedderburn decided, at about the time that he became a judge and began to compose his own reports, to collect similar summaries of the decisions reported in the second volume in a separate book, divided under subject headings, to which he later added his own summaries of the decisions in the first volume. What he certainly did not do, however, was identify the decisions summarised by giving the dates of hearings or the names of parties. It may have been appreciated that the epitome had some connection with reports compiled in the period covered by Gibson, but apart from also knowing that they were transcribing something attributed to Wedderburn later copyists were thoroughly confused. The listing of summaries without any reference to the reports summarised may have caused confusion not only about their source but also about their purpose. In writing his own reports Wedderburn quite often made reference to a ‘generall maxim of law’ or ‘common brocart of law’, and he indicated that when something was ‘decyded and never contraverted since these decisions’ it would become part 402

NLS, Adv MS 24.1.3. GUL, Murray 72, has the same title except that ‘Sir P:W:’ is left blank. Despite a clear warning in Cokayne 1900–09, vol 2, pp 424–5, Sir Thomas Nicolson of Carnock, an advocate admitted in 1612, is often confused with Sir Thomas Nicolson of Cockburnspath. See too Balfour Paul 1904–14, vol 6, pp 422–31; Grant 1944, p 165; Young 1992–3, vol 2, p 542. 404 McKechnie 1936, pp 25 and 35. Although it is stated here that Nicolson stopped reporting in 1632, cases from as late as 1642 are reported in NLS, Adv MS 24.3.3, EUL, Dc 4.13, and SL, MS 36. 405 NLS, Adv MS 25.4.5, contains two versions of the text, both untitled, in one of which the cases are returned, though imperfectly, to their original order. 406 EUL, La III 738. The annotations are not in Wedderburn’s own hand, nor are they the same as the summaries found in the epitome. 403

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470 The Revolution Court of ‘the uncontraverted law and practique of this kingdome’ or ‘the foundamental law of this kingdom’.407 By summarising a decision in a brief proposition a writer could encourage recognition of the point decided as part of the law in ‘the constant opinion of lawyers and practice’, especially if he was himself recognised as a famous jurist or learned lawyer. It could have been objected, however, that there was a danger here of confusing an essentially descriptive process with a more prescriptive one, and of confusing the development of customary law with the refinement of legal doctrine.408 It was the former danger that Coke had in mind when he advised English lawyers not to use abridgements as a substitute for reading the reports of cases.409 Yet if he insisted that abridgements should only serve to index reports, Coke was not himself averse to using his authority as a writer to promote the acceptance of new rules of law, which he often presented in the form of carefully crafted maxims. This tendency was partly what Bacon had in mind when he complained that Coke sometimes inserted statements into his reports that were less an accurate description of what the judges had found than an attempt to pass off his own opinions as resolutions of the courts. Although Bacon also believed that abridgements should ‘serve for repertories to learned lawyers, and not to make a lawyer in haste’, he believed that case reporting should similarly be a distinct activity from the formulating of rules and maxims.410 His concern was not simply lest ‘every decree or position of law be taken for a rule’ but was lest regularities identified in the decisions of the courts be mistaken for genuinely axiomatic principles. Bacon himself compiled a collection of legal maxims which he took to enjoy their own authority as ‘conclusions of reason’, though many had in reality been ‘gathered and extracted out of the harmony and congruity of cases’, being ‘such as the wisest and deepest sort of lawyers have in judgment and use’.411 He believed that axiomatic principles of legal reasoning could be extracted from the reports of decided cases, but only if the reports as well as the abridgements contained accurate records of what the courts had done. In 1693, it may again be recalled, Stair explained that in writing his Institutions he had originally ‘made Indexes of all the Decisions, which had been observed by men of the greatest Reputation’, but that he was now going to make use only of ‘the later and more authentick and useful Collections’ in the realisation ‘that the ancient Decisions, were before these troden Paths, which have since come to be fixed Customs, and that there were not Authentick Copies of these old Collections’.412 It was noted earlier that he had in fact only cited two or three cases directly from each of the collections made by Sinclair, Maitland and Balfour, though some of the cases he cited from Spotiswoode’s collection were taken from 407

NLS, Adv MS 24.1.12, ff 60, 136–7, 224–6, 229–30, 241, 248, 251, 319, 324–7, 331–2 and 380–81. For a classic study of the crucial distinctions see Stein 1966. 409 First Part of the Institutes, f 395r, and Reports of Sir Edward Coke, pt 4, pp x–xi, and pt 10, ff 41v and 117v. 410 Works of Francis Bacon, vol 5, pp 105–6, and Letters and Life of Francis Bacon, vol 6, p 70. 411 Works of Francis Bacon, vol 7, pp 307–87. See too Kocher 1957, pp 5–12; Hogan and Schwartz 1983, pp 63–73; Coquillette 1992, pp 35–48. 412 Institutions, sig A3v. 408

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The Fundamental Laws of Scotland 471 these sixteenth-century reports, along with those by Colvil. The statements summarising these rulings were not systematically excised in the new edition of the Institutions. The two references originally made to Balfour’s practicks had been excised in 1681, but not the passages in which Stair appears to have adopted statements from Balfour without any acknowledgement.413 Since Balfour had himself provided no more than statements summarising rulings, there may not have seemed to be much point in referring to his book, for either the rulings had been received as rules of customary law or there remained a need to read reports of the kind Balfour had not provided. Although Stair gave the impression in 1693 that he had sometimes excised references to cases where they had given way to the trodden paths of customary law, it is actually difficult to find any example of a summary statement surviving in the new edition without a case reference. Instead what Stair had done was to reduce generally the number of summary statements he listed, and to make two more specific changes. In the first place, he had excised almost all of the seventy statements originally listed as summaries of the cases reported by Nicolson. It may be that Stair was troubled by the confusion that had arisen in relation to Nicolson’s reports, and in particular by the apparent assumption that summaries of his reports could be treated as rules of law.414 It may also be that he had learned about John Lauder’s critical appraisal of Nicolson’s collection as ‘a very lame and imperfit work’ which was ‘drawen only from the clerks minuts without much order or refining’.415 Stair had also, in the second place, altered his six hundred and sixty references to Gibson’s reports by omitting to give the name of the reporter, as he usually did.416 Following the printing of Gibson’s collection as a formally approved record of the court’s decisions, cases from it were cited in the same way as Stair’s own collection, by the dates of hearings and the names of parties alone. Stair maintained that these reports were authentic records of what the court had done, just as he maintained that his statements summarising rulings were accurate accounts of what the court had done and not expressions of his own views on what should have been done. He claimed to have written accurate reports and abridgements, not to have used his expertise to identify new rules of law. It remains to be seen, however, whether Stair had not in reality been promoting his own opinions in reporting cases in his Decisions and in citing them in his Institutions. It seems clear from his talk of ‘ancient Decisions’ and ‘old Collections’ that antiquity was a quality he imputed not only to customs dating from the era of the old books and acts but to any sources older than ‘fixed Customs’. It seems clear 413

On this point see McNeill 1962, p xl. Unreferenced summaries of the practicks of Sinclair and Maitland can be found in NAS, RH 13/68, and of those of Sir George Auchinleck of Balmanno—an ordinary lord of session between 1626 and 1639—in NLS, Adv MS 22.2.11, in both instances in conjunction with style books. The possible significance of this will be returned to in the next chapter. For Auchinleck and his reports see Tait 1823, p 500; Brunton and Haig 1832, pp 273–4; Young 1992–3, vol 1, p 26. 415 NLS, Adv MS 6.2.15, pp 39–42. Lauder had expressed surprise at Stair’s use of the collection and seems likely to have drawn his concerns to Stair’s attention. 416 A couple of instances remained, but only where alternative reports of the same cases were cited. 414

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472 The Revolution Court that he took ancient customs to differ from recent customs largely in being well established, as indeed he had indicated in his discussion of the sources of Scots law.417 He had always claimed that Scots law consisted like all the best laws of customs ‘wrung out from the Debates upon particular Causes’, and in 1667 he had added that Scots law like every other law could only have started to take shape after the people had submitted their ‘Differences to the Determination of their Soveraign’. What he meant by saying that ‘Nations were ruled by Consuetude, which declareth Equity and constituteth Expediencies’, and then that ‘positive Laws of Soveraigns became accustomed’, is again a question that needs further consideration, but the explanation may partly be that he wished to distinguish between the popular customs approved by the court and the forensic customs accepted by the people. Although submission to sovereign authority may in theory have been a prerequisite of the development of laws, Stair knew that it was not always possible to produce judicial records as proof of customs, and in earlier chapters it was found both that he was prepared to record popular customs in his Institutions and that he annoyed Nisbet by referring in the court to customs that had not been disputed at the bar. Stair talked of customs being wrung out from debates on cases and clearly attached value to forensic disputation, but at no point did he talk of the emergence from disputations of maxims requiring no authority beyond their own reasonableness. When he described rules as being ‘uncontroverted’ he meant that their voluntary acceptance as customary laws was evident from the acquiescence of the people, not that they had been found to be beyond disputation by lawyers. When he described these customary laws as being ‘unquestionable’ he meant that they were firmly established and could only be altered by statute, not that they were in any way immune from alteration by statute. Although he believed that the Scots did have fundamental laws in the English unlike the French sense, and although he shared the English preference for unwritten laws, Stair did not like Mackenzie adopt the English view that the common law was binding by virtue of the rationality proven by its antiquity.

417

Institutions, 1.14–15/1.1.15–16.

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6 The Court of Equity

I

N 1689, AFTER Stair returned to Britain but before he was restored to the presidency of the session, a brief account of the government of Scotland was published in London to explain, among other things, who the lords of council and session were and how they functioned.1 The writer explained that the judges had formed a body called ‘the Kings Council’, which had been ‘a Committee of Parliament’ and ‘an Ambulatory Court by Circuits’ until the time of James V, when they were recreated as ‘a Colledge of Justice after the form of the Supream Court or Parliament of Paris’. The judges of this court passed ‘Bills, Interloquitors, and definitive Sentences’ in the particular cases brought before them, with no possibility of appeal ‘to any other Court’, and they passed more generally ‘acts of sederunt, equivolent to Laws and Acts of Parliament’. It was these judges too who were ‘the proper interpreters of Acts of Parliament’, as was confirmed by the readiness of the parliaments themselves to take advice from them. As a more critical writer complained at about the same time, ‘they assume not only the Power of making Acts of Sederunt, whereupon some of the greatest Estates and Securities of the Nation are now founded, but also to expound clear Acts of Parliament, expressly contrair the positive words thereof’.2 This writer also believed that the judges had been the ‘Kings Council’ and a ‘Committee of Parliament’ until James V established a ‘fixt Colledge of Justice’, and he broadly agreed that the judges functioned in the way described by the other writer, but he complained that ‘their power is of a long time come almost to be Arbitrary’. When the lords of session construed acts of parliament contrary to their express terms they effectively exercised a ‘Legislative Power, since eius est interpretare cuius est condere’, and they proved how accurate Buchanan had been in observing that their arbitria sola sunt pro legibus.3 The two pamphlets referred to indicate that there was broad agreement in Scotland about the power exercised by the lords of session but was disagreement about whether it was appropriate for judges to have the liberty in effect to make rather than apply the law. The first section of this chapter returns to the question of the sovereignty of the session, previously considered in relation to the reports and records of the court alone, and examines some observations Stair made in his Institutions in the light of remarks made by Mackenzie 1 2 3

Breviate of the State of Scotland, pp 5–7. Representation to the High Court of Parliament, pp 1–2. Code, 1.14.12.3; Buchanan, Rerum Scoticarum historia, pp 409–10.

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474 The Court of Equity and others on the authority of the judges to pass acts of sederunt, to interpret acts of parliament, and to deliver decisions on the basis of equity as well as law. The second section looks at how Stair dealt with the passing of bills, interlocutors and definitive sentences in the new account of the law of actions added to his Institutions in 1693, seeking clarification of his understanding of the relationship between the court’s rulings and the emergence of customary laws. Finally, the third section reverts to the period in which the Institutions was first drafted and draws conclusions about Stair’s original aims in writing.

THE NOBLE OFFICE OF THE LORDS

Mackenzie’s understanding of legislative authority In 1675 Mackenzie published a short book entitled Observations upon the 18 Act, 27 Parliament, King James VI against Dispositions Made in Defraud of Creditors, &c., a trial run for the ‘greater work’ in which he undertook ‘to make all our Acts of Parliament intelligible and plain’, partly by identifying those ‘in desuetude, or abrogated’, partly by explaining how others had been ‘interpreted by the Lords decisions’, partly by showing how ‘new doubts may arise from each Act, though not yet decided’, and partly by making it clear ‘wherein our Statutes agree with the Civil Law, or Laws of other Nations’.4 It was to take eleven years for his larger collection of Observations on the Acts of Parliament to appear, but already in his shorter book he spelled out his basic assumptions about how the law should be developed in Scotland. ‘The easiest and plainest part of our Law’, he began, ‘are our Statutes: for these are by Printing exposed to all mens view, and are drawn to instruct the vulgar in what they must obey’. The act he was concentrating on was ‘amongst the easiest and most intelligible’, for it was the act passed by the 1621 parliament to ratify the act of sederunt passed a year earlier by the lords of session to declare their intention of adhering in future cases to ‘the guid and commendable lawis civill and cannone maid aganis fraudfull alienatiounes in prejudice of creditors’.5 The act was ‘founded upon the evident principles of equity, and reason’, and it was to be expected that the parliament would already have ‘plain’d what was obscure’ in the act of sederunt, so that lay people would have no difficulty in understanding what the law required. ‘I have not debated fully the cases here related’, Mackenzie promised, ‘nor have I set down all the cases that occurred, lest the Reader should think I industriously designed to confound him, the more to magnify the necessity of Lawyers’.6 Yet this was not to deny that reliance would 4

Observations upon the 18 Act, sigg A3–4. Acts of the Parliaments of Scotland, vol 4, pp 615–16. Mackenzie was mistaken in observing that the act of sederunt was ratified ‘after some years trial’, though what he may have had in mind will become apparent shortly. 6 It is apparent from what followed that Mackenzie was thinking not only of the actual cases debated in the session but also of the hypothetical cases debated in the learned literature. 5

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The Noble Office of the Lords 475 have to be placed in lawyers. Mackenzie warned that even though the act itself was ‘very full’ and his observations on it ‘very clear’, it would nevertheless ‘appear convincingly that the knowledge of the Law is not easie, and that none should pretend to it, but such as have illuminated their excellent natural parts with laborious Learning, and have polish’d that Learning by a long Experience’. He had himself taken advice from ‘one of the ablest Lawyers in our Nation’, possibly Nisbet or Lockhart, whose approbation he relied on as confirmation that ‘nothing here is against Law’, for no expert lawyer would ever have allowed himself to be ‘deceived in his own profession’. Commenting on the opening words of the statute—‘Oure soverane lord with advyse and consent of all the estaittis convenit in this present parliament’— Mackenzie made an observation he was frequently to repeat elsewhere, insisting in opposition to Craig that in Scotland it was the king who legislated with the consent of the estates, not vice versa.7 Commenting on the words that followed— ‘ratifies and apprevis &c’—he took the opportunity to explain his understanding of the authority the lords of session enjoyed to pass acts of sederunt.8 At the creation of the College of Justice in the early sixteenth century, he recalled, the judges had been granted authority ‘to mak sic actis, statutis and ordinances as thai sall think expedient for ordoring of processes and haisty expeditioun of justice’.9 Mackenzie thought it arguable from a Digest text that every court must have the authority to regulate its own procedure, and he thought it unwise for parliaments to intervene in an area best left to the expert attention of practitioners, but he also insisted that ‘the Lords of Session have only power to make orders relating to the regulation of their own house, and to the forms of Process’, and that they lacked the power ‘to make Statutes, and Acts relating to the material distribution of Justice’.10 Although it might have been thought to follow from this that an act passed in relation to the fraudulent dispositions of debtors was ultra vires, ‘the answer to this is, that the Lords, in making this Act, did not introduce ius novum, a new Law; but only adapted to our practice, the old Roman or Civil Law, which they might have followed in their decisions, without making any new Act of Sederunt, as they do in most cases where the Civil Law is founded upon equity; as here; and where they are not determined by either our former practice, or constitutions’. As Mackenzie repeatedly observed in his other books, there was a crucial distinction to be maintained between declaratory acts, which could be applied both to past and to future cases, and genuinely statutory acts, which introduced new law and could be applied to future cases alone.11 The lords of session, he believed, could pass statutory acts ‘concerning the forms of procedure’, but otherwise they could only pass declaratory acts ‘to fix a constant decision for the future, 7 Observations upon the 18 Act, p 8; Institutions, 1.3; Observations on the Acts of Parliament, pp 6–7, 10, 16, 94, 153 and 171–2; Ius regium, pp 67–77; BL, Sloane 3828, f 134. Cf Craig, Ius feudale, p 38. 8 Observations upon the 18 Act, pp 9–15. See too Observations on the Acts of Parliament, p 133. 9 Acts of the Parliaments of Scotland, vol 2, p 371. 10 Digest, 2.1.2. 11 Mackenzie took the distinction to be based on Code, 1.14.7. See too Institutions, 1.1; Observations on the Acts of Parliament, pp 29, 78, 282 and 459–60; BL, Sloane 3828, f 144r.

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476 The Court of Equity in cases which they might have so decided, before their own Act’. He suggested that in general it was better for them to ‘decide in hypothesi, then in thesi’, and that any acts they did pass relating ‘not meerly to the regulating their own forms, should be ratified by the Parliament, though in the interim of Parliaments, these Acts should bind’.12 In practice, however, ‘we see very many Acts of sederunt to have full vigour, and force, without any such confirmation’. After providing an analysis of the types of case covered by the 1621 act, Mackenzie commented further on the declared intention to follow the ‘lawis civill and cannone’, rehearsing the opinions on the authority of the learned laws in Scotland that he would later restate in his other books.13 ‘We may justly assert’, he began, ‘that it were fit the Lords of Session understood exactly the Civil Law, and that it is the great foundation of our Laws and Forms’. Citing acts of parliament and the opinions of both Scottish and foreign authors as he would do in his criminal law treatise, he noted that ‘though the Romans had some customs or forms peculiar to the genious of their own Nation: yet their Laws, in undecided cases, are of universal use’.14 The act of 1426 declaring that the Scots were subject to ‘the kings lawis and statuts of this realme alanerly’ had been intended, Mackenzie maintained, ‘not to deny the respect due to the Roman Laws, but to obviat the vain pretences of the Pope, whose Canons and Concessions were obtruded upon the people, as Law, by the Churchmen of these times’.15 In a later passage of his book Mackenzie expressed agreement with Craig that the canon law was preferable to the civil law in ‘matters of Conscience’, and particularly ‘in cases of Marriage, Teinds and such like, which are somewhat Ecclesiastical by their own nature’.16 The canon as well as the civil law continued to be followed in Scotland for its learned authority, and this mattered since it explained not only why the lords of session had been justified in passing their act of sederunt but also how the act of parliament was to be interpreted. For one thing, since the act was meant to promote conformity with the civil and canon laws, these laws had to be treated as a guide to the detailed intentions of the legislator. Mackenzie therefore took time to describe the various remedies for fraud provided by the civil law, citing texts from the Digest and the works of ‘Hottoman, Gomezius, and others’, and preparing the way for discussion of the questions treated by ‘the Doctors’, ‘the Civilians’ and ‘all Lawyers’ later on in his book. For another thing, since the act was meant to promote conformity with the civil and canon laws it also followed that it could be construed quite liberally. For example, ‘though neither Tacks, nor Bands, be comprehended under the Letter of the Law, yet the same parity of reason extends the Act to them’. Similarly, though it was contended for one defender that ‘infamy could not be inferred without an expresse Law; yet it was found that the Act impowered the Lords, to decide conform to the Common Law in like cases, & a paritate 12 See too Observations on the Acts of Parliament, pp 59 and 122, where Mackenzie suggested that an act relating to procedure should be ratified. 13 Observations upon the 18 Act, pp 16–26. 14 In his Laws and Customes, 1.1.3, the phrase ‘in undecided cases’ would become ‘in Criminal cases’. 15 Acts of the Parliaments of Scotland, vol 2, p 9. 16 Observations upon the 18 Act, pp 128–9.

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The Noble Office of the Lords 477 rationis, and he was thereupon declared infamous’.17 Conversely, since ‘general Laws must receive their restrictive Interpretations from the Common Law’, the principle that ubi lex non distinguit, nec nos distinguere debemus was not to be applied indiscriminately. ‘It will appear by many instances in this Book’, Mackenzie accurately informed the readers of his larger collection of Observations on the Acts of Parliament, ‘that Laws are extended de casu in casum’.18 In his larger collection he did indeed draw attention to many examples of statutes covering some cases being ‘de praxi extended to others’, and he gave his own opinions on whether statutes should be extended ‘upon the parity of Reason’, often in the affirmative, especially where the statutes were ‘conform to the common law and consistent with reason’.19 While he recognised that there was some force in the familiar claim that ‘all Acts of Parliament are with us stricti iuris, and not to be extended de casu in casum’, Mackenzie repeatedly remarked that in reality acts were ‘extended by Parity of Reason, and by Analogie’.20 Acts of parliament were not all statutory in the proper sense of being ‘correctorie of a former Custom’, and it was evident that ‘even Correctory Laws with us, are to be extended in favourable cases, so far as to make them answer the Design of the Legislator, which is to help the ill that was to be Corrected’.21 The purpose behind an enactment was often spelled out in the rubric printed with it, but since the rubric was added by the clerk register it was a less reliable guide than the background against which the act was passed.22 The principle that casus omissus habetur pro omisso was applicable where the legislator’s intention was clear, and in theory a legislator who granted the ius interpretandi could withhold it in relation to a particular statute, yet the ‘best Lawyers’ were in agreement that even when a statute stated that it must be construed strictly, a liberal interpretation would be appropriate ‘if no injustice follow on that extension, but much more if without this it would be unjust’.23 The much cited act of 1428 forbidding interpretation ‘uthir wayis than the statut bers’ was supposed to penalise only ‘such as Interpret the Kings Laws so, as to make them a meer Cloak for doing injustice’.24 Mackenzie later repeated this remark in his discourse on the opening titles of the Digest, explaining further that the act ‘neither extends to lawyers who in writing glosses upon lawes may mistake them, nor to judges who have any tolerable colour for their decisions, since it is presum’d that they being upon oath will decide according to their conscience’.25 ‘Lawyers are very clear’, he observed once 17

Ibid, pp 182 and 188–9. Observations on the Acts of Parliament, pp 255–6. 19 Ibid, pp 86, 101–4, 111, 114, 133, 178–9, 239, 274–5, 288–9, 324, 326, 357, 376–7, 428, 430–31 and 440, quoting from Voet, De statutis, p 252, a much favoured source. 20 Observations on the Acts of Parliament, pp 12, 370, 409–10 and 427. 21 See too Laws and Customes, 1.9.7, 1.25.2, 2.17.4 and 2.21.5. 22 Observations on the Acts of Parliament, pp 9–10 and 150–51; Observations upon the 18 Act, pp 3–7; BL, Sloane 3828, f 141v. 23 Observations on the Acts of Parliament, pp 12, 102 and 438–9, relying heavily on Voet, De statutis, pp 242–3. 24 Observations on the Acts of Parliament, p 22; Acts of the Parliaments of Scotland, vol 2, p 16. 25 BL, Sloane 3828, ff 144–8. 18

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478 The Court of Equity again, ‘that tho’ an act bear that it should be understood exactly according to the letter, yet it is capable of an extensive interpretation from the parity of reason, for since laws are few and debates many, it is just to think that what the lawgivers did in one case they would have done so in another if both were founded on the same reason’. Furthermore, Mackenzie continued to maintain that although ‘it be a rule that correctory lawes are never to be extended, yet that rule holds not where it appears either by the final cause exprest in the act, or by the nature of the mischief, that the correctory law is to be favourably extended’.26 It has been seen already that in his discourse and elsewhere Mackenzie claimed that there were fundamental laws in Scotland not only in the English sense of immemorial customs that should not be altered lightly but also in the French sense of constitutional principles that could not be altered in any circumstances. He claimed that acts passed contrary to these constitutional fundamentals would be void, he suggested at one point that acts passed to alter the succession to private estates would also be void, and in his discourse on the Digest he explained more generally that the Scottish parliaments did not ‘have it in their power to invert mens private rights or property without citation or compensation’.27 Although acts could be passed depriving people of their rights when this proved necessary in the public interest, those affected were first to be summoned before the parliament and given the opportunity to demonstrate that the necessity was misconceived, and if deprived they were to receive adequate compensation for the loss they sustained in the public interest. Mackenzie maintained that no parliament could deprive people of their rights without fulfilling these requirements, and he maintained further that no parliament could try to punish people for crimes that would not also have been punished in the ordinary courts, or deal with a case arising between private parties in any way that it would not have been dealt with elsewhere, ‘for it is the birthright of every subject to be judg’d by the standing lawes and customes, and not by an unbounded arbitrary power, which right cannot be taken from him by the parliament more then his property or liberty can’. It seemed to Mackenzie that ‘we must ballance the learning of other courts with the power of parliaments’, and that parliaments ought therefore to refrain so far as possible from handling particular disputes. Whether he intended by identifying limits on the power of parliaments to suggest that other courts could review the validity of acts of parliament is less clear. In a case heard in the late 1670s he had himself reminded the lords of session about a decision reported in 1622 by Gibson in which the court appeared to have rejected the idea that legislation might be open to judicial review.28 In response to a complaint that an act of parliament had been passed to deprive a party of his rights without his being summoned to defend his interest, the lords of session had found that ‘they could not be Judges to annul an 26

See too Institutions, 1.1. BL, Sloane 3828, ff 137–9r. As will be explained further in the final section of this chapter, the law of succession was believed to raise rather special questions. 28 Lauder, Decisions, vol 1, p 23, and Historical Notices, vol 1, p 212; Gibson, Decisions, p 38, and see too pp 180 and 301–2. 27

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The Noble Office of the Lords 479 Act of Parliament, which was clearly conceived and had no difficulty in the interpretation, but the said Act standing, it was not within their Judgment to decide, whether it was justly or unjustly Statute’. If this formulation of the ruling could have been taken to leave open the possibility of review in cases where an act was obscurely conceived, the earl of Haddington’s report of the same decision had been taken to yield the much broader proposition that ‘acts of parliament cannot be annulled or reduced but in subsequent parliaments and by no inferior judges who are astricted to judge according to the acts of parliament but not to annull them’.29 This was presumably what Mackenzie had in mind when he announced in his larger collection of Observations that ‘Acts of Parliament are to be observ’d by the Lords of the Session, except they be particularly abrogated in express terms’, for it was clearly not his understanding that all acts remained in force until repealed by parliament.30 As he had promised in his Observations on the act of 1621, one of the central tasks of his larger collection was to reveal which acts remained in force and which had fallen into desuetude. He had acknowledged in his treatise on the criminal law that acts in desuetude ‘were not binding’, which he considered fortunate since ‘if it were otherwise, we have so many paenal Statutes now in desuetude, that the Leidges would be certainly ruined by them’.31 It seemed to him only fair that people ‘should not be ensnar’d by pursuits upon old buried Laws, which scarce Lawyers study or know’. Yet it did also seem to him ‘absurd, that it should be lawful to the people, to loose themselves from the Laws made against themselves, and to gain impunity by frequent repetition of their faults, or to be able to free themselves from punishment[s] by contemning these Laws by which they are inflicted’. He concluded in his treatise on the criminal law that desuetude should not be permitted in the future to ‘abrogate a Cryme, and enervate the Law altogether, since the Parliament only can rescind their own Laws: nor should the people, nay nor our Judges, be made legislators’. In dealing mostly with private law in his Institutions he felt less need to qualify his statement of the conventional position 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, till it be renewed’.32 He did, however, return to his previous concerns in his discourse on the Digest, rehearsing the familiar argument that Julian’s remarks were a legacy of Rome’s republican past and adding that acts of parliament ‘should regularly remain in vigour till they be abrogated, there being nothing so natural as that every thing should be taken away in the same manner it was made’.33 Acts might be implicitly repealed by the enactment of contrary measures, he conceded, and they might lose force if the reason for their introduction 29 CUL, Kk 5.22, p 1, and Kk 4.4, f 3; NLS, Adv MS 6.2.7, first page. Cf Thorne 1938, and see too Stoner 1992, pp 48–68; Burgess 1996, pp 181–93; Tubbs 2000, pp 154–60. 30 Observations on the Acts of Parliament, p 295. 31 Laws and Customes, 1.1.3 (punctuation adjusted), and see too 1.4.4 and 1.9.8. 32 Institutions, 1.1 (punctuation adjusted). Mackenzie did suggest even here, however, that acts might be revived by proclamations of the council as well as by other acts of parliament. 33 BL, Sloane 3828, ff 148 and 159. See too Add MS 32095, f 176, discussed in Harris 2005, p 127.

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480 The Court of Equity ceased to be effective, ‘tho it were better to abrogate such acts by express lawes to prevent the arbitrariness of judges’. Although he had found in his Observations that many acts were in disuse, he now thought it ‘undeniable that since a law was once introduced, it is not properly abrogated but sleeps by desuetude, and so it may be revived by the kings proclamation’. In reality, however, although he had very occasionally found in his Observations that an act was ‘rather forgot than in Desuetude’ or was ‘ill observed but not in Desuetude’, or that an act believed to be in desuetude had been ‘revived’, he had much more often found that acts were simply in desuetude or were neglected de praxi.34 Even an act passed in 1672 had been found to be ‘now in Desuetude’.35 In his discourse on the Digest Mackenzie went so far as to concede that there were times when it was appropriate for the lords of session ‘to recede from the very words of [an] act of parliament to make them agree with the necessary forms of procedure’, giving as an example the court’s refusal to nullify infeftments by way of exception as well as action as required by the 1621 act.36 This was the example Stair had given in arguing in the 1667 addition to his paragraph on the sources of the law that the court’s authority to regulate procedure and the administration of justice extended ‘not only to the Interpretation of Acts of Parliament, but to the Derogation thereof’.37 Mackenzie clearly had no problem with the idea that acts of parliament could be interpreted either extensively or restrictively, depending on how they related to the common law, in the sense sometimes of the learned laws and at other times of the ancient and fundamental laws. Nor did he have any problem with the idea that acts could be neglected de praxi when they conflicted with established customs, especially the forensic customs known to practitioners. What he did have a problem with was the idea that courts could deal with cases through the exercise of an ‘unbounded arbitrary power’. He regretted that the act of 1621 had not defined precisely what was meant by ‘conjunct persons, since this opens the door to arbitrarynes in Judges’.38 He regretted that the court had agreed to issue a warrant for a debtor’s arrest in one case without letters of caption first being issued in the ordinary way, ‘because this may open a door to great Arbitrariness’. His response to the danger on this occasion had been ‘to consider, what the Common Law, and Lawyers have delivered as their opinion in this Point’, and his aim in most of his book on the 1621 act had been to use learned opinion to develop a detailed reading of the text that would limit the scope for arbitrary adjudication. His aim in writing about the act had been very different from Stair’s aim in writing about fraudulent alienations in his Institutions. In his early draft Stair had prefaced his discussion of fraud with an account of the Roman remedies, explaining 34 Observations on the Acts of Parliament, pp 7–9, 13, 15–16, 18, 20–22, 24, 27–31, 34, 41, 43, 48, 51–3, 59, 63, 65, 80, 83, 85, 92–3, 95, 97, 100, 105, 108, 111, 114, 116–17, 123, 127, 131, 133, 138–41, 152, 155–6, 169, 185–9, 191, 197, 202, 206, 211, 218, 221, 236, 244, 248, 250, 254, 264, 288, 290, 336, 345, 362, 364–5 and 384. For the exceptional entries see pp 39, 265 and 312. 35 Ibid, p 444. See too the powerful defence of desuetude in Mackenzie’s Pleadings, pp 136–41. 36 BL, Sloane 3828, f 148v. 37 Institutions, 1.15/1.1.16. 38 Observations upon the 18 Act, pp 64–5 and 175–80.

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The Noble Office of the Lords 481 that the civil law on this topic had ‘great weight’ in dubious cases, but he had not referred to the civil law again when he turned from his introductory remarks to describe the local law.39 In dealing with the 1621 act he had mentioned its enactment but had said nothing about its terms or about how he and other lawyers believed they should be interpreted, instead providing a summary of the many decisions by which the act had been ‘cleared and perfited’. In 1666 or 1667 he had added a few sentences summarising more recent decisions, but he had otherwise left his discussion as it stood. In 1681, however, after the appearance of Mackenzie’s book, Stair completely rewrote his discussion of the act, though still in the same style. He began his new discussion by quoting the act at length and by observing that it had been passed ‘in imitation’ of the civil law, yet he still made no further reference to the civil law in proceeding to summarise ‘the several Cases that have been decided in this matter’.40 Not until 1693 did he insert into his discussion a series of references to the Corpus iuris civilis, and even then he made no reference to the opinions of professors or practitioners and refrained from expressing his own views on how the act should be interpreted. Stair concentrated on what the lords of session had done in passing their act of sederunt and in deciding the cases debated before them.

Equitable interpretation and recourse to equity Another interesting feature of Mackenzie’s discourse on the Digest was the occasional reference he made to ‘extensive interpretation’ as ‘equitable interpretation’ and to the English notion of ‘the equity of the statute’, which prompted him to move on from his account of statutory interpretation to a broader account of the concept of equity.41 ‘In interpreting lawes and in all judicial proceedings’, he began, ‘great regard is alwayes had to equity, and therefore it is fit to understand something concerning that bonum et aequum which makes so much noise in the world, but especially in judicatures’. The Roman jurists had defined law generally as ars boni et aequi and had remarked on how particular rules and institutions of their law were founded on a sense of goodness and fairness, which was expected to inform the application of much of the law.42 At the same time, they had also identified quod aequum ac bonum est more specifically with ius naturale as opposed to ius civile, they had recognised that some provisions of the civil law needed adjustment ex aequo et bono, and they had recognised the need in at least some cases to 39

NLS, Adv MS 25.1.10, 9.17–18. Institutions, 9.9–15/1.9.9–15. Both here and in the earlier draft there were actually some statements that summed up provisions of the act rather than decisions, the implication perhaps being that they could be construed literally because they had not been found problematic in the courts. Stair seems, in other words, to have taken the statute to mean what it had been found or assumed to mean in the cases heard in the court. 41 BL, Sloane 3828, ff 152–6. 42 See, eg, Digest, 1.1.1.pr, 12.6.66, 17.1.12.9, 21.1.18.pr, 40.4.22 and 44.7.34.pr. And see generally Roby 1902, vol 2, p 89; Schulz 1946, pp 74–5; Jolowicz 1957, pp 55–6. 40

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482 The Court of Equity favour aequitas over strictum ius.43 What the Romans had called bonum et aequum or aequitas, Mackenzie went on, ‘is in our case called by the Greeks epieikeia’, a term taken by Plato to signify moderation or clemency.44 Mackenzie referred to a standard canonist definition of equity as iustitia dulcore misericordiae temperata, granting that ‘equity and moderation are generally looked upon as the same thing’, but he suggested that the concept was too narrowly defined here in relation to its ‘ordinary effect’.45 He preferred the Aristotelian understanding of epieikeia as ‘a correction of law where it is defective owing to its universality’, and concluded that equity consisted essentially ‘in supplying, correcting or moderating the common or statutory lawes’, or in ‘promoting those ends for which the law was introduced’.46 He explained accordingly that it was ‘because lawes could not comprehend all cases nor foresee all inconveniences, and yet it was unjust that lawes should not attain the design proposed by the lawgiver’, that in Rome authority had been conferred on the praetors to introduce new law adiuvendi vel supplendi vel corrigendi iuris civilis.47 Although the Romans had never used the word aequitas in relation to this praetorian law or ius honorarium, it was consistent with the learning of the schools for Mackenzie to combine their description of the authority of the praetors with the canonist and Aristotelian definitions of equity so that the praetors emerged as a classic example of magistrates who had been authorised to turn from law to equity in cases where the strict application of the law would have been unjust. He gave as an example the case of minors who had naively contracted obligations which the praetors were willing to set aside by ordering restitutio in integrum, adding that ‘they likewise interpreted the lawes by equity’. After the fall of the republic, however, ‘the emperors reserved to themselves the only power of interpreting lawes (l. 1 & 11 ff. de legib. l. 2 §. 1. Cod. de vet. iur.enucl.) because every interpretation was the making of a new branch of a law, or at least because none could understand the law so well as he that made it’.48 Mackenzie immediately added that ‘the king of England, because he was lawgiver, was the sole judge in this matter of equity, and he was to judge in it according to his conscience, and therefore courts of conscience were erected, in which the chancellor (to whom the king committed the keeping of his conscience in this case) presided’.49 Whereas the authority exercised by the praetors in the Roman republic had been taken over by the emperors, the authority vested in the English kings as much as the Roman emperors had been delegated to the chancellors, who had thus become another classic example of magistrates with equitable authority. 43

See, eg, Digest, 1.1.11, 9.4.30, 39.3.2.5, 45.1.91.3 and 50.17.56, along with Code, 3.1.8. Laws, 757e. References to clementia or benignitas in the Roman sources—eg, in Digest, 1.3.18 and 50.17.56—have frequently been suspected of interpolation by the compilers. 45 Hostiensis, Summa aurea, col 1491. And see too Naz 1935–65, vol 5, col 398; Le Bras, Lefebvre and Rambaud 1965, p 410; Brundage 1995, pp 155–6. 46 Aristotle, Ethics, 1137b27. 47 Digest, 1.1.7.1. 48 The references here were rather strange, though Digest, 1.3.11, did have some bearing on the point under discussion. What Mackenzie more obviously had in mind was Code, 1.14.1, and perhaps also 1.14.11–12 and Novels, 113.1. 49 See generally Dawson 1960, pp 145–72; Milsom 1981, pp 82–96; Baker 2002, pp 97–116. 44

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The Noble Office of the Lords 483 The approach taken in England was quite unique, however, ‘for Scotland and other nations, observing that law and equity were necessarily twisted together in most cases, they allow to the same judg a nobile officium, whereby he can moderate the common law by equity, whereas the English place nobile officium in a judicatory apart called the chancery’. Mackenzie expressed the familiar criticisms of the English approach, observing that it ‘multiplys expences’ and ‘occasions also great debates concerning the competency of judicatures’. If it was understandably feared that allowing ordinary judges to decide cases according to conscience ‘would accustom them to too much latitude’, the reality was that the English still had to ‘leave a latitude to other judges, which is the same thing with our nobile officium’. In the treatise on the interpretation of statutes attributed to Sir Christopher Hatton the examples were given of breaking open a prison that had caught fire or giving alms to rebels who would otherwise starve, both strictly contrary to statute yet both excusable in the ordinary courts ‘so far forth as Epicaia goeth’.50 Mackenzie understood that the English parliament had found it necessary not only ‘to make courts of conscience in all shires and towns’, but also to allow more generally ‘a liberty to the judges ordinary to proceed even in cases of conscience’. He believed that there was not only a danger in erecting a court of conscience alone that it might tend towards ‘too much relaxation and arbitrariness’, but also that there was a concomitant danger of overcompensation in striving ‘to fix as much as can be this court by rule’, so that ‘by taking arbitrariness from equity, and making it resemble law’, it would lose ‘not only the name but quality of equity’. The English theory was that aequitas agit in personam, meaning that the chancellors told individual litigants what they were bound in conscience to do without in any way altering the law binding on people generally. Yet because decisions would hardly have been equitable if delivered in an inconsistent fashion, uniformity and then regularity in the handling of cases in the chancery developed, at first procedurally and later substantively, especially after the reporting of equity cases became more frequent in the seventeenth century.51 By the time Mackenzie was writing the chancellors had come to believe that ‘equity itself would cease to be Justice if the rules and measures of it were not certain and known’, and that it therefore ought to be reduced ‘to certain Rules and Principles, that Men might study it as a science’.52 It seemed to Mackenzie that this development illustrated the general observation made by the Italian professor Albertus Bolognetus that ‘equity turned into law will always provide a beginning and occasion for a new equity’.53 Just as the ius honorarium had been required to support, supplement and supersede the ius civile, Bolognetus remarked, so the jurists had been required to elaborate on the law of the praetors ex aequo et bono. 50

Treatise Concerning Statutes, pp 31–4. Holdsworth 1922–66, vol 6, pp 613–19 and 668–71; Yale 1957, pp xxxvii–lxiii; Bryson 2001, pp xli–lii. 52 Lord Nottingham’s Chancery Cases, vol 2, p 639; Gilbert Burnet, Life and Death of Sir Matthew Hale, p 176. 53 Tractatus illustrium iurisconsultorum, vol 1, ff 319v–20r. 51

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484 The Court of Equity After explaining how the authority to turn from law to equity had been vested in the Roman emperors and the English kings, Mackenzie went on to say: ‘But now, both in England and Scotland, if the difficulties arising from a statute be of great consequence the parliament only and neither the king nor his judges can hear the case’. By this he could not have meant that the judges had no authority to interpret acts of parliament in an extensive or restrictive way, for he had already reaffirmed his belief that they could in both countries construe acts quite liberally. Nor could he have meant that the more general authority of the judges to turn from law to equity was strictly limited, for he at once observed that ‘there still remaines a great power in judicatures as to this bonum et aequum’, and he added not long afterwards that he could think of ‘few cases which can be expede before any judicature without the assistance of this nobile officium and equity’. What he had in mind became clearer when he later remarked that ‘this nobile officium, founded upon equity, doth like blood course through the whole body of our law, and animates it as the blood doth the body, for ratio est anima legis, but it is very dangerous when it goes out of its due course, as blood doth when it extravalates’.54 It was seen in an earlier chapter that English lawyers were inclined to identify the equity administered in the chancery with the reason inherent in the law administered in other courts.55 The theory was that aequitas sequitur legem, in the narrow sense that where two responses seemed equally equitable the one closer to the law should be preferred, and also in the broad sense that the chancery should not contradict the law and should work by analogy from it. By the late seventeenth century the chancellors were talking about a ‘legal and regular equity’ as opposed to ‘honour and private conscience’, and were claiming to be concerned with a conscience that was civilis et politica rather than naturalis et interna.56 Similar distinctions had been drawn in earlier centuries by the civilians and canonists. In an attempt to reconcile the imperial constitution reserving to the emperors alone the power to interpret laws inter aequitatem iusque with another constitution instructing judges to favour the ratio aequitatis over the ratio stricti iuris, the civilians had developed distinctions based on Cicero’s description of the civil law as aequitas constituta.57 They had mostly agreed that judges were required to favour the aequitas constituta but were not permitted like the emperors to draw from natural equity or the aequitas rudis, and some had explained further that judges were required to favour both aequitas scripta or the reason explicitly stated in the texts and aequitas non scripta or the reason implicit in the texts. Even the canonists, though inclined to claim that there was more equity in their law than in the civil law and that the civilian solutions to problems had therefore to be appraised critically, regarded their aequitas canonica as something distinct from aequitas nat54

Cf Reports of Sir Edward Coke, pt 7(2), f 7r. See again Barton 1974; Yale 1975a; Rueger 1982; Guy 1985; Behrens 1998. 56 Lord Nottingham’s Chancery Cases, vol 1, p 214; English Reports, vol 36, p 990. 57 Code, 1.14.1 and 3.1.8; Topica, 2.9. A wealth of evidence is assembled in Meijers 1941, though the analysis presented is now thought deficient. See generally Jolowicz 1957, pp 56–8; Yntema 1966–7, pp 75–8; Maclean 1992, pp 175–7; Bellomo 1995, pp 160–62; Bezemer 1997, pp 2–3 and 9. 55

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The Noble Office of the Lords 485 uralis.58 It was a distinction of this kind that Mackenzie appears to have had in mind when he said both that parliaments alone could deal with difficulties of great consequence and that judges would need in many cases to turn from law to equity. Without suggesting that the administration of equity should effectively be constrained by a new body of law, he was suggesting that judges should follow the equity expressly or implicitly contained in the law and leave the creation of new law to the legislators. He concluded his discussion by advocating comparative study of the equity contained in the laws common to nations. As Mackenzie noted in his criminal law treatise, the concept of the nobile officium to which he made repeated reference was derived from Bartolus’ commentary on the Digest.59 In a series of texts the Roman jurists had observed that anyone charged with the ius dicentis officium would discharge his responsibilities by exercising imperium or the power to issue orders, either by ordering a case to proceed to trial and judgment in the ordinary way (which is what the word iurisdictio was strictly taken to signify), or by ordering litigants directly to do or refrain from doing something (which was said to involve not the ordinary exercise of iurisdictio but a more extraordinary exercise of imperium).60 Bartolus constructed on the back of these texts a complicated scheme of judicial powers which enabled him to reconcile the Roman distinctions with the practice of the Italian city states.61 Noting that according to the glossators ‘triplex est iudicis officium’, he differentiated in his own way between the officium nobile, the officium mercenarium and the officium adversarium of the judge, though the third concept did not play a significant part in his analysis and was neglected by most of his followers.62 The officium mercenarium, he explained, was ‘subservient to the action’ in the sense that the judge did what the law required of him in instituting, processing, determining and implementing a iudicium, whereas the officium nobile was exercised by the judge ‘at his own motion or at the entreaty of another’, as for instance in ordering a litigant to make restitutio in integrum. The officium mercenarium thus corresponded to what Bartolus called iurisdictio simplex, whereas the officium nobile corresponded to what was known as mixtum imperium, meaning the power vested in some judges to proceed beyond the straightforward application of the law. This dichotomy became a standard component of civilian teaching. In a dictionary of legal terminology published shortly before Bartolus’ death in 1357, Albericus de Rosate explained that ‘the noble office is so called because it is brought to bear on its own account, not by right of action or of obligation; as for example if a minor seeks restitutio in integrum, he does not seek this by right of obligation, since the judge was not obliged, nor by right of action, but he implores the judge’s office pitiably’.63 Two hundred years later the compilers of legal dictionaries were still 58

Lefebvre 1938, pp 185–6; Le Bras, Lefebvre and Rambaud 1965, p 415; Landau 1994, p 102. Laws and Customes, 2.1.1. 60 Digest, 2.1.1–4. 61 Gilmore 1941, pp 36–44; Johnston 1997, pp 97–9; Fasolt 2004, pp 178–85. 62 Bartolus, Opera omnia, vol 1(1), ff 47–50r, citing Institutiones imperiales, gl. ‘satisfieri’ ad 4.6.31, and Codex Iustiniani, gl. ‘exceptione’ ad 4.34.4. 63 Vocabularius utriusque iuris, sigg X5v–6r. 59

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486 The Court of Equity explaining that ‘the noble office is what a judge bestows by his own authority, that is by authority of the jurisdiction he exercises, even if no action is proposed or without the craving of the parties, and on his own initiative, at nobody’s request, in the public or the private interest’, whereas the mercenary office was ‘what sticks to a proposed action and is in every way subservient to it’.64 ‘When an action is proposed in a case and the case is started’, it was again explained, ‘whatever the judge directs, prohibits, forbids, allows or orders, all those things are said to be done by the mercenary office of the judge’.65 Even those who found the distinctions drawn by the earlier commentators tortuous, and who recognised that their terminology had not been used by the Romans, felt bound to provide some explanation of its significance in later usage.66 Increasing emphasis was placed on a new treatment of the nobile officium by the humanist jurist Andreas Alciatus, who had written about ‘an extraordinary remedy that is granted against those whom we cannot sue in strict law but who are nonetheless liable to us on the basis of equity alone and of, to use the common phrase, aequum et bonum’.67 In his Institutions Mackenzie connected the concept of the nobile officium with the classification of actions presented in Justinian’s Institutes.68 ‘Some Actions’, he noted there, ‘are called Arbitrary Actions, wherein the Judge is tyed to no particular Law but proceeds ex nobili officio, that is to say, according to what he sees just and fit’. After providing an example of this kind of action, in which the judge proceeded ex aequo et bono, Mackenzie added: ‘And generally, there being many things with which the Law behooved to trust the Discretion and Honesty of the Judge, since all cases could not be Comprehended under known Laws; it therefore invested the Judge with this eminent power, which is called nobile officium, in opposition to that officium ordinarium, et mercenarium, wherein he is obliged to follow the will of the Contracters precisely, et hoc officium mercenarium Iudex nunquam impertit nisi rogatus’. In mentioning the will of the contractors Mackenzie was recalling the Roman distinction he had already noted between actiones bonae fidei, ‘in which equitie is followed’, and actiones stricti iuris, ‘in which the Judge is to follow the strict prescript of the Contract upon which the action is raised’. The importance of all these kinds of action is that they had been granted at the request of Roman litigants in the ordinary course of proceedings and not as extraordinary remedies at the discretion of the courts, so that Mackenzie was taking the expression nobile officium to cover any deviation from the strict application of the law. As in his later discourse on the Digest, he was using the expression quite loosely to signify the latitude that all judges needed to be given to turn from law to equity as a means of ensuring that the law had its intended effect, recognising that laws would be ineffective without equity and insisting that equity should never be 64

Ioannes Calvinus, Lexicon iuridicum, col 1327. Iacobus Spiegel, Lexicon iuris civilis, col 403. 66 Simonus Schardius, Lexicon iuridicum, col 647. 67 Calvinus, Lexicon, col 1272; Spiegel, Lexicon, col 381; Schardius, Lexicon, col 620; Pardulphus Prateius, Lexicon iuris civilis, f 136v; Alciatus, Opera omnia, vol 2, col 908. 68 Institutions, 4.1 (italicisation and punctuation adjusted); Institutes, 4.6. 65

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The Noble Office of the Lords 487 divorced from law. In his discourse he pointed out that ‘statutes referring any thing to the arbitrement of a judge are to be restricted to an arbitrariness regulated by reason and custom’.69 In his Institutions he similarly pointed out that contracts bonae fidei were to be interpreted in the courts secundum arbitrium boni viri, which was an objective standard contrasted in the Digest with the exercise of plenum arbitrium voluntatis.70 Another Digest text had distinguished between the case where the parties to a contract agreed to accept the decision of a third party, which would have been binding regardless of its fairness so long as it was honest, and the case where the parties agreed to accept the decision of a good man, which would have been binding regardless of the honesty of the third party so long as it was fair.71 Mackenzie remarked in his Institutions that ‘Arbiters are not tyed to the strict solemnities of Law, yet they must observe material Justice’, adding that their decisions could be reviewed by the lords of session since ‘Equity is to them a Rule, as Law is to other Judges’.72 The lords of session were themselves expected to conform to the same objective standard when they decided cases like arbiters since it was said in the Digest that when a case was to be dealt with arbitratu iudicis it was in effect assigned to a bonus vir.73 In turning to equity the lords of session were thus to deliver decisions that were arbitrary yet also regulated by the reason of the law.74 As an example of an arbitrary action Mackenzie drew attention in his Institutions to a special remedy available to anyone who had lost a document proving his entitlement to something.75 In these circumstances the lords of session could be asked to declare a copy of the document, normally drawn from the protocol book of the notary who had drafted it, to be probative, which they would generally do if witnesses were produced to testify to its authenticity. As Mackenzie remarked in his Observations, ‘this being nobili officii, cannot be done before inferiour Courts’.76 The lords of session were the only judges who could entertain an extraordinary action to make up the tenor of writs, and they were similarly the only judges who could deviate from the standard rules of evidence in the hearing of ordinary actions. In his treatise on the criminal law Mackenzie remarked that 69

BL, Sloane 3828, f 145v. Institutions, 3.3; Digest, 32.11.7. See too Infortiatum, gl. ‘arbitrium’, and also gl. ‘virum’, ad idem. 71 Digest, 17.2.76. 72 Institutions, 4.3. For awareness of the civilian and canonist distinctions between arbiters, arbitrators and amicable compositors in seventeenth-century Scotland, examined, for instance, in Fowler 1976, see Morison, Decisions of the Court of Session, vol 11, pp 8195–6, and Brown, Supplement to the Dictionary of Decisions, vol 1, pp 341–2. 73 Digest, 47.10.17.5. See too Digestum novum, gl. ‘quasi’ ad idem. For the practice of hearing cases as actual arbiters during the sixteenth century see Godfrey 2002b. 74 Aristotle, Rhetoric, 1374b22–3, had said that ‘arbitration was invented with the express purpose of securing full power for equity’. If equity meant giving effect to the intention behind the law, as was said in Ethics, 1137b27, then the purpose of arbitration was to implement the reason already present in the law. Although Mackenzie did not refer to the treatment of arbitration in the Rhetoric, he did refer to the definition of equity in the Ethics and appears to have understood arbitration accordingly. His concern was of course with explaining how the lords of session could deal with arbitrary actions without the door being opened to an unbounded arbitrariness. 75 Institutions, 4.1. 76 Observations on the Acts of Parliament, pp 112–13, 200 and 240. 70

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488 The Court of Equity inferior judges could not receive evidence from witnesses to prove that writs were false, ‘for that way of trial being in effect, nobilis officii, is only competent to the Lords of Session’.77 Even though written evidence was generally considered to be the most reliable, and could usually be challenged only by putting the party relying on it to his oath, there were cases in which the lords of session could be persuaded to declare writs false. Mackenzie maintained, however, that this should not be permitted in cases relating to ‘heritable rights or such rights wherein writs might have been had’, giving this as an example in his discourse on the Digest of where equity was in danger of breaking free from the law in the way that blood might burst from veins.78 Another example of an equitable departure from the ordinary rules of evidence was discussed in one of Mackenzie’s published pleadings, which had arisen from an attempt to have a decision set aside on the ground that witnesses had been corrupted.79 Noting that a reprobatory action was a remedium extraordinarium ex nobili officio proveniens, Mackenzie tried to clarify the types of evidence that could be adduced by exploring the learned origins of the remedy, identifying a Digest text as ‘the fundamental Law of Reprobators’ and considering the opinions of the many ‘Lawyers who have treated very largely of this subject’.80 The lords of session sometimes followed the example of the Roman courts in ordering restitutio in integrum where decisions were proved to have been based on false testimony, but the question was how this could be proved. ‘Since it is confest’, Mackenzie argued, ‘that the Civil Law and the Doctors do in this case allow probation by witnesses, I see not why our Law should not admit it’. In reporting the decision of the court in this case Stair made no mention of Mackenzie’s copious references to civilian sources but attributed to him the argument that ‘by the Law of God and all Nations, Witnesses are the general mean of Probation, and so ought to take place in all Cases, where Law or Custom hath not restricted the same’.81 As the written information submitted to the court confirms, Mackenzie had actually encouraged the judges to exercise their nobile officium in the light not of divine law but of the civil law, which provided guidance on how this arbitrary remedy should be employed.82 Further examples of ‘extraordinar remeeds, ex nobili officio’, were provided by the acts of parliament and decisions of the session relating to the recovery of unpaid debts by apprising and adjudication, which seemed to Mackenzie to indicate ‘what epieikeia the Lords have’.83 Apprising had initially involved a transfer of the ownership of land from the debtor to the creditor, subject to a right of reversion on repayment of the debt within seven years, but in the early seventeenth 77

Laws and Customes, 2.10.3. BL, Sloane 3828, f 153v. 79 Pleadings, pp 78–90. 80 Digest, 42.1.33. 81 Decisions, vol 1, pp 756–8. Stair did, however, refer to Mackenzie’s use of civilian authority at an earlier stage in the proceedings and in relation to a different point, at pp 710–13. 82 Mackenzie’s information can be found near the back of NLS, Adv MS 27.2.4. For Wedderburn’s report of the case, which was closer to Mackenzie’s account, see Adv MS 24.1.12, f 143v. 83 Stair, Decisions, vol 2, pp 350–51; Mackenzie, Observations on the Acts of Parliament, p 407. 78

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The Noble Office of the Lords 489 century it had become a different form of security over land, which continued to belong to the debtor unless he failed to repay within seven years.84 It had then been compared with the pignus praetorium imposed by the Roman magistrates who, as well as ordering litigants directly to make restitutio in integrum, had often exercised their imperium by ordering missio in possessionem or the surrender of one litigant’s belongings to another.85 In 1661 the rules on apprising were modified to allow ‘some breathing tyme and encouragement’ to debtors who had suffered in the late ‘troubles and difficulties’.86 Those who had incurred debts before 1658 were given more time to repay before their lands were apprised, they were then given ten years instead of seven to make repayment, and in the meantime the creditors were given possession of as much land as the court believed ‘just and reasonable’, the idea being that the land possessed should yield rental income equivalent to the amount of interest due on the debt. In the same spirit, since it was feared that ‘some persons may have taken advantage of the late times and troubles’, a limit was placed on the amount of interest that could be charged when lands had been mortgaged, and the judges were authorised in mortgage cases ‘to take such reasonable probation as in equity they shall think fit’. Advocates accordingly advised the judges that ‘ex officio they might supply defects in Apprysings, to make them subsist as Securities for the just interest’, or that they might ‘sustain Apprysings quoad their equitable effect to get the Apprysers satisfaction’, or that they might ‘most severely and strictly Consider them, as to exorbitant advantage’.87 The practice of apprising was still considered to be deficient, however, for if debtors failed to repay within the time permitted, the result could be that ‘opulent and great Estates’ were transferred to creditors in respect of ‘inconsiderable soumes’, and at the instance of lay commissioners who might be ‘ignorant persones’.88 Further reform was considered by Mackenzie and four other lawyers, who recommended that the lords of session should themselves ‘Adjudge as much of the Debitors Land to the Creditor as would satisfie his principal Sum and Annualrent [i.e. interest], with a fifth part more, because the Creditor was forc’d to take Land for Money’. Their proposal was put to the parliament of 1672, ‘and the equity of it was prest from the Custom of other Nations, and particularly the Common Law, where the Praetor did adjudge the Debitors Land proportionally to the Debt’. In Roman law the word adiudicatio had been used narrowly to denote a court order that did not declare the rights currently enjoyed by litigants but rather conferred new rights on them, for instance by dividing commonly owned land between them at the discretion of the judge.89 In Scotland the division 84

Mackay 1873, pp 105–8; Thomson 1896, pp 92–5; James 1926, pp 117–20. Stair, Decisions, vol 1, pp 74–5; Mackenzie, Observations on the Acts of Parliament, pp 70–4 and 356–8; Code, 8.21. 86 Acts of the Parliaments of Scotland, vol 7, pp 317–20. 87 Stair, Decisions, vol 2, pp 568–71 and 637–8; Mackenzie, Observations on the Acts of Parliament, p 404–10. 88 Acts of the Parliaments of Scotland, vol 8, pp 93–4; Mackenzie, Memoirs, pp 221–2, Observations on the Acts of Parliament, pp 448–50, and Institutions, 2.12; Lauder, Historical Notices, vol 1, p 325. 89 Schulz 1951, pp 47–8; Berger 1953, p 349; Buckland 1963, p 252. 85

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490 The Court of Equity of a debtor’s land became possible in 1672, but it proved unpopular and was disowned by the lawyers who had proposed it. As Mackenzie admitted, the blame for conferring an arbitrary power on the lords of session was unfairly placed on Stair. In giving examples of recourse to equity in his discourse on the Digest, Mackenzie remarked further that ‘acts before answer are a branch of this nobile officium, wherein the judg, before he decides the nice point of law, seeks all the assistance he can from the matter of fact’.90 In the ordinary course of proceedings one of the most important judicial acts before the pronouncing of a final sentence was what was known as the act of litiscontestation, through which the parties were taken to have joined issue on those matters of fact that if proven would be legally significant.91 If a defender believed that a pursuer’s allegations of fact, even if proven to be true, would not support the claim made in law, he would object to the relevancy of the allegations before any evidence was taken, on the principle that frustra probatur quod probatum non relevat.92 It was therefore the act of litiscontestation, by which it was determined that the facts alleged would be relevant if proven, that tended to answer any questions of law raised by the parties and to give an indication of how future cases might be handled. Exceptionally, however, the lords of session might decide to examine the evidence before answering the question of law raised in a plea to the relevancy, on the principle that ex facto ius oritur, and they again did this in exercise of their nobile officium.93 The practice was well established by the last decade of the seventeenth century, though there were those like Mackenzie who believed that ‘to turn everything into an act before answer (as is usually done) is abominable’. Partly the complaint was that an extraordinary practice should not be allowed to become ordinary, and partly it was that decisions would fail to clarify the law if they were always based on the particular facts of the case at hand. The complaint was connected with Lockhart’s observation, noted in an earlier chapter, that the lords of session had tended during the 1670s ‘not to determine generall points of law but to bottom ther interlocutors on specialities and circumstances differing in matter of fact, wheirby we shall never come to ius stabile but our practique shall ever be fluctuating’.94 In recording this observation Lauder himself acknowledged that ‘the circumstances may be sometymes so important and materiall as to cast the ballance of justice and oblige the judge to swerve and deviat from the common rules’, which was what the nobile officium entitled the judges to do, in accordance with what the Greeks had called epieikeia and the Romans aequum et bonum, and in line with the practice of the ‘court of chancelary’ in England. ‘But’, Lauder went on, ‘that every small singularity and diversity should give a judge the freedome, ex officio nobili, to alter the decision, opens a great door to render all judges arbitrary’. The lords of session had 90

BL, Sloane 3828, f 153v. Mackay 1879, vol 2, pp 15–18; Maxwell 1958b, pp 418–19; Phillipson 1990, p 56. 92 The principle had been derived by the doctors from Code, 4.19.21. 93 Acts of Sederunt (1740), pp 84–5; Nisbet, Decisions, pp 67 and 74; Lauder, Historical Notices, vol 2, pp 768–9. This principle had been derived by the doctors from Digest, 9.2.52.2. 94 NLS, Adv MS 6.2.16, p 58; and see too Lauder, Historical Notices, vol 1, p 22. 91

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The Noble Office of the Lords 491 always been prepared to deliver ad hoc decisions in difficult cases, but Lauder, Lockhart and Mackenzie were troubled by a tendency to treat ordinary cases in an extraordinary way.95 Lauder concluded that there might be ‘lesse hazard of iniquity to bind them up to strict law then to leive them this dangerous latitude’. Mackenzie came to a similar conclusion in his discourse on the Digest.96 Remembering that the Roman jurists had been ‘divided into two sorts, the Sabinian, who adhered to strict law and were affraid to corrupt it by the licentiousness which boundless equity might produce, and the Proculian, who thought it necessary to temper strict law with equity’, he finally concluded: ‘I find that these lawyers amongst the Romans who were complying courtiers did generally stand for equity, whereas the more abstract, expert, lawyers adhered to strict law, which is certainly the safest rule, for tho all generals must fail in the application, yet strict law is subject to fewest errors and men are most overawed by it, because it doth direct in their enquiries, and detects them in their errors’.97

Recourse to natural or constituted equity One of the first cases reported by Stair had resulted in an act before answer.98 Salmon fishermen had complained that the draining of a loch near Selkirk was causing pollution in the river Tweed and was reducing fish stocks as far away as Berwick, over forty miles downstream. They had submitted a bill to the Restoration parliament, pointing out that the salmon trade contributed to the revenues of the crown, and had asked that the landowner who was discharging water from his loch into the river ‘be ordained to desist and cease’. The matter was remitted from the parliament to the session when it resumed its sittings in June 1661. Andrew Gilmour and George Mackenzie, appearing for the owner of the loch, challenged the allegations of fact and also entered a plea to the relevancy, arguing that even if the river were being polluted and fish driven away there could be no claim in law to have the draining terminated since the defender was exercising ‘his undoubted Right of Propertie, giving him power to dispose of his own at his own pleasure’. John Nisbet and Robert Sinclair, appearing for the fishermen, responded that their claim was ‘most Relevant, and no ways contrair to the Right and Effect of Propertie’, for although an owner was generally entitled to use his land as he pleased, he could sometimes be prevented from acting to the detriment of others, ‘especially if he make use of that which is his own, not according to the nature and common use thereof, but against the same’. A landowner could thus erect a building blocking his neighbour’s light or dig a well cutting the flow of water to his neighbour’s spring, but he could not divert water onto his neighbour’s land or obstruct the flow of water to his neighbour’s mill. In the same way, ‘the 95 96 97 98

See, eg, Gibson, Decisions, pp 251–2, 466 and 472. BL, Sloane 3828, f 154r. On the Sabinians and Proculians see Stein 1979, pp 441–50. Decisions, vol 1, pp 49–50.

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492 The Court of Equity Defender might not contrair to the nature of a Loch, which hath perpetually been a Loch, do any deed beginning within his own Bounds, but ending in a publick River, to the detriment of the Fishing’. It was answered that all the defender was doing was temporarily encouraging the natural flow of water out of his loch, and that although ‘he might make no new work on his own ground, to the Detriment of his Neighbours Propertie, yet might he well send away any stagnant water, corruption or filth, by a publick River, whereof one prime use is to purge the earth of all corruption, and to carry it to the Sea’. Another report, copied and preserved among John Lauder’s papers, indicated that ‘many lawyers’ were cited in support of the proposition that an owner was free to do as he pleased with his own, and that ‘severall laws both in Code and Digest’ were cited in relation to the restrictions that might be placed on the use of land, particularly by interdicts issued in Rome by the praetors.99 Stair mentioned that reference had been made to ‘Interdicts in the Civil Law’, but he imputed to those who had appeared for the defender the reply that ‘they neither meet the Case, nor are they Laws for us, where the Civil Law is not a Law, but an Example we follow freely’. He reported that the judges had felt inclined to favour the defender, ‘on that consideration mainly, that it was the proper use of Rivers to carry away the Corruption and Filth of the Earth’, though they had decided first to investigate the facts, ‘in regard the matter was remitted by the Parliament, who might, if they found great Inconveniency, make a new Law for remeid thereof’. As was noted in an earlier chapter, when Mackenzie revisited this case in his printed Pleadings he did not rehearse the argument that the civil law was only an example the court might follow as it saw fit.100 On the contrary, having based the owner’s defence on citations from the Digest and Glossa ordinaria, he went to some trouble to explain why the Roman interdicts did not meet the case precisely because he believed that the civil law, when found to be equitable, was a manifestation of equity as law. As in the case on reprobatory actions, Stair reported the arguments as if the lords of session had been advised on how to fashion an equitable and expedient solution to a new problem, with the civil law being taken to provide no more than guidance on how natural equity might be implemented, whereas Mackenzie gave the impression in his Pleadings that the case had been debated by the advocates in terms of the applicable law. Mackenzie gave the impression, it has been fairly observed, that where local authority was absent the court would turn to the law of a remote civilisation sooner than examine the social and economic needs of the Scottish people.101 Whether it is also fair to observe that he did this despite believing that Roman law had no binding authority in 99 NLS, Adv MS 24.4.1, ff 50v–1r. The act extracted from the case is preserved among the records of the parliament in NAS, PA 7/9/142, but it sheds little light on the arguments advanced. The process itself, which was presumably also sent back to the parliament, does not appear to have survived. 100 Pleadings, pp 34–9. As Mackenzie’s pleading covered almost all the points made in the reports, it seems that Gilmour left him to take the lead in presenting the case in the inner house, even though he had only just been called to the bar. 101 Watson 1985, pp 98–109. Stair’s report indicates that the court made an act before answer because it did wish to examine these needs, but this is what Mackenzie’s treatment obscures.

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The Noble Office of the Lords 493 Scotland seems more doubtful. Mackenzie’s position appears to have been that in the absence of the necessary authority of statute or custom, cases could be decided on the strength of the probable authority derived from the learned laws. This was why the lords of session were able to pass acts of sederunt declaring how they would handle substantive issues in the future despite having no authority to legislate on anything other than their own procedure. This was why the lords of session were able to interpret acts of parliament extensively even though the power of interpretation had been vested in the legislator. This was why they were able to interpret acts freely and to turn in hard cases from law to equity without their decisions becoming wholly arbitrary. If it was not possible for the lords of session to exercise legislative authority, either in enacting or in construing laws dealing with substantive issues, and if it was not possible for them to deal with cases themselves without the sanction of existing law, it was nonetheless possible for them to proceed beyond the rigid application of the law by relying on the authority of expert lawyers. They could follow the reason as well as the letter of the law without usurping the authority exclusively reserved to the legislator, and they could follow the reason explicitly or implicitly contained in the learned as well as the local laws. If the safest course might have been for them to adhere strictly to the letter of the law, their authority to turn to equity could have been exercised without their decisions becoming unduly arbitrary provided they turned to aequitas constituta and not to aequitas rudis. It was by insisting that the lords of session must base all their legal decisions either on the legislative authority exercised by the king in parliament or on the learned authority exercised by the practitioners trained in the schools that Mackenzie distinguished his theory of adjudication most clearly from the theory developed by Stair.102 At the opening of the new library established for the advocates in 1689, Mackenzie observed that the aim was to build up a collection ‘equipped solely with works written by lawyers or conducing to the study of jurisprudence’, for the task of mastering the law, he explained, ‘demands the whole of a man, and his energies must not be bound up in or shared with extraneous studies’.103 The library was to comprise books on the local or learned laws, together with relevant works on the humanities, recognised as ‘the handmaidens of jurisprudence’, but the works of philosophers and theologians on natural law were dismissed as idle speculations that were nihil ad edictum praetoris. Obviously this did not mean that natural law was of no interest to lawyers. Because the laws of nature and nations had been defined at the start of Justinian’s Institutes, Mackenzie took time to define them at the start of his Institutions, but these categories had no greater significance for him than for the Roman jurists.104 Although he distinguished like the jurists between 102 The complicating factor for both Mackenzie and Stair was of course customary law, of which more will be said below. 103 Oratio inauguralis, pp 62 and 72–3. 104 Institutions, 1.1. In his ‘Account of the Law and Government of Scotland’ Mackenzie had not even provided preliminary definitions of these categories but had started his discussion with the civil law.

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494 The Court of Equity natural and civil obligations, natural and civil possession, and natural and civil modes of acquiring ownership, and although he noted like the jurists that some laws were founded on natural equity, his concern throughout his book was with the relationship between the local and the learned laws.105 Although human laws were all supposed to be founded on natural equity, Mackenzie explained that lawyers would turn in novel cases only as far as the civil law, secure in the knowledge that the Roman jurists had ‘studied with great exactness, the principles of Equity and Justice’, and had developed laws ‘founded upon Justice and Equity’ or ‘founded upon material justice’. Crucially, these laws were a species of ‘positive Law’, containing constituted as opposed to natural equity. Since the laws of nature and nations had been defined at the start of the Digest as well as the Institutes, Mackenzie devoted further attention to the concepts in his discourse on the opening titles of the Digest, though he again made it clear that he did not expect lawyers to turn directly to natural equity when they were seeking solutions to novel problems.106 ‘It seems’, he explained, ‘that God Almighty did inspire the Romans to digest the principles of reason into a body of their positive law, to the end nations might have common principles wherein they might agree, and it is therefore called by the French and us and by most other nations the common law’. As already noted, Mackenzie shared Craig’s understanding of how natural equity had been channelled down from the divine fountainhead through Israel, Egypt, Greece and Rome to the modern nations of Europe. Like Craig he believed that while in principle nations who found the resources of their municipal laws inadequate could revert to the law of nature itself, in practice the resources of the common law would almost always obviate the need for them to depart from positive law. If problems could not be dealt with through application of the local laws, solutions would often be found spelled out in the learned sources, and if not solutions could generally be worked out in keeping with the reason implicit in the sources. Scarcely ever would lawyers be forced to turn directly to natural equity, and if this did happen the problems would more properly be a matter for debate in parliament, ‘which is the full Representative of all the Kingdom, and the natural Judge of equity and convenience’.107 Mackenzie had already described the reading he thought suitable for a lawyer in his second collection of printed pleadings, issued in 1681 under the title Idea eloquentiae forensis hodiernae.108 ‘Let him frequently peruse the Body of the Civil Law’, he had advised, ‘which is the best and purest Fountain of Justice and Eloquence; and let him prefer the Commentaries that are written on that Subject and the Interpreters of it to all others’.109 If the lawyer ought also ‘to make Humanity very much his Study; from whence he will exactly learn the History of 105

Institutions, 2.1, 2.7, 3.1 and 3.7. BL, Sloane 3828, ff 125r–29v and 134r. Mackenzie’s interesting remarks on the laws of nature and nations will be returned to in a later volume. 107 Pleadings, p 143. Cf Lauder, Decisions, vol 1, pp 248, 273 and 317. 108 Idea of the Modern Eloquence of the Bar, pp 10–16 and 25–6. 109 The connection drawn here between justice and eloquence will be returned to in the third volume in this series, along with the emphasis placed on study of the humanities. 106

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The Noble Office of the Lords 495 the Law, and be inform’d of the Manners and Customs of the ancient Romans’, he ought never to allow himself to be distracted from his primary task of mastering the law itself: ‘While others peruse Histories, let the Lawyer read Decisions; when they entertain themselves with Poems, let him read over the Pleadings of the Bar’. Of course, it might have been objected that the study of forensic eloquence was itself at risk of diverting ‘the Minds of Advocates from a serious and solid Contemplation of Law and Justice, to a trifling and impertinent Nicety about their Words and Expressions’. Mackenzie granted that this would have been a proper objection in the Roman republic since then ‘there were no fixed and establish’d Laws, by which all Causes and Controversies between contending Parties might be exactly determin’d: But all their Topicks and Arguments were taken from material Equity and Justice, without any Consideration of positive Law; as any Man will easily perceive from the Strain of Cicero’s Orations’. In the formative period of Roman legal history, orators like Cicero had been required to advise the courts on how to deal with cases in accordance with natural equity, ‘but now the Face of Affairs is entirely alter’d’. The role of the modern advocate was to advise the courts on how to apply established laws to the cases they covered, though sometimes advocates gave advice on how ‘to extend them to those which are of the same Kind and Nature’, and here there was more scope for rhetorical persuasion. There was more scope for eloquence in cases ‘in which the Truth depends not upon Laws, and the Authority of the Doctors, but may be gather’d from Circumstances’, or in those ‘arbitrary and uncertain Cases, where the truth hangs doubtfully’, or in cases ‘which were never debated before, and have not yet suffer’d a Decision; as also in Political and Criminal Causes’. The first of the pleadings printed in Mackenzie’s book was from a criminal case in which a woman who had killed her own child was prosecuted ‘before the Men of Inquest, who in Scotland are Judges in Criminal Cases, arising from Matters of Fact; and wherein the Advocate pleads after the Manner of the Roman Orators, without adducing any Citations of the Laws’.110 In this pleading ex facto puro oriens Mackenzie had told the jurors that even without any enacted law they could have applied ‘one which is born with us’, though he had gone on to mention a Roman statute and to draw attention to several cases in which women had previously been convicted of infanticide in Scotland. Similarly, although his next pleading was from a prize case governed by ‘the law of nations’, he had cited a great deal of learned authority to show that his argument was grounded on ‘true Philosophy, right Reason, and the purest Principles of the Civil Law’.111 In subsequent pleadings he had based his arguments in turn on the civil law, the feudal law, the canon law and the municipal law, yet in each instance he had actually alternated between discussion of learned and local sources. If the structure of his book reflected the pattern of legal history outlined by Craig, the substance of his arguments indicated, like the substance of Craig’s treatise, that the courts were not expected to turn directly to natural equity. 110

Idea eloquentiae forensis, pp 41–56; Idea of the Modern Eloquence of the Bar, pp 81–109. Idea eloquentiae forensis, pp 57–77; Idea of the Modern Eloquence of the Bar, pp 110–40. It was of course conventional to identify the civil law with vera philosophia and recta ratio. 111

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496 The Court of Equity Mackenzie reflected further on the relationship between natural equity and positive law in his treatise on crimes, where he began by observing that the punishment of offenders had its origins in divine law and then distinguished between four ways in which punishable offences could be identified.112 In the first place, he explained, ‘that is a Cryme, which is declared such by an express Statute’, giving murder and treason as examples and remarking that ideally nothing should be considered criminal ‘which is not declared to be so, by a Statute; for this would make Subjects inexcusable, and prevent the arbitrariness of Judges’. He believed that this view was supported ‘by the general consent of Criminalists’, though the doctors also recognised that the fixing of penalties could be left to the discretion of the courts, and that in reality criminal courts were often granted a plenum et liberum arbitrium which released them from adhering even to the standard of the bonus vir followed in civil courts.113 Mackenzie qualified his statement of the ideal position accordingly. In the second place, he continued, ‘the transgressing any Municipal Law, which prohibits that which either the Law of God, or the Civil Law, punishes criminally, by corporeal punishment, or a pecuniary mulct, is a Cryme’. He gave as an example a case in which he had himself appeared in court to defend the relevancy of a charge brought against an official who had confiscated an ox from a defaulting debtor during the ploughing season, contrary to the express terms of an act of parliament.114 When it was pointed out that the act had not mentioned any criminal penalty, Mackenzie successfully replied that ‘the away taking of the goods of others unwarrantably is Theft’, that if confiscating an ox ‘be declared unwarrantable, there must be an arbitrary punishment at least’, and that a penalty had been imposed in similar circumstances by ‘the Civil Law’ or ‘the Common Law’. In some of the later titles of his treatise he explained that other offences only vaguely specified in Scottish legislation were regulated in detail by learned sources, ‘our criminal law, being much more founded upon the Civil Law, then any other part of our Law’.115 In his opening title he observed that, in the third place, ‘that is a Crime, whereby the publict peace is immediatly disquieted, or whereby the Law of Nature is violated’.116 Incest and rape, for example, had been punished as crimes even ‘before they were declared to be such by an express Law’, while bestiality and sodomy were crimes ‘though yet we have no Statute against them’. Mackenzie felt justified in declaring elsewhere that ‘nothing is punishable but that which is either contrary to the law of nature and nations, or which is discharged by some express municipal law’.117 If the requirement was ‘not to leave the subjects in an uncertainty, so that they cannot know what to shun’, it could still be argued that the wickedness of some offences did not need to be declared in legislation. ‘And thus the lybel in single Adultery is founded upon the 112 113 114

Laws and Customes, 1.1.pr–3. Schnapper 1973–4; Fraher 1989; Mayali 1992. Proceedings of the Justiciary Court, vol 1, pp 140–42; Acts of the Parliaments of Scotland, vol 2,

p 254. 115 116 117

Laws and Customes, 1.19.18, 1.22.2, 1.28.2 and 2.29.2. The punctuation has been altered here. Memoirs, p 296. See too Observations on the Acts of Parliament, p 109.

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The Noble Office of the Lords 497 Law of God’, Mackenzie pointed out in his criminal law treatise, adding later that ‘the punishment of ordinary Adultery is arbitrary’.118 Yet ‘single and not manifest Adultery’ was also the example he used in saying that anything was a crime, in the fourth place, ‘which long custome hath punisht, by corporal punishment, or a pecuniary mulct, in the Justice Court’. It was the practice of the criminal court as much as the law of God that showed isolated acts of adultery to be punishable offences. Although he believed the law of God to be ‘the first fountain of our Criminal Law’, it was the acts of parliament, the practices of the courts, the civil law and the old books that Mackenzie went on to enumerate as the four sources of Scottish criminal law.119 The reference made to divine law in some criminal libels has led one legal historian to assert that by the late seventeenth century lawyers in Scotland were required by the procedural forms of the courts to discuss questions of law in connection with the laws of nature and nations.120 In Scotland as elsewhere lawyers were of course at liberty to remind the courts that all human laws were supposed to implement natural equity, and when offenders were charged with crimes like adultery, incest or witchcraft, reference sometimes was made to the infringement of divine as well as human law.121 However, lawyers were certainly not required to refer in their pleadings to the laws of nature and nations, nor did they often do so, even in the criminal cases in which divine law was mentioned in a libel. Indeed, in one such case the king’s advocate informed the court that ‘albeit it mak mention of the devyne law, yit the lybell is not fundit tharupone bot upone the municipall law and practique of the realme’.122 This case was decided three years before Nisbet informed the court trying Spotiswoode that the charge of treason brought against him was irrelevant ‘in so far as it is founded upon the common Law of Nations, Equity, Reason and Conscience’, explaining that it was a recognised principle that all criminal charges had to be ‘authorized by positive Laws and Statutes’.123 Although he also maintained, as was noted earlier, that a charge based on the civil law would have been equally irrelevant, Nisbet actually cited a Digest text in support of his claim that it was ‘a Fundamental Law in all well Governed Kingdoms’ that no criminal penalties should be inflicted without the prior sanction of law.124 He was actually quite willing as king’s advocate to frame charges in 118

Laws and Customes, 1.17.4. His account of the sources of Scottish criminal law was thus similar in structure, though not in detail, to Craig’s account of the sources of Scottish land law. In theory cases could be decided on the strength of natural or divine law, but in practice this was not expected to be necessary. 120 Cairns 1995, p 249, relying on evidence presented in Cairns 1992b, which is exclusively concerned with criminal law and mostly with the eighteenth century. 121 See, eg, Selected Justiciary Cases, vol 1, pp 96–7, 130, 143–4 and 214–15, and vol 3, pp 597–8, 610–11, 637, 690, 692 and 746, and Proceedings of the Justiciary Court, vol 2, pp 18, 190 and 208–9. As Mackenzie, Laws and Customes, 1.21.4, pointed out, the crime of hamesucken, with which Cairns 1992b is primarily concerned, was usually libelled in the seventeenth century in terms of the municipal law alone. 122 Selected Justiciary Cases, vol 3, p 803. 123 Spotiswoode, Practicks of the Laws of Scotland, p xvii. 124 Digest, 50.16.131.1. 119

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498 The Court of Equity terms of both ‘the Common Law and Law of Nations and the law of this kingdom’, or in terms of the common law alone where the crimes were ‘obvious to all persons’, and in pleading before criminal judges he often made reference to ‘the Common Law’, ‘the opinion of Lawyers’, and ‘the opinion and authority of all the Doctors’.125 Where he was more insistent on the need to talk only in terms of the municipal law was in relation ‘to Questions concerning the State and Government’.126 Nisbet believed in particular that the royal prerogative was hedged in by the statutory and customary laws of Scotland and that it was to this extent open to discussion by lawyers, but beyond these boundaries he thought it ‘a Point of State and Policy of the highest nature and importance, and not to be defined by the Opinions of Lawyers’. Mackenzie similarly believed that the kings of Scotland were ‘absolute and Soveraign Monarchs’ in the sense of having ‘power to do every thing that is just and reasonable, though they be not thereto empowered by particular Acts of Parliament’, but he also thought it appropriate for matters of policy to be discussed with reference to ‘the Opinions of Lawyers who write upon that Subject’.127 He found it strange that writers on political theory like Buchanan should have engaged in what was essentially ‘a debate in Law, not being themselves Lawyers; and should have written Books upon that Subject, without citing one Law, Civil or Municipal, pro or con’. As later volumes in this series will make clear, Mackenzie had interesting things to say about ius naturale et gentium as well as ius civile in his books on public law and government, and to this extent he worked on a different set of assumptions from those held by Nisbet. Where he agreed with Nisbet was in assuming that lawyers would be able to resolve issues of private law by drawing from local or learned sources without having to resort further to the laws of nature and nations. In his books on private law he did not make preliminary comments on divine law, as he briefly did in a few titles of his treatise on criminal law, instead concentrating on the local and learned laws and structuring his material around either the chronological order of the acts of parliament or the known way of Justinian’s Institutes.128 It was the local and learned sources that constituted the corpora iuris through which Mackenzie understood equity to flow like blood coursing through the veins of human bodies. Stair used a similar yet strikingly different metaphor in his Institutions. In explaining the approach he meant to take in writing about private law Stair remarked that ‘Equity is the body of the Law, and the Statutes of men 125 See, eg, Selected Justiciary Cases, vol 3, pp 716–17, 721–2 and 760–62, and Proceedings of the Justiciary Court, vol 1, pp 161–2 and 221–2, and vol 2, pp 36–7, 40–51, 76–7, 88–93, 166–7, 171–2, 230–31, 242–3 and 255–6. For Nisbet, it has been seen, the law of nations tended to have more to do with the received civil law than with natural law. These connections will be examined further in the next volume in this series. 126 Doubts and Questions, pp 137–9. Nisbet was concerned here with a question of precedency, which he believed should not be ‘judged Iure communi’. Mackenzie devoted a whole treatise to promoting the opposite view, acknowledging that precedency generally depended on royal favour yet arguing that the subject was suited to debate in terms of ‘the Laws and Customs of Nations’. 127 Observations on the Acts of Parliament, pp 157, 255–6, 298–9, 318–19, 393, 417–19, 438–9 and 459, and Ius regium, pp 5–6 and 34. 128 Laws and Customes, 1.10.pr, 1.11.pr, 1.13.pr, 1.[15].1–2, 1.17.pr–1 and 1.19.pr.

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The Noble Office of the Lords 499 are but as the ornaments, and vestiture thereof ’.129 It was on the basis of this assumption that he was to begin almost all the titles of his treatise with detailed discussions of natural equity and was to depart from the order of Justinian’s Institutes when it seemed possible to structure his material in a more ‘natural’ way. He did not assume that recourse could be taken from law to equity only to the extent that equity was already contained in the body of the law, whether local or learned. For Stair the learned laws were not a source of constituted equity but were examples of how natural equity could be constituted. He regarded equity itself as the body of the law, treated the learned laws and the laws of other nations as mere examples of how natural equity could be clothed and adorned with positive laws, and distinguished both natural equity and these foreign laws from the positive laws of Scotland. He encouraged lawyers to begin their consideration of any topic of private law by reflecting on the requirements of natural equity, and to recognise that in turning from law to equity in difficult cases they would be turning to something distinct from constituted law. ‘Though Equity be taken some times for the moderation of the extremity of Humane Laws’, he explained at the start of his book, ‘yet it doth truly comprehend the whole Law of Nature; otherwise it could not possibly give remeid to the rigour, and extremity of positive Laws in all cases’.130 Stair was partly expressing here a preference, shared with Mackenzie, for the Aristotelian conception of epieikeia, as he made clear by explaining further that as all laws were ‘the Inventions of frail men, there occurs many casus incogitati, wherein they serve not, but Equity takes place, and the Limitations and Fallancies, Extensions and Ampliations of Humane Laws are brought from Equity’.131 Yet the further point Stair clearly meant to make was that the function of equity was not only to moderate the extremity of the law in harsh cases but was also to supplement and correct the law in new cases by recourse to ‘Natural Equity’. The task for a court of equity confronted with a new case was not simply to identify and give effect to the legislator’s intention but was to revert like the legislator to natural equity and to see what ‘remeid’ might be appropriate.

Stair’s understanding of adjudicative authority It will be remembered that in reporting the case concerned with the draining of a loch to the detriment of salmon fishing Stair explained that the lords of session had ordered an investigation of the facts before making their decision because the matter had been referred to them by a parliament, which might, if it ‘found great Inconveniency, make a Law for remeid thereof’.132 The case had originally been 129

Institutions, 1.16/1.1.17. Ibid, 1.6/1.1.6. As will be explained in the next volume in this series, this paragraph, along with the preceding paragraph in which the term conscience was defined, was amended in quite a significant way in 1693. 131 The punctuation has been altered here. 132 Decisions, vol 1, p 50 (punctuation adjusted). 130

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500 The Court of Equity raised by way of a bill of complaint submitted to the lords of the articles, who had been authorised in 1661 both to prepare bills for enactment and to advise on the resolving of disputes, much as the committee for bills and complaints appointed on the same day had been authorised to prepare overtures on trade as well as to report on the cases it heard.133 Lauder, one of the lawyers who noted an imprecise parallel with the ‘ancient Domini ad Quaerelas’, noted further that those represented in these committees, ‘being a Parliament, did not ty themselves to law’, and that they tended to proceed ‘more in a parliamentary [than] a juridicall way’.134 It may have been precisely this tendency that encouraged Stair to observe in the earliest surviving version of his paragraph on the sources of Scots law that the session had at first been ‘a comitie of parliament’.135 As was seen in the last chapter, he claimed there not only that legislation affecting private law was typically enacted by parliament on the recommendation of the judges, but also that the largely customary law of Scotland had taken shape through their exercise of an adjudicative power previously vested in parliament. The lords of session had at one time handled disputes ‘in the eye and view of the parliament’, but their sovereign authority to deal with cases definitively had been recognised when appeals were ‘refused and rejected’ in the fifteenth century. Stair claimed that the customs emerging from the decisions of the session had thus come to enjoy the force of laws so long as the parliament was prepared to acquiesce in them without introducing reforming statutes. Conversely, as was seen in an earlier chapter, he reported cases during the 1660s and 1670s in which the lords of session decided to what extent the statutes enacted by parliaments should be taken to have the force of laws, talking mostly in terms of legislative intention and popular consent, but also indicating that the judges would sometimes take evidence of what was in the public interest before making their decisions. In these and other cases the judges would often make an entry in their books of sederunt or publish an act of sederunt, declaring that for ‘remeid’ of some ‘inconveniency’ they were ‘ordaining’ a change of practice to be made ‘in all tyme coming’. Both in compiling his Decisions and in revising the discussion of the sources in his Institutions Stair made much of the connection between these acts of sederunt and the decisions of the session. In the new passage he wrote in 1667 he claimed that the judges had been authorised to issue acts relating not merely to ‘the manner and order of Proceeding’ but more generally to the ‘Administration of Justice’, that since their decreets in foro contradictorio were final and irrevocable it could be said that ‘recent Custome or Practique is established, both by their Acts of Sederunt and Decisions’, and that their authority extended ‘not only to the Interpretation of Acts of Parliament, but to the Derogation thereof’, as cases on the 1621 act against defrauding creditors illustrated.136 It was in response to this line of argument that Mackenzie questioned the authority of the lords of session to issue acts of sederunt altering anything apart from their own 133 134 135 136

NAS, PA 7/9/142; Acts of the Parliaments of Scotland, vol 7, pp 8–9, and app, pp 5–7 and 11–32. Lauder, Historical Notices, vol 1, pp 1–3; Mackenzie, Memoirs, p 21; Stair, Institutions, 4.1.58. NLS, Adv MS 25.1.10, 1.20. Institutions, 1.15.

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The Noble Office of the Lords 501 procedure and insisted that where genuinely new cases were thought to have arisen they must be remitted to parliament as ‘the natural Judge of equity and convenience’. Elsewhere Mackenzie claimed that only a parliament could have made a law against the draining of lochs by landowners.137 Although he agreed that the session had once been ‘a committee of parliament and so had parliamentary power’, he maintained that ‘all this was innovated’ when the College of Justice was instituted on 1532, ‘after the modell of the Parliament of Paris’.138 It was mentioned in an earlier chapter that the judges sitting in the various parlements had the authority to turn from law to equity in dealing with the cases raised before them, at least until the reforms of 1667.139 Writs were generally issued under royal seal—at first by the chancery and later by the courts themselves—to make available equitable remedies for the suspension of proceedings, the review and reduction of decisions, the review and reduction of contracts, and some other things.140 In these cases there was a preliminary investigation of the facts before a writ was issued expressly conferring discretion on the trial court, and even without such express authorisation the judges of the parlements claimed to have the authority as the king’s representatives to turn from law to equity in the handling of all cases. It became proverbial to say ‘Dieu nous garde de l’équité des parlements’, but what investigation of the decisions delivered by the various courts has tended to show is that the recourse taken to equity was by no means wholly arbitrary.141 While equitable decisions were in theory rendered on the facts of each case and so had no bearing on other cases, new rules of procedural and substantive law did gradually emerge from them, often under the influence of the learned laws. Even before it was decreed in 1667 that the judges should not deviate from the law ‘sous prétext d’équité’ and should refer any points of difficulty to the king, it was often recognised that he alone had the authority to revert from law to natural equity, in keeping with the distinction between aequitas rudis and aequitas constituta.142 ‘Only the king’, according to Louis Le Caron, ‘like every other sovereign, can use equity for the correction and proclamation of the law, and not the magistrates, however sovereign they may be’.143 It was actually Le Caron’s view ‘that the sovereign courts, which judge under the authority of the king, have the power to interpret, moderate and supplement the laws and ordinances, and that all their rulings, principally those that decide cases in a general way, are followed and brought to bear as examples elsewhere, so that they have the effect of statute and constitute 137

Observations on the Acts of Parliament, p 324. BL, Sloane 3828, f 155; Macfarlane’s Geographical Collections, vol 3, pp 75–6; Institutions, 1.3. 139 Royer 1995, p 57; Castaldo 1998, p 332; Timbal and Castaldo 2000, p 321; Basdevant-Gaudemet and Gaudemet 2000, pp 239–40; Carbasse 2002, pp 86–90. 140 Dawson 1954; Boyer 1962; Dauchy 1988. 141 In NLS, Adv MS 6.2.16, p 58, Lauder took the equitable jurisdiction of the session to explain ‘our proverb, show me the man and I’ll show you the law’. 142 Brejon 1938, p 242; Thireau 1980, pp 84–91, and 1999, pp 146–7; Fell 1983–2004, vol 1, pp 162–3. For the decree of 1667 see again the Code Louis, vol 1, p 4. 143 Oeuvres de Le Caron, vol 1(1), pp 19–23. 138

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502 The Court of Equity universal law, and this because of the sovereignty that the king has devolved on his parlements and sovereign councils’. Nevertheless, Le Caron distinguished carefully between ‘la correction et declaration de la Loy’, which was the exclusive province of the king, and ‘l’interpretation et supplement de la Loy’, which was in his day open to the judges as well, though more effectively performed by the king. Claude de Ferrière, one of the new professors of French law appointed in 1679, found it possible at that late stage to cite Le Caron’s discussion in support of his own observation that laws had generally to be applied ponctuellement and that judges could only refrain from strict application if the result would have been ‘manifestly contrary to justice and also to the intention of the legislator’.144 Whether Stair had the example of the parlement of Paris in mind when he initially wrote about the sources of Scots law is hard to tell. The first explicit comparison he made with French law was in the passage added to his text in 1667 in which he denied that the Scots had fundamental laws of the French type and explained that they could not have started to develop laws for themselves until they submitted their disputes to the sovereign determination of the king’s judges. As was seen in the last chapter, he explained that just ‘as in Arbitriments, parties are understood to submit themselves to Arbiters, Secundum Arbitrium boni viri; So Nations of old submited to their Princes’, binding themselves to abide by whatever ‘their Soveraign Authority should find Just and Convenient’.145 As he noted in reporting decisions during the 1670s, there was a difference between submitting to the ‘arbitration of a good man’ and submitting to the ‘absolute Arbitriment’ of a particular person, for the arbiter was required in the former case ‘to determine according to Law and Equity’.146 It was Stair’s opinion, however, that the arbiter could ‘proceed secundum bonum et aequum’ in the sense that he could follow ‘the Law of God’, and he placed great emphasis on the need for parties to abide by the decisions of their arbiters once they had ‘acquiesced’ in them. It was this need that he emphasised in the passage he added to his Institutions in 1667 by warning that society would dissolve once more into a state of ‘perpetual War’ unless people kept to their agreement to abide by the decisions of their judges, even though the judges could ‘sometimes err’. To begin with, he pointed out there, these decisions could have been based on nothing ‘other, than equum & bonum, Equity and Expediency’. After saying more about how laws took shape as ancient customs, acts of parliament and the recent customs emerging from decisions, Stair made the point quoted earlier that where these sources proved deficient ‘recourse is had to Equity, as the first and universal Law, and to expediency, whereby Laws are drawn in consequence, ad similes casus’. Again, it has been seen already that most lawyers who wrote about the sources of Scots law—including Craig and Hope, whose books had evidently influenced Stair’s treatment of the subject—talked at this stage 144 Dictionnaire de droit et de pratique, pp 847–8. On De Ferrière and his son Claude-Joseph, who was responsible for updating the edition of the Introduction à la pratique (originally published in 1679) referred to here, see Michaud 1843, vol 14, p 20, and Prevost 1933–2000, vol 13, cols 1128–9. 145 Institutions, 1.15/1.1.16. 146 Decisions, vol 2, pp 217–18, 626, 709–10 and 820–21.

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The Noble Office of the Lords 503 about the analogous extension of the local sources to cover new cases and about the recourse that might be taken where this was inadequate to the learned laws. These writers recognised that in theory new laws could be drawn from natural equity, but they maintained that in practice arbitrary adjudication could be avoided through reliance on the learned sources or the reason implicit in them. By contrast, Stair maintained that where the local sources failed to provide clear answers to questions, the judges were forced to revert immediately to equity and expediency, with equity understood as ‘the first and universal Law’. Although he wrote here about analogous reasoning and the extensive interpretation of acts of parliament, it was also here that he recalled what he had already said about the civil, canon and feudal laws providing examples of how natural equity might be implemented, and took issue with Craig’s claim for the feudal law as the proper law of Scotland. It now seems clear that Stair’s aim in writing this passage was to argue that the lords of session were still able to behave in new cases as if they were arbiters, turning from law to equity in the sense of ‘the whole Law of Nature’. This was another line of argument that Mackenzie felt the need to contest. As was also seen in the last chapter, Stair restated his belief that the lords of session could deal with new cases like arbiters, ‘according to the discretion of good men’, in preparing the first volume of his Decisions for the press in 1683, though in the volume that followed in 1687 he remarked again that in turning from law to equity the lords of session would be able to work by analogy from previous cases. It remains to be seen how exactly he believed that new law could emerge from the handling of cases by the court, but what was yet again emphasised in these passages was the need for people to acquiesce in the decisions reached in the disputes they submitted to the determination of the king’s judges. The same emphasis has been found once more at the start of the account of procedure added to the Institutions in 1693, where Stair resisted demands for the parliamentary review of the session’s decisions. He recalled there that even ‘when Appeals were in force, they had no effect after Parties did acquiesce in the Sentences of Judges, Interloquitor or Definitive; which was necessar for that great Interest, the final sopiting of Pleas, and ascertaining of Rights’.147 Since the abrogation of appeals, parties had actually been afforded ‘far greater latitude to redress themselves’, for they had been given ample opportunity to petition the judges to suspend their proceedings or reduce their decisions. Stair remarked that ‘the Lords do easily Suspend their own Decreets in absence’, and that even when there was appearance and ‘the most litigious Debate’ they might review their own decisions if some ‘new matter of Fact’ had come to light or if a party had omitted to mention a ‘point of material Justice’, at least if the final decision had not yet been pronounced. ‘But the Lords’, he declared inaccurately, ‘have never reduced or altered their Decreets upon alledgances, either in Fact, or Law, which were proponed, and repelled therein’, nor could they alter their decreets in foro contradictorio ‘upon Alleadgances, which were competent before final Sentences, and were omitted, and not Proponed’. It has 147

Institutions, 4.1.32 and 40–50.

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504 The Court of Equity been found that Stair was exceptionally eager to promote the principle that ‘acquiescence in the Decreets given in the Outer-House in foro contradictorio, if the Decreet be orderly Extracted, makes them as effectual as if they did proceed upon Dispute in praesentia’. ‘All Nations have been earnest and anxious’, he observed once again, ‘that there might be a known Termination of Pleas’, citing John March’s favourite maxim that reipublicae interest ut sit finis litium and explaining that ‘it would mar the quiet of any nation, if they could have no Rights, but what might be brought in question’. As for the objection raised by Nisbet, Mackenzie and other lawyers that it would be wrong for a court ‘to adhere to that which might be convinced to be materially unjust’, Stair was confident that ‘this Bugbear will import nothing, when rightly considered’. ‘Can there be any doubt’, he asked, ‘but Decreets with consent of Parties, are more solemn and strong, then privat Contracts, which yet are lyable to the same Objections’? The same objections could have been raised even more forcefully against the prescriptive acquisition of property, yet property acquired prescriptively was protected by the civil law ne dominia rerum sint incerta, just as the final sentences of courts were upheld by that law ne lites sint aeternae.148 Moreover, while it was true that a ‘few may have prejudice by this necessar sopiting of Process; yet according to the English Axiom, Better a mischief to a few, than an Inconvenience to all’.149 What English lawyers usually meant when they cited this maxim was that judges should deliver harsh sentences sooner than unsettle the law by deviating from established rules.150 What Stair meant was that litigants should acquiesce in erroneous decisions sooner than unsettle the confidence people had in the integrity of the judges, as he had already argued with shocking bluntness in his first volume of Decisions. In this passage in the second printed edition of his Institutions Stair emphasised that the session had originally been ‘the Kings Council’ and repudiated his previous claim that ‘the Session at first was a Committee of Parliament’.151 He had already removed the passage expressing his previous claim in preparing the first printed edition for the press and had remarked in passages added at the same time that the court originated in ‘the Kings daily Council’ and remained ‘the Kings ordinar Council’.152 In reporting cases, he had observed as early as 1667 that the lords of session thought of themselves as ‘the Kings Council’ or as ‘his Majesties Council, though not his Secret Council’.153 Modern historians have tended to concur with this growing emphasis on the conciliar origins of the court.154 As Stair appreciated, the parliament in its judicial aspect was a feudal court sitting at the top of a hierarchy of ordinary courts of law.155 The session, on the other hand, as 148

Digest, 41.3.1; Institutes, 2.6.pr; Code, 3.1.13.pr. Having cited March’s favourite maxim, Stair was referring here to an axiom quoted in Lawrence, Marriage by the Morall Law of God, p 188. 150 Milsom 1981, pp 94–5; Doe 1990, pp 171–3; Baker 2002, pp 80 and 325. 151 Institutions, 4.1.22–3. 152 Institutions, sig A3, 12.44/2.2.5 and 27.43/3.5.43. 153 Decisions, vol 1, pp 451–2, and vol 2, pp 511–12; and also Lauder, Decisions, vol 1, p 113. 154 Hannay 1933; McMillan 1941; Duncan 1958. 155 Institutions, 13.2/2.3.2. 149

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The Noble Office of the Lords 505 a branch of the council in which the king exercised his sovereign authority, was an extraordinary court of justice with the power to intervene in disputes brought before the ordinary courts, granting equitable remedia where the legal iudicia seemed unsatisfactory. The lords of council and session had, for instance, issued orders protecting the possession of litigants who were occupying land while recognising that it was for the ordinary courts to decide who was entitled to occupy the land. At some point in or around 1532 the lords of council and session had assumed the authority to deal with questions of right or title, thus becoming an ordinary court of law as well as an extraordinary court of justice.156 From this point onwards the session differed from the privy council, which remained an extraordinary court of justice with the equitable authority to remedy the deficiencies of the law applied in the ordinary courts.157 Stair noted in 1693 that ‘the Privy Council hath also its proper Jurisdiction, as to matters of State, and preserving of the Publick Peace, and Determining and Punishing all Ryots and violent Incroachments upon Lawful Possession’.158 Mackenzie similarly observed in his criminal law treatise that ‘the policy or government of the Kingdom is regulated by His Majesties Privy Council’, and that this ‘Judicator doth under the notion of Riots, and breaches of the publict Peace, hear many causes Civil and Criminal’.159 Both here and in his other books Mackenzie repeatedly remarked that ‘Government belongs to the King, and Property to the People’, and that while questions of property ought normally to be dealt with by the courts of law, ‘the Prince may, for a just Cause, invert or take away Property’, in exercise of the ‘absolute monarchy’ sustaining ‘an officium nobile’ in the privy council.160 At one time the council had made a practice of forbidding ‘the Lords of Session, to proceed in judging privat Causes’, and it still made a practice of issuing ‘Protections, whereby the Executions of the Lords Sentences are oftimes stopt’.161 It was fitting for the council ‘to extend and interpret Statutes’, or to issue proclamations reviving acts of parliament that had fallen into desuetude, and it might itself issue acts using the ‘statutes and ordains’ formula, ‘which shews likewise what power the King has in His Council of this Nation’. In his Institutions Mackenzie explained further that the privy council could not only ‘punish all Ryots, for so we call breach of the peace’, but could also in cases without a criminal dimension ‘sequestrate Pupills, give aliments to them, and to wives, who are severely used by their husbands, and many such things’.162 Like the session, he went on, ‘the Council has its own President, who presides in the Chancellours absence, and it has its own Signet and Seal’, but unlike the session it did not entertain arguments on points of law, ‘no Advocat being allowed to plead, 156

Sellar 1988, pp 93–4, and 1991, pp 43–5; MacQueen 1993, pp 215–46; Godfrey 2001. On the jurisdiction of the council see McNeill 1960b, an important thesis that would still merit publication. 158 Institutions, 4.1.58. 159 Laws and Customes, 2.6.1. 160 Observations on the Acts of Parliament, pp 157, 255–6 and 417–19, and Ius regium, p 47. 161 Institutions, 1.1, and Observations on the Acts of Parliament, pp 198–9, 250 and 333–4. 162 Institutions, 1.3 (obvious misprint corrected). 157

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506 The Court of Equity because the Council only Judges in matters of fact’.163 Where a point of law required to be addressed the lords of the privy council, since they were ‘only Judges in facto’, would ‘remit the cognition of it to the Session, and stop till they hear their report’. In his Observations Mackenzie similarly remarked that ‘where the case is intricat in point of Law, the Council uses to remit the same to the Session’, and that a particular case, ‘being thought by the Council, matter of Property, was remitted to the Session’.164 In his Institutions he later mentioned that the lords of session could also require husbands to pay aliment to their wives, though according to Lauder some judges doubted whether this was appropriate on the ground ‘that it was nobilioris officii, and that such modifications were more ordinarily granted by the Privy Council than the Session’.165 According to Lauder it was further doubted whether it was appropriate for the testimony received from witnesses to be kept secret in the session given that ‘this concealment was only used in Courts of aequity in other parts of the world, wheir the parties get not leive to heir the witnesses depositions; but in all Courts of law, (such as is the Session,) all the world over, the depositions of the witnesses are patent’.166 Mackenzie certainly shared this particular concern, believing that the concealment of testimony ‘tends much to make Judges Arbitrary’, and he may well have sympathised with the more general suggestion that the session, having become a court of law as well as equity, ought to become a court of law alone.167 In writing in his criminal law treatise about the power conferred on judges to draw inferences from circumstantial evidence and to adjust penalties to suit the circumstances, he observed that ‘this arbitrariness should only in my opinion, be allowed to the Council, who are a supream Judicatory, and are in such extraordinary cases, tyed to no express Law’.168 Nisbet likewise doubted whether the justiciary court should be permitted to deal with ‘any Crime or Delict, whereof the pain is not defined by Law, but left arbitrary’, and it was in the same vein that he asked whether the lords of session should ‘be considered as Judges only, or Magistrates, & Praetores habentes Imperium in some cases’.169 It may be worth enquiring into how Stair would have answered this question, for when he wrote in 1667 about the ancient or fundamental law of the Romans he contrasted it on the one hand with the ‘Constitutions of their people, Senat and Princes’, and on the other with ‘their recent Customs, introduced by

163 For a quite different explanation of the rule against professional representation in criminal cases see Wasser 2005, pp 199–200. In civil cases at least the rule was not strictly adhered to, as the perusal of any volume of the Register of the Privy Council should make clear. 164 Observations on the Acts of Parliament, pp 18–19 (punctuation adjusted). 165 Mackenzie, Institutions, 1.6; Lauder, Decisions, vol 1, p 320; and see too p 357. The handling of aliment cases by the two courts is of some interest and will be returned to elsewhere. 166 Historical Notices, vol 1, pp 131–2. See too Brown, Supplement to the Dictionary of Decisions, vol 3, p 288, where Lauder complained about inconsistency in the practice of hearing witnesses ex officio nobili, suggesting that the lords of session ‘keep this officium of theirs as a screen to palliate their arbitrariness, to grant it or not as they favour’. 167 Observations on the Acts of Parliament, p 135; and see too pp 18–19, 75–6, 127, 132 and 459. 168 Laws and Customes, 2.25.4. 169 Doubts and Questions, pp 107 and 180; and see too pp 78–9.

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The Style Books of the Writers 507 their Pretors’.170 How Stair believed that recent customs had been introduced by the praetors, and how he similarly believed that recent customs were introduced in Scotland by the lords of session, became more apparent in the discussion of court procedure he added to his Institutions in 1693.

THE STYLE BOOKS OF THE WRITERS

Delineating the form of process It was mentioned in the last chapter that Mackenzie started to write a treatise on court procedure in the mid-1680s.171 ‘Because none has gone before me’, he declared at the outset, ‘I will, as those who are forced, with hard labour pave my self a Way’.172 In claiming that there was no established path for him to follow he could not have meant that he was the first person to write a book on procedure. He presumably had Skene’s ‘Treatise anent the Order of Proces’ in mind when he observed in his discourse on the Digest that the procedure of the session resembled ‘that of Saxony, where our lawyers used to study the civil law’, though Skene himself had not made any attempt to relate Scottish to Saxon procedure.173 In his annotations on the old books and acts and in his dictionary of legal vocabulary Skene had sometimes remarked on the Saxon origins of terms and institutions, but what he had mostly been thinking of were customs already in use in England before the Norman conquest, not practices transplanted to Scotland from Saxony.174 Far more often he had remarked on the French origins of terms in use in Scotland, and he would perhaps have seen more merit in Mackenzie’s further claim that because the College of Justice ‘was founded upon the modell of the parliament of Paris, therefore we have still followed exactly their way of pleading’.175 However, the more fundamental point Skene preferred to emphasise was that Scottish procedure had been ‘borrowed from the civil law’.176 He backed up his statements of local rules with maxims drawn from the Digest and Code, and he 170

Institutions, 1.15/1.1.16. It seems from Mackenzie, Works, vol 2, pp 503 and 506–8, that his ‘Treatise of Actions’, so far as it went, was written after the appearance of Stair’s first volume of Decisions in 1683 and before an act of sederunt affecting one topic he handled was passed in 1688. 172 Works, vol 2, p 492. 173 BL, Sloane 3828, ff 133v–4r; and see too Laws and Customes, 2.31.8. As will be seen later, one of the authors Mackenzie referred to in his own treatise had been a professor at Wittenberg during the sixteenth century, but in the work referred to he had not said much about the distinctive features of Saxon procedure. On the relatively slow reception of learned procedure in Saxony see Engelmann 1928, pp 532–43. 174 Regiam maiestatem (Latin edn), pt 1, f 154v, and De verborum significatione, sigg M5v, O2r, P1r and T2r. 175 Regiam maiestatem (Latin edn), pt 1, ff 3v, 4v, 9v–10r, 11r, 16–17, 39v, 47v, 93v, 98v, 102v, 105v, 117r, 129v and 159r, and pt 2, ff 35v, 38r, 52v, 58v and 68r, and De verborum significatione, sigg H2v, H5–6, I2r, K1v, K2v–3r, K4v, K6r, M2v, M4r, M6v, O2r, O5–6r, P1r, P3–4r, P6v, Q1, Q2v–3r, R6v, S2r, S4r, S5v, T1r and T2. 176 Regiam maiestatem (Latin edn), pt 1, f 14r. 171

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508 The Court of Equity referred more frequently to the texts of the civil and canon laws, the gloss of Accursius and the commentaries of Bartolus and Baldus than to the old books and acts of parliament or sederunt, which were the only local sources he cited.177 In broad outline and in many of its details, the practice of the session clearly was modelled on the learned procedure followed in one form or another in courts throughout Europe and described in many academic works de ordine iudiciorum.178 Skene had been one of several Scottish authors to make this apparent. Mackenzie may well have been unaware of the reworking of his treatise by Habakkuk Bisset, who had preserved Skene’s revisions and made additions of his own from the perspective of a writer to the signet.179 But he would certainly have been aware of the treatise on procedure with which Hope had opened his minor practicks, and he could scarcely have been unaware of the treatise on the ‘Form of Process’ written by Stair in 1666 or 1667 and printed in 1681. Despite the changes made in court procedure during the seventeenth century, most significantly in 1672, the treatises by Skene, Hope and Stair provided a fairly consistent account of how cases were taken through the session.180 Skene began his treatise by observing that ‘all processis led, and deduced before the Lords, has three parts: The first, is the summons: The second, is litiscontestation: The thrid, is the sentence definitive’.181 The summons was supposed to identify the court and the parties, to specify the complaint and its basis, and to state where and when the defender was to appear. Because the defender was ordered to appear on the authority of the king, the pursuer had to arrange for the signet held by the court to be attached to the document, after which it was served on the defender, who was usually given three weeks’ notice to make his appearance.182 The defender was granted two opportunities to respond to the summons, either in person or by a procurator.183 If he did not appear on either occasion the lord ordinary would proceed to sentence, unless something in the complaint seemed dubious in fact or in law, in which case he would first invite the pursuer to expand on the central section or ‘libel’ of the summons. If the defender did appear he would be granted a few days to examine the process or ‘pieces’, consisting of the original copy of the summons and any supporting papers.184 Both parties would then return to the outer house of the court and the defender would be invited to 177

Cf Miller 1927, pp 447–50. Engelmann 1928, pp 455–86; Sayer 1971, pp 70–95; Van Caenegem 1973, pp 17–20, 51–3 and 76–7; Brundage 1995, pp 129–34; Finlay 2000, pp 96–122. 179 Neilson 1916–24, pp 275–92; Hamilton-Grierson 1926, pp 1–3; Maxwell 1958b, p 418. 180 The account that follows focuses on the standard practice and neglects various deviations noted by the authors. 181 Regiam maiestatem (Scots edn), pt 3, f 109v; also in Bisset’s Rolment of Courtis, vol 1, pp 123–4. 182 Skene, Regiam maiestatem (Scots edn), pt 3, ff 110–11r; Hope, Minor Practicks (1734), pp 1–17; Stair, Modus litigandi, pp 4–5. 183 Skene, Regiam maiestatem (Scots edn), pt 3, ff 111–12; Hope, Minor Practicks (1734), pp 17–28; Stair, Modus litigandi, pp 5–7. 184 The term ‘pieces’ seems clearly to have derived from the French pièces in the sense of documents or papers, which was already a common usage in the parlement. Further French influence was evident when it was said that the reduction of a decreet ‘casses and annules the samin’. 178

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The Style Books of the Writers 509 contest the action, either by denying that facts alleged in the libel were true or in one of three other ways.185 In the first place, the defender might make a procedural objection, for instance by denying that the judge had authority to hear the case or that the summons had been duly served on him. In the second place, he might make a more substantive objection, by arguing that the facts if proved would not be legally ‘relevant’ or that the pursuer was not legally ‘competent’ to allege them. In the third place, he might enter a formal defence or exception, claiming that even if the facts alleged were true, other facts would prevent them from having the legal effect indicated.186 The pursuer might then reply to any defence with further allegations of fact, the defender might duply to any reply, and there might be disputation on the legal relevancy or competency of any of the allegations made. Eventually, when the parties had identified all the allegations they wished to make and the court had confirmed their relevancy and competency, the second of the three parts of the process enumerated by Skene would be reached.187 An act of litiscontestation would be passed and extracted, allowing facts to be proved and determining how they should be proved. Evidence would then be taken in the form of written documents, the oaths of the parties or the testimony of witnesses, and the case would be formally declared concluded when the parties confirmed or were deemed to have confirmed that they had no more evidence to present. The parties would at this stage be permitted to comment on the reliability of any documents or oaths received, though not of the testimony of witnesses, and the judges would proceed to issue their definitive sentence, depending on whether they found the facts alleged proven or not proven. Unlike the acts or interlocutors passed during the course of the action, which would have been issued by the lord ordinary in the outer house, the definitive sentence or decreet would always be issued by the whole court, usually on one of the Saturday mornings reserved for the advising of concluded causes. It will be apparent that not every case would have involved legal debate in the inner house of the court, for in some cases only the truth of the allegations would have been contested, in others the lord ordinary would have felt able to deal with any pleas to the relevancy or competency himself, and in none would the parties ordinarily have been invited to comment on the law after proof was taken. It is notable that Stair devoted a great deal more attention to how legal issues were handled than either Skene or Hope, who merely mentioned pleas to the relevancy among the various types of defence that could be entered.188 Stair explained that when the lord ordinary decided to take advice on a plea he was given the process 185 Skene, Regiam maiestatem (Scots edn), pt 3, ff 113–15; Hope, Minor Practicks (1734), pp 29–40; Stair, Modus litigandi, pp 8–16. 186 Some of the standard defences, for instance that a prescriptive period had elapsed or that the matter had been tried before or that a contract had been induced by fraud, were described in the treatises. 187 Skene, Regiam maiestatem (Scots edn), pt 3, ff 115–22; Hope, Minor Practicks (1734), pp 41–75; Stair, Modus litigandi, pp 16–17, 20 and 35–42. 188 Modus litigandi, pp 18–20. Stair dealt more fully with this topic in the printed version of his book.

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510 The Court of Equity so that he could ‘relate the Cause, and repete the Dispute to the Lords’, usually on the following morning. It was at this stage that the advocates were permitted to ‘give their Informations to the Lords, containing the deduction and favour of the Cause, and the Dispute’, which they might ‘inlarge by reasons in their Informations as much as they please’. Between the ordinary’s report of the oral debate he had heard, the advocates’ written submissions to the whole court, and if required another oral debate in praesentia dominorum, the legal significance of the allegations made in the outer house—already exchanged in the disputational form of claims, answers, replies and so on—would have been subjected to rigorous review by way of further disputation on each point. New allegations ‘of Fact, by way of Defence or Reply’, were not admissible in the inner house, but they could be made as soon as the case returned to the outer house, after which the lord ordinary might again seek advice from the other judges, continuing the process until all the issues were clearly defined. Stair observed that while the judges had to rely on the allegations of fact made by the parties, they could themselves rehearse legal arguments omitted by the advocates, an observation he was to repeat in preparing his first volume of reports for the press.189 It was a learned commonplace that judges might ex officio take cognisance of points of law arising from the facts, though generally this was done after the facts alleged were shown to be true.190 The doctors expected the parties to have an opportunity to dispute any questions of law after the stage of litiscontestation had passed, usually once proof had been received and before final sentence was delivered.191 In France written submissions were invited by appointement en droit after the parties had exchanged all their demandes, defenses, repliques et dupliques, and usually after oral testimony had been received and reviewed.192 Indeed the discussion of raisons de droit was actively discouraged in the parlements before contestation en cause, which signified not so much the moment at which issue was taken to be joined between the parties as the moment at which the court assumed control of the conduct of the case. Stair appreciated that the plea to the relevancy was a peculiarly prominent feature of Scottish procedure, remarking that ‘the Roman Law, and the Nations that follow that Law, do but seldom mention it’.193 Among the Scots, in contrast to these other nations, ‘this is the ordinary way of discussing of Processes, by premitting the Point of Justice or Relevancy, and then admitting the Point of Verity to Probation, according to what is found just: and not till it be found just’. The more extraordinary cases were those in which there was act before answer, when the judges would 189 Decisions, vol 1, sig A4v. This goes some way towards explaining his willingness to report points made by judges as if they had been made at the bar. 190 Gudelinus, De iure novissimo, pp 196–7; Vinnius, In quatuor libros Institutionum imperialium commentarius, p 895; Damhouder, Praxis rerum civilium, p 482. 191 Engelmann 1928, pp 476–8 and 715–18; Naz 1935–65, vol 7, col 285; Van Caenegem 1973, p 20; Fowler-Magerl 1994, pp 36–7; Brundage 1995, pp 133–4. See, eg, Maranta, Praxis, seu de ordine iudiciorum tractatus, p 358; Gail, Practicarum observationum libri duo, pt 1, pp 189–90; Damhouder, Praxis rerum civilium, pp 437–8. 192 Imbert, Institutions forenses, pp 258–60 and 330–31; Le Brun, Les proces civil, et criminel, pt 1, pp 69 and 86; Lange, La nouvelle pratique civile, pt 1, pp 468–72. 193 Modus litigandi, p 11.

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The Style Books of the Writers 511 determine to ‘advise the Relevancy and Probation together’. In these cases the advocates would be invited before final sentence was given to go beyond commenting on the reliability of the evidence and to comment on the law applicable to the case. One reason why the lords of session normally felt comfortable with the exclusion of legal debate after litiscontestation was the ample opportunity parties were afforded to raise new points for debate by way of suspension or reduction. Skene, Hope and Stair all explained in some detail how the proceedings of the session and other courts could be reviewed.194 Even before cases were decided by other courts parties could seek to have them advocated to the session by submitting bills or supplications to the lords, ‘which Supplications do not pass of course, but are specially advised by the Ordinary upon the Bills, who considers not only the Relevancy of the Reasons of Advocation, but the Instructions thereof’. The ordinary on the bills was a judge (by the middle of the century the one due to take his turn in the outer house in the following week) who was charged with the task of scrutinising requests that exceptional measures be taken, in this instance by making a preliminary enquiry into the facts as well as the law.195 In the first half of the century there had actually been two ‘lordis deliveraris of the bills’, who were presented with supplications by the ‘clerk of the billis’ while sitting beside the other judges in the inner house, but by Stair’s time supplications were received by a single judge at a ‘side bar’ behind the bench in the outer house. The court could be requested to adopt any exceptional measures that occurred to the parties, subject to the rule that ‘nothing should come in by a Bill (which is an extraordinary Remedy) where an ordinary Remedy is competent’. As will soon be seen, not all bills received equal attention, but when advocation was requested the ordinary on the bills would examine the request closely, if necessary taking advice from the other judges, like the ordinary in the outer house. He would deal in the same way with actions of suspension, which had to be raised by supplication because the regular proceedings of the session or another court could only be stayed ex nobili officio. By the same token, only sovereign courts like the session could be requested to reduce the sentences they delivered, yet because reduction did not involve an immediate stay of proceedings it was believed to be less odious than suspension and an ordinary form of action was therefore developed.196 An exceptional feature of these actions was, however, that they could only ‘be discuss’d in the Inner-House, as to the Reasons of Reduction, unless the Lords upon Supplication grant Warrant to the Ordinary to hear and discuss the same’. At what was known as a ‘great avisandum’, in contrast to the lesser avisandum initiated at the discretion of the ordinary, the party requesting reduction was restricted to presenting (as Skene put it) ‘sic reasons, and exceptions, quhilkis were not proponed be him, but are emergent, or of 194 Skene, Regiam maiestatem (Scots edn), pt 3, ff 125v–8r; Hope, Minor Practicks (1734), pp 75–7; Stair, Modus litigandi, pp 23–35 and 42–4. 195 Bisset’s Rolment of Courtis, vol 1, pp 127–8 and 131–2; Blaeu, Theatrum orbis terrarum, vol 5, p 29 (www.nls.uk/digitallibrary/map/early/blaeu/921); Acts of Sederunt (1740), pp 27–9. 196 Cf Mackenzie, Observations on the Acts of Parliament, p 462.

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512 The Court of Equity new are come to his knowledge’. This was the rule that Stair was especially eager to preserve and to see extended to suspensions as well as reductions.197 Nevertheless, even subject to this rule the opportunity remained for parties to bring to the attention of the court arguments that had not occurred to them until proof was taken, provided they could persuade the judges that the significance of the points omitted had not been apparent previously. Actions of reduction and suspension were common enough, and not only in relation to the decisions of lower courts. It was mentioned earlier that provision had been made for the reduction of decisions and the suspension of proceedings in the parlements, and there were broad similarities between the procedures followed in the session and in the parlement of Paris, though most actions were raised there on appeal from lower courts.198 In the parlement cases began in the chambre des requêtes, where writs had to be passed under the royal seal deposited with the court, just as in the session cases began in what was known as ‘the Bill-Chamber’, where summonses had to be passed under the seal held by ‘the keipare of the signet, depute be the secretare’.199 In practice, four different types of case were dealt with in rather different ways in Scotland. First there were the ‘ordinary actions’ raised on ‘ordinary summonses’, which were sealed as a matter of course ‘because the Stile and nature of them was current and known, in the same manner as the Brieves of the Chancery’. The summons, the document normally used to raise an action in the session, appears to have derived from a brieve originally issued under the great seal in the chancery to provide for appeals from lower courts.200 Some of the specific forms of the summonses later used were believed to have been modelled on the brieves used to begin actions at first instance in ordinary courts of law, and these together with several other summonses were sufficiently well established to be sealed without any approval being formally obtained from the court. Where the style of the summons was not so well established a supplication did have to be made and passed, and the summons was then marked at the end with the phrase ex deliberatione dominorum concilii, though in reality there was often very little scrutiny by the judges. In the second type of action the form of the supplication had itself ‘become fix’d and ordinary’, so that here again the document was sealed as a matter of course. In the third type of action the proposal was less conventional, as the clerks were required to warn the judges, yet the practice in these cases was to approve the summons periculo petentis, allowing the pursuer to run the risk of a successful plea to the relevancy. Stair noted that where an ‘ordinary Summons’ was used the pursuer would generally need to do no more when he came before the court than ‘mention the Summons and crave Decreet’, whereas in the case of a ‘Libelled Summons’, where a less conventional claim was being made, he would need to be ready ‘to inforce the Relevancy of the Summons’ or ‘to inforce 197 198 199 200

Compare Stair, Institutions, 4.1.50, with Mackenzie, Institutions, 4.3. Aubert 1894, vol 2, pp 26–136; Engelmann 1928, pp 709–26; Shennan 1998, pp 58–66. Stair, Modus litigandi, p 3; Bisset’s Rolment of Courtis, vol 1, pp 125–32; Blaeu, Escosse, p 33. Hannay 1936, pp 23–4; McKechnie 1956b, pp 22–4; MacQueen 1993, pp 220–21.

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The Style Books of the Writers 513 the justness and equity of the Cause’.201 Only in the fourth type of action, where the request was for advocation or suspension, would the ordinary on the bills already have subjected the summons and supplication to careful scrutiny, if necessary in consultation with the other judges. It was in this fourth type of action that the practice of the session most clearly resembled the practice of the parlement, yet the broader similarity remains that actions were started in the bill chamber or chambre des requêtes before moving to the outer house or grand’chambre, where in both courts the parties would exchange their claims and counterclaims and produce any documentary evidence they had to offer. If further evidence were required the action would be transferred in Paris to the chambre des enquêtes, from which judges often travelled into the localities to receive testimony from witnesses. The lords of session did not normally leave the Parliament House to gather evidence, but their practice was to assign the task of interrogating witnesses to ‘lords examinatours’ or ‘ordinaries on the witnesses’, who returned for that purpose to the court each afternoon.202 That the final decision had always to be made in the inner house of the session was comparable to the requirement that cases had always to return for decision to the grand’chambre of the parlement, where the grounds of the decision would not be divulged. The practice of keeping the testimony of witnesses secret had been abandoned by the parlement in the sixteenth century, and it would be abandoned in Scotland in 1686, not long before the lords of session were forced in 1693 to deliberate on their decisions in open court.203 These important changes in the practice of the session were not made until after Stair had written and revised his ‘Form of Process’, in which he had more to say about the summonses writers drafted.204 ‘Every sufficient Libel’, he observed, ‘contains an argument or ratiocination, sometimes in form of a Syllogisme, when the point of Law is first deduced, as the major Proposition; and then the matter of Fact is related, as the minor or Subsumption: and thence the Conclusion is inferred as consequent in Justice, applying the Law to the Fact subsumed, and craving the Remedies of that Law to be applyed to this Fact, for the help or remedy of the Pursuer in his Complaint’. As Stair understood the expression, to determine the ‘relevancy’ of a libel was to confirm that the pursuer should be ‘relieved’ in the way requested if he could prove the truth of the facts he alleged in the minor premiss of his argument, which was partly to confirm the logical ‘Consequence of the Conclusion of the Libel, from the Premisses thereof’, and was partly to confirm the soundness of the ‘ground of Law or Equity’ contained in the major premiss. Stair knew, however, that very few of the libels in standard use in the session were actually framed in the form of a syllogism beginning with a proposition of law. ‘More frequently’, he continued, ‘Libels are framed as an Enthimeme wherein the matter of fact is deduced as the Antecedent: and it is thence inferred that in Justice such 201

Modus litigandi, pp 7–8. Skene, Regiam maiestatem (Scots edn), pt 3, f 119v; Hope, Minor Practicks (1734), pp 56–7; Stair, Modus litigandi, p 37. 203 Acts of the Parliaments of Scotland, vol 8, p 599, and vol 9, p 305. 204 Modus litigandi, pp 9–10. 202

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514 The Court of Equity remedy should be adhibited’. In many summonses, he went on to explain, ‘after the matter of fact is deduced, and before the Conclusion or Remedy craved, the Law is mentioned: either generally, That the Fact related as done or omitted by the Defender, is contrary to Law, Equity, Reason, or Justice; or specially, contrary to such Points of Law’. In other summonses it was often ‘subjoyned to the Conclusion, That upon the matter of Fact libelled, it ought to be declared or decerned as is libelled, according to Law, Equity, or Justice: or particularly according to such Points of Law’. All of these summonses had become ordinary, yet in form they resembled the libelled summonses in which parties set out the alleged facts of a case and craved a remedy from the court in circumstances in which none was normally given. They also resembled the form of libel recommended by the civilian doctors, who maintained that the statement of claim in any case ‘should consist of three parts: first, of a narration of fact, which is regarded as the major premiss; secondly, of the cause or ground of concluding, which is in place of the minor premiss; and thirdly, of a conclusion, which follows necessarily from the ground of concluding’.205 As it would not always be obvious what conclusion should follow from the facts, especially where they were complicated or the law was doubtful, it was sometimes advised that a clause be added saying ‘on each and every one of which he seeks to have law and justice administered to him’, or even that the conclusion be left out in cases ‘in which the judge proceeds ex officio nobili, where he can supply one ex officio’. The doctors described their form of libel as a syllogism, but Stair believed it made better sense to describe an argument beginning with a proposition of fact as an enthymeme. Aristotle had defined enthymemes as ‘rhetorical deductions’, noting that terms essential in syllogisms were often omitted in rhetorical arguments, but stressing above all that enthymemes were used for purposes of persuasion in cases where it was impossible to deduce conclusions from necessarily correct premisses.206 As Stair had given examples of libels in which the terms of a syllogism were rearranged rather than omitted, his point presumably was that beginning with the facts was more appropriate in cases where the court was being urged to go beyond the strict application of the law and to find libels relevant when their conclusions did not follow from their premisses with the force of necessity. In the treatise he worked on in the 1680s, Mackenzie agreed with Stair that it made sense to describe a libel as a syllogism if it began by identifying ‘the Law and Custom whereupon it is founded’, as it typically would in a criminal action brought before the justiciary court, but he also agreed that where civil actions were concerned, ‘generally our Lybells are Enthymemes, wherein we narrate the Matter of Fact’.207 He explained that most of the summonses familiar to practitioners in 205 Jason de actionibus, ff 12v–13; Schneidewinus, In quatuor Institutionum libros commentarii, cols 1278–87; Gothofredus, Praxis civilis, vol 2, cols 1381 and 1435. 206 Rhetoric, 1356a36–58a35, and also Prior Analytics, 70a10. See generally McBurney 1936; Madden 1952; Bitzer 1959; Conley 1984; Burnyeat 1996. 207 Works, vol 2, pp 497–501 (corrected from NLS, Adv MS 25.2.11, f 8r). On criminal libels see too Laws and Customes, 2.21.1–2.

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The Style Books of the Writers 515 the session reproduced in their libels the pattern of the bills used to persuade the judges to depart from their previous practice, even when the summonses had themselves become established in practice. It was because these bills in turn reproduced the pattern of ‘the Libels mentioned by the Doctors’ that practitioners in the session sometimes referred loosely to a summons as a libel or more precisely to ‘a libelled Summons, by which we mean a Summons filled up with what Matter the Complainer resolves to insist upon’. Mackenzie noted that to many of the doctors it seemed ‘absolutely necessary, where there is a great Variety of Matters of Fact’, or where ‘the Summonses pass upon a Bill’, to include in the libel a clause begging the judge to exercise his noble office in administering law and justice between the parties, ‘by which they imagine, that even what is not expressed, may be decerned by the Judge, who may imploy all the Remedies he thinks fit for redressing the Complainer’. As this clause was not normally included in Scottish summonses, Mackenzie was relieved to be able to report the opinion of one recent commentator that ‘strictly speaking, it seems not only superfluous but also inept’.208 Mackenzie did not think it necessary for parties to implore judges ‘to proceed ex nobile officio’, but he did think it appropriate for judges sometimes to ‘refuse Bills for extravagant and unwarrantable Summonses’. Indeed he expressed the wish that ‘these Bills that are called common, because they pass in Course, were more narrowly looked after’, and that greater effort were made to constrain the writers to their obligation of adhering to ‘the laudable and customed Stile’. This obligation on the writers to the signet that ‘thair billis be writtin conforme to the practique’, and that they ‘keip the auld stylis of the realme’, was also emphasised by Habakkuk Bisset, who connected their professional responsibility with the rule that writers ‘ressavit and admittit be the secretare onlie, and nane utheris suld writ all billis’.209 Stair similarly remarked that the styles of most summonses and bills ‘are commonly known and observ’d by the Writers to the Signet, and are contained in their Stile-Books, which they are obliged, and every Session enjoyn’d punctually to observe’.210 He warned that they would be ‘censured by the Lords if they transgress’, whether in deviating from the standard style of an ordinary summons or in drafting a supplication proposing something new as if it were conventional. It was the standard styles that Mackenzie set out to describe and comment on in his treatise. His aim was to write not another treatise on the form of process but a path breaking treatise on the forms of action.

Cataloguing the forms of action In fact Mackenzie was not entering entirely uncharted territory, as he knew perfectly well. In following the known way of Justinian’s Institutes in his own 208 Boeckelmannus, Commentariorum in Digesta libri xxvii, p 135. On this author, who taught in the 1670s at Leiden, see Feenstra and Wall 1975, pp 36–7. 209 Bisset’s Rolment of Courtis, vol 1, pp 125–7. 210 Modus litigandi, p 4.

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516 The Court of Equity Institutions he had already had occasion to write a title ‘Of Actions’, in which he had based a review of the summonses in standard use in the session on the definitions and divisions found in the Roman title ‘De actionibus’.211 It was the same approach that he took in writing his treatise on actions, except that he went into more detail there on each of the topics he handled and abandoned the task after dealing with only the first few summonses he had covered earlier.212 In examining more thoroughly the definitions and divisions of actions ‘mentioned in the Institutions’, he alternated in his usual manner between discussion of ‘the common law’ and ‘our law’, believing that the Roman actions were ‘truly the Foundations whereupon all the Doctrine should be built’. As was indicated in the last chapter, in saying this he was partly criticising the commentators for failing to approach the texts in a historically sensitive fashion, yet in this treatise it was ‘the Doctors’ or ‘the Civilians’ that he tended to engage with more than the texts themselves or the discoveries of the humanists.213 Mackenzie explained that he would start his review of the standard summonses with those used in real actions not because the review of actions in the Institutes began in this way but because this was how ‘the Doctors begin’. As he was well aware, many of the doctors had written commentaries on the title de actionibus, which formed a distinct genre from the learned treatises de ordine iudiciorum.214 It has been seen that Spotiswoode made use both of the treatise on actions by Petrus Iacobus and of the title devoted to actions in the commentary on the Institutes by Ioachimus Mynsingerus. Mackenzie similarly made use both of the treatise on actions by the Italian professor Jason de Mayno and of the title devoted to actions in the commentary on the Institutes by Ioannes Schneidewinus, a professor at the university attended by Skene in the sixteenth century.215 Mackenzie compared the draft summonses found in ‘our Stile Book’ with the libels ‘set down by the Doctors’, trying wherever possible to show that the actions available in Scotland were modelled on civilian remedies. Although not every action had been built on the foundations laid by the Romans, he believed that ‘what they did, and the Reasons upon which they proceeded, should oft-times instruct us to regulate even those Customs in which we have receded from the civil law’. He drew attention to any ‘common Opinion’ he had found among the doctors and to anything that had become ‘a general received Opinion’ in Scotland, seeking to expose ‘the Current and Reason of our Law’. If he thought it instructive to mention the decisions of the session in which the relevancy of libels had been upheld, he also had no hesitation in expressing ‘my 211

Institutes, 4.6; Institutions, 4.1. As previously noted, Mackenzie seems to have started writing the treatise printed in his Works, vol 2, pp 492–510, after Stair’s first volume of Decisions appeared in 1683, quite possibly at about the time that his own Institutions was published. 213 Rather oddly, he referred generally to the progress made by ‘Cuiacius, Bachovius, Siconius, &c’ (as NLS, Adv MS 25.2.11, f 1r, has it). Cuiacius was of course a humanist jurist of great distinction, and Carolus Sigonius had published a treatise De antiquo iure civium Romanorum, but Reinhardus Bachovius (as Van den Bergh 1988, pp 133–4 puts it) ‘was no friend of humanists’. 214 Fowler-Magerl 1994, pp 39–41 and 89–90. 215 But see again n 173 above. 212

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The Style Books of the Writers 517 Opinion’ when he thought them ‘a strange Thing’, ‘very hard’ or ‘ridiculous’. If it was the use he made of ‘the Stile Books’ that distinguished his treatise from those written by the doctors, he was more interested in how advocates advised writers to draft summonses than in how they actually did so. Large numbers of the style books compiled by writers survive from the seventeenth century, though most concentrate on specimen contracts and conveyancing deeds and not many contain the draft summonses that must have been available in every writer’s chamber.216 In 1680 Lauder recorded in a notebook that ‘George Dallas, the wryter to the signet, told me he had made a book which he intended to tender to the publict use anent the formes of the chancellary, setting downe a stile of every on of the writs that passe ther and what sealls they passe’.217 Lauder recalled that in his copy of Balfour’s practicks there was a short treatise on ‘The Ordour of the Chancellarie’, in which the styles of the brieves still in common use were presented and the procedure for having the brieves and other documents sealed in the chancery was described.218 He recalled further that Hope had included a title ‘Of Signatures’ in his minor practicks, in which he had described the use made of the various seals held by the director of the chancery and of the signets held by deputies of the king’s secretary in the session and the privy council.219 ‘England, France and other nations have published in print ther formes of securities and styles’, Lauder added, noting that he himself possessed many examples, ranging from the Ars notariatus composed in the thirteenth century by Rolandinus de Passageriis to a book recently published by Claude de Ferrière as Le notaire parfait.220 He understood that Dallas had written a similar book and that he had concentrated on the documents dealt with in the chancery. As Sir John Scot had emphasised in the late 1650s, when he had tried to recover the office of director of the chancery from which he had been ejected, the chancery (or chancellary) was an older institution than the College of Justice and remained quite distinct from it, even though the documents sealed there were mostly drafted by writers to the signet.221 Dallas did eventually write about these documents in the collection 216 For examples that do contain court styles see NAS, RH 13/65 and 68; NLS, Adv MSS 22.2.11 and 25.7.1; SL, MS 15. 217 NLS, Adv MS 6.2.15, p 65. On Dallas see Stephen and Lee 1885–1901, vol 5, pp 394–5; Walker 1985, pp 181–2; Young 1992–3, vol 1, p 173. 218 Balfour, Practicks, vol 2, pp 644–55. Separate copies of the treatise also exist. 219 Hope, Minor Practicks (1734), pp 284–303. 220 See too Lauder’s Journals, pp 291 and 293. For English examples that he could have known about see Thomas Fidell, Perfect Guide for a Studious Young Lawyer (1654); Compleat Clark, and Scriveners Guide (1655); John Herne, The Law of Conveyances (1658). Sir Orlando Bridgman’s Conveyances was to appear in 1682. For continental works see generally Van Dievoet 1986, pp 75–9 and 83–4. The Advocates’ Library still has Haddington’s copies of Rolandus Rodolphinus, Summa totius artis notariae—which built on the work of Rolandinus—and of Jean Papon, Premier tome des trois notaires and Secrets du troisieme et dernier notaire. 221 Humble Address of Sir John Scot. See too Baillie, Letters and Journals, vol 3, p 443; State Papers of John Thurloe, vol 7, p 421; Diary of Alexander Jaffray, pp 67–8; Diurnal of Thomas Rugg, p 158; Act for Regulating of Prices and Processes (1652). EUL, La III 354(1), f 24, indicates that Scot’s own inventory of the charters sealed in the chancery, which is partly preserved as NLS, Adv MS 34.2.4, was drawn to the attention of the lords of session in 1678.

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518 The Court of Equity of styles he sent to the press in 1697, but he dealt first and more comprehensively with the other documents drafted by the writers. He had begun an apprenticeship with a writer in 1652, had been admitted to the society of writers to the signet in 1661, and had started work on his book in 1666, when he was appointed procurator fiscal of the society.222 Recurring complaints that summonses were being sealed ‘without containing any proposition or formal conclusion’, and that there ‘was some difference of the styles amongst the brethren’, had been brought to a head at the end of 1665, when the advocates had demanded that urgent steps be taken to stabilise practice. In January 1666 the writers had subscribed an act of self-regulation and had charged Dallas as their procurator fiscal with the task of ensuring that the regulations were complied with, as he had endeavoured to do during the next two years.223 It was at this moment that he had started work on his collection of styles, in which he wrote at length about the summonses used in the session. Dallas claimed in 1688, when he wrote a series of dedicatory epistles for inclusion in his book, that he had intended ‘only to Prosecute this Work in Manuscripts, for the Use of my Children’, and that he had changed his mind only because he was urged to have it published by ‘Lords of Session, eminent Lawers, and others’.224 This modest disclaimer of ambition was wholly conventional and was hard to reconcile, as he felt bound to concede, with the fact that his children had been very young when he started writing.225 His true motivation was perhaps revealed more reliably when he conceded further that ‘Stiles (in former Times) have generally been Good and Formal’, implying that they had become less coherent and consistent, and adding that his book might be useful since ‘the Art of Writing to the Signet’ would be easier to master if styles were ‘Digested in Method’. ‘Let no man’, he warned, ‘so far Deceive himself, as to Conclude, that Speculative Knowledge, or Theory, (without the Practical,) will ever make a Compleat Pen-man, but by the Method taken, a man may by Education Attain to more knowledge in Two, than formerly in Seven Years’. Dallas may have been alluding here to the familiar claim that Justinian’s Institutes had provided an easy way to knowledge of the law, a claim that had been appropriated by authors like Burnet and Mackenzie who wanted to promote the conjunction of learned theory with local practice.226 However, Dallas does not seem to have been thinking of the learning of the law schools when he spoke of theory, nor did he mean by practice anything more than the laborious business of drafting and redrafting documents. He offered reassurance to those writers who feared that the publication of his book would ‘prejudge the Calling’ by stressing that there could be no substitute for 222 Dallas, System of Stiles, sig A2v; History of the Society of Writers to Her Majesty’s Signet, pp 288–307; Minute Book of the Faculty of Advocates, vol 1, pp 11–12. 223 See too NLS, Adv MS 29.3.6, ff 3–4. 224 System of Stiles, sigg A2 and 4O3r (with emphasis added below). 225 The History of the Society of Writers to Her Majesty’s Signet, p 50, records that Dallas was married on 3 July 1660. None of his children did become a writer. 226 As will be made clear in a later volume in this series, it was believed more generally that methodical arrangement provided a shortcut to knowledge.

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The Style Books of the Writers 519 experience in a writer’s chamber and by explaining that his aim was merely to show how more might be gained from experience if it were approached with some method. He does not seem to have made any use of the artes notariae published abroad, still less of the treatises de actionibus, and he made no attempt to structure his book around the definitions and divisions of the civil law. He divided his material into six parts, dealing first with the documents required for the recovery of unpaid debts, then with the royal deeds of gift that passed the privy seal, then with the standard summonses used in the session, then in two more parts with contracts and conveyancing deeds, and finally with the brieves of chancery. Within each part, to the extent that there was a discernible structure, his tendency was to let one thing lead by association to another, or to show ‘stept by stept’ how the delivery of one document could generate a need for others, depending on how the first was received. If the notion was that method would add theory to practice, the method was clearly more practical than theoretical, and practical in quite a mechanical sense. Although Dallas sometimes noted that the drafting of a document would turn on a question of law, he believed that such questions, even if centred on local sources, were for ‘Lawers to plead, and the Lords to judge and determine’.227 He sometimes mentioned advice provided by lawyers like Gilmour and Lockhart, or cited decisions of the session reported by Gibson and Stair, or referred to books written by Skene and Hope, but he did not regard himself as someone equipped to address questions of law. Where scope was believed to remain for innovation in the drafting of a document his usual response was to encourage adherence to ‘the constant and inviolable Stile of this Realm’, advising that ‘the Custom and constant Practique is a sure Rule’ and that the draftsman who ‘observes the constant and allowable Custom walks safest’. There was thus some connection between his guide to the drafting of documents in standard use and the demands that resurfaced around 1680 for a methodical digesting of the law that would render the practice of the courts less arbitrary and unpredictable. When his book was finally published as a System of Stiles in 1697, Dallas mentioned that some years earlier Stair had borrowed ‘the First Part, called Real and Personal Diligence, and my Third Part, being Summonds passing the Signet; the first whereof he kept Eight Months, and the other Four or Five Months’.228 He took Stair’s interest in these parts of his book to provide ‘evidence of his ardent desire to be versed in all Matters’, and suggested that the new edition of the Institutions had proved Stair to be ‘not only a Lawer, but a great Formalist and Stilist, (as if bred Writer to the Signet)’. Dallas claimed in particular to have been so impressed with the account of the brieves of chancery in the new part of Stair’s book that he had decided to omit several topics from the last part of his own, instead referring his readers to the relevant pages of the Institutions. He seems to have added these 227 System of Stiles, pp 13, 78–9, 81, 98, 141, 225, 260, 262–3, 301, 480, 566, 741, 764, 783 and 863. Dallas occasionally made remarks like these under the heading ‘Doubts and Questions’, possibly in imitation of Nisbet, whose ‘Works’ (about to be published in 1698) he praised at pp 599–600. All the same, Dallas’ System of Stiles was a very different work from Nisbet’s Doubts and Questions. 228 System of Stiles, pp 885–6 and 894.

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520 The Court of Equity references some time before Stair’s death in 1695, for he praised the virtues of ‘my Lord President’ in the present tense, and he obviously did so after the appearance of Stair’s second edition in 1693, when he may still have been working on his own account of the brieves. Since he made no changes to the first and third parts of his book, even though Stair also dealt with diligence and summonses in the new part of the Institutions, the impression is given that the last part of his book was not, like the earlier parts, ready for the press in 1688. It was possibly at about this time that Stair, following his return from the Netherlands, saw the earlier parts of Dallas’ book, though he could have seen some version of them before he went into exile in 1682, at about the time that Lauder became aware of Dallas’ project. The first two titles of the new part of Stair’s book, in which he responded to the remark in the Claim of Right about protestations for remeid of law and to the acts of parliament exposing the deliberations of the judges to public scrutiny, seem to have been written after the discussion of court procedure that occupied the remaining fifty titles.229 The first two titles dealt in detail with topics covered more succinctly in the later titles and were written on the assumption that readers were familiar with other topics introduced more gradually in the later titles. Furthermore, the second title dealt not only with the act of 1686, requiring publication of the testimony taken from witnesses, but also with the act of 1693, requiring causes to be advised in open court, which was not taken into account when the advising of causes was returned to later.230 As was noted in the last chapter, the act of 1693 was also discussed fully in an appendix devoted to legislation passed after the main text had been revised for the press, which suggests that the first two titles of the new part were written just before publication, perhaps while the other parts were being printed. The last fifty titles of the new part had clearly been worked on not much earlier, for they contain a handful of references to acts of sederunt and a decision of the court issued in 1692, but it need not follow that they were written then. The relatively infrequent references in these titles to sources dated after 1681 could all have been added to an existing draft, and some look very much as if they were.231 It is therefore possible that Stair wrote the last part of his Institutions while he was abroad, but it cannot be concluded with any confidence that he did so, nor can it be discovered at which stage he borrowed the earlier parts of Dallas’ book. What does seem clear is that he took a keen interest in what Dallas was doing. In the last part of his Institutions Stair provided a new discussion of how cases were dealt with in the session, working through the topics already examined in his ‘Form of Process’ in much the same order as he had followed there, but going into more detail and paying more attention to the complications his readers were likely to encounter in practice. Quite apart from his later addition of two titles at the 229 It was in the first paragraph of the third title, which also seems to have been altered at the beginning, that Stair claimed at last to be moving on from his discussion of the constitution and conveyance of rights to deal with their cognition. 230 Institutions, 4.2.18 and 4.46.14 and 17–18. 231 Ibid, 4.3.25, 4.8.3, 4.18.6, 4.20.42, 4.26.7, 4.35.22, 4.39.14, 4.40.11, 4.43.14 and 18, 4.44.12 and 17, 4.45.17, 4.47.4–6, 4.50.12, 4.51.5–7 and 14, and 4.52.10.

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The Style Books of the Writers 521 beginning, however, he also included two long series of titles on topics omitted from his earlier treatise. The first consisted of thirty-five titles in which he described the various actions that could be raised in the session, and the second of five titles in which he described the various remedies available for the enforcement of decreets.232 Forty of the fifty titles he seems originally to have written were thus devoted to discussion not so much of the form of process as of the forms of action, as might have been expected in a book loosely based on Justinian’s Institutes. In an introductory title on ‘Ordinar Actions Generally’ Stair remarked that ‘before we come to special kinds of Actions and Summons, with their Forms by our Customs, it is fit to give a General View of the Divisions of Actions by the Roman Law’, suggesting that in later titles ‘their particular Actions may come in, as they may confirm or clear the Reasonableness of ours’.233 He did then spend some time in examining the Roman summa divisio between real and personal actions, along with several other distinctions drawn in the Institutes, and it will be seen shortly that what he said here is of great interest. Nevertheless, after examining the Roman divisions he dealt separately with the classification of actions in Scotland, observing that ‘the more full division of Actions with us, is in Actions Declaratory, Petitory, and Possessory’, which was the division he then used to arrange the next thirty-four titles of his book.234 He sought further to examine the various types of declaratory, petitory and possessory actions according to the order in which he had considered the constitution of rights in the first two parts of his book, and to this extent his method was more theoretical than the ‘system’ favoured by Dallas. On the other hand, Stair saw no need to adhere like Mackenzie to the known way of the Institutes or to reflect on the theory of the schools when it had little bearing on Scottish practice.235 Although he did sometimes compare the Scottish actions with those that had been available in Rome, he made no sustained effort to show that the local remedies were built on Roman foundations and no effort at all to show that the practice of the session could be brought into line with later civilian theory. His infrequent references were to the Roman texts, not to anything the doctors had made of them, and he never so much as mentioned the libels prescribed in the learned literature. In one of the titles he seems to have added in 1693 he declared that the session could bear comparison with all ‘the Supream Courts that have been, or are, in other Nations’, yet the only comparisons he actually made were with the courts of Rome and England.236 If he had spent his time abroad in academic study and in the company of Dutch jurists, as has recently been suggested, this had no visible effect on his treatment of court procedure.237 232 Ibid, 4.3–37 and 47–51. Stair had considered the enforcement of decreets in his earlier treatise, but not in the same way. As already seen, he had also started to say something there about the forms of action, touching on topics covered in his introductory title on actions, as will be seen in a moment. 233 Ibid, 4.3.34 (punctuation adjusted); and see too 4.3.20 on the Roman definition of the term actio. 234 Ibid, 4.3.45–7, 4.21.1–5 and 4.26.1. 235 What Stair said about this at ibid, 4.3.34, may be read as a criticism of Mackenzie’s approach. 236 Ibid, 4.2.18 (punctuation adjusted). 237 Gardner 2004, p 122. As will be seen in the next volume in this series, the isolated reference to the Dutch jurist Grotius in Institutions, 4.40.23, is not evidence of interest in Dutch law or practice.

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522 The Court of Equity His concern was with the summonses contained in the style books of the writers, not with how foreign jurists might have expected to see libels drafted or even with how local advocates might have wished to see summonses presented. Unlike Mackenzie and even Dallas, Stair showed no interest in the advice advocates sometimes gave to writers or in the books written by other practitioners. It was in his introductory title on ‘Ordinar Actions Generally’ that Stair wrote about the brieves of chancery, believing that it would shed light on current court practice ‘to consider the most antient Manner of Cognition of Causes in this Kingdom’.238 ‘King James the first’, he tried to explain, ‘having been eighteen years Prisoner in England, being taken as he Returned from France; He understood the courts of Justice in both these Kingdoms, and was the Institutor of the Session, and of Instruments of Seasin’. What Stair was driving at here was made a little clearer in one of the titles he seems to have added later, where he not only observed more correctly that James I had received ‘most of his Breeding among the English, by whom he had been taken while he was on his Voyage to France’, but added that ‘he was likewise for some time in France, being brought thither by Henry V, King of England, of design to influence the Scots in his favours, they having about that time fought in France with singular Valour and Success against the English’.239 By remarking once again that James had been given an ‘opportunity to Learn and Understand the order of the Administration of Justice, in both these Kingdoms’, Stair was able to hint at French influence in the early history of the session, though he did no more than hint. The point he proceeded to emphasise in these passages was the familiar one that James had erected ‘a Chappel or Chancery’ in Scotland with the power to issue writs ‘as the same were used in England’. The writs, ‘for their comprehension of much in few words, were called Brieves’, and they were issued ‘in course, without any special warrand’, for they amounted to ‘fixed Tenors of all Summons before the ordinary Courts, as yet they are in England’. Although these brieves had never been used to raise actions at first instance in the session, some were still used to raise elsewhere the actions brought before the session at second instance, and Stair accordingly wrote about them in the way that impressed Dallas, reproducing the precise Latin style of each document and commenting on its significance. He was possibly mindful of Dallas’ project when he recalled that in the legislation instituting the College of Justice the writers to the signet had been assigned responsibility for the ‘Forms of Summons and Diligences’, proceeding to explain how this had enabled new forms of action to emerge in the court.240 ‘Ordinar Summons’, he remarked again, ‘were introduced, by the Stiles accustomed by the Writers to the Signet, and sustained by the Lords’, who reminded the writers annually of their obligation ‘to keep the accustomed Stiles’ and censured any who failed to conform in ‘matter and order’ with the standard styles, ‘though they be not tyed to particular words, as they are tyed in the Brieves of the 238

Institutions, 4.3.3–4. Ibid, 4.1.2. Cf Brown 1994b, pp 17–24. 240 It was the parts of Dallas’ book dealing with summonses and diligences, it may be recalled, that Stair had borrowed for several months. 239

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The Style Books of the Writers 523 Chancery’.241 ‘But if any new case be proposed to them’, he added, ‘whereof they have not an accustomed Stile; they ought to present the same by Bill’, acknowledging the novelty of the summons so that ‘the Lords put not Parties to trouble, upon grounds altogether Irrelevant’. At one time the libels and summonses submitted in novel cases would have been ‘perused and considered by the Ordinar on the Bills, and past if they were found Relevant’, but now, ‘being exceedingly multiplied’, they were passed as a matter of course and scrutinised later if their relevancy was contested. ‘In such cases’, Stair explained once more, ‘the Writers ought always to begin with a Deduction of the Matter of Fact, and thence infer the Point of Right, and thereto subjoyn the Authority and Command’. Nothing was said here about the difference between a syllogism and an enthymeme, for Stair appears to have abandoned any hope of seeing the customary libels refashioned as genuinely logical arguments. What he did suggest, however, was that the prolixity of many summonses would be avoided if the practice were adopted wherever possible of omitting any narration of fact before the statement of the king’s will that the defender be made to appear. On this point Mackenzie had taken a rather different line in his treatise on actions. Believing that the Scottish summons was in effect a combination of what the doctors called a ‘Libel’ and a ‘Commission or Warrant’, he had suggested that the relationship between the two parts of the document was best kept transparent.242 The commission or warrant instructing royal officers to have the defender appear would state the king’s will that he be made to answer the pursuer’s complaint, and the terms of the complaint would usually be summarised in this part of the document. Mackenzie had seen styles in which ‘the Conclusions craved, are only repeated after the Will’, but he considered these less than satisfactory, ‘for the Proposition, Subsumption, and Conclusion are all Parts of the same Syllogism, and depend upon one another, and being Part of what is represented by the Complainer, they should come in properly before the Will, which should contain the King’s Command to cite the Defenders to hear such Conclusions granted’. The concern here was partly that the libel should retain the appearance of a petition granted by the court and partly that the libel should consist of a coherent argument, if possible stated in a logical form. Mackenzie was aware that several well established styles started with a statement of the king’s will, but he considered these appropriate only where the defender was being encouraged to do something before the case came to court, in the way that Roman defenders had sometimes been encouraged to restore what they had before they were condemned to pay damages. Even in these cases, he maintained, the argument summarised after the statement of the king’s will should if possible be presented as ‘a short Syllogism’. He had seen a summons for the reduction of a deed subscribed in lecto aegritudinis drafted in this form, and it seemed to him that a summons for the reduction of a deed ex capite metus might similarly run: ‘albeit by the common Law, and the 241 242

Institutions, 4.3.32. Works, vol 2, pp 498–500, 505 and 508–9.

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524 The Court of Equity Law of this Nation, all Deeds extorted by Force, vi vel metu, are null, and ought to be reduced: yet true it is that the said Defender did extort from the Complainer the Bond called for, vi et metu, in so far as [with the specific facts of the case then alleged] and therefore the said Bill is null, and ought to be reduced, retired, and rescinded’. Stair did not propose a specific style for either of these actions, but Dallas proposed one for reduction ex capite metus which began with a statement of the king’s will before summarising the facts and only then mentioning the law and conclusion.243 Although Dallas did include in his book a couple of other summonses drafted in a syllogistic form, Stair in both cases suggested instead that the summons should begin with a statement of the king’s will before briefly summarising the facts and then the law.244 Dallas presented styles beginning with a statement of the king’s will only where they were well established in this form, and his general advice was that a writer should aim to begin a summons by setting down ‘a clear Narrative or Proposition as to the Transaction or Point of Fact; and then from thence in Law make a genuine Subsumption and native Conclusion’.245 In several cases where Dallas provided a style beginning with a narration of the facts, Stair proposed a style beginning with a statement of the king’s will.246 The most distinctive feature of Stair’s treatment of the forms of action was indeed his readiness to recommend the use of styles in which the conventional narration of the facts before the statement of the king’s will was omitted. If the effect was to shorten the summonses, it was also to emphasise the willingness of the court to grant a remedy if a familiar type of claim were made out, to the neglect of the argument advanced by the claimant that the facts required the award of a remedy.

Comparing the types of action in Rome In what appears to have been the original opening of the fourth part of his Institutions Stair tried to make it clear that the session was an extraordinary court of equity as well as an ordinary court of law, observing to begin with that ‘the Lords have Priviledge ex nobili officio, which is competent to no Inferior Court’.247 ‘The distinction and import of nobile officium’, he then explained, ‘hath its rise from the Roman Law, whereby all Causes were Judged by the Praetor, under whom there were not such Inferior Courts as we have’. It was Stair’s understanding that civil actions had always been raised in Rome before the praetor, but that since one magistrate, or even a group of magistrates, could not possibly have dealt in person with all the actions raised, their actual hearing had mostly been delegated to ‘Iudices 243

System of Stiles, pp 273–4. Stair, Institutions, 4.14.2 and 4, and 4.22.12; Dallas, System of Stiles, pp 261–2 and 268–70. Dallas seems from the evidence of the style books to have provided a more conventional account. See, eg, the summons of purprision in NLS, Adv MS 22.2.11. 245 System of Stiles, p 331, and see too p 266. 246 Stair, Institutions, 4.7.5, 4.10.4, 4.12.7, 4.13.2, 4.14.4, 4.22.12, 4.22.15, 4.23.10 and 4.26.9; Dallas, System of Stiles, pp 186–202, 253–9, 261–5, 268–70 and 288–9. 247 Institutions, 4.3.1. See too Ferguson 1987b, p 209. 244

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The Style Books of the Writers 525 dati, who being at that trouble and attendance, had a legal allowance from the Parties, for their Pains; And therefore their office was called officium mercenarium’.248 Although the Scots had not adopted this expression, they did distinguish between the ‘officium nobile and officium ordinarium: So that the Jurisdiction of Inferior Courts is not Mercenarie, but yet hath not the officium nobile, which is extraordinar; and therefore they must keep their ordinar form of Process’. As was seen in the last section of this chapter, the Romans did not talk about the officium mercenarium either, but it was typical of Stair’s approach in the final part of his book to write about the law of Rome even when he was referring to concepts devised by the doctors. In contrast to other courts, he continued, ‘the Lords of Session have both the Officium ordinarium and Nobile’, for while routine deviation from ‘the ordinar forms, which Custom hath determined’, would have had the effect of rendering ‘the Subjects unsecure, and the Power of the Lords too Arbitrary’, there were many cases ‘wherein they may have recourse from strict Law to Equity’. ‘Every soveraign court must have this Power’, Stair maintained, ‘unless there be a distinct Court of Equity, from that for Law, as it is in England’. He understood that the common law courts in England were required to ‘judge all according to the Rigour of Law, and so they cannot modify the most exorbitant Penalties, nor give Remead but by the Tenor of their known Brieves’. To prevent injustice the English king had at one time intervened personally to mitigate the harsh effects of the law in cases where it seemed ‘inconsistent with Equity, and a good Conscience: But these Cases multiplying, and many pretending unwarrantably to them, the King could no longer dispatch them in his own Person, but gave that Power to the Chancellor, with the assistance of twelve Masters of the Chancery’. Noting that the English also had ‘several Courts of Equity and Conscience, set up by Authority of Parliament’, Stair made the predictable observation that ‘other Nations do not divide the Jurisdiction of their Courts, but supply the Cases of Equity and Conscience, by the Noble Office of their Supream Ordinar Courts, as we do’. He wished to make it clear right at the start of his treatment of court procedure that the lords of session were both judges of law and judges of equity comparable to the Roman praetor and the English chancellor. They did have the authority to ‘Modify exorbitant penalties in Bonds and Contracts’, even when the parties purported to have estimated the damages required to compensate for any breach and not to have penalised default.249 The lords of session had the authority in actions of reduction to disregard ‘Nullities or Informalities, where they see nothing wanting in material Justice’, and to deal equally flexibly with defects in apprisings and adjudications to secure their ‘equitable Effect’. Whereas judges, ‘by their Ordinar Office, cannot take away Writ by Witnesses’, the lords of session could admit testamentary evidence in actions of improbation, just as they could ‘make Acts for Probation before Answer to the Relevancy, which is only ex nobili officio’. Above all, in cases where a ‘Legal 248 Stair was wrong about this, but for the broad point he was making see Tellegen-Couperus 1993, pp 21–2; Metzger 1998, pp 212–13; Johnston 1999b, pp 112–13. 249 Institutions, 4.3.2.

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526 The Court of Equity Remead’ was lacking, a new action could be ‘introduced’ or ‘ex nobili officio, supplied’ by the lords of session, as for instance had happened in some cases of adjudication. Stair believed that justice was administered among the Scots in much the same way as it had been administered among the Romans. ‘The Session’, he suggested, ‘comes nearest to the Praetorial Power, which did supply what was wanting by their common Law of the twelve Tables, or by their recent Law, made by the suffrage of the People, or by the suffrage of the Plebeians, or of the Senate, or by their strict forms of Actions at first, or thereafter by their strict observance of the kinds of Actions, though not of the precise Words’. In the Digest Pomponius had taken the sources of Roman law to include not only enactments like the leges, plebiscita and senatusconsulta introduced to amend the ancient law but also certain forms of action called legis actiones, which he thought had been established in ‘fixed and solemn terms’ at about the same time as the XII Tables were enacted.250 In a case heard under the legis actio procedure, which was abolished only at the end of the republican period, the parties were required to use precisely the words prescribed by the law in an oral exchange of claim and answer in the presence of the iudex.251 In a case heard under the formulary procedure, which in practice supplanted the older procedure during the last three centuries of the republic, the oral exchange between the parties was replaced by a written document sent to the iudex by the praetor.252 To begin an action the parties had to appear before the praetor and attempt to fit their dispute into the terms of an established formula, which would have instructed the iudex to condemn the defender to pay damages if the pursuer made out his claim, unless the defender showed a counterclaim attached to the formula to be equally well founded. The formulae and defences (exceptiones, to which there could be replicationes, thence duplicationes, and so on) had originally been designed to give effect to the ius civile, and while the parties had not been required to use the precise terms of the legis actiones, they had still been required to find an established formula or exceptio before they could make a claim or counterclaim. Eventually, however, remedies were granted in deserving cases even when no provision had been made in the ius civile.253 It became predictable that these new remedies would be granted in certain cases, and the availability of many of them was advertised in an edict issued by every praetor at the start of his term of office.254 Although only authorised to regulate court procedure, by making new remedies available in a predictable way successive praetors effectively made new law, gradually building up what came to be known as the ius honorarium. Most private law was developed in this way and mostly in the late republic, which has 250

Digest, 1.2.2.6 and 12. Engelmann 1928, pp 269–82; Buckland 1963, pp 609–25; Jolowicz and Nicholas 1972, pp 175–90. 252 Engelmann 1928, pp 282–306; Buckland 1963, pp 625–62; Jolowicz and Nicholas 1972, pp 191–225. 253 Watson 1974, pp 88–94; Schiller 1978, pp 418–27; Brennan 2000, vol 1, pp 131–3. For the likely stages of the development see too Kelly 1966. 254 Kunkel 1973, pp 91–4; Robinson 1997, pp 39–42; MacCormack 1998, pp 10–11. 251

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The Style Books of the Writers 527 accordingly been designated the formative period of Roman legal history. What Stair meant to suggest was that the private law of Scotland had mostly developed and was still developing through the activities of judges who exercised the same sort of powers as the praetors. ‘In New Cases’, he insisted, ‘there is necessity of New Cures, which must be supplied by the Lords, who are Authorized for that Effect by the Institution of the Colledge of Justice’. As he put it in a later title, when the session was reinstituted in 1532 the judges were formally ‘Impowered to make Rules for Dispatch of Justice’, and it was in exercise of this power that they dealt with the new cases brought before them by granting remedia extraordinaria which might gradually become ordinaria.255 Their power, Stair observed again, ‘is thereby like that of the Roman Praetor, ubi lex deest, Praetor supplet’. Stair returned to this theme when he wrote about the Roman divisions of actions.256 After touching briefly on the distinction between actiones in rem and in personam, he noted that the Romans had ‘another Division of Actions, from the Authority whence they are Allowed or Institute: and so all Actions are either Civil or Praetorian’. The former were those arising ‘from their Civil Law, as distinct from the Praetorian Law’, and particularly from ‘the Law of the Twelve Tables’. Recalling once more that in the early republic ‘their Actiones Legis, had all exact Forms, and there could be no other action but under these Forms’, he explained again that ‘these were very Defective of what was Necessar, and therefore the Praetor supplyed the same by Addition of New Actions, which were Established by the Edictum perpetuum’.257 Before the end of the republic some actions had therefore come to be based on the old civil law while others were based on praetorian innovation, but another distinction had to be drawn between two different kinds of innovation. Some actions, whether based on the old civil law or invented by the praetors, were called actiones directae, whereas those that dealt with new problems by adapting the existing forms, whether civil or praetorian, were called actiones utiles. ‘These actiones Utiles’, as Stair pointed out, ‘arose from the parity of Reason, and were founded upon the Reason of the Law, but not upon the words of it’. Remarking briefly on the further distinctions between actions that were compensatory or punitive, and temporary or perpetual, Stair noted that in the republic the extraordinary remedies were those granted by the praetor when, instead of instructing a iudex to hear the case, he examined the facts himself and instructed the parties to do or refrain from doing something.258 Of greater relevance was the distinction drawn between actiones bonae fidei and stricti iuris. ‘The rise of this distinction is from the Formulae’, Stair believed, for the instructions sent to the iudex in an ordinary action had been more or less stringent and whereas all actions ‘which had an exact Formula, were stricti Iuris’, those allowing the iudex some 255

Institutions, 4.51.9. Ibid, 4.3.34–42. 257 In the republic the edict was perpetual in the sense of remaining unaltered throughout the praetor’s term of office. In the second century of the empire it became perpetual in a stronger sense when it was consolidated at the behest of the emperor Hadrian. 258 On the equitable character of these remedies see again Stein 1989. 256

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528 The Court of Equity discretion ‘were bonae fidei, according to the account given by Seneca and Cicero’.259 In the time of Cicero and even of Seneca, who lived in the first century of the empire, the handling of most cases continued to be regulated by the instructions sent to the iudex, some of which directed him to consider how the parties ought in good faith to have behaved. Stair observed that in cases with this type of formula the iudex reached a decision ‘ex bono et aequo, as an Arbiter’, so that they ‘were also called Arbitrary actions’, to which he added a few lines later that the lords of session ‘may the more exerce their Officium Nobile, in actions bonae fidei, than in these which are stricti Iuris’. Under the emperors, however, the extraordinary hearing of whole cases by the praetors—or increasingly by other magistrates, who were rather confusingly referred to as iudices—gradually became more ordinary, though the term cognitio extraordinaria was retained to denote this third form of Roman procedure.260 The hearing of cases in two stages had disappeared before the end of the third century, and while the old formulae were at first used as statements of claim under the cognitio procedure, they were replaced by libelli drafted by the parties to suit each case in the middle of the fourth century.261 Stair knew that this had happened, and he must have been aware that the learned procedure adopted with some modification in the session was based on the cognitio procedure developed in the later empire. Nevertheless, the parallel he preferred to draw was with the formulary procedure, and more particularly with its creative use by the praetors in the late republic. ‘Even after the taking away of the strict terms of the Formulae’, Stair went on, ‘all their ordinar actions had known names’.262 The actions granted by the praetors had in general been given specific titles, usually drawn ‘from the Rights whereon they were founded’—such as the actio locati granted to a person who had placed or hired a thing out for payment—less often ‘from their Authors’—such as the actio Publiciana made available by the praetor Quintus Publicius—and occasionally ‘from the name or initial words of the Edictum Perpetuum’—such as the quasidelictual remedy granted against people in charge of ships, inns or stables. The names of these actions remained in use in the later empire not merely because they were familiar but also because they had a technical significance that served to abbreviate pleadings. Thus instead of explaining to a court that he had agreed to allow someone to use a thing in exchange for a sum of money and that the other party had not fulfilled the terms of their agreement, a pursuer could simply have sued as a locator, from which it would have been inferred that the other party was obliged to fulfil the requirements of the law governing the contract of hire or locatio conductio. Sometimes, however, the use of a technical expression had not sufficed under formulary procedure. Stair noted that there were ‘Roman Actions, 259 Stair was probably thinking of Cicero, De officiis, 3.16.65–17.70, and was perhaps vaguely recalling Seneca, De beneficiis, 3.14.1–15.4. 260 Engelmann 1928, pp 316–26; Buckland 1963, pp 662–73; Jolowicz and Nicholas 1972, pp 439–50. 261 Code, 2.57.1 and 3.3.2. 262 Institutions, 4.3.43.

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The Style Books of the Writers 529 praescriptis verbis, for which there was no name nor form acknowledged in the Law, but from special matters of Fact and Circumstances, Inferences of Law, or equity were deduced, although the same could be ascribed to none of the Titles of Actions in that Law’.263 A Digest title ‘De praescriptis verbis et in factum actionibus’ had dealt with cases in which no reference could safely have been made to the established nomen of an action or appellatio of a contract, with the example given at the outset of someone who had undertaken to carry cargo in a ship.264 Had he raised an actio locati, claiming to have let out the hold of the ship, it might have been replied that the task of carrying the cargo had rather been placed out to him, so that he was the conductor and unable to sue as a locator. A safer course, according to the jurist Labeo, was to raise a civilis actio in factum, spelling out what had happened at the beginning of the formula. Use was made in this title not only of the perplexing expression ‘a civil action in fact’ but also of an equally perplexing range of expressions to signify the actio in factum, actio praescriptis verbis or actio civilis incerti.265 It seems that parties were at first advised to use the formula of a civil action with a prefatory account of the facts, and that what began as a cautionary measure designed to avoid defeat on a technicality then came to be exploited as a way of extending the civil law to cover analogous cases.266 As Stair was aware, a similar device had been developed in England, where the writs issued to initiate actions in the common law courts had often been extended to cover analogous cases by the insertion of a clause recounting the facts alleged.267 Stair suspected that something like the English ‘action on the case’ had been in use in medieval Scotland, but the comparison he drew between the lords of session and the chancellor or praetor was indicative of the more inventive kind of innovation.268 Although the Digest title on the civil action praescriptis verbis conflated it with the praetorian action in factum, the latter had sometimes been used to make remedies available in situations that could not have been brought within the ambit of the civil law by analogous reasoning.269 It had been possible for a praetor to instruct a trial court to make an award of damages in any situation in which justice seemed to require a remedy to be granted, and it was in dealing with cases that were not provided for by the existing law, to begin with on an ad hoc basis, that the praetors had gone beyond extending the civil law and had made quite new law of their own. Stair believed that the ‘libelled summonses’ in which writers to the signet began by narrating the facts of cases incapable of being brought within accustomed styles were ‘like the Roman Actions, praescriptis verbis’.270 As he remarked in a later title, 263

Ibid, 4.3.31 and 34. Digest, 19.5.1–3. 265 The usual distinction was between an action in fact or on the facts and an action in law, but the idea here appears to have been that the action or formula was both in factum and in ius civile concepta. 266 Roby 1902, vol 1, pp 179–83; Zimmermann 1990, pp 532–7; Honoré 1991, pp 144–7. 267 Fifoot 1949, pp 66–78; Milsom 1981, pp 300–5; Baker 2002, pp 61–4. 268 Institutions, 4.1.2 and 4.3.3. 269 It was in Digest, 19.5.11, that Pomponius had remarked, without reference to the contractual action praescriptis verbis, that ‘supplet praetor in eo quod legi deest’. 270 Institutions, 4.3.31 and 4.40.9. 264

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530 The Court of Equity it was in ‘a Circumstantiat Action praescriptis verbis’ that the lords of session expected the clerks to alert them to the novelty of the libel and the parties to dispute its relevancy. In such a case the pursuer would crave a remedy ‘according to Law, Equity, Reason, or Justice’, sometimes on the ground that an analogy could be drawn with the law and sometimes on the ground that a remedy was required even though nothing in the law could be taken to justify it. As Stair had already explained in his ‘Form of Process’, the burden on the pursuer in a new case was ‘to inforce the Relevancy of a Summons’ by persuading the court of ‘the justness and equity of the Cause’, for like the praetors, the lords of session could grant a remedy in any deserving case ex nobili officio.271 In some cases the remedies would have been granted in an ad hoc way, but in others they would have become more predictable, though still granted in response to libelled summonses, like the actiones in factum that became part of the law in Rome though never advertised or furnished with a formula in the praetor’s edict. Stair was thinking of this type of case when he observed that the action to prove the tenor of lost writs was ‘so various, that it must be pursued as an Action praescriptis verbis, and hath not one common definit form’.272 In many other cases a definite form had become common, if not precisely in the sense of a formula being prescribed by the court then at least in the sense of a style being ‘accustomed by the Writers to the Signet, and sustained by the Lords’. It was the style books in which the writers recorded the summonses sustained by the lords, those to which they were constrained by the lords to conform, that provided something like the praetor’s edict in Scotland, or at least the part of the edict containing the formulae for actions. Just as some of these formulae had retained the appearance of the actiones in factum in which they had first been approved, so many of the summonses in the style books retained the appearance of the bills first used to urge the lords to approve them. The styles reproduced in Stair’s book were often in this form, though he believed the Scots might improve their pleadings by imitating the Romans in making more use of technical terms in established cases. ‘It would make the Style and tenor of Summons much shorter and clearer’, Stair commented at one point, ‘if difference were observed between Ordinar Petitory Actions, which have a known special Title in our Law, and these Actions, which are involved in various circumstances and matters of Fact; which therefore in the Roman Law are called Actiones praescriptis verbis’. Although there were some actions in which ‘the matter of Fact is to be first deduced, and the matter of Right thence inferred, and then the Will and Conclusion subjoyned’, there were others in which ‘the Will may be premitted, and the Title of the Pursuer libelled particularly’, for where the rights or titles of the parties were specified in technical vocabulary, ‘the natural consequences from such Titles are known, and determined in Law; and are not at the conjecture of the framers of Libels, as in Actions praescriptis verbis’. ‘It were to be wished’, Stair declared more broadly in his introductory title, ‘that Summons did more expressly relate unto the Rights 271 272

Modus litigandi, pp 7–8. Institutions, 4.3.44, 4.21.3, 4.23.13 and 4.32.12.

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The Style Books of the Writers 531 whereupon they are founded, under their Legal names and Titles; and that the Styles were accommodat thereto, whereby they needed not so long narrations of matter of fact, but the very mention of the Right would give ground for inferring the conclusions desired’. At this point he observed in particular that the use of technical vocabulary ‘hath not been accustomed in personal actions, but these generally have been Libelled as actiones praescriptis verbis’. Stair’s readiness to recommend the use of styles omitting the conventional narration of the facts prior to the statement of the king’s will was thus based on the assumption that some areas of the law had become sufficiently well developed to enable technical vocabulary to be used in place of descriptions of what had happened. It is important to note, however, that almost all of the cases in which he recommended the omission of factual narrations were governed by the law of land tenure and succession. As was seen in an earlier chapter, in writing about these areas elsewhere in his Institutions he had made significantly less reference to learned sources than in writing about the law of contract and had claimed to have less need to proceed by conjecture than Craig had done, explaining that court practice had clarified a great deal since the Ius feudale was written. If his suggestion was that ‘the framers of Libels’ were coming to have less need to proceed by ‘conjecture’ in drafting summonses for use in personal actions, he did not yet feel able in this area even to record standard styles starting with factual narrations let alone to propose styles starting with the statement of the king’s will. Whatever he may have believed he had done to clarify the nature and constitution of personal rights in the first part of his Institutions, he did not believe that writing about the law could lead directly to an extension of the style books, which consisted mostly of summonses used in real actions.273 As Stair saw it, the style books could only be extended by the customary use of summonses sustained by the lords of session, so that any changes in the substance of the law would tend to emerge from rather than lead to changes in the practice of the court. New substantive law could of course emerge from legislation, as it had in Rome, but Stair’s belief was that most private law in Scotland emerged from court practice, as it had in republican Rome, according to the account given by Cicero. In Cicero’s time, just before the end of the republic, the belief that Roman law could mostly be found in the XII Tables had given way to the belief that it could mostly be found in the praetor’s edict, or more precisely in the remedies that ‘the praetors have been accustomed to embody in their edicts’.274 Cicero maintained that all human laws derived from ius naturale or aequitas and that the institutio aequitatis establishing the law of Rome as aequitas constituta had been either customary or statutory in form.275 Customary law had emerged in various ways, including the recording of ancient usage or the mos maiorum in the XII Tables, but more often it had taken shape in the edicta magistratuum. Like other rhetoricians, Cicero taught that recourse could still be taken to natural equity in cases where ius novum was required, offering advice on 273 274 275

See again the examples cited in n 216 above, and see too Dallas’ System of Stiles. De legibus, 1.5.17; De inventione, 2.22.65–8. Topica, 2.9 and 23.90; De inventione, 2.53.161–54.162; De partitione oratoria, 37.129–31.

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532 The Court of Equity the range of sources that orators might refer to in seeking to persuade a court to make a suitable award. Some of these sources were regarded as repositories of law by the jurists, but not all of them, according to the texts edited by the imperial compilers. In Justinian’s Institutes the praetor’s edict was treated as a form of written as opposed to customary law, and in the earlier empire it was subjected to learned commentary by the jurists.276 Cicero had recognised the influence of the jurists on the development of the edict, and some trace was left in the Digest of republican jurists speculating on when it would be fair or aequum for the praetor to grant a remedy.277 More generally, however, the impression was given in the Corpus iuris that the ius honorarium consisted of what the jurists believed the praetor ought to do. Natural equity was not regarded as a source of law by the later jurists, nor was the word aequitas, as was noted earlier, used by them in relation to the ius honorarium.

Revisiting the origins of customary laws Although Mackenzie began his treatise on actions by criticising the commentators for their lack of understanding of ‘the practicae formulae & solennitates that were used at first among the Romans’, he did not actually show much interest himself in the early history of Roman law.278 He barely touched on the legis actiones, he made no attempt to explain how the praetors had developed the ius honorarium by granting remedies in new cases, and he mentioned the use of formulae only as background to discussion of the actions preserved by Justinian, indicating by his references to iudices pedanei that he was thinking primarily of the administration of justice in the time of the empire.279 His main interest was in the ‘Stiles and Solemnities’ built up from the foundations of the Roman actions in the later civilian tradition, with which he sought to connect the practice of the session, and he consequently criticised the humanists too for their lack of understanding of ‘the present Practice and Customs’. When he did write about the equitable authority of the praetors in his discourse on the opening titles of the Digest, Mackenzie placed great emphasis on the transfer of imperium to the emperors, an event wholly neglected in Stair’s discussion of the forms of action. Mackenzie emphasised that the emperors had not only assumed all legislative authority but had also reserved to themselves the power to turn from law to equity in new cases, and it was this concentration of authority in their hands that he took to provide a suitable basis for comparison with the monarchies of Scotland, England and other countries. Although he believed that judges had to be permitted to exercise the nobile officium—an expression he was able to use quite loosely since all remedies had come to be granted after the extraordinary cognition of causes—he under276 277 278 279

Institutes, 1.2.3; cf Digest, 1.1.7. Topica, 17.65–6; Digest, 3.5.20(21).pr and 44.1.14; Watson 1974, pp 173–4. Works, vol 2, pp 492–5, 497 and 508. Engelmann 1928, pp 266–7; Buckland 1963, p 664; Kunkel 1973, p 143.

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The Style Books of the Writers 533 stood this to mean that judges could sometimes decide cases in accordance with the reason implicit in the law, not that they could turn away from the law to decide cases in accordance with natural reason. He therefore believed that the lords of session could construe acts of parliament liberally and that they could resolve most issues by following the spirit as well as the letter of the law, either local or learned, but not that they could fashion new remedies from their own conceptions of justice. He believed that the lords of session could make new laws to regulate court procedure, but he insisted that new laws could only be made on points of substance by the king in parliament. While he found it difficult to deny that acts of parliament had sometimes fallen into desuetude in the past, Mackenzie took the view that the repeal of statutes by desuetude was a practice developed in the Roman republic which was unworthy of retention in a modern monarchy. Similarly, he took the view that forensic orations of the kind presented by Cicero, in which judges were persuaded to respond to the facts of cases as their sense of natural justice dictated, had only been appropriate at the time of the republic when Roman law had been in an undeveloped state. As a later volume in this series will show, Mackenzie had difficulty in resisting the attractions of Roman oratory, and there was some tension between his interest in forensic eloquence and his theory of law, yet his theory of law was clear enough. He believed that all human law derived from natural law but that natural law itself was nihil ad edictum praetoris. To Mackenzie the praetor’s edict was significant not as the source of new law it had been in the republic but as the statement of settled law it had become in the empire. By the same token, he regarded the style books of the writers not as an instrument of judicial law making but as a body of writing in need of expert commentary. When Mackenzie considered the possibility of judicial law making in his discourse on the Digest it was in comparison with the activities of the Roman senate, and he did not believe that the comparison left much room for creativity.280 ‘It is acknowledged that the Roman senate of old could make a law by their decisions’, he remarked, ‘but afterwards, all the imperial power and legislation being transferred to the emperors, Justinian ordered the decisions of the emperors to be looked upon as lawes’. As usual Mackenzie indicated that it was the law of the empire that could suitably be compared with the law of Scotland, affirming that ‘amongst us, legislative power being in king and parliament, no decisions of other supream courts can make a part of our law’. He had no sympathy with the view that decreets of session or even acts of sederunt could be likened to senatusconsulta, not at least if senatusconsulta were conceived of as acts of legislation. He dismissed the legislation authorising the lords of session to regulate their own procedure as ‘of small importance’ since he denied that they could exercise the imperium of the legislator in relation to anything other than their own procedure. Where he believed their decisions could be of some value, as already seen, was where they took the form of exercises in learning. Mackenzie urged reporters to 280

BL, Sloane 3828, ff 154v–9r.

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534 The Court of Equity say whether the cases they dealt with were ‘well debated’ and to follow the example of Nisbet and Wedderburn in recording dissent among the judges, ‘to the end we may thereby know the opinion of learned men and may not trust to voting so much as to reasoning’. He wanted to see decisions weighed in the balance with ‘the writings of learned lawyers’, which he considered to be more reliable when produced in detachment from practice by jurists whose only bias was towards preserving their reputations. The model jurists had of course been those relied on in Rome to answer questions from judges, litigants and orators through exercise of the prudentium auctoritas, ‘which power of answering publickly every man first owed to his own parts and fame, till Augustus restricted this faculty to those who had only power of answering difficulties from him’.281 Although the emperors had tried to control the exercise of the prudentium auctoritas, it was not originally derived from them and it was later revived among university teachers who claimed the benefit not of a translatio imperii but of a translatio studii. Noting that the opinions of the doctors were ‘of great authority abroad’, Mackenzie suggested that the consilia they presented to continental courts were like the pleadings submitted to the session by Scottish advocates. It was the decisions based on these learned submissions that he reckoned to have some value in the law making process, along with the books practitioners wrote. If the law that emerged from this process was best regarded as a species of custom, and if the force of custom was attributable to the tacitus consensus populi, Mackenzie was able to take the Bartolist line that the people were represented by the legal counsellors who frequented the courts, to whom he referred as ‘the priests of righteousness and oracles of the nation’.282 Deeply uncomfortable with any hint of republicanism, he preferred to think less in terms of the popular consensus explicitly involved in legislation than of the expert consensus of local practitioners on which the professors understood court practice to depend. His treatise on actions was not merely one of several attempts he made to promote the learned development of Scots law by marrying the practice of the session with the theory of the schools, but was devoted to discussion of the area in which there was most scope for practitioners to lay claim to the authority of the professors. As was seen in earlier chapters, when Mackenzie said that ‘the Stiles in all Courts are equivalent to fundamentals’, forming part of ‘the old inviolable custom’, and claimed that they were ‘the product of common consent’, his point was that they were ‘introduced after much experience, by such as understand’.283 Stair similarly remarked in his ‘Form of Process’ that since the procedure followed in the session was ‘the product of long experience’, nothing could be ‘more rational’, explaining that ‘the Lords are still supplying and perfiting [it] as they see cause: and whatsoever seems convenient at first, if it prove afterward inconvenient, is laid aside; so that what is retained, is that which hath for a long course 281

Kunkel 1973, pp 106–8; Tellegen-Couperus 1993, pp 95–8; Robinson 1997, pp 10–13. Lauder, Historical Notices, vol 1, p 206. Cf Digest, 1.1.1.1, where the Roman jurists were called sacerdotes artis boni et aequi. 283 Pleadings, pp 151 and 165; Observations on the Acts of Parliament, pp 179, 220–21 and 445. 282

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The Style Books of the Writers 535 been found rational and convenient’.284 He was clearly thinking here of the defence of customary law he had adopted from English authors in his Institutions, and was suggesting that a body of law developed gradually through the decision of particular cases was likely to be rational, though how far he was thinking of the English concept of artificial reason is less clear. In the final part of his Institutions he argued that people should be willing to acquiesce in the decisions of judges ‘who have devoted their Lives and studies, to meditate on, and understand, not only material Justice, the common rule of the World, but also the particular statutes of this and Neighbouring Nations’.285 He thought it important for the session to be staffed with judges who were learned lawyers, and he endeavoured to promote legal learning among his colleagues by writing a book in which the statutes or positive laws of Scotland were connected with those of neighbouring nations and with the material justice that ruled the world. However, it has been seen that what he meant by the common rule of material justice was the natural equity intelligible not only to bred ‘lawers’ but to all people with ‘discretion enough to understand aequum et bonum’, and that he did not think people should have ‘implicite Faith’ in lawyers in the way ‘papistes’ were thought to have in priests. Moreover, he believed that when lawyers turned from statutes and customs to the learning of the universities they were at once turning from positive laws to material justice and were concerning themselves with the natural reason they shared with laymen. He recognised that some people had more natural reason than others, that education and experience enabled people to put their natural endowments to better use, and that trained lawyers were especially adept at handling issues of right and justice, but it was not Stair’s position that only lawyers could handle these issues, or that in doing so they could exercise an authority acquired from their membership of a corps of experts. When he wrote about the history of the civil law in the opening title of his book he mentioned that the Roman jurists had been ‘authorized to give answers in dubious Cases’ and that the doctors had later assumed the same responsibility, ‘though not claiming the like Authority’.286 What he seems to have meant by this was that only the opinions of the jurists authorised by the emperors could have been a source of positive law, for when he proposed a republican model of legal development, both in his paragraph on the sources of Scots law and again in his account of the forms of action, he made no mention of the jurists. In both passages he indicated that the ancient law of Rome had been supplemented or perfected either by legislation or by the customs recorded in the praetor’s edict, and he does not appear to have believed that the jurists contributed anything more than advice to the legislators or praetors. In the earlier parts of his book he himself wrote in the way that the jurists seem originally to have done, speculating or conjecturing on what the judges ought in fairness to do without believing that they were bound to accept his 284

Modus litigandi, p 42 (punctuation altered). Institutions, 4.1.61, and see too 4.1.33. 286 Ibid, 1.11/1.1.12. It is not entirely clear how or when Stair thought the jurists had been authorised to answer questions. 285

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536 The Court of Equity opinions. It seems that he did not try to write with authority appropriated from the doctors because he did not believe that the court was in any way bound by the probable reasoning of learned men, however persuasive it might be.287 Stair did not attempt like Mackenzie to contribute to the displacement of the doctors from their position of authority by gradually broadening the Scottish understanding of practick, but he did attempt in his own way to show how changes in the substance of the law could result from changes in the procedure of the session. Unlike Mackenzie, he took the legislation of 1532 to be of crucial importance in the law making process, believing that it had authorised the lords of session to regulate the ‘Matter’ as well as the ‘Form’ of justice and through their decisions as well as their acts of sederunt.288 In the manual on procedure he wrote in 1666 or 1667 he claimed to provide ‘a short view of the forme and not the matter of Process’, hinting at a progression from the form of process through the forms of action to the matter of justice.289 The forms of action to which so much attention was devoted in the account of court procedure Stair added to his Institutions in 1693 thus provided the link between the form and the matter of the justice administered in the session. As he explained in both places, litigants were able to petition the court by bill to grant whatever remedy justice seemed to require in the circumstances they alleged, much as they could present a bill to a parliament craving an equitable and expedient solution to any difficulty they faced. Like the lords of the privy council, the lords of council and session could summon people to appear before them using a signet held by a deputy of the king’s secretary, with whom they shared responsibility for the conduct of the writers to the signet. Defenders who responded to a summons to hear a case determined ‘according to justice’, as the statement of the king’s will invariably put it, were taken to have submitted themselves to the sovereign authority symbolised by the signet and to have agreed to acquiesce in whatever ruling the judges made, at least when they had exhausted the possibilities of objecting to the relevancy of the libel or of raising an action of suspension or reduction. Every new case was decided on its facts, but because equity required like cases to be decided alike (as Cicero had observed) reference could be made to previous decisions in an attempt to persuade the court to deal similarly with the case in hand.290 This seems to have been what Stair had in mind when he made the remark already quoted from his first volume of Decisions that ‘the Principles of Equity being fixt and permanent, new and singular Cases, by Analogy of Law are reduced and determined, with congruity to the common course of former Decisions’.291 He clearly did not mean that the court was obliged to follow its earlier decisions or that new cases could always be dealt with by analogous extension of the existing law, for he claimed to report ‘circumstantiate Cases’ that 287 As already noted, and as will be explained more fully in the next two volumes in this series, his concept of probability was more rhetorical than dialectical. 288 Decisions, vol 1, sig A2v; Institutions, 1.1.16 and 4.1.pr. 289 Modus litigandi, p 14. 290 Topica, 4.23. 291 Decisions, vol 2, sig †2v.

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The Style Books of the Writers 537 had not yet given rise to a ‘constant Custom’, and as late as 1693 he was still claiming that ‘New Cases’ required ‘New Cures’, which the lords of session had been authorised to provide.292 What Stair seems to have meant was that the equitable decisions delivered in new cases would generally be followed in any similar cases, and that when litigants eventually acquiesced in the emerging practice of handling a recognisable type of case in a standard way, by refraining from raising objections to the relevancy and from pursuing actions of suspension or reduction, the practice would become a customary law.293 Just as the procedural custom of the court consisted in what the judges were ‘in use to do’, so the substantive custom of the country could consist in what the judges were ‘in use to find’. As was seen in earlier chapters, what the judges were in use to do or to find was often described by practitioners as part of the immemorial custom or the fundamental law of Scotland. Stair’s explanation in the second edition of his book of how recent customs emerged from the judicial process bore some resemblance to the explanation already added to his book in 1667 of how ancient customs had emerged from the submission of disputes to sovereign adjudication.294 He explained then that cases had at first been decided according to what the ‘Soveraign Authority should find Just and Convenient’, that ‘next unto Equity, Nations were ruled by Consuetude, which declareth Equity and constituteth Expediencies’, and that, ‘in the third place, positive Laws of Soveraigns became to be accustomed’. In 1693 he explained how the lords of session might still be persuaded to grant a remedy in the novel circumstances of a case, how a custom of deciding similar cases in a similar way might gradually take shape, and how a custom of granting a remedy in a particular type of case might eventually be consolidated in a standard style that the writers were obliged to observe. New styles might thus become ‘accustomed by the Writers to the Signet, and sustained by the Lords’, much as at one time the ‘positive Laws of Soveraigns became to be accustomed’. These were clearly not positive laws in the strict sense of statutes received into consuetude by the people, for Stair went on to deal with acts of parliament as a distinct source from ancient and recent customs, but they were positive laws in the loose sense of laws introduced after people agreed to abide by the determinations of sovereign judges. Stair assumed that ancient customs had developed in much the same way as recent customs and claimed that the best laws were those developed through the handling of particular cases. He adopted the English argument that customary laws were less likely to require recourse to equity than statutory laws, yet he recognised that this was precisely because they were themselves developed through repeated recourse to equity. In defining equity as the ‘correction of law where it is defective owing to its universality’, Aristotle had added that a universal law could not always be prescribed before cases were heard, ‘for when the 292

Institutions, 4.3.1; Decisions, vol 1, sig A2v. Institutions, 4.1.1, 32 and 40, indicates that the acquiescence of parties in the interlocutors delivered in the outer house had come to take the place of their acquiescence in the decisions that could once have been appealed to a parliament. 294 Ibid, 1.14/1.1.15. 293

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538 The Court of Equity thing is indefinite the rule is also indefinite, like the lead rule used in making the Lesbian moulding; the rule adapts itself to the shape of the stone and is not rigid, and so too the decree is adapted to the facts’.295 Although Stair insisted in his reports that the lords of session did not make law ‘like the Delphick Sword, bowing or bending to the several Parties, but as a firm and stable Rule’, he clearly believed nonetheless that they did make law like the lead rule used in the Lesbian moulding, bowing or bending to the facts of particular cases.296 In completing his Institutions in 1693 he argued that decreets of session should always take the form of decisions delivered on the facts of cases.297 His response to the complaint that the decision of cases on their facts left the law vague and uncertain was to urge practitioners to distinguish more clearly between issues of fact and law. He observed that advocates were inclined to confuse different varieties of pleadings ‘very unskilfully’, and suggested that more effort should be made to distinguish acts of litiscontestation, dealing with pleas to the relevancy or the competency of libels or defences, from decreets of session, dealing with the veracity of the claims or counterclaims made in libels or defences. An act of litiscontestation passed after a plea to the relevancy might go some way towards settling a point of law, provided the dispute proved to be the ‘leading Case’ it was expected to be, but strictly speaking an act of litiscontestation would be a ruling on the legal relevancy of the particular facts alleged. It was when patterns emerged in decreets without further pleas being made to the relevancy that new customary laws would take shape. Stair’s answer to the question raised by Nisbet and quoted at the end of the previous section of this chapter would thus have been that the lords of session must certainly be regarded as ‘Magistrates, & Praetores habentes Imperium’. He wanted to distinguish sharply between two stages in the handling of cases and to have issues of law and fact determined separately as they mostly had been under Roman formulary procedure. In some cases the lords of session could grant acts before answer and so deliver decreets cognitionis causae, and in others they could exercise discretion in delivering decreets in actiones bonae fidei, but where Stair believed they most resembled the praetors was in determining pleas to the relevancy before the facts of new cases were investigated. It was the acts of litiscontestation preceding the delivery of decreets in new cases that he took to form the basis of the development of customary laws, though he recognised that there were also many ‘uncontroverted customs’ that had never been the subject of litigation, and he worried lawyers like Nisbet by ‘asserting’ the existence of customs in the absence of debates on their validity. It has been observed with some justification that Stair placed great emphasis on the customary components of Scots law in contrast to Mackenzie’s emphasis on the statutory components, but whether it can be added (as it generally is) that Stair elevated reason above authority in opposition to 295 Ethics, 1137b26–32. Cf Davies, Le primer report des cases, f 4r, where the handling of cases was clearly compared with the use of a lead rule in the Lesbian moulding. 296 Decisions, vol 1, sig A3v. 297 Institutions, 4.46.26–8, and pp 769–79.

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The Formative Period of Legal History 539 Mackenzie’s stress on legislative sovereignty is another matter.298 Mackenzie also recognised that laws could derive from the consensus of the people as well as the sovereignty of the king, he believed that the legislative authority of the king was limited, and he tried to use learned authority not only to define the meaning of legislation but also to develop the law in the absence of legislation.299 It was Stair who maintained that all positive laws must derive in some way from the exercise of sovereign authority and who refused to accept the idea that positive laws could derive from recognition of the requirements of natural law. Although he went to great trouble to identify the requirements of natural law, it was not the recognition of these requirements by either the people or the expert lawyers who represented them that he took to begin the process of law making.300 As he saw it, positive laws could only begin to emerge from ethical enquiry after people agreed to abide by their sovereign’s understanding of the requirements of natural law, even if it was mistaken. Whether sovereignty was exercised in the passing of statutes or in the decision of cases, its exercise had to be negotiated with the people before laws could be established. Indeed, laws could be established without the express exercise of sovereignty provided a practice could have been contested before a sovereign court. What was needed from the people, however, was not concurrence in the reasoning of the sovereign so much as passive acquiescence in the practice, willingness to comply with a convention rather than active participation in the forming of a consensus. One central task of the later volumes in this series will be to explore an ideological setting in which it could have made sense for Stair to conceive of legal development in this way.

THE FORMATIVE PERIOD OF LEGAL HISTORY

English expectations of an equitable process Stair appreciated that his account of the procedure of the session tended to dissociate it from the learned procedure followed in most continental courts, for although it was a principle of the civil law that frustra probatur quod probatum non relevat, he knew that it was not a standard practice in continental courts to have the legal significance of allegations determined before their truth was examined. As an English civilian had observed around the middle of the sixteenth century, in most continental courts ‘first the fact is examined by witnesses, indices, tormentes and such like probations to finde out the truth thereof, and that doone the advocats doe dispute of the lawe to make of it what they can: saying, ex facto ius oritur’.301 The writer added by way of contrast that in the courts of common law 298 MacQueen 1984 remains the most thorough discussion, but see too the distinctions drawn in Ouston 1982, p 146; Kidd 1993, p 146; Cairns 1995, pp 257–8; Farmer 1997, p 42; Jackson 2003, p 26. 299 See further Mackenzie’s treatment of customary law in BL, Sloane 3828, ff 159–60. 300 For Stair’s notion of legal representation see Institutions, 4.1.50 and 4.38.10, where he indicated that laymen were expected to rely on lawyers without suggesting that their expertise was itself the law. 301 Sir Thomas Smith, De republica Anglorum, pp 95–6, discussed in Stein 1982, p 277.

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540 The Court of Equity in England the practice was first to ‘determine and agree upon the lawe’ before the judges, and then to have the facts ‘denied of the one partie, and averred of the other’, tried before a jury of twelve laymen. Stair knew that there was something similar to the Scottish plea to the relevancy in English practice, as he made clear by noting in his ‘Form of Process’ that the parties to an action there might dispute ‘the sufficiency or goodness of the Plea, or Defence’, and when he remarked in his Institutions that the frustra probatur principle had been adhered to tenaciously in ‘our antient Custom’, he may have been mindful that the brieves modelled on English writs had usually led on to trial by jury.302 Oddly enough, however, he remarked at the same place that ‘the whole office of Judges is in determining the justice and truth of Pleas, or the poynt of Fact, and the poynt of Right arising from that Fact; ex Facto enim Ius oritur’, adding immediately that ‘the English do commonly join the Poynt of Fact and Right, and so allow Witnesses for either Party upon any poynt they think fit, and then judge what poynt of Right there ariseth from the Fact proven by either party’. The mistaken belief that English courts tended to deal with issues of law as they arose from the proof of facts was shared by the anonymous reporter of the decisions of the Interregnum court. Digressing at one stage to report the decision of a case in the court of admiralty, the reporter observed with evident distaste that ‘this pursuit being moved before Englishmen, who were then present Judges of the Admiralty, they ordained the libel to be proven by witnesses, before they would discuss the relevancy thereof’.303 The point Stair was working up to in his Institutions was that ‘by more recent Custom, the Lords have of a long time, ex nobili officio, preferred neither Party to the proving of contrary Alledgances; But before Answer for determining the Relevancy, they have allowed either Party to adduce so many Witnesses, to be Examined upon such Poynts as the Lords found fit to be cleared, for instructing of the Cause’.304 Admitting proof before answer to the relevancy formed part of the ‘more recent Custom’ in opposition to ‘our antient Custom’, but while it was possible to say by 1693 that the practice had been in use ‘of a long time’, it is notable that Skene, Bisset and Hope did not mention it in the accounts of court procedure they wrote in the first half of the century. Lauder commented in 1680 that the practice was commonly believed to have been ‘but lately invented’ by the lords of session.305 Five years earlier Nisbet observed more generally that the frequent submission of bills to the court was an abuse developed ‘of late, the time of the English’.306 Those like Lauder, Lockhart and Mackenzie who complained about a tendency lately 302

Modus litigandi, p 11; Institutions, 4.39.2–5; Willock 1966, pp 105–32. Decisions of the English Judges, pp 30–1; and see too NLS, Adv MS 6.2.1, ff 52r and 53v–4r, and Gilmour, Decisions, pp 5–7. That it was the original reporter who made this observation is apparent from Adv MS 24.4.1, f 32r, though it could have been Lauder who made the narrow observation on the following page that the praetor ‘had power actiones dare ad instar, et similitudinem civilium actionum’. The implication was that the praetor had only been empowered to work by analogy from the existing law. 304 See too Institutions, 4.40.7 and 4.46.19. 305 Decisions, vol 1, p 114. 306 Decisions, p 113. 303

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The Formative Period of Legal History 541 developed among the lords of session to decide cases on their facts may well have shared the belief that the practice of taking proof before answer had come naturally to the English lawyers sent into Scotland during the 1650s. Erroneous as the Scottish understanding of English court procedure may have been, this belief seems less implausible if it is remembered that not all English courts were courts of common law and that the commissioners for the administration of justice to the people of Scotland were instructed to decide cases in accordance with law, equity and good conscience. The English civilian who had compared the common law courts with the courts of continental Europe in the sixteenth century had remarked that in the English court of chancery ‘the usuall and proper forme of pleading of Englande is not used, but the forme of pleading by writing, which is used in other countries according to the civill lawe: and the tryall is not by xii. men, but by the examination of witnesse as in other courtes of the civil lawe’.307 Whereas actions were usually initiated before common law courts by the service of Latin writs drafted in fixed forms, actions were usually initiated in the court of chancery by the submission of bills of complaint drafted flexibly in English.308 Bills were registered by the clerks of the court, defendants were summoned to appear by subpoena, the parties met to exchange complaints, responses and replies, and a written record of their pleadings was gradually accumulated. Under common law influence, parties could enter ‘demurrers’ at this stage, denying that the facts alleged had the legal significance suggested, but the chancellor could decline to determine questions raised in this way until he had heard the evidence, and it was after the evidence was heard that the parties were normally given an opportunity to debate the equity of the case.309 Evidence was taken by the court itself and was again entered in a written record, which formed the basis of the hearing preceding the final ‘decreet’ of the court. As the sixteenth century civilian had pointed out, despite the influence of the common law on some aspects of pleading, the procedure followed in the chancery was similar to the procedure followed in civilian tribunals like the court of admiralty in London or the university courts of Cambridge, in which Andrew Owen could have had some experience.310 It was also similar to the procedure followed in prerogative courts like the council of the marches in Wales or the council of the north at York, in which actions were again initiated by bills of complaint and evidence was taken by the court itself, though demurrers and other aspects of common law pleading were in use once more.311 One proposal in 1604 had been that a court with equitable jurisdiction like the council of the marches should be established to sit at 307

Smith, De republica Anglorum, p 94. Yale 1965, pp 45–65; Jones 1967, pp 177–304; Horwitz 1995, pp 8–29. On the increasing use of a kind of bill procedure before the king’s bench see Baker 2002, pp 41–3. 309 Thomas Powell, The Attourney’s Academy, pp 209–10 and 228–9; The Practice of the High Court of Chancery Unfolded, pp 11–12; Practick Part of the Law, pp 415–17; Lord Nottingham’s Manual of Chancery Practice, pp 217–18; English Reports, vol 21, p 731, and vol 22, p 818. 310 For the admiralty court see Yale 1975b, and for the Cambridge university courts see Shepard 1998. Smith had been the first regius professor of civil law at Cambridge. 311 Skeel 1904, pp 217–34; Reid 1921, pp 261–79; Williams 1958, pp 65–79. 308

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542 The Court of Equity Berwick or Carlisle and deal with disputes from either side of the border, and although the prerogative courts were abolished in the 1640s, it may have seemed to the English judges that they were being sent to Scotland in the 1650s to staff a court like the council of the north.312 The judges were directed to administer justice according to law as well as equity and good conscience, but they were also told to adhere to the local procedure, which must have seemed to them reminiscent of the procedure followed in the English courts of equity, in which barristers like Edward Moseley, George Smith and John March would have had some experience. If the English judges seemed peculiarly prone to taking proof before answer, it would have been because they thought they were sitting in a court of equity rather than a court of law. Whether they actually were prone to taking proof before answer is doubtful. It was noted in an earlier chapter that the clerks of the Interregnum court revived the practice of keeping separate registers of acts and decreets in the latter half of the 1650s.313 The registers of acts they compiled contain a wide variety of interlocutors, most of which conformed to a recognised type.314 Apart from those passed in cases raised at second instance—for the advocation or transfer of causes, or for the suspension, reduction or enforcement of decreets—some interlocutors authorised departures from the ordinary practice in response to supplications, others continued cases to later dates, and others—the pivotal acts of litiscontestation—assigned dates for proof to be presented in specified ways. More or less distinct from acts of litiscontestation of this simple type were those in which the judges determined the relevancy of libels or defences that had been contested, and distinct from acts of litiscontestation of both these types were acts declaring that ‘before they give answer’ the judges would have evidence ‘examined ex officio’.315 Of over twelve hundred acts recorded in the separated registers from the 1650s only twenty-two were acts before answer.316 Comparison with a corresponding number of acts from the later 1640s suggests at first sight that the commissioners for the administration of justice may indeed have been a little more inclined than the lords of session to delay the determination of pleas to the relevancy, for only six acts before 312 Jones 1979, p 190. For the influence of the prerogative courts on the development of bill procedure in Ireland see Greer 1990. 313 There are two series of registers of acts, running from November 1655 to February 1659: first, NAS, CS 7/577, 584, 589, 596 and 604; secondly, CS 7/578, 585, 593 and 600. Not all the acts passed in this period are included in these volumes, for not all acts were extracted and undifferentiated records were kept in a third clerk’s chamber. 314 Some of the types are exemplified in NAS, CS 49/3/5, a style book written by a clerk of session at the end of the seventeenth century. 315 It was the acts determining the relevancy of libels or defences that were of course of most interest to lawyers concerned with the development of the law. These acts were usually longer than others and they were reproduced in the decreets eventually extracted from processes. One of Stair’s proposals in 1693 was that they should not be reproduced in the decreets, which should be limited to recording the findings of fact, all of which could be presumed to be relevant from their being put to probation. See again Institutions, 4.46.26–8. 316 NAS, CS 7/577, ff 19, 76v–7r, 107, 121v–2 and 260–61r, CS 7/578, f 53, CS 7/584, ff 5 and 60, CS 7/585, f 7, CS 7/589, ff 161–2r, CS 7/593, ff 5, 53v–4r, 56–8r, 139–43r and 153, CS 7/596, ff 174–5r and 182–3, CS 7/600, ff 161–3 and 165v–6, and CS 7/604, ff 17–18r, 62v–4r and 92–3r.

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The Formative Period of Legal History 543 answer can be found in the corresponding registers from the earlier period.317 However, since these registers contain almost sixty acts of litiscontestation passed to determine the relevancy of libels or defences in comparison with almost two hundred in the registers from the 1650s, it seems that in both periods roughly one in ten pleas to the relevancy led to an act before answer, with if anything a slightly higher frequency in the earlier period. There is reason to suspect, moreover, that it was at the end of the 1640s that it became more common for acts before answer to be granted in Scotland, for Robert Macgill of Foord, one of the new lords of session appointed in 1649 when the court was purged of less ‘conscientious’ judges, reported more cases dealt with in this way in the course of the next year than previous reporters had done in several decades.318 Since few of the cases Macgill reported were covered in the registers included in the survey presented here, it may be that the frequency of acts before answer would have proved higher if comparison had been made with other registers recording acts passed in the winter of 1649 to 1650.319 Even so, what clearly cannot be concluded in relation to either period is that the judges routinely responded to pleas to the relevancy by insisting on hearing the evidence before they gave answer. The greater incidence of acts of litiscontestation determining the relevancy of libels or defences in the registers from the later 1650s is explained to a large extent by two changes in court procedure. The first related to the practice of granting defenders two opportunities to respond to summonses, with the inevitable consequence that very few troubled to appear at the initial hearings of cases. In the session acts had to be passed at the initial hearings to continue the cases to later dates, and though individually quite brief, these acts of continuation collectively occupied a considerable amount of space in the registers from the 1640s, which were more extensive than those from the 1650s. In the Interregnum court defenders were issued with summonses requiring appearance on either of two stated dates, a practice that obviated the need for acts of continuation (and which was revived in 1672 after being abandoned in 1661).320 The other change in procedure seems to have been less deliberate. In 1680 William Lawrence observed that when actions were raised in Scotland ‘the Lords of the Session never read a word of the Libell’d 317 NAS, CS 7/530, ff 162v–3, 269v and 325, CS 7/539, ff 242–5 and 259–60, and CS 7/541, ff 55v–6. As indicated below, the comparison made is far from precise. 318 NLS, Adv MS 36.1.15, pp 35–7, 73, 82, 119 and 143–4, in comparison with Gibson, Decisions, pp 644–5, and Spotiswoode, Practicks, p 70. As the examples of delayed responses to demurrers cited in n 309 above were in cases heard in the 1670s, it is possible that the Scottish practice developed before the parallel practice in the chancery. 319 The twelve hundred acts examined were passed between June 1647 and July 1649. Some later acts can be found in NAS, CS 7/546, 548, 550 and 553, but once again the record is incomplete and no systematic search of these volumes has been made. For purposes of comparison, only the record of acts from f 160 onwards in CS 7/530 was included in the calculations presented above, but in fact no acts before answer can be found in the first three hunderd pages of this volume, which covers the period from January 1644 to March 1647. 320 Nicoll, Diary of Public Transactions, pp 95 and 336; Acts of Sederunt (1740), p 77; Stair, Modus litigandi, p 5. It is clear from the Register of the Great Seal, vol 11, that the replacement of Latin with English styles survived the formal reinstatement of the former in 1661. What was passed over in silence was the example of Interregnum practice.

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544 The Court of Equity Summons’, their normal practice being to approve the terms of the bills presented by the clerks ‘as fast as they can be brought’, as he admitted to having done himself when he was a judge there in the 1650s.321 He recalled hearing that when Sir John Skene had been a judge he had insisted on examining ‘the Bills himself before a Summons was granted’, a practice Lawrence understood to have been as exceptional as it was exemplary, like the remarkably conscientious practice of ‘Sir Thomas More when he was Chancellor of England, who used to read over, himself in Person, every Bill [that] was prefer’d in Chancery, and consider whether it were just or no, before he would grant a Summons of Subpoena’.322 As was noted earlier, Lawrence was aware that the Scots had released themselves from the constraints of the brieve system they were believed to have borrowed from the English and had introduced summonses like the subpoenas issued in the English chancery, with the difference that in the Scottish summons, unlike either the chancery subpoena or the summons used in most civilian courts, the terms of the complaint were related in some detail. It was perhaps because the most striking feature of the Scottish summons from an English point of view was its incorporation of the libel that Lawrence failed to take any notice of the distinction between ordinary summonses containing established libels and libelled summonses in the proper sense of those issued on the strength of bills.323 It appears to have been in the Interregnum court, where the bill chamber was placed under the control of English clerks, that both types of document came to be approved as a matter of course without any scrutiny by the ordinary on the bills. As Stair later explained, libelled summonses came to be passed periculo petentium in the expectation that their relevancy would be challenged when cases came to court and that pursuers would then be forced to uphold their justice and equity in debates with defenders.324 This change in procedure, quite possibly an unconscious adoption of chancery practice, would itself have resulted in a greater number of pleas to the relevancy being made, and it may also be that Stair had some justification in later claiming that the change became necessary because libelled summonses were ‘exceedingly multiplied’. If the English judges and clerks perceived that all actions raised on a summons were like actions raised on a subpoena following the submission of a bill of complaint to the chancery, and if they failed to appreciate that those raised on an ordinary summons had as much in common with actions raised on a writ before a court of law, then parties would have been given greater freedom to raise actions on their facts even when the law was well established. The writers to the signet would not have been constrained to conform to the accustomed styles as strictly as they were before and after the Interregnum, innovative libels and defences would have been presented to the court more easily, and pleas to the relevancy would have been entered more frequently. 321

Marriage by the Morall Law of God, pp 270–71. Roper, Man of Singular Virtue, p 60; Life of Syr Thomas More, p 69; Lives of Saint Thomas More, pp 22 and 83–4. 323 Marriage by the Morall Law of God, p 286. 324 Institutions, 4.3.4. 322

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The Formative Period of Legal History 545 The efforts made in the mid-1660s to encourage more uniformity in the summonses drafted by writers, which appear to have induced George Dallas to begin work on the collection of styles he eventually published in 1697, may have been a response to the emergence of a more relaxed attitude to drafting during the 1650s.325 When lawyers in Scotland talked as if the English judges had been prone to taking proof before answer they may have been allowing a vague awareness that acts before answer had become a little more common around the middle of the century to be confounded with a general impression that the English judges had expected actions to be presented on their facts. What Lawrence remembered with admiration about Scottish procedure was that ‘there were no Original Writs, but the more compendious and just way of Summons used’, and that the advocates who argued at the bar ‘first excepted to the Law, which we call a Demurrer, and after that to the Fact, which we call a Plea, and had that liberty given, both to demur and plead, which kept the way so clear before them’.326 Like the courts of equity in England, the supreme court in Scotland had not required parties to fit their complaints into the fixed terms of established writs but had left them to recount what had happened in their own terms and to crave suitable remedies on the facts narrated. Furthermore, whereas the rule in England (even in the courts of equity) was that ‘in all demurrers, confession of matters of fact is implied’, in Scotland parties were free both to contest the relevancy of the facts alleged and to deny that they were true.327 Instead of having to choose between arguing a case on the law or its facts, Scottish advocates were able to move freely between discussion of the two, as between discussion of the law and equity, for as Lawrence again recalled with approval, ‘the same Persons were Judges of Fact, Law and Equity’. In claiming that this had made it possible for three or four English judges to dispatch a huge amount of business in the 1650s, Lawrence may have been attributing to the Scottish judges who sat with them the auxiliary role performed in England by the masters of chancery, who prepared and reported on cases in a way that made it possible for the chancellor or the master of the rolls to dispatch a huge amount of business.328 What still tended to cause delay there was that if an issue of law arose, either the case had to be referred to a court of law or judges of law had to be asked to attend and advise in chancery. In Scotland no such provision needed to be made, but because the procedure followed was so similar to the procedure followed in the English courts of equity, it appears to have been assumed that the commissioners for the administration of justice were essentially judges of equity who could also deal with issues of law, rather than judges of law who could also turn in difficult cases to equity. It appears to have been assumed that all cases were 325

As previously noted, some efforts were also made in the 1650s themselves to standardise practice. Marriage by the Morall Law of God, pp 282–3. 327 Cases Concerning Equity and the Courts of Equity, vol 1, p 147. 328 For comparison of the masters of chancery, who as previously noted had traditionally been educated as civilians, with the rapporteurs in the parlement of Paris, see Dawson 1960, pp 159–60. It may be significant that Stair was later mindful of the masters of chancery, as well as the courts of equity and conscience established by the English parliament, when he wrote about the chancery in Institutions, 4.3.1. 326

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546 The Court of Equity raised for decision on their facts in the fashion familiar from the chancery, and it seems to have been the survival of a similar assumption that cases should be decided on their facts by the session as a court of equity that caused concern among some Scots lawyers in the later decades of the century. Mackenzie’s complaint in the early 1690s was that it was abominable ‘to turn everything into an act before answer’, not that every case actually involved an act before answer.329 Lockhart’s complaint in the early 1680s was that the judges tended ‘to bottom ther interlocutors on specialities and circumstances’, not that they tended to base their decreets on the facts proved.330 When Stair commented more positively at about the same time that it was appropriate for the judges ‘to supply the Points of Law arising from the Fact proposed’, he referred explicitly to the points of fact ‘alleadged’, not to those actually proved.331 While the principle that ex facto ius oritur was relied on most obviously when proof was taken before answer, it was relied on a great deal more frequently when acts of litiscontestation were passed in response to allegations of fact more than arguments of law. By the beginning of the 1680s Lawrence had come to believe that all judges should base their decisions on the facts of the cases brought before them. He maintained that the English chancellors had originally been similar to the French maîtres des requêtes, whose only function, he had been given to understand, was to pass bills of complaint for hearing by the parlement of Paris, without in any way prescribing particular forms of action.332 In the fifteenth century, however, a very different French model had been followed when Henry VI introduced ‘a Chancellour with a Pretorian Jurisdiction pretended of Equity, with Power of making Laws, Edicts, and Chancery-Orders, and Forms of Writs, and to Sentence above all Appeal, all which Powers belonged to the Roman Pretor, of which the French Chancellour was the Ape, and ours of the French’. By restricting the documents available for the initiation of actions in the common law courts to those contained in a register of writs and by framing these writs ‘out of their own Heads’, the chancellors had assumed ‘the Legislative Power, notwithstanding and above Acts of Parliament, to dispose of the Subjects Liberty and Property at pleasure’. Lawrence believed that it was in fact quite clear from study of the ancient records that ‘no English Chancellour ought to be a Pretor, Judg of Equity, maker of Laws, Edicts, Forms, or Orders of Judicial Proceeding, nor any Chancellour of Scotland, the full of the matters of both whose Offices, though they may differ in the Fees, 329

BL, Sloane 3828, f 153v. NLS, Adv MS 6.2.16, p 58. 331 Decisions, vol 1, sig A4v. 332 Marriage by the Morall Law of God, pp 314–29. English lawyers do not appear in general to have had much interest in French court procedure. In 1668 Lord Nottingham asked one of his sons who was visiting France to ‘enquire whether the Code Louys conteyn any systeme of laws, or be only a regulation of the forms of proceeding’, adding that ‘if the latter, I shall not much desire it’ (Report on the Manuscripts of Allan George Finch, vol 1, p 492). It may well have been in Scotland that Lawrence had learned to make comparisons with France, just as it may well have been in Scotland that he had learned to make comparisons with ancient Rome. He compared the procedures followed in England, Scotland and Rome, with occasional remarks on French influence, in much the way that Stair would do in 1693, quite possibly because they had conversed on these topics in the later 1650s. 330

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The Formative Period of Legal History 547 are mention’d Stat. Mal. 2. cap. 2’. By listing the fees to be paid when seals were applied to various documents, the Leges Malcolmi Mackenneth, which Lawrence relied on as a guide to the ancient custom of England as well as Scotland, had indicated that the chancellor’s function was merely to authenticate the documents mentioned, including those used to initiate court actions.333 Lawrence noted again that the Scots had largely replaced the writs or brieves approved in the chancery with the summonses submitted to the session, and he remarked that this reform was comparable to the replacement of formulae with libelli in the later Roman empire, referring here to the formulae ‘invented by the College of Priests at Rome’ as if there had been no difference between formulary and legis actio procedure. However, his point was not that the inherent failings of formulae, writs or brieves could be avoided by their replacement with libelli, bills or summonses but that the documents used in court actions were always in danger of becoming formulaic and inflexible. He claimed that the original purpose of writs had been to instruct courts to investigate the facts of cases and come to decisions ‘according to Right and Equity, by the Moral Law of God’, but that instead of leaving courts to deal with cases as justice required the chancellors had arrogated equitable jurisdiction to themselves and limited the courts to handling cases according to fixed forms of action. In turn the judges of the common law courts, instead of leaving juries to deliver their verdicts ‘according to Conscience and Equity’, had taken the responsibility for decision away from them by separating the discussion of questions of fact and law. By developing technical rules of pleading, and in particular by refusing to permit parties ‘to demur first to the Law, and after to plead to the Fact’, the judges had made it virtually impossible for the law to be applied equitably to the facts of cases. ‘To compell men to Commence Suits by Writs in the present Age’, Lawrence concluded, ‘is to condemn them without Hearing of the Equity and Merits of their Cause’. The solution, he maintained, was neither to have actions raised in the chancery nor to restore the power of juries but was to have actions raised on bills of complaint before ‘a Judg Commissionated with Jurisdiction of Fact, Law, and Equity’. The judge Lawrence envisaged would ‘be able to dispatch more Causes without troubling any Writs, Juries, or Counsel at the Bar, and most justly and under Account in one Year, then ’tis possible for any Chancellour with Plurality of Offices, or Court with Plurality of Judges, Juries, and Councel at the Bar, to do in Seven’. He would dispatch cases ‘under Account’ in the sense that he would decide them ‘under Appeal’. He would decide cases in accordance with equity and good conscience but without exercising the sovereign authority that could eventually replace natural equity with positive law. Lawrence was clearly thinking to some extent of the seven years in which English judges had administered justice to the people of Scotland. There had been more than one judge commissioned to deal with disputes in these years, they had heard pleadings from counsel at the bar, and their practice had evidently been to decide cases in accordance with the law or the reason implicit in the law rather 333

Regiam maiestatem (Latin edn), pt 1, f 2.

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548 The Court of Equity than with natural equity. Nevertheless, they had been granted jurisdiction over issues of fact, law and equity, advocates had been allowed to alternate between addressing these different types of issue, and cases had been raised without the constraints of a writ system. Parties had been free to raise cases on their facts, in much the same way as they did in the English courts of equity, and the judges do not appear to have paid any attention to the distinction traditionally drawn between cases in which the parties craved equitable remedies on the facts they alleged and those in which they alleged facts on the assumption that there was settled law applicable to them. If it was incorrect, as Lord Broghill appeared to suggest, that the Scots objected to the discussion of cases in terms of equity and good conscience, it probably was correct that they pled hard to keep the judges to the known statute law in the sense of insisting that most cases were covered by the established law of Scotland. This insistence was certainly reiterated later in the century by advocates who hoped to see a clearer distinction developed between the session as a court of law and the privy council as a court of equity. Their preference was for a court in which cases were not decided on their facts but were ordered logically under rules, though they recognised that sometimes the rules would have to be extended by analogous reasoning to cover the cases, and that sometimes the reasoning would have to be drawn from the learned more than the local laws. Stair agreed that some cases could be dealt with by the strict application of the law, and he seems to have become increasingly confident about the possibility of dealing with cases by analogous reasoning as more reports of the court’s decisions were made available. The distinction between cases dealt with by way of analogy and those dealt with by recourse to equity, or between what the Romans had called actiones utiles and actiones in factum, was imprecise, as lawyers recognised in urging the court to decide cases raised on bills in accordance with law, equity, reason or justice.334 In some of these cases the judges would have extended the law to cover the facts, and often it would have been unclear exactly how the cases were being dealt with, but what Stair always insisted on was the power of the judges to decide cases on their facts in accordance with natural equity. To this extent he agreed with the radical views expressed by Lawrence at the beginning of the 1680s, and it has been seen that he also shared Lawrence’s views about the need for sovereignty to be exercised before natural equity could give way to positive law. Where he did not agree with Lawrence was in contending that sovereignty could and should be exercised by the judges. Stair always maintained that the lords of session had the sovereign authority both to deliver definitive sentences in specific cases and to regulate the administration of justice more generally. He maintained that by exercising this authority they were able to introduce new laws. While the sentences delivered were specific to the facts of the cases raised, they could be reported and summed up in tentative rules, and if followed in later cases with 334 It seems from Institutions, 1.15/1.1.16, that when Stair associated equity with expediency he was to some extent thinking of the relationship between actiones in factum and actiones utiles. More will be said about this topic in the later volumes in this series.

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The Formative Period of Legal History 549 similar facts they could ripen into customary laws.335 They would ripen into laws if the parties to later cases acquiesced in the libels used by refraining from contesting their relevancy, and they might then be consolidated as part of the established law by the inclusion of the libels in the style books the writers were ordered by the judges to observe. Far from warning that the documents used to initiate actions were in danger of becoming formulaic and inflexible, Stair encouraged the development of styles that would emphasis the court’s willingness to grant remedies rather than narrate the facts requiring remedies. He had no compunction in affirming that the lords of session had the same power to make laws as the Roman praetors. One other point on which Stair did agree with Lawrence was that the learned laws did not amount to positive laws unless approved by the sovereign, for it has been seen that both writers, like Bodin and Selden, regarded the learned laws as no more than a guide to how natural equity might be implemented by the legislator. At the beginning of the 1680s Lawrence accepted that there might sometimes be reason for reference to be made to the learned laws by a judge who was trying to find an equitable solution to a problem raised before him. In the 1650s, on the other hand, he would have listened as a judge to advocates who often referred to the learned laws on the assumption that they were a kind of positive law, though with probable instead of necessary authority. Most advocates, throughout the seventeenth century, appear to have believed that the learned laws were not merely a restatement of natural equity but were a restatement of natural equity in the form of law. By referring in their arguments to the learned laws, advocates invited judges to make legal decisions and to avoid arbitrary adjudication in accordance with natural equity. They invited the judges to turn from the proper to the common law yet still to base their decisions on law. In the 1650s advocates were able to refer to the learned laws as a means of limiting the scope for recourse from ‘the law of Scotland’ to ‘equity and good conscience’, which was the phrase from the judges’ commissions that was taken to justify the decision of cases in accordance with English law or the reason inherent in English law.336 If the problem with inviting the judges to follow the learned laws as the common law was that the English judges had their own conception of the common law, it was possible to argue, as Craig and Skene had made clear, that just as English lawyers had appropriated authority from the learned laws to form a common law of their own, so the Scots 335 It may be significant that NLS, Adv MS 22.2.11, and NAS, RH 13/68, in which rules can be found summing up decisions without clear references to the reports, are both style books, for it may be that the writers who owned them liked to have such statements available for inclusion in styles. See too NLS, MS 2818, ff 155r–69v, which consists of ‘clauses in bonds, contracts of marriage, dispositions and others, with the decisions of the lords of sessione as to their import, taken from my Lord Stairs two volumes of decisions’. Stair’s theory of judicial law making gave him good reason to report the circumstantial cases he claimed to cover, whereas other reporters had more reason to concentrate on general or leading cases. 336 Lawrence’s point was that the importance of the phrase equity and good conscience was reinforced by the further instruction to follow the local procedure, which required the judges to deal with issues of fact themselves, like the judges in the English courts of equity and unlike the judges in the courts of common law.

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550 The Court of Equity had transferred learned authority to the College of Justice and were in the process of refining a common law that was similar in many respects to English law yet was more openly susceptible to learned influence. In taking up his pen towards the end of the 1650s, shortly after the printing of Craig’s Ius feudale, Stair might well have set out to pursue this line of argument and to write like Craig as a learned author whose opinions could contribute to the refinement of the common law of Scotland. It has become quite clear, however, that this was never his intention. What he did have in mind may become clearer if his work is set against the broader background of a cultural programme promoted by the judge who was about to reproduce the lesson he had delivered as an intrant, Sir John Scot of Scotstarvet.

Defining the nation in the 1650s In 1660 Scot claimed to have been ‘a bussie person in an other sense than he is styled by Saundersone’.337 In claiming not to have been responsible for stirring up trouble in the reign of Charles I in the way alleged in William Sanderson’s history of the period, Scot insisted that he had been a devoted servant of his king and country. Quite apart from fulfilling the exacting requirements of his various offices as a privy councillor, a lord of session, a lord of exchequer and the director of the chancery, which had taken him to London on more than twenty occasions, he had made two visits to Holland ‘for perfyting the maps’ and had been ‘an instrument in causing Craig’s book de feudis to be printed’. His connection with the Blaeu publishing house in Amsterdam had been formed in the 1620s when he had collected specimens of Latin verse for inclusion in the Delitiae poetarum Scotorum huius aevi illustrium that was eventually to appear in two volumes in 1637, as part of a series of anthologies of Latin poetry Willem Blaeu had been publishing since 1608.338 Scot had himself expended a significant sum of money as well as a great deal of effort in ensuring that an anthology would be included in the series demonstrating that the Scots—even when George Buchanan was left out of the account—were making a notable contribution to the European tradition of literature.339 In the course of correspondence concerning the Delitiae poetarum in the 1620s, Blaeu had mentioned for the first time his plan to produce a theatrum geographicum.340 He had been in the process of printing a map of Orkney and Shetland drawn by Timothy Pont, had evidently been aware that Pont’s map of Lothian and Linlithgow was being produced by another press, and had asked Scot if he knew of any others.341 In 1631 Scot had been able to tell Blaeu that a complete 337

‘Scotstarvet’s “Trew Relation” ’, (1913–14), p 190. Masson 1873, pp 225–7 and 247–50; Bradner 1940, 158–60; Snoddy 1968, pp 41–6; Koeman 1971, pp 9–10; MacQueen 1988, p 225. 339 Scot, Staggering State of the Scots Statesmen, p 163; Blaeu, Theatrum orbis terrarum, vol 5, f 3v (www.nls.uk/digitallibrary/map/early/blaeu/896). 340 Monumenta cartographica Neerlandica, vol 4, pp 335–7. 341 Moir 1973, pp 39–40; Stone 1989, p 6; Mann 2001, pp 7–8. 338

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The Formative Period of Legal History 551 series of maps of Scotland drawn by the same cartographer had come to light.342 For the next twenty years Scot had coordinated a project to have the Pont maps printed, making sure that Blaeu had sufficient access to them, arranging for details to be inserted or clarified, and either writing supporting text himself or else arranging for it to be written by others, most often by Robert Gordon of Straloch and his son James Gordon of Rothiemay.343 As Scot recalled in 1660, he had travelled to Amsterdam in 1645 and had, as Blaeu’s son Joan later recalled, spent some time there in ‘writing and dictating what made for the illustration of the maps of his country’.344 The maps were eventually to appear as one volume of a series entitled Theatrum orbis terrarum, sive atlas novus. Just as Scot had gone to considerable trouble and expense to ensure that Scotland was represented in a series of books on European poetry, so he had endeavoured to ensure that Scotland had a distinct presence in a series describing the geography of Europe.345 That he mentioned the printing of Craig’s treatise on the feudal law in this connection was not as strange as it may seem. The first land atlas to appear from the Blaeu press had been described when it was published in 1631 as an Appendix theatri A. Ortelii et atlantis G. Mercatoris, meaning a supplement to the Theatrum orbis terrarum produced by Abraham Ortelius in 1570, the earliest work of its kind to be printed, and to the famous atlas of Gerard Mercator, which had formed the basis of a Novus atlas, sive theatrum orbis terrarum published in the early seventeenth century by the rival press of Jan Jansson.346 The Theatrum of Ortelius had included a map of the British Isles, together with brief descriptions of the kingdoms of England, Scotland and Ireland, and an English edition had been prepared for publication by John Norton in 1606, after the union of the crowns, with expanded descriptions of the three kingdoms that then made up ‘the Empire of Great Britain’.347 In the meantime Ortelius had persuaded first the Welsh antiquarian Humphrey Lhuyd and later the English historian William Camden to examine the remains of the Roman empire in Britain.348 Ortelius had given his atlas a title drawn from Roman usage because it was the Roman view of the world that he wished to revive, and it was to this end that he had urged Lhuyd and Camden to challenge various myths tracing the establishment of government in Britain back to periods before the arrival of 342 See generally Cunningham 2001, and also www.nls.uk/digitallibrary/map/early/blaeu/biogs/ elusive. 343 On Scot’s activities see Skelton 1968, pp 98–105; Moir and Skelton 1968, pp 154–7; Snoddy 1968, pp 49–57; Koeman 1970, pp 70–6; Stone 2001, pp 8–13. On Robert Gordon see Stone 1981. 344 Blaeu, Theatrum orbis terrarum, vol 5, f 3 (www.nls.uk/digitallibrary/map/early/blaeu/896). Scot, Staggering State of the Scots Statesmen, p 163, suggests that the earlier visit to Holland mentioned in 1660 had been made in connection with the Delitiae poetarum. 345 The series also dealt in much less detail with other parts of the world, just as the volume on Scotland also dealt in much less detail with Ireland. 346 Stevenson 1914, pp 39–40; Skelton 1964, pp v–x; Keuning 1973, pp 112–19. Koeman 1971, p 3, notes that Willem Janszoon Blaeu stopped using his middle name when Jan Jansson set up his press nearby in Amsterdam. 347 Theatrum orbis terrarum, f 6, and Theatre of the Whole World, ff 10–14. 348 Skelton 1966, pp vii–viii; Mendyk 1989, pp 49–55; Parry 1995, pp 22–48.

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552 The Court of Equity the Romans. They had duly argued that it was the Romans who, by unifying the province of Britannia for the first time under their imperium, had introduced the sovereign authority that had passed after their departure to subsequent rulers.349 The implication of this line of argument was that the Scots had been, and had remained until 1603, peripheral to Britannia and subject to imperium only to the extent that they had submitted to English domination. In the successive editions of the book he published under the title Britannia in the late sixteenth century, Camden had dealt at growing length with the history and geography of the regions of England, of which he was eventually able to supply maps drawn by John Norton and Christopher Saxton, but he had merely added some brief comments at the end about Scotland, which he believed the Romans had considered too cold and bleak to be worthy of conquest. In a new edition of his book published in 1607 he had enlarged his account of Scotland, expressing the hope that the island of Britain would now ‘by a blessed Union bee conjoyned in one entire bodie’, but he had still been able to deal in less detail with Scotland than with most of the English regions, and he had only been able to include a map of the whole country, thus giving the impression that Scotland was comparable to the regions of England.350 Four years later another atlas, issued by John Speed under the title The Theatre of the Empire of Great Britain, had presented a reworking of Camden’s descriptions, once more with detailed maps of the English regions but only a depiction of Scotland as a whole.351 As a continuation of this ‘Chorographicall Tome’ Speed had issued at the same time a ‘Historicall Tome’, in which his professed purpose had been to narrate ‘the originals of those Nations and successions of those Monarchs, which either by birth or conquest have aspired to the Imperiall Crowne’, writing for more than seven hundred pages about England alone and turning to Scotland only when he reached the reign of James VI and I, ‘the First Monarch of the Whole Iland of Great Britaine’.352 The atlas of Magna Britannia that was published in 1646 as part of Jansson’s Theatrum orbis terrarum had been largely derived from the works of Camden and Speed.353 Although it had added to the general description of Scotland Pont’s maps of Orkney and Shetland and also of Lothian and Linlithgow, it had not dealt in detail with any of the other regions of Scotland. What the recovery of the rest of Pont’s maps made possible was the production of an atlas devoted to Scotland as a country with its own regions and history.354 It was Camden’s brief description of Scotland, taken as the basis of the descriptions in the books published by Speed, Jansson and later Blaeu, that popularised the image of the lords of session as judges who sat in a tribunal ‘instituted after the 349

Trevor-Roper 1966, pp 25–8; Levy 1967, pp 144–58; Williamson 1979, pp 125–7. Britain, pt 2, p 3. In this translation by Philemon Holland, printed in 1610, the section on Scotland had its own title page and pagination, but the division was less obvious in the 1607 edition. This is not to say, however, that Scotland was treated as nothing more than a province of England. Rather, the suggestion is that Camden’s work represented a tendency in this direction. 351 Fussner 1962, pp 178–9; Levy 1967, pp 196–9; Mendyk 1989, pp 78–81. 352 History of Great Britaine, pp 151 and 883. 353 Novus atlas, sive Theatrum orbis terrarum, vol 4, sig *2r. 354 As already noted, the volume did also deal briefly with Ireland at the end. 350

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The Formative Period of Legal History 553 forme of the Parliament of Paris’, administering justice ‘not according to the rigor of law, but with reason and equity’, and delivering decisions ‘according to the Parliament Statutes and Municipall lawes’, failing which by ‘recourse to the Imperiall civill law’.355 Camden explained that he had written briefly about the Scottish judiciary ‘as one that hath but streightly looked into these matters, yet by the information of the judicious Knight Sir Alexander Hay, his Majesties Secretarie for that Kingdome who hath therein given me good light’.356 As well as being a clerk (and later a lord) of session, Hay had been the ‘Clearke of the Counsell’ through whose pen James VI and I had famously claimed in his speech to the English parliament in March 1607 to rule Scotland more effectively than his predecessors had managed through the sword.357 It has been seen already that James had made observations on the administration of justice in his speech that were strikingly similar both to those made by Camden and to those made in the anonymous ‘Relation of the Manner of Judicatores in Scotland’, which could have been the paper James had ordered to be circulated among the commissioners appointed to consider a union of the laws towards the end of 1607.358 As the only surviving copy of the paper formed part of the library of Sir Robert Cotton, and as most of Camden’s papers were incorporated into that library, it seems fairly likely that the ‘Manner of Judicatores’ was the source of the information Camden relied on in writing the section of his description of Scotland headed ‘The Judicatories or Courtes of Justice’.359 Before writing the other sections of his description, he had tried to obtain information from scholars in Scotland who were afterwards to be drawn into the Blaeu project by Scot, but he had been forced to concede that he had learned very little and had challenged others to expand on what he had been able to say.360 His much fuller description of England had itself been written in collaboration with many other scholars who had been drawn into a project designed to demonstrate that the English were capable of participating in the learned enterprise that was being pursued throughout Europe by chorographers like Ortelius. In taking up Camden’s challenge, Scot had sought to demonstrate 355

Britain, pp 8–9. This explanation is absent from the edition published in 1607, when Hay had not yet been appointed secretary. For Camden’s involvement in the production of the 1610 translation see Collinson 1998, p 140. 357 Workes of the Most High and Mightie Prince, pp 520–21; Lee 1976, p 44. 358 Although the modern editors of the ‘Manner of Judicatores’ have suggested quite plausibly that the author may have been either Haddington or Skene, a more likely candidate is Alexander Seton, later the first earl of Dunfermline, who as president of the session in 1604 had played a leading role in the union negotiations, and as chancellor had continued to discuss the possibility of a legal union with James after 1607. He had been in the habit of communicating with the English chancellor Ellesmere, who has been identified as the likely recipient of the paper, through Hay. Of course, it is not impossible that Hay was himself the author of the paper, which is believed to have been dictated to an English scribe. See generally Brunton and Haig 1832, pp 198–202 and 252; Seton 1882, pp 57–8, 62–4 and 71–2; Galloway 1986, pp 62–5 and 145–7. 359 The corresponding section in Camden’s description of England was simply called ‘The Law Courts of England’. On the connection between Camden and Cotton see Thomas Smith, Catalogue of the Manuscripts in the Cottonian Library, pp 28 and 47; Camdeni epistolae, pp 348–50; Sharpe 1979, pp 32–3 and 58; McKitterick 1997, pp 106–16; Tite 2003, p 13. 360 Letters of John Johnston, pp 64–6, 227–9 and 230–32. 356

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554 The Court of Equity that his compatriots were also sufficiently learned to participate in the enterprise.361 Whatever he may have believed about the location of imperium in Britain—a subject that will be returned to shortly—Scot clearly believed that his compatriots were as capable as their southern neighbours of participating in a European tradition of learning. The exercise in national self-definition he orchestrated in the first half of the seventeenth century served to demonstrate that the Scots could take their place among the nations of Europe and helped to resist the trend they feared throughout the century towards the treatment of their nation as little more than a province of England.362 Blaeu published the volume of his atlas describing England (and Wales, as if it was a region of England) in 1645, and he appears to have had the volume on Scotland (and Ireland, as a separate kingdom) ready to be bound by the end of 1649.363 However, it was not until the autumn of 1654 that the latter volume was issued to the public. Two explanations for the delay in publication are generally provided, though neither seems entirely satisfactory.364 In the first place, it is suggested that the atlas did not appear in 1649 because Scot was then deprived of office after working on the project for many years in some sort of official capacity. It is true that Scot renewed his efforts to have the atlas published in 1654 at the same time as he endeavoured to recover office as the director of the chancery, but he had not in fact been deprived of office until 1652 and he did not manage to recover office in 1654.365 Moreover, he had referred in a letter to visiting Amsterdam during a court vacation to work on the maps ‘in this idill tyme for lerning’, much as Blaeu had recognised his need for otium to devote to the maps when the negotium of state was not consuming all his time, which is hardly consistent with a belief in his official promotion of the project.366 In the second place, it is suggested that publication of the atlas finally moved ahead in 1654 because the further obstacle of the first Dutch war was then removed. The easing of hostilities must certainly have made a difference, but it was in February 1654, two months before the war ended, that Scot renewed his efforts to have the atlas published by persuading Robert Lilburne to express support for the project, partly on the ground that the maps might be of value to the English army in its attempt to suppress a royalist rising in the north.367 Blaeu’s explicit concern in 1649 had been 361 Mendyk 1989, pp 38–51; Helgerson 1992, pp 105–47; Cormack 1997, pp 163–202; Klein 2001, pp 137–48; Withers 2001, pp 38–68. 362 Macinnes 1991, p 22; Brown 1992, p 2; Wormald 1992, p 191; Ellis 2002, p 41; Lee 2003, p 2. Hirst 1996, pp 210–11, as well as being factually incorrect, seems to misconceive Scot’s intentions. Mendyk 1985 ignores Scot’s work and hence gives a misleading impression of when chorography became a central concern in Scotland. Even Lynch 1998, pp 88–9, which is certainly more reliable, may underestimate the importance of his work. 363 NLS, Adv MS 17.1.9, f 219; Moir and Skelton 1968, p 156. 364 Skelton 1968, p 102; Moir and Skelton 1968, p 156; Mann 2001, pp 11–12 and 18. And see too, www.nls.uk/digitallibrary/map/early/blaeu/blaeu-historybehindpublication. 365 Calendar of State Papers (Domestic Series), 1649–60, vol 7, pp 158–9. 366 Miscellany of the Spalding Club, vol 1, p 52; Monumenta cartographica Neerlandica, vol 4, pp 336–7; Theatrum orbis terrarum, vol 5, sig 3 (www.nls.uk/digitallibrary/map/early/blaeu/896). Of course, it is another matter entirely that the project may have received some official support. 367 Scotland and the Protectorate, p 45.

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The Formative Period of Legal History 555 with securing a printing privilege covering England as well as Scotland, for he had realised that the exclusive licence he had been granted by Charles I as king of Scotland would not be effective in his other kingdoms.368 It was a licence extending to England that Scot was able to obtain from Cromwell as protector of the British Commonwealth in June 1654, which tends to confirm that it was indeed the problem of printing rights that had caused Blaeu to delay publication in 1649, and also suggests another explanation for Scot’s renewed interest in the atlas in 1654. As was mentioned previously, the protectorate was proclaimed in England in December 1653 but was not proclaimed in Scotland until April 1654, after the council of state in London had passed the ordinance of union. The writers to the signet and clerks of the courts had however been instructed as early as January 1654 to prepare documents ‘in the Name of Oliver, Lord Protector of the Commonwealth of England, Scotland, and Yreland’, a clear indication to those like Scot who took an interest in such matters that Cromwell was to govern a united commonwealth.369 Scot may have realised not only that an opportunity had at last arisen to secure a licence covering the whole of Britain but also that the need for a book reaffirming Scotland’s status as a nation had become quite pressing.370 He may have been reminded of the occasion in 1630 when Charles I had ordered documents to be drafted in ‘the name of Great Britane’, only for the privy council to instruct him as director of the chancery to insist on use of the style ‘Carolus Dei gratia Scotiae, Angliae, Franciae, et Hiberniae rex’.371 He may likewise have been reminded that the English conquest of Scotland had been provoked by the recognition of Charles II in 1649 as ‘King of Great Britain, France and Ireland’, a further attempt to move precipitately from regal to political union.372 His aim in 1654 may have been to contribute to a debate on the appropriate terms of a political union by promoting the publication of a book concerned with clarifying the relationship between England and Scotland. Scot seems to have promoted the publication of several other books during the next two years. In 1655 a London publisher issued The History of Scotland, from the Year 1423 until the Year 1542, an account of the reigns of the first ‘Five Jameses’ by Scot’s brother-in-law, William Drummond of Hawthornden, to which other prose works by Drummond were attached. In the following year the same press produced a collection of Poems, by that Most Famous Wit, William Drummond, with a dedication to Scot in which it was acknowledged that he had supplied the text as the patron with whom the deceased author had worked most closely.373 A dedication to Scot was also included in some copies of the History, and a preface to that book explained that after giving up the study of the learned laws in France 368

Acts of the Parliaments of Scotland, vol 6(1), pp 736–7. Nicoll, Diary of Public Transactions, p 121. 370 It may not have been coincidental that he renewed his endeavours to recover control of the chancery at the same time, for the sealing of documents represented the exercise of sovereignty in Scotland. 371 Register of the Privy Council, 2nd ser, vol 4, pp 56–7. 372 Ferguson 1977, p 97; Morrill 1990, pp 30–1; Brown 1994a, pp 66–7. 373 Poems, sig A2r. 369

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556 The Court of Equity during his twenties, Drummond had returned to Scotland to live ‘retiredly with his Brother-in-Law, till he was five and fourty years of age, at which time he unexpectedly maried’.374 The preface had clearly been prepared by someone in Scotland, and it was apparently submitted to the publisher with the text, in all likelihood by Scot himself.375 It consisted for the most part of a succinct review of Scottish history in the century and a half preceding the reign of James I, written by an unidentified author but presented with introductory and concluding comments and with occasional interjections by the editor. Where, for example, the review described the government of David II after his return from prolonged captivity in England, when he had sought to avoid further conflict by pursuing plans for a peaceful union between the two countries, the editor observed that David had been guilty of the ‘Fundamental fault’ of losing touch with his own people, though adding that he might have proved a more satisfactory monarch in different circumstances. The suggestion that Charles I had been guilty of the same fault was difficult to miss. Where the review described the heroic exploits of William Wallace, the editor interjected a series of questions that gradually came to have a fairly obvious bearing on the 1650s: ‘who are properly Rebels, or Lawful Enemies? how far the faith of a Nation, or particular men, are concluded in the Oath of their Prince to a Foreiner? and what Limits Conquerours ought to observe to Subjects, not naturally born so? and how far they, never compacting, are oblig’d in the General Compact?’376 The London publisher evidently felt that the questions required a response, for he sent the preface for further comment to John Hall, a barrister at Gray’s Inn who had accompanied the English army when it conquered Scotland in the capacity of an official observer.377 In a book entitled The Grounds and Reasons of Monarchy Considered, in a Review of the Scotch Story, which had been published in Edinburgh after the English army arrived there, Hall had expressed astonishment that the Scots should have been so insensitive ‘to Gods judgement perpetually poured out upon a Familie, or else to their own interest’, as to admit Charles II to the throne, explaining that ‘the vengeance which at the present is levell’d against the Nation, is but an attendant of this new introduc’d Person’.378 In providing a third layer of commentary for inclusion in the preface to Drummond’s History, Hall declined to address the editor’s questions directly— ‘these being matters proper for the Civilians’—but wrote that ‘some Territories are so seated, that it is the more happy for them to be under the shade and protection of a greater and more powerful, than be left naked to their own wants, and devastation of prevailing neighbours, under the Notion of preserving an imaginary, Antient, and National Liberty’.379 Instead of venerating heroes like Wallace or Robert the Bruce, the leader ‘most fit to arrest our Conquests in that Nation’, the 374 375 376 377 378 379

History of Scotland, sig 2B3v. Masson 1873, pp 465–75; Snoddy 1968, pp 47–9; Rae 1975, pp 23–4. History of Scotland, sig 2A1r. Havens 1934, pp 111–13; Smith 1994, pp 187–9; Norbrook 1999, pp 218–21. Grounds and Reasons of Monarchy Considered, pp 56 and 125. Reading ‘Notional’ as a misprint for ‘National’.

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The Formative Period of Legal History 557 Scots would have been wiser to recognise Edward I as an example of the type of heroic figure God tended to raise up in nations when he had destined them ‘to glorious actions’.380 The implication that they should now recognise Cromwell as their destined ruler scarcely needed to be spelled out, yet although the editor could not have denied that Scotland had once more been conquered, he could have persisted in asking whether limits should not be imposed on the rule of the conqueror. The review had described Edward as ‘changing the Laws, carrying away all Records and returning with all the Marks of any absolute Conqueror’ to England. In the mid-1650s the Scots were seeking to recover their records from a conqueror who claimed to be ruling with the consent of the conquered but whose wish to have justice administered in Scotland ‘agreeably to the laws of England’ had been openly acknowledged. The readers of Drummond’s History were informed, quite wrongly as it turned out, that a fuller account of the period before the reign of James I would soon be provided by Christopher Irvine, a teacher of the humanities in Edinburgh who was to continue promising a book on the history and antiquities of Scotland for the next thirty years.381 Irvine was to recall in 1682 that he had worked in the 1650s on a set of notes made by earlier humanist scholars on the place names and other terms encountered in the study of history, which had been the subject focused on in the earliest editions of Camden’s Britannia. The readers of Drummond’s History were also advised that the period after the reign of James V would soon be dealt with by Sanderson, though even before his book appeared in 1658 there seems to have been some concern about leaving the task of explaining the recent troubles to an English writer. It was Robert Gordon who had tried to persuade Robert Burnet to undertake the task in 1652.382 As was mentioned in an earlier chapter, Burnet had excused himself on a variety of grounds, but he had also suggested that the ecclesiastical history written by John Spotiswoode, the father of the late president of the session, might provide helpful background on the period up to the end of James VI’s reign, and he had offered advice on where a reliable manuscript of the book could be located. Like Drummond’s History, Spotiswoode’s History of the Church of Scotland was first put into print by a London publisher in 1655 (though without a preface prepared to accompany the text by Gordon).383 Burnet himself had of course prepared his edition of Craig’s Ius feudale (complete with its influential preface) for publication in the same year, and there is no reason to doubt the veracity of Scot’s claim to have been instrumental in its production. It was probably Scot who had been responsible for the extended version of Camden’s description of the Scottish judicial system included in the atlas published by Blaeu in 1654.384 In Ortelius’ atlas it had simply been commented that 380

History of Scotland, sigg 2A2v–3r. Historiae Scoticae nomenclatura Latino-vernacula, sigg Q7v–8r. 382 Miscellany of the Spalding Club, vol 1, pp 45–51. Gordon’s son James was later to write a History of the Troubles. Sanderson’s book on Mary I and James VI was to appear in 1666. 383 Robertson and Grub 1841, pp 39–41. 384 Cf Skelton 1968, p 103, and www.nls.uk/digitallibrary/map/early/blaeu/blaeu-sources. 381

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558 The Court of Equity the Scots ‘differ from the English in their laws and institutions, for these people make use of the civil law, whereas those recognise their municipal law alone’.385 In the course of a much longer discussion in Blaeu’s atlas it was explained that the lords of session ‘decide according to the parliamentary statutes of the kingdom, or from long practice, and where these are lacking, from Roman law’, to which it was added that they ‘declare justice not according to the rigour of the law, but from equity and right’.386 Here as elsewhere the use made of Camden’s book was obvious yet by no means indiscriminate, for not only were his remarks augmented but their significance was sometimes altered. In this passage, for example, the distinction between the ‘Municipall lawes’ and the ‘Imperiall civill law’ that Camden appears to have taken from the ‘Manner of Judicatores’ was replaced with an enumeration of the sources of Scots law as statutes, customs and the civil law, which preserved the point about recourse from the local to the learned laws without implying strict adherence to the precepts of the mos Italicus. The person who made this alteration appears to have shared the views expressed by Craig and Burnet. He was clearly well acquainted with the intricacies of judicial procedure, and he appears to have had a particular interest in the practice of the chancery. He most probably was Sir John Scot. It seems equally clear that the description of the Scottish courts included in the Blaeu atlas was prepared at some stage between the meetings of the parliaments of 1641 and 1644.387 There was perhaps no opportunity to revise the text before it was printed, but it may be significant that Scot claimed responsibility for the publication of two books in 1654 and 1655 in which the administration of justice in Scotland was described as if the lords of session were still hearing cases in the way they had done in the 1640s.388 The explanation for this failure to explain how the courts were currently functioning in Scotland cannot simply have been a complete lack of interest in the practice of the Interregnum court, for it has been seen that Burnet was sometimes asked by the judges to examine cases relating to the north east on their behalf, and Scot was later to make his own paraphrase of the reports of their decisions.389 The explanation would seem to have had more to do with a determination to preserve the independence of the Scottish legal system at a time when Scotland was in danger of being reduced to the level of a province of England. The publication of Burnet’s edition of the Ius feudale, and the upsurge of legal writing it seems to have inspired in the next ten years, would seem to have 385 Theatrum orbis terrarum, f 6. The verb used with reference to the Scots was not uti but usurpare, which was perhaps intended to suggest an element of appropriation. Nothing was said about the law in Norton’s translation. 386 Theatrum orbis terrarum, vol 5, pp 28–9 (www.nls.uk/digitallibrary/map/early/blaeu/921). 387 Compare the Theatrum orbis terrarum, vol 5, pp 27–8 (www.nls.uk/digitallibrary/map/early/ blaeu/ 921) with the Acts of the Parliaments of Scotland, vol 5, pp 268 and 354–5. 388 As Moir and Skelton 1968, pp 157–8, makes clear, Scot had an opportunity to revise the atlas in the later 1650s, yet the description of the courts was still left then as originally written 389 BLO, MS Rawlinson A 61, f 272; EUL, La III 354(1), f 9; Bloomsbury Book Auctions (20 June 2002), pp 45–6; Baker 2003b, p 102. Julia Owen kindly provided information on Scot’s paraphrase, now in a private collection, which seems to have been made in connection with the Buccleuch marriage case in 1659.

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The Formative Period of Legal History 559 been connected with the broad cultural programme Scot had been promoting actively since the 1620s and urgently in the mid-1650s, which was aimed at having Scotland’s place in the world defined in relation to England on the one hand and the rest of Europe on the other. In the dedication attached to Drummond’s Poems Scot was praised as ‘the greatest Maecenas of Wit and Learning that the Nation affords’, the reference being to the friend of Augustus and the patron of Horace and Virgil who had helped to promote the transfer of learning from Greece to Rome in the early years of the Roman empire.390 The same comparison had already been made in the dedication attached to the Delitiae poetarum Scotorum, where it was suggested that Scot had assembled a galaxy of stars sufficient ‘to emulate in their splendour those luminaries that shone in the age of Augustus’.391 There was perhaps an allusion here to the use of stellar imagery in France during the later sixteenth century to describe a group of poets who had tried to develop a national tradition of literature by imitating Roman and Italian models first in Latin and then in the vernacular.392 One of those credited with contributing to the Latin prelude to the French Pléiade was George Buchanan, who had spent much of his life as a teacher of the humanities in France, and what Scot’s anthology was taken to show was that there were enough accomplished poets in Scotland to form some sort of constellation, if not one of uniform brightness. Some of Scot’s own poems were included in the volumes published by Blaeu, and others appeared in English translation among Drummond’s poems, most of which were translated from or modelled on Latin, Italian, French and other sources, not always with open acknowledgement.393 While Drummond’s lack of originality has troubled some modern critics, it is increasingly recognised that he was following the practices and prescriptions of continental authors in using more or less precise translations or imitations as a way of nurturing a vernacular tradition of literature, a tradition that would eventually manifest itself in a less derivative style. It has been suggested, for example, that in producing a series of increasingly free renditions of Italian sonnets Drummond was following the example of Etienne Pasquier, whose interest in French literature has been connected with the broader cultural interests he shared with other advocates like Louis Le Caron and Antoine Loisel.394 Among these interests was the promotion of a transfer of legal learning from Italy to France that was expected to enable a common law as well as a common language to be developed locally. It has been argued here that Burnet’s aim in publishing his edition of Craig’s Ius feudale was to promote a similar transfer of legal learning to Scotland, and it can now be seen that the printing of the book was probably intended to form part of the broad cultural 390

Poems, sig A2r. Delitiae poetarum Scotorum, vol 1, p 4. 392 McFarlane 1974, pp 260–96; Levi 1979, pp 43–7; Coward 2002, pp 53–60. 393 Kastner 1913, p xliii; MacDonald 1976, pp xx–xxi; Morgan 1977, pp 198–9; Spiller 1988, p 150; McClure 2001, pp 494–5. 394 MacDonald 1971, pp 168, 210 and 212; Kelley 1976, pp 37–8; Mendyk 1989, pp 17–18; Roelker 1996, pp 107–8; McClure 2001, pp 495–6. 391

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560 The Court of Equity programme promoted by Scot.395 The aim was probably to explain more clearly than was possible in works intended for lay readers what the relationship was between the local and the learned laws and thus between the laws of Scotland, England and the rest of Europe. Other lawyers seem to have responded to the publication of Craig’s book by writing books of their own, books in which they sought to render more accessible the resources of Scottish legal culture, which was as much a defining feature of the nation as its geography, history or poetry. However, although Stair was one of the lawyers who took up his pen in this setting, and although he clearly did try to follow Craig’s example in many ways, it has become quite clear that it was not his intention to make use of the learned authority transferred to the College of Justice as a means of developing the law of Scotland. Stair may have been encouraged to write his Institutions by the appearance of Burnet’s preface to the Ius feudale, and to this extent he may have intended to contribute to Scot’s programme, but if so the contribution he made was quite distinctive, and it needs to be asked why.

Defending the sovereignty of Scotland It was mentioned in the last chapter that after Stair returned from his visit to France in 1664 he told the earl of Lauderdale that he had arranged for a copy to be made of ‘that book of observationes on our customes which your lordship saw’.396 Stair offered to send the copy of his book to London along with a copy of ‘Jansones mappes’ that he had bought at Lauderdale’s request while he was in Paris, and the offer seems to have been accepted.397 That Lauderdale had a keen interest in geography and chorography is clear not only from the large collection of books and papers he accumulated on the subject but also from the description of his own region he undertook to provide for the Blaeu atlas.398 What is significant for present purposes is the suggestion that he might have liked to receive in conjunction with an atlas a copy of Stair’s book, in which he appears to have expressed an interest when Stair visited London on his way to France, presumably at the same time as he had asked for the atlas to be bought for him. When Stair presented his ‘Description of the Law and Customes of SCOTLAND’ to the public in 1681 he made a series of claims that were typical of the chorographical project then being revived in Edinburgh.399 ‘We do not pretend to be amongst the Great and Rich Kingdoms of the Earth’, he conceded, ‘yet we know not who can claim preference in Antiquity and Integrity, being of one Blood and Lineage, without mixture of any 395 As already noted, some of Craig’s Latin poetry had been included by Scot in the Delitiae poetarum, vol 1, pp 221–67. 396 BL, Add MS 35125, f 103. 397 Catalogus librorum instructissimae bibliothecae, p 146, and Bannatyne Miscellany, vol 2, p 154. 398 Catalogus librorum instructissimae bibliothecae, pp 32–7, 42–3, 86, 128–9, 135–6 and 149–56, and Blaeu, Theatrum orbis terrarum, vol 5, p 33 (www.nls.uk/digitallibrary/map/early/blaeu/924). 399 Institutions, 1. pr/1.1.pr. On the revival of the chorographical project, with an attempt to update the Blaeu atlas at its heart, see Moir 1973, pp 65–7; Mendyk 1989, pp 213–22; Withers 2001, pp 72–6.

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The Formative Period of Legal History 561 other people, and have so continued above two thousand years, during all which no forreign Power was ever able to setle the Dominion of a strange Lord over us’.400 Although the king could not expect ‘great Revenues’ from Scotland, what he could rely on was the loyalty already extended to his family for ‘twentie Centuries and more’, which made him ‘the most Ancient King in the World’. In publishing his examination of historical nomenclature a year later Christopher Irvine similarly declared that ‘there never was a more Faithful and Daring Nation than this’, remarking that the same royal family had reigned in Scotland for ‘twenty hundred years’ and that the Scots had preserved their independence against attacks from the Romans—who had been forced ‘to secure their own Province, with Walls and Rampiers raised betwixt the two Seas’—from the Picts, Danes and Britons, and more recently from the English.401 Alexander Mudie claimed in a description of the country he published in the same year that the ‘Imperial Crown’ of Scotland dated back to 330 BC and had descended through an unbroken line of a hundred and nine kings to Charles II.402 Robert Sibbald announced that the new atlas he was planning would include an account of the antiquity of the kingdom as well as an account of ‘the Scots famous for all sorts of Learning and Arts’ and ‘for their valour and Conduct’.403 Mentioning that the Romans had ‘turned on the Defensive’ and built ‘two Walls from Sea to Sea’, Stair also remarked that ‘this Nation hath not been obscure and unknown in the world’, pointing out that ‘the most famous nations have made use of our Arms’ and that the Scots had enjoyed ‘the Fame of Learning at home and abroad, in the most eminent Professions, Divine or Humane’. Earlier in the century John Speed had acknowledged that the Scots were ‘in warres so venturous, that scarse any service of note hath beene performed, but that they were with the first, and last in the field’, adding that they were ‘verie studious, of learning, and all civil knowledge’, and given not only to attendance at their own universities but ‘to travaile into forreine Countries’.404 Camden himself had expected the eruditi Scoti to participate in the European project inspired by Ortelius, but what neither he nor any of his associates or followers had been prepared to acknowledge was that government had been established in Britain before the arrival of the Romans.405 They had rejected the English legend that government was established throughout the island by Brutus, the great-grandson of Aeneas, and with it the competing legend that government was established in Scotland by Fergus MacFerchard, a descendant of Scota, a daughter of the pharaoh 400

Institutions, sigg A2v–4r. Historiae Scoticae nomenclatura Latino-vernacula, sigg *6v–7. 402 Scotiae indiculum, sigg A3v–4r, and pp 2–5 and 19–22. 403 Account of the Scottish Atlas, pp 2 and 5–6; Scotia illustrata, sig A1v and pp 5 and 10. For some relevant papers prepared for inclusion in the Blaeu atlas and passed on to Sibbald by James Gordon see Macfarlane’s Geographical Collections, vol 2, pp 327–91. As already noted, Mackenzie gave Sibbald a version of the opening chapters of his Institutions for inclusion in the new atlas, together with some other material. 404 Theatre of the Empire of Great Britaine, f 131r. 405 Britannia, p 681. 401

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562 The Court of Equity who had released the Israelites from bondage, and of her Greek husband Gathelus.406 The English legend implied that imperium had been transferred to Britain from Troy in the same way as it had been transferred to Rome, and the Scottish legend that it had been transferred in a way that was not even parallel to the Roman transfer. What Ortelius and Camden wished to insist on was a translatio imperii from Rome to the other nations of Europe, an insistence with troubling implications for the Scots. In the Blaeu atlas no attempt was made to defend the legend of Scota and Gathelus, even though it was believed to be as plausible as the legend of Brutus, but in an account of the antiquity of the Scots by Robert Gordon it was insisted that they had crossed over from Ireland before the arrival of Caesar and had ‘immediately, from the outset, lived under kings, and had immediately maintained the form of a state’.407 Agreement was expressed here with ‘the learned Buchanan’, whose description of Scotland, originally prefaced to his history of the kingdom, was also reproduced in the atlas.408 Buchanan took issue in this passage with some of the arguments advanced in Humphrey Lhuyd’s Breviary of Britayne, yet despite having read Lhuyd’s work he persisted in presenting in his own book an account of the reigns of Fergus I and his early successors, relying on the detailed treatment of these mythical kings in the history of Scotland written in the 1520s by Hector Boece, the first principal of the University of Aberdeen.409 It has been suggested that Buchanan’s reading of Lhuyd’s work led him to lay his historical handling of the Scottish monarchy aside for some years and to write instead the more philosophical treatment of the same theme published as his De iure regni apud Scotos dialogus in 1579.410 Whether or not this was the case, he had certainly provided in his dialogue an explanation of how government could have been established in Scotland without any transfer of imperium from abroad. The dialogue was sometimes included in copies of Blaeu’s atlas, which seem to have varied in their contents to suit the tastes of the purchaser.411 Some copies contained a list of kings running up to Charles II, while in others the list only ran as far as James VI. The antiquity of the monarchy tended to be stressed by legal authors who wished to base their accounts of the law on statutory foundations. Balfour’s practicks, in which the titles typically began with excerpts from the old books and acts, also contained an appendix consisting of passages from Boece’s book in which the early kings were said to have legislated.412 In an earlier collection, written in a similar style by another lord of session, David Chalmers of Ormond, passages from Boece’s book 406

Matthews 1970; Cowan 1984; Mason 1987. Theatrum orbis terrarum, vol 5, p 1 (www.nls.uk/digitallibrary/map/early/blaeu/906, for a different translation). 408 History of Scotland, vol 1, pp 1–38. 409 Lhuyd, Breviary of Britayne, ff 35–47, first published in Latin by Ortelius in 1572, a year before the English version appeared. Royan 2001 argues that Boece, Chronicles of Scotland, which also began to circulate in translation shortly after being published in Latin, may in fact have been drawing as he claimed on a manuscript source. 410 Trevor-Roper 1966. 411 Skelton 1968, p 104; Moir and Skelton 1968, pp 156–7; Moir 1973, p 51. See too the comment in [Mudie], Scotiae indiculum, pp 264–5. 412 Balfour, Practicks, vol 2, pp 677–84. 407

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The Formative Period of Legal History 563 were included in the titles themselves.413 When Skene published his edition of the acts of parliament in 1597 he inserted ‘A Table of All the Kinges of Scotland’, beginning with Fergus I and continuing without interruption to James VI.414 A more elaborate account of the kings and their laws was composed by Habakkuk Bisset, who believed that just as Justinian had been ‘ane of the maist famous emperouris, and lawmakeris, that regnned’, so laws had been enacted for the ‘frie realme’ of Scotland by a succession of rulers stretching back to the fourth century BC .415 The point of publishing lists of the kings and their laws, Bisset explained, was to let people ‘knaw how cairfull and diligent oure godlie lauchfull kingis and princes hes bene, to institute, mak and devulgate thair lawes and statutis, quhilk suld move us to luif, honoure and obey thame as oure lawes’. None of these laws was referred to in Craig’s treatise on the Ius feudale, which appears to have earned him the title of Scotland’s Justinian for his use of learned instead of legislative authority, but he did take the time to defend the antiquity of the Scottish monarchy in two other works. In his treatise De unione regnorum Britanniae he dismissed both the legend of Brutus and the legend of Scota and Gathelus as being ‘inter fabulas’, and he granted that it was difficult to know exactly when the Scots had settled in the north of Britain.416 Nevertheless, he insisted that Camden’s chronology was mistaken, that the Scots had clearly arrived before Caesar’s invasion of the south, and that there was ‘no kingdom in Europe or any other part of the habitable world that can vie with Scotland in antiquity’. He maintained that nothing was more likely to hinder a closer union in Britain than the tendency of the English to disparage their northern neighbours, ‘and, though they are admittedly possessed of fewer material resources, to deny them equality with Englishmen in the antiquity of their country, in their learning, and in their exploits at home and abroad’. In his treatise De hominio Craig reacted angrily to the disparaging remarks he had encountered in Raphael Holinshed’s Chronicles, where the pretended dominion of Brutus over the whole of Britain was one of several reasons suggested for believing that the kings of Scotland owed allegiance to the kings of England.417 In this book Craig again dismissed the story of Brutus as a fantasy, and he argued at length that the later kings of Scotland neither had in fact nor could in law have subjected their kingdom to the feudal superiority of the kings of England.418 Referring at the end of his treatise to the dismissive treatment of Boece by Ortelius, he advised his English readers that ‘we will grant you Riches, Honours and Power but will not yield to you, nor any Nation in Europe, either in Antiquity of Government or Lineage’. 413 BL, Add MS 27472. On Chalmers see Tytler 1823, pp 141–2; Brunton and Haig 1832, pp 123–5; Stephen and Lee 1885–1901, vol 10, p 16. For brief discussion of this previously neglected work and its context see Goodare 2004, p 77. 414 Lawes and Actes, sigg F1-G1. The same table was included in John Monipennie, Certaine Matters Composed Together, sigg B1-E1. 415 Bisset’s Rolment of Courtis, vol 1, pp 25–78, and vol 2, pp 148–89. 416 De unione regnorum Britanniae, pp 207–27 and 354–90. 417 Mason 1994, pp 184–5, points out that it was in reality William Harrison’s ‘Description of Britain’, printed in Holinshed’s Chronicles, vol 1, pp 1–220, that Craig was answering. 418 Scotland’s Soveraignty Asserted, pp 34–44, 59, 66–77, 83, 245–6 and 428–9. For a rigorous review of the evidence from a modern perspective see Duncan 2002.

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564 The Court of Equity As a young man Craig (like Buchanan a few years earlier) had written a Latin poem hailing Mary I as the latest in a long line of monarchs.419 A few years later an attempt had been made to update Boece’s history by John Leslie, a former lord of session who had gone into exile with Mary in 1568.420 In describing the law Leslie had mentioned Regiam maiestatem, ‘the actes of the Parleament’, and the use sometimes made of ‘the Romane lawis’, and he had reproduced ‘the lawis of King Kennedie’, the sixty-ninth of Boece’s kings, as a Scottish equivalent of the XII Tables.421 At about the same time David Chalmers, who had also gone into exile after Mary’s deposition, had relied on Boece’s account of Scotland’s early kings in his Histoire abbrégée de tous les roys de France, Angleterre et Escosse. Unlike every other part of Europe, he had maintained, ‘the kingdom of Scotland had never been subject to the Romans (or anyone else) but had always been free and divided from the territories under their dominion by a great ditch or rampart’, though like most other nations in Europe the Scots did respect ‘the Roman laws’ or at least the ‘raisons des loys civiles’.422 In defending Mary’s right to succeed to the throne of England before a French audience Chalmers had argued that female inheritance was ‘licite’ according to ‘le droict de nature’, ‘le droict des gens’, ‘le droict positif divin’ and ‘le droict positif humain’, concluding that the exclusion of women from the French throne was not even consistent with other positive laws, such as those of Rome, England and Scotland.423 In defending James VI’s right to succeed to the throne of England thirty years later, Craig felt obliged to take a tougher line. In his treatise De iure successionis he too worked in stages through various categories of law, beginning with the law of God, moving on to the law of nature and then the law of nations, and ending with the positive law of England.424 However, because he was writing in response to the suggestion made by Robert Parsons in his Conference about the Next Succession to the Crowne of Ingland that the issue could be settled by an act of parliament, Craig felt obliged to adjust the normal divisions between the categories of law he was dealing with. He explained that ‘upon this occasion’ he would treat the civil law as part of ‘the Law of Nations’ and not as ‘positive Law’, and his discussion of ius gentium therefore involved a review of the rules of succession in the XII Tables, the media iurisprudentia or ius praetorium, and the ius principale. Since the doctors believed that local laws could deviate from the learned laws only so long as they were consistent with ius naturale et gentium, there seemed to be little scope for deviation in this area.425 Moreover, even Bodin had accepted that sovereign legislators were bound by the 419

Epithalamia tria Mariana, pp 10–11 and 34–7; Tytler 1823, pp 125–30; Mason 1987, p 81. Brunton and Haig 1832, pp 116–19; Stephen and Lee 1885–1901, vol 33, pp 93–9; Cody 1888, pp xv–xxii. 421 Historie of Scotland, vol 1, pp 118–24. 422 Histoire abrégée, pt 2, f 23v, and pt 3, ff 8v–9r. As already mentioned, Burnet, who was probably familiar with Chalmers’ book, also talked about ‘the reason of the civil law’ in his preface to Craig’s Ius feudale, where the expression may have assumed special significance. 423 Histoire abrégée, pt 3, ff 4–10 and 13v–27. 424 Right of Succession to the Kingdom of England, pp 96–119 and 245–51. 425 Ibid, pp 120–29. 420

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The Formative Period of Legal History 565 ‘Fundamental Laws’ of their states, which the laws of succession clearly were. Consequently, Craig concluded, although statutes generally prevailed over customs, a parliament could not change the law governing the succession to the throne of England. It has been seen that Craig’s treatment of succession law in his Ius feudale was unusual in the extent of its attention to divine law and in the clarity of its focus on the different periods of Roman legal history. If his extensive study of succession law in relation to James’ right to the English throne may be taken to explain why this part of his treatise on land tenure was peculiar, it is important to note that he did not deal with the civil law there as an aspect of the law of nations. On the contrary, in outlining the Roman trichotomy of ius naturale, ius gentium and ius civile in an introductory title of his Ius feudale, Craig described the civil law as a prime example of human positive law.426 He went on to say that in difficult cases advocates should turn to the learned laws because they were commonly recognised as written restatements of natural equity, and it was on this basis that he himself turned to them in the later chapters of his treatise whenever the local sources seemed deficient. In his De hominio Craig similarly argued that it would have been impossible for one king to subject his realm to the superiority of another without at any stage reverting to discussion of natural law. More particularly, in considering whether Edward I’s ruling on the succession to the throne of Scotland in 1292 could have been ‘according to Law’ or ‘according to Equity’, he argued that it could have been neither legal, since contrary to ‘the Custom of the Kingdom then observed in Judgment’, nor equitable, since contrary to ‘the Feudal Law it self, which was at that time tenaciously observ’d by the Noblest Kingdoms in Europe’.427 It was the feudal law received into practice throughout Europe that Craig relied on as a guide to equity, both in this passage and elsewhere in his De hominio and Ius feudale. It has been noted that there was another peculiar passage in the latter treatise, and this peculiarity also appears to have been connected with the concerns addressed in Craig’s other treatises. In a chapter added to the end of his De iure successionis, he admitted that the feudal law had come to Scotland by way of England and that the Scots had ‘receiv’d the Laws of the English, which at this day are made use of among us’.428 In his De hominio, he denied that the similarity between the laws of the two countries could be adduced as evidence of Scotland’s subjection to English superiority, pointing out that ‘the Mosaick Law, the Law of Nations, the Civil Law, this our Feudal Law, and also the Right of Primogeniture, are common amongst many Nations, which yet are distinct from one another in their Empire, Kingdoms and Jurisdictions’.429 In his Ius feudale, he tried to explain the unmistakable similarity between the laws of Scotland and England in a different way.430 Alluding to Bodin’s distinction between ius and lex, 426 427 428 429 430

Ius feudale, pp 37–8. Scotland’s Soveraignty Asserted, pp 263–8. Right of Succession to the Kingdom of England, p 431. Scotland’s Soveraignty Asserted, pp 68–9. Ius feudale, p.37.

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566 The Court of Equity he explained that what the Scots had in common with the English was not law in the strict sense of the commands of a sovereign but merely the natural equity from which all laws were ultimately derived. In response to the claim that the Scots must have been subjected to the superiority of the English he insisted in this passage that the only ius commune in Britain was ius naturale et gentium. Yet in the rest of his Ius feudale—as in his De hominio and De unione regnorum Britanniae—he maintained that the feudal law formed part of the ius commune of Europe in the more positive sense of a law binding for its learned authority. It was commonly recognised as a restatement of natural equity, yet its learned recognition made it something more than a restatement of natural equity. Only where it served his polemical purposes did Craig treat the learned laws as mere examples of how natural equity could be implemented. As has again been seen already, there can be no doubt that Stair was influenced by Craig’s example when he began writing his Institutions in the late 1650s, but what can now be seen more clearly is that he was influenced especially by two passages in the Ius feudale that were not actually typical of Craig’s writing on the law of Scotland. In the first place, it has been found that Stair tended to follow the example of Craig’s unusual treatment of succession law by beginning his treatment of other subjects with a discussion of divine or natural law. He explained that he had adopted this approach so that where the law of Scotland was either dubious or defective, ‘Emendation, and Extention may be fetched thereto, from the Law of Nature’.431 Whereas other lawyers found Craig’s book attractive because it showed that there was seldom any need for new laws to be drawn from natural equity, Stair maintained that recourse to natural equity often was required, largely because he believed that it occurred as soon as lawyers turned from the local to the learned sources. He tended, in the second place, to accept the force of Craig’s exceptional claim that the only law genuinely common to the whole of Britain was ius naturale et gentium. If Craig had sensed some danger in claiming, as he usually did, that the feudal law (as a branch of the civil law) was common to Scotland and England in a more positive way, Stair seems to have avoided that claim because he sensed a similar danger more acutely. To some extent at least, Stair seems to have avoided the claim that the learned laws were authoritative because he feared that it might encourage English lawyers to think of their law as the common law of Britain. Craig had claimed that the laws of Scotland and England had mostly been developed by the appropriation of institutions and authority from the learned laws, and that the laws of the two countries were consequently similar in substance and structure. In response to the contention that these laws could have been similar in substance only because created by the same legislator he had argued that, so far as the exercise of sovereign authority was concerned, any sources relied on could only have been regarded as examples of the natural equity that was common to every country in the sense of being proper to none. His own contention, however, was that the laws of Scotland and England had largely been created by the 431

Institutions, 26.8/3.4.8.

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The Formative Period of Legal History 567 exercise of an authority derived from learned sources that were common in the sense of being shared by every country. He had concluded that a unified British law could easily have been formed by further exercise of the same learned authority, but as his experience as a union commissioner had shown, and as the experience of union in the 1650s was to confirm, the tendency of English lawyers was not to accept that their law was derived from learned sources but was to assume that their law had once been, and might again become, the common law of Britain, into which the more distinctive aspects of Scots law might be absorbed like the customs of any other region or province.432 Stair’s response was to reject the central contention of Craig’s treatise and to base his own account of the development of Scots law on a claim that was at odds with the rest of Craig’s argument. Stair’s contention was that the law of Scotland had been developed by the exercise of sovereign authority and that the only ‘law’ the Scots could ever have had in common with their neighbours was the law of nature and nations, more a matter of ius than lex. His contention was that the law of Scotland reflected the standing of the Scots among the independent nations of Europe and that any similarity with the law of England had resulted from use of the same examples of how natural equity might be applied.

Stair’s response to the appointment of the English judges In his own way, then, Stair did contribute to the programme of national selfdefinition that was promoted generally by Scot and particularly in relation to the law by Burnet in the 1650s. When he made statements typical of the chorographical project in 1681 he was drawing attention to themes that had always been present in his work. He had always been keen to emphasise that the Scots were a learned people, with regard to the law as well as other subjects. He was able to draw attention to the cosmopolitan character of his own work because it had always been his aim to show how Scots law related to the learned laws and to the laws of other nations. It had always been his aim to show that the Scots were as capable as any other nation in Europe of writing learned books on law. However, it had never been his aim to show that a learned author capable of emulating Craig could contribute directly to the development of the law by expressing his own opinions, and in 1681 he took care to stress that laymen in Scotland were not expected to put implicit faith in their lawyers. He connected the international renown of the Scots for learning with their reputation abroad for martial valour and then made the familiar claim that they had never been conquered by the Romans or anyone else. 432 As already observed, Craig appears to have added a new conclusion to his treatise on union in 1607, insisting that each country must at least for the time being retain its laws. As also observed already, he argued in his treatise on the feudal law that the Scots had not, as he elsewhere accepted, received the feudal law from England. In the absence of manuscript evidence it is difficult to know when the contradictory comments he sometimes made in his treatises were written, but clearly there was some development.

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568 The Court of Equity He mentioned that ‘the Roman Art did prevail more than their Arms’, but what he had in mind was the submission of the church ‘to the Bishops of Rome’, not the reception of the civil law. If one response to the impossibility of identifying a translatio imperii from the Romans to the Scots was to identify instead a translatio studii via the French or English, this was not the response Stair favoured. The line he took in 1681 was the equally familiar one that government had been established in Scotland long before the Romans arrived. Earlier that year the antiquity of the monarchy had been rehearsed in parliament when it was recognised that the succession of the duke of Albany and York was regulated by ‘fundamentall and unalterable laws’.433 Three years later Mackenzie was to defend this thesis in his Ius regium, where he endorsed Craig’s arguments that the natural law of succession was inviolable, that there were fundamental laws of the constitution that could not be changed, and that the ancient law ought in general to be changed on grounds of evident utility alone.434 In making reference to the antiquity of the Scottish monarchy in 1681 Stair was no doubt mindful of what had just happened in the parliament he had attended, but it has been seen that he had already rejected the notion that there were unalterable laws of the constitution in a passage he left intact in the first printed edition of his Institutions, and he was soon to confirm that he did not consider James VII’s right to the crown to be inviolable. It may have been prudent for him to pledge his loyalty to ‘the most Ancient King in the World’, but he was able to do so because traditionally the antiquity of the monarchy had been defended as proof of the independence of the nation more than the inviolability of the succession.435 It was the independence of the Scots that Stair was primarily concerned to defend when he offered his book to the public in 1681, much as it had been when he began writing twenty years earlier. In particular, he was concerned to defend the sovereignty of the king’s judges, to whom authority had passed from both parliament and council. When the English judges received their instructions to travel north in the 1650s and to administer justice according to the law of Scotland, equity and good conscience, in keeping with the procedures of the Scottish courts, they would presumably have made some effort to learn what they could about the country and its institutions. They could have learned from legal writers like Coke that the law of Scotland had originally been the same as the law of England but had later diverged from the common law through the passing of acts of parliament and the use made in the courts of the civil law. They could have learned something similar from 433 Acts of the Parliaments of Scotland, vol 8, pp 238–9; His Majesties Gracious Letter to His Parliament of Scotland, pp 7–8. 434 Mackenzie’s arguments were examined in the last chapter. For Craig’s arguments see his Right of Succession to the Kingdom of England, pp 120–30. 435 As mentioned earlier, Mackenzie also defended this thesis at length, first in BL, Add MS 32094, ff 246–59, (printed as the third chapter of his treatise on Precedency) in response to Prynne, History of King John, and then in his Defence of the Antiquity of the Royal Line of Scotland, in response to William Lloyd, Historical Account of Church-Government, pp 1–48, followed by his Antiquity of the Royal Line of Scotland, Farther Defended, in response to Edward Stillingfleet, Origines Britannicae, pp i–lxxiii. See too Ferguson 1998, pp 144–72.

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The Formative Period of Legal History 569 Camden, perhaps the most obvious author to consult, and could further have learned from him that the judges in the highest civil court decided cases ‘not according to the rigor of law, but with reason and equity’.436 The author of the ‘Manner of Judicatores’ had observed more accurately that the lords of session ‘doth not decide strictlie secundum rigorem iuris onlye: but also secundum aequum et bonum’, yet by adding that they therefore served the function of ‘the Court of Channcery’ he had perhaps given the impression that the session was not so much a court of law and equity as a court of equity alone.437 Since the procedure the English judges were instructed to follow in Edinburgh was reminiscent of the procedure of the chancery, they must have been further encouraged to believe that they were being sent north to sit in what was essentially a court of equity, albeit one instructed to follow the law. English lawyers expected the law to take priority over equity, yet those sent into Scotland were not only instructed to apply the local law but were also urged to bring it into line with English law, and (as they saw it) the only part of their commissions that could be taken to permit this was the reference to equity and good conscience. They clearly did not interpret this phrase as a reference to natural equity, to which they were reluctant to turn, but rather envisaged the equitable decision of cases on their facts as a way of administering justice in accordance with the reason of the common law. If the reported response of the advocates was to plead hard to keep the judges to the known statute law, the response made by Stair in his Institutions was more subtle. Conscious that the English judges were required to follow the local procedure and were intent on using the procedure to reform the local law, he devised a theory of legal development that was centred on the practice of the session. He agreed with the English judges that the procedure they were following was essentially that of a court of equity and that it was appropriate for them to decide cases on their facts. However, he argued that new cases should be decided in accordance with natural equity, not the regulated equity or artificial reason of the common law, and he avoided leaving any hostage to fortune by omitting to make the competing claim that new cases should be decided in accordance with the constituted equity or learned reason of the civil law. He claimed instead that new cases should be determined by sovereign judges whose decisions, if adhered to in later cases, would give rise to customary laws enshrined in forms of action. This kind of legal development would of course have been instantly recognisable to the English judges, except that they would have been surprised by the replacement of learned with sovereign authority at its core. In the 1650s the Scots had lost their king, their council and their parliament. The only institution in which sovereignty could have been taken to remain was the supreme court set up in place of the session, which lawyers liked to pretend had remained in being. Having devised his theory of legal development in the setting of the Interregnum court, Stair adhered to it and elaborated on it throughout the remainder of his life, even when the arbitrary adjudication it involved became deeply unpopular. 436 437

Britannia, pp 684–5: ‘Ius autem non secundum rigorem iuris, sed ex aequo & bono dicunt’. ‘Manner of Judicatores’, p 269.

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570 The Court of Equity Of course, the arbitrary adjudication of the lords of session never had been popular. As was often recalled, Buchanan had complained about it in the sixteenth century and had warned that it was likely to continue unless acts of parliament were passed more frequently and were adhered to more strictly. It has recently been pointed out that acts of parliament were in fact passed a great deal more frequently in the last two decades of the sixteenth century, and it has been suggested that this resulted in a transformation of the understanding of the law in Scotland.438 It has been suggested that whereas lawyers like Skene had tended to think of the law as a static body of immemorial customs, and to assume that the oldest laws were the best and most authoritative, lawyers like Hope tended to think of it as a dynamic body of legislative acts, and to assume that the most recent laws were to be respected. Whether Skene or anyone else held the views attributed to him is, however, rather doubtful. If Skene thought along the same lines as Coke, as has been suggested, then his assumption would have been that the oldest laws were worthy of respect because their antiquity was evidence of their rationality and because the law was essentially a body of rational principles, written as much in the minds of expert lawyers as in the books they studied. Moreover, as a lawyer trained in the civilian tradition, Skene would not only have been conditioned to conceive of his local law as being essentially statutory, but would have learned to give priority to statutes as the most recent laws, designed to reform defective customs.439 Where his training might have made it difficult for him to recognise the sovereignty of parliament was in the emphasis it placed on the narrow interpretation of statutes that deviated from the common law and on the possibility of statutes falling into desuetude. Even a lawyer like Mackenzie, who was perhaps more inclined than any other writer in the seventeenth century to treat the acts of parliament as the central components of the law, was prepared to accept that statutes meant what they were taken to mean by expert lawyers, that they could sometimes be deprived of effect by the people, and that there were limits to what a parliament could legitimately enact. Mackenzie was in any case inclined to stress the importance of statutes because his primary interest was in public law. Those concerned with private law, like Burnet in 1655, were more inclined to observe that the legislation called for by Buchanan had still to be enacted, and to encourage as an alternative antidote to arbitrary adjudication the exercise of learned authority by expert practitioners.440 Stair preferred to explain why arbitrary adjudication was sometimes necessary, pointing out that legislation was scarce in important areas like succession law, that even the most ancient customs must originally have 438

Goodare 2004, pp 70–86. See too Goldsworthy 1999, pp 166–9. See, eg, Craig, Right of Succession to the Kingdom of England, p 301, citing Bartolus and Baldus. Buchanan’s views will be returned to in another volume, but it may be worth noting here that he had little interest in legal learning. Although he is sometimes credited with drafting the speech delivered by the earl of Morton before the English queen in 1571—reproduced in Trevor-Roper 1966, pp 40–50—the references to the civil law it contains are all absent from the version in Buchanan’s History of Scotland, vol 2, pp 601–7. At least the passages containing all these references were probably the work of a lawyer, possibly James McGill, who accompanied Morton to London. See Trevor-Roper 1966, pp 8–12; McFarlane 1981, pp 334–5; Burns 1996, pp 189–91. 439 440

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The Formative Period of Legal History 571 emerged from the application of natural equity, and that new customs could only take shape through decisions drawn initially from the same source.441 It has also been suggested that the purported change in the understanding of the law from immemorial custom to statutory regulation facilitated the parliamentary union of 1707.442 It has been suggested that where once political union had been impeded by the difficulty of reconciling two conflicting bodies of customary law, by the end of the seventeenth century it had been accepted on both sides of the border that the law was what the king in parliament declared it to be, so that it sufficed to create a common legislature with the sovereign authority to amend the laws without troubling first to determine what the common law might be. The possibility that a genuinely British law might be enacted by a sovereign legislator was, however, one that had long been recognised and about which the Scots had always been relatively relaxed. What had worried them—and would continue to worry them—was a tendency towards the incorporation of the law of Scotland into the law of England as if it were a provincial custom in need of reconciliation with the precepts of the common law.443 In 1707 the agreement was that no alteration would be made to the private law of Scotland ‘except for evident utility of the subjects within Scotland’, and it has been mentioned already that the words evident utility would have been read by lawyers as an allusion to the principle stated in the Digest that legislators should hesitate to alter laws that had been considered just since time immemorial.444 Other texts in the Digest used the words aequitas evidens instead of utilitas evidens, and it was certainly Stair’s understanding that considerations of equity and expediency went together.445 If most lawyers in Scotland would have been inclined to argue, even at the beginning of the eighteenth century, that the received wisdom of the Scottish people and their legal representatives should not be departed from lightly, Stair would have been more likely to argue that the law should only be altered where it seemed expedient from the point of view of the Scottish people to follow the dictates of natural equity. In this sense it may perhaps be correct to suggest, as many writers have done, that Stair protected the law of Scotland against eclipse in the parliamentary union by placing it on a philosophical basis, though what this can and cannot be taken to mean must be kept distinct.446 It can be taken to mean that he encouraged the appraisal and amendment of the law by reference to the thinking of moral philosophers as much as learned lawyers, and to this extent it may also be correct to suggest, as many writers have done, that he was a precursor of the Scottish Enlightenment.447 On the other hand, it would be mistaken to suppose that he had 441

Institutions, 26.1/3.4.1. Goodare 1999, p 325, and 2004, pp 280–81. 443 For an example of the concern as it persists today see Gretton 2004. 444 Acts of the Parliaments of Scotland, vol 11, pp 410–11; Digest, 1.4.2. 445 Ibid, 4.1.7.pr and 50.17.183. 446 Smith 1958b, pp 44–45; Walker 1981, p 161; Wormald 1996, p 156; Goldie 1996, p 227; Brown and Mann 2005, p.51. 447 Stein 1970, pp 148–51; Chitnis 1976, pp 78–80; Rendall 1978, p 25; MacCormick 1982, pp 150–52; Broadie 2001, pp 12–13. 442

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572 The Court of Equity tried to show how legal solutions to problems could be logically deduced from philosophical principles. It was Stair, more than any other jurist writing in Scotland during the seventeenth century, who had tried to promote the idea that all laws must be derived from the exercise of sovereignty by a lawgiver, so that no amount of reasoning by any corps of experts could itself result in the introduction of a law. It would therefore be more correct to suggest that he had actually detached the law of Scotland from the philosophical basis on which it had been placed by other jurists. Why he should have done this requires closer scrutiny, particularly in relation to the philosophical position he began to develop during the 1640s. For the time being, however, it does seem that his experience as an advocate and judge during the 1650s had a significant impact on his thinking, for his experience in the Interregnum court appears to have led him to think about how sovereignty could be exercised in Scotland in the absence of a parliament or council. While other jurists in the latter half of the seventeenth century sought to clarify the character of the session as a court of law, contrasting its function of applying the law with the legislative and executive functions of the parliament and council restored in 1661, Stair continued to describe the session as a sovereign court of equity and the central institution of legal development in Scotland. It was the court he described that was felt to be in urgent need of reform a hundred years later.448 By then it had served its purpose in what has aptly been called the formative period of Scottish legal history.449

448

Lieberman 1989, pp 159–75; Phillipson 1990, pp 42–61; Cairns 2000, pp 147–51. Stein 1957, pp 3–4; Smith 1962b, pp 36 and 44–5; Phillipson 1976, p 100. See too Blackie 1981, which deals with how Stair’s book was treated in what has been called the classical period of Scots law, and with how it later came to be treated in a manner typical of post-classical jurisprudence. 449

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Bibliography This is a list of the sources cited in the notes to the preceding chapters. It is intended to supplement the notes, not to provide a comprehensive catalogue of everything that may be read with profit by a student of Stair’s Institutions. Manuscript and electronic sources are listed before printed sources, and primary printed sources—those written at least in part before 1707—before secondary printed sources. The format is largely conventional, but to facilitate decoding of the notes the dates of secondary sources are given immediately after the surname and initials of the author.

Manuscript Sources Aberdeen University Library (AUL) MS 592 MS 2097

Stair’s institutions. Stair’s institutions.

Bodleian Library, Oxford (BLO) Rawlinson A43 and 61 Thurloe papers.

British Library (BL) Add MS 4158 Add MS 18236 Add MS 23119–37 Add MS 26635 Add MS 27472 Add MS 30640 Add MS 32094–5 Add MS 34516 Add MS 35125 Egerton 1048 Harleian 292 Harleian 4631 Harleian 4691 Sloane 3828 Stowe 385

proposals concerning courts in Scotland. Mackenzie’s discourse on Digest. Lauderdale correspondence. minutes of union commission. Chalmers’ practicks. De Beaumont correspondence. Malet papers. MacIntosh papers. Lauderdale correspondence. instructions for commissioners to Scotland. memorandum on hostile laws. Lauderdale correspondence. reworking of Haddington’s practicks. Mackenzie’s discourse on Digest. epitome of Craig’s de feudis.

Cambridge University Library (CUL) Dd 3.84(II) Dd 3.85 Kk 5.4

Hope’s minor practicks. Hope’s minor practicks. reworking of Haddington’s practicks.

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574 Bibliography Kk 5.22 Mm 6.69

compendium of Haddington’s practicks. Hope’s minor practicks.

Edinburgh University Library (EUL) Dc 1.10 Dc 1.56 Dc 4.13 Dc 4.24 Dc 4.59 Dc 5.92 Dc 6.20 Dc 6.32 Gen 68D Gen 1427 La I 290 La II 12 La II 89 La III 354 La III 382 La III 387 La III 397 La III 399 La III 400 La III 402 La III 403 La III 410 La III 416 La III 417 La III 418 La III 419 La III 420 La III 421 La III 422 La III 424 La III 427 La III 428 La III 528 La III 738 La III 739 La III 741 La III 744

Stair’s institutions. Hope’s major and minor practicks. Nicolson’s reports. Stair’s institutions. Craig’s de feudis. Hope’s minor practicks. Stair’s form of process. compendium of Gibson’s reports; abridgement of acts of parliament. Hope’s minor practicks. Stair’s institutions and form of process. proposed additions to act of union. compendium of various reports. Lauder papers. collected correspondence. epitome of Craig’s de feudis. epitome of Craig’s de feudis. abridgement of books of adjournal. abridgement of records of parliament, council and session. abridgement of books of adjournal. Hope’s major and minor practicks; abridgement of acts of parliament. Hope’s minor practicks. Balfour’s practicks. Stair’s institutions. Stair’s institutions. Stair’s institutions. compendium of Gibson’s reports. Wallace’s repertory. compendium of Gibson’s reports; abridgement of acts of parliament; instructions to commissaries. collection of materials on Scots law. epitome of Craig’s de feudis. Bisset’s rolment of courtis; epitome of Craig’s de feudis; abridgement of acts of parliament; compendium of Gibson’s reports. Mackenzie’s treatise on criminal law. catalogue of lords of session. Gibson’s reports. Gibson’s reports. King’s treatise on maritime law. Gibson’s reports.

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Bibliography 575 Glasgow University Archives (GUA) GUA 26621 GUA 58142 GUA 58266

faculty meeting minutes. correspondence. correspondence.

Glasgow University Library (GUL) Gen 11 Gen 1020 Gen 1230 Gen 1262 Gen 1470 Gen 1495 Hamilton 97 Hunter 617 Hunter 618 (S 7.11) Murray 62 Murray 72 Murray 183 Murray 274 Murray 518 Murray 519 Murray 520 Murray 539 Murray 583 Murray 585 Murray 631 Murray 648 Murray 653 Murray 654

Stair’s form of process. Hope’s major practicks. Wallace’s repertory. Baird’s reports. Spotiswoode’s practicks; Gibson’s reports; instructions to commissaries. Stair’s institutions. epitome of Craig’s de feudis. Hope’s minor practicks. Stair’s form of process. index of missing processes. compendium of Gibson’s reports. epitome of Stair’s institutions. abridgement of books of sederunt. Wallace’s repertory. Spotiswoode’s practicks. epitome of Craig’s de feudis. Hope’s major practicks. Gibson’s reports Gibson’s reports; compendium of Gibson’s reports. Wallace’s repertory. Gibson’s reports. Gibson’s reports. Gibson’s reports.

Harvard Law School Library (HLS) AHZ 6947

Stair’s institutions.

Mitchell Library (ML) Baillie’s 39607 SR 155/M20636 SR 161/75574 SR 175/115544 SR 175/124141 SR 175/187629 SR 175/187630 SR 175/187631 SR 175/187632 SR 175/187633 SR 175/187634 SR 175/187635 SR 177/549135

epitome of Craig’s de feudis. Stair’s form of process. epitome of Stair’s institutions. epitome of Craig’s de feudis. Stair’s institutions and form of process. epitome of Craig’s de feudis. notes on Stair’s institutions. Hope’s major practicks. Spotiswoode’s practicks. Scot’s true relation. abridgement of acts of parliament. Wallace’s repertory. index of Craig’s de feudis.

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576 Bibliography National Archives of Scotland (NAS) CS 1/4–5 CS 1/6/1 CS 1/7 CS 7/530–556 CS 7/557–607 CS 8/23–30 CS 12/1 CS 15/284–98 CS 15/499 CS 49/3/5 CS 98/101 GD 1/520 GD 6/2171 GD 6/2172 GD 16 GD 18/5634 GD 25/8/448–9 GD 26 GD 28 GD 30/2126 GD 45/26/62 GD 86 GD 100/318 GD 135 GD 135/171 GD 137 GD 157/1657 GD 160/529 GD 205 GD 406 PA 7/9–10 RH 13/58 RH 13/65 RH 13/66 RH 13/68

books of sederunt. books of sederunt. books of sederunt. acts and decreets of lords of session. acts and decreets of Interregnum court. general minute book of Interregnum court. minute book of Interregnum court processes of Interregnum court. processes of Restoration court. clerk’s style book. process of 1654 case. Stair correspondence. Hope’s minor practicks. instructions on legal study. Airlie muniments. Stair’s form of process. instructions to Stair and Wallace. Leven and Melville papers. Yester writs. criticism of Lauderdale’s administration. Stair’s institutions. Fraser papers. anonymous practicks. Stair muniments. Stair’s institutions. Scrymgeour-Wedderburn muniments. criticism of Lauderdale’s administration. Drummond Castle papers. Biel muniments. Hamilton papers. parliamentary records. Stair’s institutions. style book. Stair’s form of process. style book; compendium of reports by Sinclair and Maitland.

National Library of Scotland (NLS) Acc 11941 Adv MS 6.1.3 Adv MS 6.1.2 Adv MS 6.2.1 Adv MS 6.2.2 Adv MS 6.2.3 Adv MS 6.2.5 Adv MS 6.2.7 Adv MS 6.2.8–9

Stair’s form of process; abridgement of acts of parliament. Gibson’s reports. Hope’s major practicks. notes on admiralty practice. epitome of Stair’s institutions. abridgement of acts of parliament. case notes by Hope. compendium of Haddington’s practicks. Hope’s notes on Corpus iuris civilis.

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Bibliography 577 Adv MS 6.2.11 Adv MS 6.2.13 Adv MS 6.2.15–16 Adv MS 6.2.19 Adv MS 17.1.9 Adv MS 19.3.45 Adv MS 22.2.11 Adv MS 22.3.4 Adv MS 22.6.12 Adv MS 24.1.3 Adv MS 24.1.4 Adv MS 24.1.5 Adv MS 24.1.9 Adv MS 24.1.12 Adv MS 24.2.1 Adv MS 24.2.2 Adv MS 24.2.3 Adv MS 24.2.10 Adv MS 24.3.1 Adv MS 24.3.2 Adv MS 24.3.3 Adv MS 24.3.9 Adv MS 24.4.1–2 Adv MS 24.4.8–13 Adv MS 24.4.14 Adv MS 24.5.7 Adv MS 24.6.4–8 Adv MS 25.1.5 Adv MS 25.1.7–10 Adv MS 25.1.11 Adv MS 25.1.12 Adv MS 25.1.13–14 Adv MS 25.2.3 Adv MS 25.2.5 Adv MS 25.2.7 Adv MS 25.2.11 Adv MS 25.3.2–3 Adv MS 25.3.5 Adv MS 25.4.1–2 Adv MS 25.4.5 Adv MS 25.4.17 Adv MS 25.5.3 Adv MS 25.5.13(ii) Adv MS 25.5.14 Adv MS 25.6.1–2 Adv MS 25.6.13

case notes by Hope. Mackenzie of Tarbat’s reports. Lauder’s notebooks. Stair’s decisions. Scot correspondence. comparison of Scottish and Roman senators. style book; compendium of Auchinleck’s reports. practicks of Sinclair, Maitland and Colvil; Haddington’s practicks. abridgement of books of sederunt. Hope’s major practicks; Wallace’s repertory; compendium of Gibson’s reports. practicks of Sinclair, Maitland and Colvil; Spotiswoode’s practicks. practicks of Sinclair, Maitland and Colvil. Spotiswoode’s practicks; Baird’s index; Nisbet’s reports. Baird’s reports; Wedderburn’s reports. Haddington’s practicks. Gibson’s reports. amalgamation of practicks etc. Stair’s institutions. reports of decisions of Interregnum court. Wallace’s repertory. Nicolson’s reports. Lockhart’s reports. Lauder’s reports. Gibson’s reports. compendium of Gibson’s reports. Gibson’s reports. Spotiswoode’s practicks. Stair’s institutions. Stair’s institutions. Stair’s institutions; Mackenzie of Tarbat’s reports. Stair’s institutions and form of process. Stair’s institutions. abridgement of books of sederunt; instructions to commissaries. abridgement of books of sederunt. abridgement of books of sederunt. Mackenzie’s treatise on actions. Stair’s institutions. abridgement of books of sederunt. Craig’s de feudis. abridgement of acts of parliament and books of sederunt; compendium of Gibson’s reports. Stair’s institutions. abridgement of acts of parliament; instructions to commissaries. Gibson’s reports. Gibson’s reports. epitome of Craig’s de feudis. abridgement of acts of parliament.

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578 Bibliography Adv MS 25.7.1 Adv MS 25.7.2–3 Adv MS 25.7.5 Adv MS 25.7.9 Adv MS 25.7.10 Adv MS 25.7.17 Adv MSS 27.2.1–5.3 Adv MS 28.3.8–9 Adv MS 28.3.14 Adv MS 28.4.7 Adv MS 29.3.6 Adv MS 29.3.13 Adv MS 31.2.11 Adv MS 31.6.19 Adv MS 31.7.7 Adv MS 31.7.13 Adv MS 34.2.4 Adv MS 36.1.15 Adv MS 81.1.1 MS 168 MS 577 MS 597 MS 943 MS 1393 MS 1943 MS 1948 MS 1950 MS 2695 MS 2696 MS 2955 MS 2712 MS 2763 MS 2793 MS 2818 MS 2933 MS 2935 MS 2940 MS 2941 MS 3060 MS 3171 MS 3172 MS 3582–3 MS 3721 MS 5050 MS 5058 MS 5344–5 MS 5411 MS 5433

style book. abridgement of books of sederunt. abridgement of acts of parliament. Stair’s form of process. notes on Stair’s institutions. Campbell’s reports. Lauder’s collection of informations. Home’s reports. epitome of Craig’s de feudis; epitome of Stair’s institutions. King’s treatise on maritime law. papers relating to writers to signet. Wedderburn’s reports. notes on Stair’s institutions. description of Edinburgh. Mackenzie’s discourse on the three unions. Mackenzie’s discourse on the three unions. Scot’s inventory of charters. Macgill’s reports. Stair’s decisions; instructions to commissaries. abridgement of books of sederunt. Watson collection. collected correspondence. Wallace’s repertory. Munro papers. Mackenzie of Tarbat’s reports; Stair’s decisions. King’s treatise on maritime law. epitome of Craig’s de feudis. compendium of Gibson’s reports. Gibson’s reports. collected correspondence. Spotiswoode’s practicks. Hamilton’s treatise on criminal procedure. Hamilton’s treatise on criminal procedure. writer’s style book. Spotiswoode correspondence; instructions to commissaries. case notes by Hope. manual on procedure. Balfour’s practicks. instructions to commissaries. Wallace’s repertory. Stair’s institutions. Spotiswoode papers. Stair’s institutions. Kincardine correspondence. Stair’s institutions. Gibson’s reports. Ker correspondence. Haddington’s practicks.

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Bibliography 579 MS 5434 MS 5435 MS 5437–8 MS 5447 MS 6306 MS 6406 MS 6505 MS 7003–4 MS 7023–5 MS 7032–3 MS 7034 MS 7116 MS 7137 MS 8490 MS 9248 MS 9375

Stair’s institutions. compendium of Gibson’s reports. epitome of Craig’s de feudis. pedigree of house of Fernieherst. Newbyth library catalogue. Wedderburn papers. Gosford library catalogue. Tweeddale correspondence. Tweeddale correspondence. Tweeddale papers. criticism of Lauderdale’s administration. Stair’s institutions. index of decisions. treatise on Scots civil law. epitome of Craig’s de feudis. criticism of Lauderdale’s administration.

Public Record Office (PRO) PRO 31/3/120–24 SP 14/27 SP 25/138 SP 29/233 SP 29/271 and 278–90 SP 104/176

Baschet transcripts. records of English privy council. minutes of committee for Scottish affairs. minutes of commission for trade. Williamson’s journals. minutes of foreign affairs committee.

Signet Library (SL) MS 13 MS 15 MS 16 MS 20 MS 28 MS 32 MS 33 MS 36 MS 47

Haddington’s practicks. style book. Stair’s institutions. epitome of Craig’s de feudis; Haddington’s practicks. compendium of Gibson’s reports. Stair’s institutions. Stair’s institutions. Nicolson’s reports. epitome of Craig’s de feudis.

Staffordshire Record Office (SRO) D1287/18/3

Bridgeman correspondence.

Electronic Sources www.special.lib.gla.ac.uk/teach/scotslaw/practiques www.special.lib.gla.ac.uk/manuscripts www.uni.leipzig.de/~jurarom/scotland/dat/sinclair www.nls.uk/digitallibrary/map/early/blaeu

Maitland’s practicks. catalogue of manuscripts. Sinclair’s practicks. Blaeu’s atlas.

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Page 580

580 Bibliography Primary Printed Sources Aberdeen Council Letters, ed LB Taylor, 6 vols, (Oxford, 1942–61). An Accompt of Scotlands Grievances by Reason of the Duke of Lauderdales Ministrie, Humbly Tendred to His Sacred Majesty (np, [1674]). An Account of the Proceedings of the Estates in Scotland, 1689–90, ed EWM Balfour-Melville, 2 vols (Edinburgh, 1954–5). Acta dominorum concilii: Acts of the Lords of Council in Civil Causes, 1496–1501, ed G Neilson and H Paton (Edinburgh, 1918). Act for Regulating of Prices and Processes (Edinburgh, 1652). The Actis and Constitutiounis of the Realm of Scotland, ed Edward Henryson (Edinburgh, 1566). Acts and Ordinances of the Interregnum, ed CH Firth and RS Rait, 3 vols (London, 1911). Acts of Sederunt of the Lords of the Session, Past since February 1681 (Edinburgh, 1691). The Acts of Sederunt of the Lords of Council and Session (Edinburgh, 1740). The Acts of Sederunt of the Lords of Council and Session, 2 vols (Edinburgh, 1790–1811). Acts of the Lords of Council in Public Affairs, 1501–54, ed RK Hannay (Edinburgh, 1932). The Acts of the Parliaments of Scotland, ed T Thomson and C Innes, 12 vols (Edinburgh, 1814–75). An Address Sign’d by the Greatest Part of the Members of the Parliament of Scotland, and Deliver’d to His Majesty at Hampton-Court, the 15th Day of October, 1689 (np, nd). Albericus de Rosate, Vocabularius utriusque iuris longe castigatissimus (Paris, 1525). Album studiosorum academiae Lugduno-Batavae, 1575–1875 (The Hague, 1875). Andreas Alciatus, Opera omnia, 4 vols (Frankfurt, 1617). William Alexander, Medulla historiae Scoticae (London, 1685). The Annandale Family Book, ed W Fraser, 2 vols (Edinburgh, 1894). An Answer of the Purchasers of the Lands, Late of Sir John Stawell, by Act of Parliament, Exposed to Sale for His Treason (London, 1654). The Antiquity of Englands Superiority over Scotland (London, 1652). Thomas Aquinas, Summa theologiae, ed T Gilby, 60 vols (London, 1964–76). The Complete Works of Aristotle, ed J Barnes, 2 vols (Princeton, 1984). The Right Honourable the Earl of Arlington’s Letters, 2 vols (London, 1701). Articles, for Regulating of the Judicatories (Edinburgh, 1670). Res gestae divi Augusti, tr PA Brunt and JM Moore (Oxford, 1967). Bernard Automne, La conference du droict françois avec le droict romain (Paris, 1610). The Letters and Life of Francis Bacon, ed J Spedding, 7 vols (London, 1857–61). —— The Union of the Two Kingdoms of Scotland and England: or, The Elaborate Papers of Sir Francis Bacon (Edinburgh, 1670). —— The Works of Francis Bacon, ed J Spedding, RL Ellis and DD Heath, 7 vols (London, 1857–61). The Letters and Journals of Robert Baillie, ed D Laing, 3 vols (Edinburgh, 1841–2). Sir John Baird of Newbyth, ‘Minutes of the Transactions in the Business of the Union of the Two Kingdoms’, in Sir George Mackenzie of Rosehaugh, Memoirs of the Affairs of Scotland from the Restoration of King Charles II (Edinburgh, 1821), p 193. [Walter Balcanquhal], A Large Declaration Concerning the Late Tumults in Scotland (London, 1639). Colin, earl of Balcarres, Memoirs Touching the Revolution in Scotland, 1688–90 (Edinburgh, 1841).

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Bibliography 581 Baldus de Ubaldis, Commentaria super Codicem, 4 vols (Venice, 1500). —— Commentaria super Decretalibus (Lyons, 1551). —— Consilia, 2 vols (Brescia, 1490–1). —— In usus feudorum commentaria doctissima (Lyons, 1585). Sir James Balfour of Denmylne, Historical Works, ed J Haig, 4 vols (Edinburgh, 1824–5). The Practicks of Sir James Balfour of Pittendreich, ed PGB McNeill, 2 vols (Edinburgh, 1962–3). The Bannatyne Miscellany, ed D Laing, 3 vols (Edinburgh, 1827–55). Eguinarius Baro, Opera omnia, 3 vols (Paris, 1562). Bartolus de Sassoferrato, Opera omnia, 5 vols (Lyons, 1523). The Coutumes de Beauvaisis of Philippe de Beaumanoir, tr FRP Akehurst (Philadelphia, 1992). 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, ed M Townley (Edinburgh, 1990). The Holy Bible: Authorized King James Version (Cambridge, nd). A Bibliography of Royal Proclamations of the Tudor and Stuart Sovereigns, ed R Steele, 2 vols (Oxford, 1910). Habakkuk Bisset’s Rolment of Courtis, ed PJ Hamilton-Grierson, 3 vols (Edinburgh, 1920–6). Adam Blackwood, Adversus Georgii Buchanani dialogum, De iure regni apud Scotos, pro regibus apologia (Paris, 1588). Joan Blaeu, Escosse, qui est le xii livre de l’Europe (Amsterdam, 1662). —— Theatrum orbis terrarum, sive atlas novus, vol 5 (Amsterdam, 1654). Jean Bodin, Method for the Easy Comprehension of History, tr B Reynolds (New York, 1966). —— The Six Bookes of a Commonweale, tr Richard Knolles (London, 1606). Hector Boece, The Chronicles of Scotland, tr John Bellenden, 2 vols, (Edinburgh, 1938–41). Ioannes Fridericus Boeckelmannus, Commentariorum in Digesta Iustiniani imperatoris libri xxvii (Utrecht, 1694). Boethius, De topicis differentiis, tr E Stump (Ithaca, NY, 1978). Nicolas Bohier, Decisiones Burdegalenses (Lyons, 1566). Laurent Bouchel, La bibliotheque ou thresor du droict français (Paris, 1615). Jean Bouguier, Arrests de la cour decisifs de diverses questions, tant en droict, que de coustume, prononcez en robbes rouges, ou donnez sur procez partis, et autres (Paris, 1634). A Breviate of the State of Scotland in Its Government, Supream Courts, Officers of State, Inferiour Officers, Offices, and Inferiour Courts, Districts, Jurisdictions, Burroughs Royal, and Free Corporations (London, 1689). Sir Orlando Bridgman’s Conveyances (London, 1682). The Diary of Alexander Brodie of Brodie, 1652–80, ed D Laing (Edinburgh, 1863). MP Brown, (ed), Supplement to the Dictionary of Decisions of the Court of Session, 5 vols (Edinburgh, 1826). John Bruce, Report on the Events and Circumstances which Produced the Union of England and Scotland, 2 vols (London, 1799). George Buchanan, A Dialogue on the Law of Kingship among the Scots, ed and tr RA Mason and MS Smith (Aldershot, 2004). —— The History of Scotland, tr J Aikman, 2 vols (Glasgow, 1827). —— Rerum Scoticarum historia (Aberdeen, 1762). Philibert Bugnyon, Legum in omnibus Galliae praetoriis abrogatarum libri tres (Lyons, 1574).

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582 Bibliography The Bulstrode Papers (np, 1897). Gilbert Burnet, The Life and Death of Sir Matthew Hale (London, 1682). —— The Memoirs of the Lives and Actions of James and William, Dukes of Hamilton and Castleherald (London, 1838). —— Bishop Burnet’s History of His Own Time, 2 vols (London, 1840). —— A Supplement to Burnet’s History of My Own Time, ed HC Foxcroft (Oxford, 1902). G Burnett, The Family of Burnett of Leys (Aberdeen, 1901). Diary of Thomas Burton, 4 vols, ed J Towill (London, 1828). David Calderwood, The True History of the Church of Scotland (np, 1678). Calendar of the Manuscripts of the Most Honourable the Marquess of Salisbury, pt 19, Historical Manuscripts Commission (London, 1965). Calendar of State Papers (Domestic Series), 1649–60, 13 vols, ed MAE Green (London, 1875–86). Calendar of State Papers (Domestic Series), 1668–69, ed MAE Green (London, 1894). Calendar of State Papers (Domestic Series), 1670, ed MAE Green (London, 1895). Calendar of State Papers (Venetian Series), ed R Brown, GC Bentinck, HF Brown and AB Hinds, 40 vols (London, 1864–1947). Ioannes Calvinus, Lexicon iuridicum (Frankfurt, 1600). William Camden, Britain, or A Chorographicall Description of the Most Flourishing Kingdomes, England, Scotland, and Ireland, and the Ilands Adjoyning, out of the Depth of Antiquitie, tr Philemon Holland (London, 1610). —— Britannia (London, 1607). —— Gulielmi Camdeni, et illustrium virorum ad G Camdenum, epistolae, ed Thomas Smith (London, 1691). Cases Concerning Equity and the Courts of Equity, 1550–1660, ed WH Bryson, 2 vols (London, 2001). Cassiodori senatoris Institutiones, ed RAB Mynors (Oxford, 1937). Paulus Castrensis, Opera, 4 vols (Lyons, 1548). A Catalogue of the Graduates in the Faculties of Arts, Divinity and Law of the University of Edinburgh (Edinburgh, 1858). A Catalogue of the Excellent and Rare Books, to Be Sold by Way of Auction the 24th Day of July, Which Was the Library of the Late Lord Dirltoun (Edinburgh, 1690). Catalogus bibliothecae publicae Lugduno-Batavae (Leiden, 1674). Catalogus librorum instructissimae bibliothecae nobilis cuiusdam Scoto-Britanni (London, 1688). Paul Challine, Methode generale pour l’intelligence des coustumes de France (Paris, 1666). David Chalmers of Ormond, Histoire abbrégée de tous les roys de France, Angleterre, et Escosse (Paris, 1579). Peter Chamberlin, Legislative Power in Problemes (London, 1659). [Richard Chandler], The History and Proceedings of the House of Commons from the Restoration to the Present Time, 13 vols (London, 1742–3). Chaos: or, A Discourse wherein Is Presented to the View of the Magistrate, and All Others who Shall Peruse the Same, a Frame of Government by Way of a Republique. (London, 1659). Barthélemy de Chasseneuz, Consuetudines ducatus Burgundiae (Cologne, 1616). Jean Chenu, Cent notables et singulieres questions de droict, decidees par arrests memorables des cours souveraines de France (Paris, 1603). René Chopin, De legibus Andium municipalibus libri tres (Paris, 1600).

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Bibliography 583 Cicero, De finibus, tr H Rackham (Cambridge, Mass, 1931). —— De lege agraria, tr JH Freese (Cambridge, Mass, 1930). —— De inventione, De optimo genere oratorum and Topica, tr HM Hubbell (Cambridge, Mass, 1949). —— De officiis, tr W Miller (Cambridge, Mass, 1913). —— De oratore I–II, tr EW Sutton and H Rackham (Cambridge, Mass, 1942). —— De oratore III, De fato, Paradoxa Stoicorum and De partitione oratoria, tr H Rackham (Cambridge, Mass, 1942). —— De re publica and De legibus, tr CW Keyes (Cambridge, Mass, 1928). —— Pro T Annio Milone, tr NH Watts (Cambridge, Mass, 1931). The Clarke Papers, ed CH Firth, 4 vols (London, 1891–1901). Code Louis, 2 vols (Milan, 1996). Codex Iustiniani, in Corpus iuris civilis (1559). Sir Edward Coke, The First Part of the Institutes of the Laws of England (London, 1633). —— The Second Part of the Institutes of the Laws of England (London, 1642). —— The Third Part of the Institutes of the Laws of England (London, 1648). —— The Fourth Part of the Institutes of the Laws of England (London, 1648). —— The Reports of Sir Edward Coke, ed JH Thomas and JF Fraser, 6 vols (London, 1826). William Cole, A Rod for the Lawyers (London, 1659). The Compleat Clark, and Scriveners Guide (London, 1655). Confusion Confounded: or, A Firm Way of Settlement Settled and Confirmed (London, 1654). Franciscus Connanus, Commentariorum iuris civilis libri x (Lyons, 1566). Consilia excellentissimorum virorum utriusque Rafaelis (Brescia, 1490) Constitutio Deo auctore and Constitutio Tanta, prefixed to Justinian’s Digest. Constitutio Imperatoriam, prefixed to Justinian’s Institutes. Consuetudines infrascriptarum civitatum, et provinciarum Galliae: Bituricensis (Nicolai Boerii), Aurelianensis (Pyrrhi Englebermei), Turonensis (Ioannis Sainsonii) (Frankfurt, 1598). Les oeuvres de maistre Guy Coquille, 2 vols (Bordeaux, 1703). Corpus iuris civilis, with Glossa ordinaria, 5 vols (Paris, 1559). Ioannes Arnoldus Corvinus, Digesta per aphorismos strictim explicata (Amsterdam, 1642). —— Digesta per aphorismos strictim explicata (Amsterdam, 1664). The Court Leet Records of the Manor of Manchester, 12 vols, ed JP Earwater, (Manchester, 1884–90). John Cowell, Institutiones iuris Anglicani ad methodem et seriem Institutionum imperialium compositae et digestae (Cambridge, 1605). —— The Institutes of the Laws of England, tr WF (London, 1651). —— The Interpreter: or Booke Containing the Signification of Words (Cambridge, 1607). Thomas Craig of Riccarton, Ius feudale tribus libris comprehensum (Edinburgh, 1655). —— Ius feudale tribus libris comprehensum, ed J Baillie (Edinburgh, 1832). —— The Jus Feudale, 2 vols, tr JA Clyde (Edinburgh, 1934). —— Concerning the Right of Succession to the Kingdom of England (London, 1703). —— Scotland’s Soveraignty Asserted, tr George Ridpath (Edinburgh, 1695). —— De unione regnorum Britanniae tractatus, tr CS Terry (Edinburgh, 1909). The Writings and Speeches of Oliver Cromwell, ed WC Abbott, 4 vols (Cambridge, Mass, 1937–47). The Cromwellian Union, ed CS Terry (Edinburgh, 1902). Iacobus Cuiacius, Opera, 4 vols (Lyons, 1614).

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584 Bibliography Curiosities of a Scots Charta Chest, 1600–1800, ed A Forbes (Edinburgh, 1897). George Dallas of St Martin’s, System of Stiles, as Now Practicable within the Kingdom of Scotland (Edinburgh, 1697). Sir John Dalrymple of Stair, An Account of the Affairs of Scotland, in Relation to Their Religious and Civil Rights (London, 1690). Joos de Damhouder, Praxis rerum civilium (Antwerp, 1569). Sir John Davies, A Discovery of the True Causes Why Ireland Was Never Entirely Subdued nor Brought under Obedience of the Crown of England (London, 1612). —— Le primer report des cases in les courts del roy (Dublin, 1615). —— A Report of Cases and Matters in Law, Resolved and Adjudged in the King’s Courts in Ireland (Dublin, 1762). [Pierre de Belloy] Examen du discours publie contre la maison royalle de France (Paris, 1587). Jean de Cambolas, Decisions notables sur diverses questions du droit, jugées par plusieurs arrests de la cour de parlement de Tolose (Toulouse, 1659). The Decisions of the English Judges, during the Usurpation (Edinburgh, 1762). Claude de Ferrière, Institutiones Iustiniani singulari methodo illustratae et cum iure Gallico collatae (Paris, 1676). Claude-Joseph de Ferrière, La science parfaite des notaires, ou le parfait notaire (Paris, 1758). —— Dictionnaire de droit et de pratique (Paris, 1762). Charles de Grassaille, Regalium Franciae libri duo (Paris, 1545). Bernard de la Roche Flavin, Arrests notables du parlement de Toulouse (Toulouse, 1745). —— Treze livres des parlemens de France (Bordeaux, 1617). Pierre de l’Hommeau, Les maximes generalles du droict françois (Rouen, 1612). Antoine de Lestang, Arrêts de la cour de parlement de Tolose prononcés en robe rouge (Toulouse, 1612). Delitiae poetarum Scotorum huius aevi illustrium, 2 vols (Amsterdam, 1637). Jacques de Montholon, Arrests de la cour prononcez en robbes rouges (Paris, 1629). François Desmaisons, Nouveau recueil d’arrests et reglemens du parlement de Paris (Paris, 1667). Digestum novum, in Corpus iuris civilis (1559). Digestum vetus, in Corpus iuris civilis (1559). Thomas Diplovatatius, ‘Liber de claris iurisconsultis’, ed F Schulz, H Kantorowicz and G Rabotti (1968) 10 Studia Gratiana 1. ‘Discours particulier d’Escosse’, ed PGB McNeill, in D Sellar (ed), Stair Society Miscellany II (Edinburgh, 1984), p 86. John Doddridge, The English Lawyer (London, 1631). Virgil’s Aeneid Translated into Scottish Verse by Gavin Douglas, 4 vols, ed DFC Caldwell (Edinburgh, 1957–64). William Drummond of Hawthornden, The History of Scotland, from the Year 1423 until the Year 1542 (London, 1655). —— Poems, by that Most Famous Wit, William Drummond of Hawthornden (London, 1656). Essays of John Dryden, 2 vols, ed WP Ker (Oxford, 1900). Franciscus Duarenus, Opera omnia (Venice, 1584). Arthur Duck, De usu et authoritate iuris civilis Romanorum (London, 1653). Noel du Fail, Memoires des plus notables et solemnels arrets du parlement de Bretagne (Rennes, 1654). Bernard de Girard, seigneur du Haillan, De l’estat et succez des affaires de France (Paris, 1609).

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Bibliography 585 ‘The Dumfries Burgess Lists’, ed AE Truckell, in Record Text Publications of the Dumfriesshire and Galloway Natural History and Antiquarian Society, vol 1 (Dumfries, 1980), p 67. Charles Dumoulin, Commentaria in Parisienses totius Galliae supremi parlamenti consuetudines (Cologne, 1613). —— Opera omnia, 3 vols (Paris, 1624–5). Scipion du Périer, Questions notables du droit (Grenoble, 1668). Guillaume du Vair, Actions et traictez oratoires, ed R Radouant (Paris, 1911). —— Arrests sur quelques questions notables prononcez en robbe rouge au parlement de Provence (Paris, 1607). EB, A Mite of Affection (London, 1659). Eight and Thirty Queries Propounded (London, 1659). Eighth Report of the Royal Commission on Historical Manuscripts (London, 1881). John Eliot, The Christian Commonwealth: or, The Civil Policy of the Rising Kingdom of Jesus Christ (London, [1659]). [Thomas Egerton, Lord Ellesmere], A Discourse upon the Exposicion and Understandinge of Statutes, ed SE Thorne (San Marino, 1942). —— ‘Lord Chancellor Egertons Observacions upon the Lord Cookes Reportes’, in LA Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge, 1977), p 297. —— ‘The Speech of the Lord Chancellor of England, in the Eschequer Chamber, Touching the Post-Nati’, in LA Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge, 1977), p 202. Englands Safety in the Laws Supremacy (London, 1659). English Reports, 178 vols (London, 1900–32). Epithalamia tria Mariana, ed and tr F Wrangham (Chester, 1837). Collected Works of Erasmus (Toronto, 1974– ). Euripides, Orestes, tr D Kovacs (Cambridge, Mass, 2002). An Exact Relation of the Proceedings and Transactions of the Late Parliament (London, 1654). Extracts from the Council Registers of the Burgh of Aberdeen, 1625–1747, 2 vols, ed J. Stuart (Edinburgh, 1871–2). [Robert Ferguson], The Late Proceedings and Votes of the Parliament of Scotland, Contained in an Address Delivered to the King, Signed by the Plurality of the Members Thereof, Stated and Vindicated (Glasgow, 1689). Thomas Fidell, A Perfect Guide for a Studious Young Lawyer (London, 1654). Fifth Miscellany of the Scottish History Society (Edinburgh, 1933). Sir Henry Finch, Law, or a Discourse Thereof (London, 1627). First Miscellany of the Scottish History Society (Edinburgh, 1893). The First Triple Alliance: The Letters of Christopher Lindenov, Danish Envoy to London, 1668–72, ed W Westergaard (New Haven, 1947). William Forbes, A Journal of the Session (Edinburgh, 1714). Sir John Fortescue, De laudibus legum Angliae, tr SB Chrimes (Cambridge, 1942). James Frese, The Outcry and Just Appeal of the Inslaved People of England [London, 1659]. William Fulbeck, A Parallele or Conference of the Civil Law, the Canon Law, and the Common Law of this Realme of England (London, 1618). —— Fulbeck’s Direction, or Preparative to the Study of the Law (Aldershot, 1987) Andreas Gail, Practicarum observationum, tam ad processum iudiciarium, praesertim imperialis camerae, quam causarum decisiones pertinentium, libri duo (Amsterdam, 1663).

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586 Bibliography William Gery, Proposals for Reformation of Abuses and Subtilties in Practice against the Law (London, 1659). Sir Alexander Gibson of Durie, The Decisions of the Lords of Council and Session (Edinburgh, 1690). Sir John Gilmour of Craigmiller, A Collection of Decisions of the Lords of Council and Session (Edinburgh, 1701). Ranulph de Glanvill, Tractatus de legibus et consuetudinibus regni Angliae (London, 1604). —— The Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill, ed GDG Hall (Oxford, 1965). Jacques Godefroy, Commentaires sur la coustume reformée du pays et duche de Normandie, 2 vols (Rouen, 1626). Ludovicus Gomesius, Commentaria in Regulas cancellariae iudiciales, quae usu quotidiano in curia et foro saepe versantur (Paris, 1554). James Gordon, History of Scots Affairs, 3 vols, ed J Robertson and G Grub (Aberdeen, 1841). Patrick Gordon of Ruthven, A Short Abridgement of Britane’s Distemper, from the Year of God 1639 to 1649, ed J Dunn (Aberdeen, 1844). Dionysius Gothofredus, Praxis civilis, ex antiquis et recentioribus authoribus, Germanis, Italis, Gallis, Hispanis, Belgis, et aliis, qui de re practica ex professo, nulla tamen vel confusa methodo, scripserunt, collecta, 2 vols (Frankfurt, 1591). The Government of Scotland under the Covenanters, 1637–51, ed D Stevenson (Edinburgh, 1982). Gratian, The Treatise on Laws (Decretum, DD. 1–20), with the Ordinary Gloss, tr A Thompson and J Gordley (Washington, 1993). Decretales D Gregorii papae IX (Turin, 1621). George Gregory, A Bakers-Dozen of Plain Down-Right Queries, Harmlesse and Honest (London, 1659). Anchitell Grey, Debates in the House of Commons, from the Year 1667 to the Year 1694, 10 vols (London, 1763). Hugo Grotius, Mare liberum, tr J Brown Scott (New York, 1916). —— ‘Some Less Well Known Works of Hugo Grotius’, ed HF Wright (1928) 7 Bibliotheca Visseriana 131. Petrus Gudelinus, Commentariorum de iure novissimo libri sex (Arnhem, 1639). —— De iure feudorum commentarius (Louvain, 1624). Thomas Gumble, The Life of General Monck (London, 1671). The Memoirs of Henry Guthry (Glasgow, 1747). Edward Hake, Epieikeia: A Dialogue on Equity, ed DEC Yale (New Haven, 1953). John Hall, The Grounds and Reasons of Monarchy Considered, in a Review of the Scotch Story (London, 1651). [Sir Christopher Hatton], A Treatise Concerning Statutes, or Acts of Parliament, and the Exposition Thereof (London, 1677). John Herne, The Law of Conveyances (London, 1658). His Majesties Gracious Letter to His Parliament of Scotland (Dublin, 1681). A History of the Society of Writers to Her Majesty’s Signet (Edinburgh, 1890). Thomas Hobbes, Behemoth, ed F Tönnies (London, 1889). —— A Dialogue between a Philosopher and a Student of the Common Laws of England, ed J Cropsey (Chicago, 1971). —— Leviathan, ed R Tuck (Cambridge, 1991). Sir Roger Hog of Harcarse, Decisions of the Court of Session (Edinburgh, 1757).

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Index Aberdeen, University of, 3, 562 Abernethy, James, 96n Accursius, see Glossa ordinaria acts before answer, 490–2, 511–12, 540–4 acts of parliament, 21–2, 39, 48–9, 76, 130, 137, 164–5, 183–4, 188–90, 204, 207, 211–12, 249–50, 258, 272, 381, 414–15, 436–7, 570 abridgements of, 77, 80–2, 149, 380 citation of, in forensic argument, 15, 131, 147, 181, 292–3, 307–8 citation of, by authors, 71, 84, 207, 249–50, 273–4, 416, 431 editions of, 40, 44, 53, 57, 375–7, 398, 402 effect of, 40–2, 46, 54, 56, 322–3, 428–30, 570 see also desuetude interpretation of, 54, 124–5, 127, 324–8, 473–4 see also Mackenzie, on statutory interpretation listed as source of law, 37, 44, 54, 129, 133, 175, 229, 247–8, 405–6, 443 on law reform, 38, 48, 54–6, 58, 175, 249, 254 requiring use of king’s laws, 190, 274, 277, 294–5, 422, 435, 476–7 see also Craig, on sources of Scots law; Gilmour, abridgement of statutes by; Hope, on sources of Scots law; legislation; Stair, on sources of Scots law; statute law acts of sederunt, 99, 164–5, 181, 183–4, 346, 358, 392, 401 as source of law, 405–6, 428–9, 435, 473–6, 520, 536 consolidating practick, 295, 328–9, 331–4, 432, 437 printing of, 376, 395, 399 admiralty court, 52 advocates academic qualifications of, 3–4, 17, 25, 35, 46, 57, 77–8, 87, 282, 284, 287–8 admission of, 2–7, 282 Faculty of, 65, 69, 71–3, 146, 282 social background of, 5–6, 282–3 Aelius, Sextus, 197 Aeneas, 7, 10, 561 aequitas, see equity aequum et bonum, 386, 393, 423, 481–4, 486, 490, 502, 528, 535, 569

Albericus de Rosate, 125–6, 485–6 Alciatus, Andreas, 486 Alexander II, 459 analogy, 105, 248, 309, 369, 389, 393, 429–30, 438, 502–3, 527, 529, 536–7, 548 see also acts of parliament, interpretation of; Julian, on ordering of legal research ancient law, 102–3, 144, 155, 173, 423, 425–8, 442–6, 547, 570 of Rome, 216–17, 219, 221, 427, 444–5, 526, 535 of Scotland, 23, 55, 128, 133–4, 138–9, 179, 249, 252, 264, 272–3, 421, 427, 429, 438–9, 441, 444–6, 458–65, 471–2, 480, 537, 540, 568 see also old books and acts Anderson, John, 96n Anglo-Norman law, 140–1, 147–8, 256–65, 441, 443, 446, 462–4 see also Craig, on Anglo-Norman law; old books and acts; Skene, on AngloNorman law antiquity of Scottish monarchy, 375, 377, 379, 560–8 Aristotle, 20, 25, 105–7, 126, 176, 197, 468, 514, 537–8 arrêts de règlement, 332, 369 artificial reason, 104–5, 178–9, 411–14, 426–7, 446, 475, 535, 569 Auchinleck, Sir George, of Balmanno, 468, 471n Augustine, 34 Augustus, 534, 559 authors and authority, 31–5 Automne, Bernard, 199–201, 364–5 Bacon, Francis, 175, 369, 464, 470 on legal union, 101–3, 140, 144, 159, 272–3, 449–50, 466 Baird, Sir John, of Newbyth, 288, 323, 390, 452 reports of decisions by, 284–6, 328, 344, 360, 371 Baldus de Ubaldis, 17, 19, 25, 192, 194, 196, 233, 241–2, 311n, 365n, 508 on authority of civil law, 223–5, 267, 278 on authority of Libri feudorum, 226–7, 229, 231–2 Balfour, James, 113n, 115n

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640 Index Balfour, Sir James, of Pittendreich, 43, 327, 382, 517, 562 composition of practicks by, 44, 46, 48, 53, 61, 186 use later made of practicks by, 45n, 60, 80–5, 185, 290, 460, 470–1 see also Hope, use of Balfour’s practicks by; Spotiswoode, use of Balfour’s practicks by Barnard’s Inn, 95 Baro, Eguinarius, 235–6, 278 Bartolus de Sassoferrato, 18, 25, 191, 193–4, 306, 310–11, 365, 485, 508 Bellenden, Sir John, of Auchnoul, 24 Bellenden, Sir Lewis, of Auchnoul, 24n Bellewe, Richard, 154 Bible, 35, 154, 156, 167, 173–4, 176, 189, 276, 388, 413 Bisset, Habakkuk, 52–3, 61–2, 185, 508, 515, 540, 563 Black Acts, 40, 44, 53, 57 Blackwood, Adam, 440n Blaeu press, 28, 550–5, 557–60, 562 Bodin, Jean, 24, 278–9, 432 on authority of civil law, 223–5, 230, 277–8 on sovereignty, 224–5, 230–1, 277–9, 426, 430, 549, 546–6 Boece, Hector, 562–4 Bohier, Nicolas, 193–4, 196, 199, 207, 210, 252–3, 255, 268, 278, 288–9 Bologna, University of, 194 Bolognetus, Albertus, 483 Boniface VIII, 220 Bouchel, Laurent, 198–200, 300 Bouguier, Jean, 363–4 Bourges, University of, 191, 193, 197, 235 Bracton, Henry de, 143 Bradshaw, John, 153 Bridgeman, Sir Orlando, 448–50, 452–3, 455 Brodie, Alexander, of that ilk, 113–14, 115n, 116, 176 Broghill, Lord, 110, 113, 123, 127, 131, 137, 548 Brooke, Sir Robert, 153–4 Brown, James, 113n, 115n Brutus, 561–3 Buccleuch, earl of, 170 Buchanan, George, 46–7, 173, 498, 550, 559, 562, 564 on lords of session, 42, 374, 393–4, 473, 570 Buckingham, duke of, 452, 454 Bulgarus, 192, 206 Bugnyon, Philibert, 211n Burnet, Alexander, of Leys, 35 Burnet, Gilbert, bishop of Salisbury, 36, 287–8 Burnet, Robert, of Crimond, 91, 312, 557 biographical notes on, 35–6, 116, 283 editing of Craig’s Ius feudale by, 75–6, 356–7, 378, 557–60

encouragement of new writing by, 83, 149–50, 208–9, 558–60 on practicks and treatises, 44, 86–7, 209, 379–80 promotion of translatio studii by, 58, 214–15, 518 publication of Ius feudale by, 100, 145–6, 398–9 reading of Ius feudale by, 46–52, 55, 89, 179–81, 239–40 review of legal literature by, 36–46, 52–3, 285–6, 394, 414, 570 Camden, William, 551–3, 557–8, 561–3, 568–9 Cambridge, University of, 94–5, 115n, 143–4 Campbell, Colin, of Aberuchill, 286, 390 canon law, 3–5, 10, 25, 65, 75, 82, 86–7, 140, 142, 147–9, 169–71, 173, 178–9, 181, 194, 196, 198, 219–20, 222, 224–5, 232, 247–8, 255–6, 266, 275, 358, 399–400, 413, 420–1, 461, 463, 476, 484–6, 495 see also Craig, on authority of learned laws; Decretales; Decretum; Hope, on authority of learned laws; Mackenzie, on authority of learned laws; Regulae cancellariae; Stair, on authority of learned laws Capycius, Antonius, 17 Carmichael, James, 60n Challine, Paul, 363, 468 Chalmers, David, 313n, 562–4 Charlemagne, 225, 240 Charles I, 15–16, 40, 91, 187, 550, 555–6 promotion of law reform by, 53–4 attempts to reform session by, 22–3, 183–6 Charles II, 40, 91, 120–1, 168, 378, 386, 389, 391, 423, 555–6 apparent imitation of Louis XIV by, 315–18, 320, 336–8, 341, 373, 447 as ancient monarch, 379, 561–2 promotion of union by, 447, 449, 451 Chenu, Jean, 288, 329 Chopin, René, 468 Cicero, 21, 34, 47–8, 126–7, 176, 233, 484, 528, 531–3, 536 as forensic orator, 26, 362, 365–6, 495 civil law, 13–14, 18–19, 27–8, 38, 65, 86–7, 101, 103, 125–7, 140–1, 169–70, 173, 202–11, 213–14, 223–6, 256, 379–80, 399–400, 400–2, 405, 417–21, 429–30, 445, 460–4, 474–7, 492–3, 510, 516, 518–19, 521–2, 524–32 academic study of, 3–5, 8–10, 40, 57, 99, 146, 178, 182, 190–1 see also advocates, academic qualifications of; mos Italicus; mos Gallicus authority of, in Scotland, 45–6, 131, 133, 143, 181

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Index 641 see also Craig, on authority of learned laws; Hope, on authority of learned laws; Mackenzie, on authority of learned laws; Stair, on authority of learned laws literature, history and sources of, 8–10, 12, 14–17, 29–30, 36–7, 88–9, 216–22 see also Code; Digest; Institutes; Novels use of in England, 94–5, 107, 140–5, 148–9, 290 use of in France, 49–50, 191–200, 211, 223–4, 252–4, 266–7, 270–1, 468 see also Baldus, on authority of civil law; Bodin, on authority of civil law; Dumoulin, on authority of civil law use of in Scotland, 43, 45–6, 49–52, 57–8, 89, 146–7, 150–1, 181, 192–200, 202–6, 209–11, 440, 462–3 Clarendon, earl of, 121–2, 446–8 Clerk, William, 96n Code, of Justinian, 8–10, 37, 44, 47, 219–21, 223 texts cited from, 18, 262, 299, 305, 311, 325, 482, 507 use of in forensic argument, 147, 202, 492 Coke, Sir Edward, 102–3, 371, 434–5, 438, 446, 464, 470, 570 on character of common law, 104–4, 142, 178, 366–9, 408–13, 417, 421, 427 on ecclesiastical law, 147, 149 on sources of law, 273, 443, 568 references to, 112, 154–7, 169, 171, 179, 449 College of Justice, 1–2, 6–7, 316–17 as conciliar court, 316–17, 434, 437, 473, 504–5 as scribal community, 60–1, 403–4 procedure in, 95–6, 109–11, 113–14, 123–4, 168–9, 172, 336–7, 507–15 see also acts before answer; Hope, on court procedure; Mackenzie, on court procedure; procedural manuals; Skene, procedural manual by; Stair, on court procedure viewed as senate, 37, 42, 236, 312, 319–21, 327 see also parlement, of Paris, as model for session Colvil, Alexander, of Wemyss, 43, 202–4, 207, 210, 471 commissary courts, 10, 52, 75, 284–5 commissioners for the administration of justice, 121, 152, 284, 568–9 appointment and practice of, 93–6, 98–101, 108–16, 330–1, 333, 542–4 decisions of, 111, 121–5, 127–8, 131–2, 134, 138–9, 146–7, 284, 328, 330–1, 333, 540, 558 see also Lawrence, recollections of judicial experience by

common law, 26, 189, 427–8, 445–6, 461 civil law as, 9, 125–6 feudal law as, 16, 216–17 ius naturale et gentium as, 13, 19, 26, 125, 228 learned laws as, 18–19, 85, 128–32, 140–51, 213, 274, 281 of Britain, 97, 101, 139–40, 145, 160, 168, 170–1, 180, 443 of England, 95, 102–8, 112, 126–7, 132–3, 137, 151, 153, 158, 170, 442 of France, 253, 267–72, 281, 441–2 of Ireland, 133, 179 of Scotland, 132–5, 138–9, 148, 180, 252, 259, 273, 281, 296, 398, 441 see also ancient law; civil law; English law; fundamental law commonplace books, 209 communis patria, 228, 309, 312 compilation, 47, 209, 404 conjointure, 198–200, 210 Connanus, Franciscus, 278, 432–3, 438 Conrad II, 17, 227 consensus, 416–17, 430, 534, 539 learned, 4, 25–6, 205, 397–8, 496 popular, 296, 309, 335, 341, 396, 406, 420 see also Julian consilia, 9, 17, 191–3, 354, 366, 369–70 conquest theory, 102–4, 112, 118, 122 Constantine, 18 Contius, Antonius, 191 Cook, John, 151–2, 160 Coquille, Guy, 268–71, 349, 363, 366 Corvinus, Ioannes Arnoldus, 65 Cotton, Sir Robert, 553 council of state, 92, 100, 108–10, 112–14, 119–20, 136–8, 162–4, 555 Cowell, John, 143–5, 154, 188n, 271 Craig, Thomas, 148–9, 209n, 236–9, 531 De hominio by, 140, 563, 565–6 De iure successionis by, 564–5 De unione regnorum Britanniae by, 140, 144–5, 563, 566 Ius feudale by: epitomes of, 74–6, 80–2, 122, 247, 404 preface to, 46–7, 59, 378, 466 publication of, 28, 36–7, 48–9, 150–1, 179–81 references to, 24, 82–3, 149–50, 170, 206–8, 211–12 writing of, 53, 55 on authority of learned laws, 222–33, 254, 256, 267, 276, 278, 440–1, 446 on ius naturale et gentium, 177–8, 222, 228–30, 261–2, 494, 565–6 on judicial decisions, 224–5, 312, 319, 370–1 on legal history, 50–1, 140–1, 217–18, 222–3 on Anglo-Norman law, 257–65

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642 Index Craig, Thomas (cont.): on sources of Scots law, 39–2, 272–3, 275, 413–14, 417, 429, 432, 475 see also Burnet, Robert; Hope, use of Craig’s Ius feudale by; Mackenzie, use of Craig’s Ius feudale by; Nisbet, use of Craig’s Ius feudale by; Scot, involvement in publication of Craig’s Ius feudale; Spotiswoode, use of Craig’s Ius feudale by; Stair, emulation of Craig by and use of Craig’s Ius feudale by Cromwell, Oliver, 115, 174, 447, 557 connection of with office holders, 94, 96, 114 conquest of Ireland by, 107, 135 conquest of Scotland by, 91, 101, 135 correspondence with, 110, 113–14, 137, 162 proclaimed protector of Britain, 100, 167, 555 on law reform, 151–2, 159 Cromwell, Richard, 115–17 Cuiacius, Iacobus, 191, 207, 235, 244 Cumming, Alexander, 96n Cunningham, James, 96n Cunningham, Sir John, 345 Curtius, Franciscus, 17, 241, 270, 370n, 460n on authority of Libri feudorum, 226–32 custom, 23–4, 26, 34, 41–2, 53–4, 104, 181, 252–4, 397–8, 419, 455, 497, 537 codification of, 30–1, 255–6 feudal, 17–18, 55, 216–18, 221, 227–8, 233–4, 242–3 forensic, 39–42, 55, 131, 175, 229, 238, 245–6, 248, 259, 272, 299–312, 359–71, 396, 404, 428–9, 472, 480 see also Craig, on judicial decisions; Stair, on forensic custom French, 229, 238, 259, 272, 299–310, 396, 480 Gaelic, 103–4, 132–3, 135 law and, 39–40, 93, 97–8, 102, 116, 130–1, 143, 375, 377, 390, 450 local, 27, 29–31, 34–5, 41, 54–5, 108, 112, 128, 133, 153, 213–14, 230–2 mercantile, 297–8 proof of, 291–9 theory of, 18–19, 407–11, 420, 442 uncontroverted, 131, 133–4, 179, 427, 446, 458, 538 Dallas, George, of St Martins, 517–22, 524, 545 Dalrymple, James, see Stair, first Viscount David I, 37, 39, 48, 56, 249, 461n David II, 556 Davies, Sir John, 104–5, 147–8, 154, 228, 370 on character of common law, 142, 366–7, 408–13, 417, 421, 438, 446 on Irish law, 103–4, 132–3, 179 debts, recovery of unpaid, 160–6, 174, 331, 333–4, 423, 488–90, 519 de Cambolas, Jean, 349

de Chasseneuz, Barthélemy, 194, 210, 252–3, 278 decreets in foro contradictorio, 294, 339–42, 428, 435–7, 500, 503 Decretales, 219–21, 226–7, 291 Decretum, 219–21, 223, 225, 227 de Ferrière, Claude, 502, 517 de la Roche Flavin, Bernard, 320–1, 364, 467–8 de Lestang, Antoine, 329 de l’Hommeau, Pierre, 468 de Montholon, Jacques, 329 de Thou, Christophe, 269 Desborough, Samuel, 114–16 Desmaisons, François, 363 desuetude, 18, 35, 56, 266, 300–1, 310, 417, 474 Scots laws in 40–2, 54, 308, 413, 428–9, 479–80, 533, 570 see also acts of parliament, effect of Dick, Andrew, 96n Dickson, Robert, 451 Digest, of Justinian, 8–10, 37, 44, 219–21, 225, 227, 260, 326, 378, 494, 532, 526 structure of, 47, 143 texts cited from, 25, 291, 299, 305, 308–9, 321, 325, 442, 487, 529, 571 by authors, 19, 64, 125, 197, 255, 364, 464–5, 467–8, 475–6, 482, 488, 507 in forensic argument, 190, 203–4, 275, 492, 359–60, 497 see also Julian disputation, 23–4, 420, 467–8, 472 academic, 4–5, 25–26, 95, 227, 235, 348, 348–9 forensic, 5, 74, 96, 111, 192–7, 236–7, 364–5, 369–70, 385, 420, 504, 510 divine law, 102–5, 156, 158–9, 167–176, 216–18, 496–7 Doddridge, John, 412 Douglas, Gavin, bishop of Dunkeld, 7 n. 33 Downie, William, 111n, 113n, 115n Draco, 223 Drummond, William, of Hawthornden, 555–7, 559 Dryden, John, 287 Duarenus, Franciscus, 191, 235 Duck, Arthur, 142–3, 145 Dumoulin, Charles, 255, 345n, 356, 468 on authority of civil law, 252–4, 277–8 on authority of Libri feudorum, 19, 241–2, 271 on unification of law, 267–8, 272, 281, 269–70, 263–4 du Périer, Scipion, 349, 363 Dutch wars, 122, 446–7, 554 du Vair, Guillaume, 329 Edinburgh, University of, 77, 94 Edward I, 557, 565 Eldred, Nathaniel, 422–3

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Index 643 Elizabeth I, 103 Ellesmere, Lord, 103, 105–6, 126, 173, 368–9, 408, 412, 449, 553n Ellis, John, 96n Elphinstone, Sir William, 188 Empiricus, Sextus, 34 English law, 104–7, 139, 330, 397–8 court procedure under, 539–42 proposed extension of to Scotland, 92–3, 118, 449 proposed union of with Scots law, 97–8, 101–2, 107–8, 133 proposed assimilation of Scots law to, 109–10, 114–15, 117–22, 137–8 reform of, 151–61, 174–5, 433 statutory interpretation in, 126–7, 153 unwritten character of, 408–12, 442–3 see also Anglo-Norman law; Coke, on character of common law; common law, of England; Davies, on character of common law Ennius, 460 equity, 26–7, 107, 118, 132, 146, 152, 160, 169, 173–7, 179, 494, 545–9 and conscience, 27, 95, 97, 101, 107–8, 110, 123, 127, 131–2, 139, 146–7, 159–60, 163, 166, 171–2, 174–6, 190, 541–2, 548–9, 568–9 and expediency, 20–1, 27, 29, 163, 176, 276–8, 310, 418–19, 423, 427, 429, 502, 536–7, 571 constituted, 484, 493, 499, 501, 531, 533, 569 natural, 20, 26–7, 51, 102–6, 108, 173, 175–7, 179, 181, 213–14, 216–18, 222, 229, 232, 239, 389, 399, 406, 412, 418–22, 423–4, 443–6, 491–9, 548 see also divine law; ius naturale et gentium; sovereignty of chancellor, 105–8, 127, 141, 153–4, 157–8, 171–4, 482–4, 525, 546–7 of statute, 126–7, 153, 325, 410, 429, 481 see also aequum et bonum; Mackenzie, on equity; Stair, on equity Euclid, 400–1 Eugenius III, 225 exchequer court, 6, 137 Falconer, Sir David, of Newton, 63n Falconer, Patrick, 96n Fenwick, George, 93n Fergus MacFerchard, 561–3 Ferguson, Robert, 389–93 feudal law, 27–8, 48, 65, 75, 86–7, 140–5, 148–51, 169–70, 173, 181, 207, 212–13, 215–22, 225–6, 228–48, 243–9, 357, 378, 440, 462–3, 495, 531, 564–6 history of, 14–15, 83, 216, 219–21, 225–6

tenure of estates in, 11–12, 16–17, 82–3, 135–6, 138, 151–2, 262 see also common law, feudal law as; custom, feudal; Libri feudorum Finch, Sir Henry, 411–12 Fletcher, Sir Andrew, of Innerpeffer, 49 foreign law, 64–5, 105, 141–2, 208, 218, 255–6, 297, 422–3 of neighbouring nations, 86–7, 228, 244, 246–7, 258, 263–4, 351–2, 377, 379–80, 399–400, 402, 440–1, 464, 535, 567 see also Anglo-Norman law Fortescue, Sir John, 142 Fraser, Patrick, 96n Frederick I, 17, 225, 227, 240 Frederick II, 226–7, 242 French law, 291–2 codification of, 54–5, 241, 266, 441 literature on, 191–200, 214, 252–4, 255–7, 517 see also civil law, use of in France; common law, of France; custom, French; judicial decisions, French; parlements Fulbeck, William, 188n Fulgosius, Raphael, 17 fundamental laws, 133–4, 138, 252, 423–7, 430, 441–5, 456–72, 478, 568 see also ancient law; common law; Mackenzie, on fundamental laws Gaius, 36, 47 Gathelus, 562–3 Gerardus Niger, 225–7, 240 Gibson, Sir Alexander, of Durie, 54, 83–4, 282, 394, 460 compendia of reports by, 74, 77–82, 122, 149, 211, 468–9 decisions reported by, 43, 292–4, 301–3, 327–8, 339–40 influence of on later reporters, 283–6, 371 printing of reports by, 399, 471 references to reports by, 205, 339, 342, 382, 387, 429–30, 433, 436, 478, 519 reporting of decisions by, 43–4, 49, 51, 89, 181 Gilmour, Andrew, 96n, 146, 283, 491 abridgement of statutes by, 77, 82, 84, 86–7, 149–50, 212 Gilmour, Sir John, of Craigmillar, 77, 146, 317–18, 338, 389, 519 reports of decisions by, 283–4, 286, 328 Glanvill, Ranulph de, 37, 39, 143, 148, 173, 367, 442, 445 Glasgow, University of, 6, 10, 26, 28, 68, 81, 182, 400, 455 Glossa ordinaria, 64, 492, 508 glossators, 8–9, 14, 18, 192, 194, 196, 226–7, 243 Godefroy, Jacques, 54, 255–6, 264, 266–7, 271–2, 275–6

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644 Index Gomesius, Ludovicus, 224n, 370, 438, 476 Goodyear, Henry, 98–9, 100, 109, 114, 116, 120 Gordon, George, earl of Aberdeen, 451 Gordon, James, of Rothiemay, 551 Gordon, Robert, of Straloch, 551, 557, 562 Gordon, WM, 65, 275 Grand coutumier, 257, 263, 265 Gratian, 219, 227, 460n Gray’s Inn, 95–6, 99, 101, 110n, 112, 115, 120, 153, 556 Gregory IX, 219 Gudelinus, Petrus, 217n, 242–3

use later made of practicks by, 80, 82–5, 122, 149, 307n, 394, 519 use of Balfour’s practicks by, 250, 264, 272–3, 441 use of Craig’s Ius feudale by, 248–9, 251–2, 273 use of Godefroy’s Commentaires by, 255–6, 266–7, 272 Hope, Sir Thomas, of Kerse, 44–6, 250 Hopkins, Edward, 98n Horace, 198–9, 233, 239–40, 559 Hotomanus, Franciscus, 348–50, 476 Hugolinus, 227

Haddington, earl of, 23–4, 43, 54, 74, 81–2, 84, 184, 211, 382, 468 compendia of practicks by, 79–80 reports of decisions by, 205, 307n, 422, 479 Hake, Edward, 106–7 Hale, Matthew, 158 Hall, John, 556–7 Hamilton, Sir William, of Whitelaw, 350, 380, 404 Harrison, William, 563n Hatton, Sir Christopher, 126, 376n, 483 Hay, Sir Alexander, of Whitburgh, 553 Hay, Sir John, of Lands and Barro, 187–8 Hedley, Thomas, 409–11 Henry II, 39 Henry IV, 425 Henry V, 522 Henry VI, 546 Henryson, Edward, 40, 235n, 398 Heriot, David, 96n Hermes Trismegistus, 223 Hermogenian, 309 Highland, Samuel, 158 Hilkiah, 53 history, writing of, 35–6, 551–2, 555–7, 561–2, 564 Hobbes, Thomas, 426–7, 430, 454n Holinshed, Raphael, 563 Home, Sir Patrick, of Lumsden, 286–7, 360 Hope, Sir Archibald, of Rankeillor, 45n Hope, Sir James, of Hopeton, 97, 99–100, 159–60, 175–6 Hope, Sir John, of Craighall, 45n, 94, 98, 100 Hope, Sir Thomas, of Craighall, 43, 49, 89, 181, 254, 382, 570 major practicks by, 44–5, 53–4, 60, 137–8, 186, 211, 250–2, 307, 327, 332 minor practicks by, 45–6, 82, 213, 244, 275, 285, 517 on authority of learned laws, 266–7, 273–6, 281, 422, 441 on court procedure, 508–9, 511, 540 on sources of Scots law, 248–51, 294–5, 355, 414–17, 420, 502

Iacobus, Petrus, de Aureliaco, 191, 198, 207, 516 Imbert, Jean, 196–200, 255, 300 Institutes, of Justinian, 9–10, 30, 191, 219, 435, 493 as introduction to legal study, 10, 46–7, 400–1, 498–9, 518 texts cited from, 24, 260, 299, 532 used as model, 36–7, 39, 44, 48, 50, 88–9, 143, 271, 377–8, 380, 403, 515–16, 521 Irish law, 103–4, 132–3, 135, 151–2 see also common law, of Ireland; Davies, on Irish law Irvine, Christopher, 557, 561 iudicia contradicta, 291, 311, 415, 442 see also decreets in foro contradictorio ius antiquum, see ancient law ius civile, see civil law ius commune, see common law Ius Flavianum, 30 ius naturale et gentium, 88, 102–4, 481, 497–9 see also common law, ius naturale et gentium as; Craig, on ius naturale et gentium; equity, natural; law of nations; Stair, on ius naturale et gentium ius scriptum, see written law Jaffray, Alexander, 97 James I, 40, 437, 461n, 463, 522, 556–7 James II, 40 James III, 40, 437 James IV, 40, 273, 437 James V, 40, 51, 312, 434, 473, 557 James VI and I, 11, 15, 35, 40, 48–9, 74, 103, 412–13, 457, 465–6, 557, 562 dedication of books to, 46–7, 57, 148, 440 judicial appointments by, 23–4, 182–4 promotion of union by, 101, 140, 145, 168 speech to parliament by, 102, 133–4, 144, 151, 159, 312, 442–3, 463, 553 succession to throne of England by, 552, 564–5 James VII and II, 389, 568 Jansson press, 551–2 Jason de Mayno, 516

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Index 645 Jedburgh, Lord, 74 Jerome, 36 Johnston, Sir Archibald, of Wariston, 35, 114, 115n, 116, 119, 175–6, 209n Josiah, 53 judicial decisions, 9, 19–20, 46, 196–7, 223, 231, 236–8, 310–12, 335, 342–8, 361–71, 388, 395–6 English, 104–5, 132–3, 141, 152–5, 289–90, 292, 330, 366–71 French, 191–7, 199–200, 206, 288–9, 291–2, 299–300, 304–5, 329–30, 349, 362–5, 369–70, 393, 395–7, 441–2 Scottish, 37, 44, 54, 128, 130, 181, 185–6, 213, 282–3, 286–7, 290–1, 374–5, 381, 441, 520 see also commissioners for the administration of justice, decisions of; Craig, on judicial decisions; custom, forensic and proof of; Lauder, on case reporting; Mackenzie, on judicial decisions; practicks; res iudicatae, decisions described as; rota Romana; senatusconsulta, decisions described as; Stair, on sources of Scots law Julian, 18, 29–30, 35, 306, 310, 416–17, 479 on ordering of legal research, 41–2, 227–8, 254, 258, 270, 272, 351–2, 439, 441 Julius Caesar, 562–3 Justinian, 8–9, 12–13, 18, 30, 36–9, 46–8, 52, 242, 252–3, 270, 299, 378, 533, 563 Kenneth I, 262 Kenneth III, 262 Ker, Andrew, 109–10, 112–14, 115n, 116 Ker, Robert, of Crailing, 74, 77–8, 80, 230–1, 247, 265 Ker, Sir Thomas, of Ferniehirst, 74 King, Alexander, 236, 398n Labeo, 529 Lauder, Sir John, of Fountainhall, 318, 332–3, 390, 396, 520, 540 constitutional concerns of, 317, 320, 490–1, 500, 506 notes on forensic practice by, 287–8, 344–5, 350, 373, 376n, 378, 396, 517, 520 on case reporting, 289–90, 471 Lauderdale, duke of, 79n, 284, 317–18, 373–5, 379–80, 389, 391–2, 424, 447–53, 560 law of nations, 26, 64, 118, 144, 189, 298 law of nature, see ius naturale et gentium law reform commissions, 38, 44, 49, 53–4, 175–6, 249–50, 375–6, 441 Lawrence, William, 98, 100, 109, 114, 115n, 116, 176–7, 224, 277, 413, 421, 443–4 recollections of judicial experience by, 166–74, 180, 543–9

Learmonth, Sir James, of Balcomie, 109–10, 112–13 Le Caron, Louis, 199–200, 255, 269–71, 467–8, 501–2, 559 Leges burgorum, 298, 439 Leges Malcolmi Mackenneth, 262, 264, 443, 462–3, 547 legislation, 23, 28, 34–5, 48–9, 53, 186 see also acts of parliament; acts of sederunt; statute law Leiden, University of, 77, 388 Lekprevik, Robert, 40 Leo VI, 244, 263 le Prestre, Claude, 349 Leslie, John, 564 le Vest, Barnebé, 288, 329, 363 lex municipalis, see municipal law Libri feudorum, 12, 14–15, 31, 86, 176, 216–18, 225, 233–4, 256 authority of, 239–46, 446, 252, 261, 265, 273 see also Baldus, on authority of Libri feudorum; Curtius, on authority of Libri feudorum; Dumoulin, on authority of Libri feudorum texts cited from, 16, 18–19, 251 Lilburne, Robert, 161–2, 554 Lincoln’s Inn, 158 Littleton, Edward, 45n Littleton, Sir Thomas, 155–6, 367, 435 Lizet, Pierre, 268–9 Lluyd, Humphrey, 551, 562 Lockhart, Sir George, of Carnwath, 109n, 118, 389 compendium of Gibson’s reports by, 78–80, 82, 84, 86–7, 149–50, 282, 285 composition of own reports by, 78, 282–3, 285 views expressed by, 212, 345, 459–60, 462, 475, 490–1, 519, 540–1, 546 Lockhart, Sir James, of Lee, 78, 282 Lockhart, Sir William, of Lee, 94, 97–100, 109 Loisel, Antoine, 271, 365–6, 468, 559 lords of session, 23–4, 181 appointment of, 23–4, 182–4, 188, 283, 389–90 criticism of, 374–5, 390–1 origins of, 23, 183, 283, 389–90 see also Buchanan, on lords of session; College of Justice Lotharius, 219 Louet, Georges, 288–9 Louis XIII, 314, 468 Louis XIV, 315, 320, 336–8, 341 Loyseau, Charles, 49–50, 58, 198–9 Lycurgus, 222–3 Macbeth, 262, 265 McGill, David, of Cranstonridell, 236

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646 Index McGill, James, of Nether Rankeilor, 24n, 236, 570n Macgill, Robert, of Foord, 543 Mackenzie, Sir George, of Rosehaugh, 338–9, 354, 373–4, 491, 518, 538–9 discourse on Digest by, 402, 463–5, 477–88, 490–1, 494, 533–4, 546 Idea eloquentiae forensis by 290, 494–5 Institutions by, 400–1, 436, 439, 461, 479, 486–7, 493–4, 505–6, 515–16 interaction with Stair by, 400–3, 405, 418, 432–3, 436, 438–9, 503 Ius regium by, 457, 498, 505, 568 Laws and Customes by, 379–81, 400, 423–4, 436, 438, 460–1, 476, 485, 487–8, 496–7, 505–6 Observations by, 317, 380, 401–2, 447, 457–8, 474–7, 479–80, 487–8, 498, 505–6 on authority of learned laws, 476–7, 492–3 on court procedure, 507–8, 514–17, 521–4, 532–4, 546 on equity, 481–90, 493–9 on fundamental laws, 301, 456–65, 568 on judicial decisions, 401–2, 432–3 on parlement as model for session, 313n, 317, 501, 507 on statutory interpretation, 473–80, 570 on union with England, 447, 451, 456–7 Pleadings by, 287–8, 290, 301, 342, 360–1, 380, 458–9, 488, 492–3, 534 treatise on actions by, 462–3, 507–8, 514–17, 523–4, 532–3 Mackenzie, Sir George, of Tarbat, 66, 284, 424n Maecenas, 559 Maitland, Sir Charles, of Hatton, 376n, 548n Maitland, Sir Richard, of Lethington, 43, 84, 203, 207, 210, 290, 382, 470 Malcolm I, 40 Malcolm II, 262–4 Malcolm III, 263–4, 462–3 March, John, 94–5, 98, 142, 147, 149, 166, 176, 371n, 413, 504, 542 on law reform, 152–8, 160–1, 173–4 Martinus, 192, 206 Mary I, 40, 564 Mary II, 436 Mary of Guise, 24 maxims, 133, 140–1, 156, 179, 271, 335, 439, 466–72, 504 examples of, 15, 20–1, 26, 124, 126, 128, 147, 153, 155–6, 161, 172, 176, 178, 211, 239, 290–2, 296, 305, 308–9, 311, 323, 339, 350, 364, 411, 459, 467, 473, 477, 483–4, 490, 504, 539–40, 546 Maxwell, William, 96n Melrose, earl of, see Haddington, earl of memory, 31–2, 49, 56, 58, 193, 209, 242, 383, 387, 394, 397–8, 408, 458

Menteith, earl of, 22 Mercator, Gerard, 551 Mercer, William, 312, 374n Middle Temple, 98 Middleton, earl of, 400 Monck, George, 113, 115, 117, 119–20, 162–3, 449 Monmouth, duke of, 168, 172–3 Montpellier, University of, 191–2 Montrose, marquis of, 188 More, Sir Thomas, 544 Moseley, Edward, 95, 98–100, 109, 114–16, 120, 542 Moses, 216–18, 222–3, 232 mos Gallicus, 9–10, 47–8, 88–9, 191, 194, 199, 210–11, 274, 362, 463, 516, 532 mos Italicus, 9, 18–19, 128–9, 139, 150, 191–2, 194, 196, 205–6, 210, 243, 269, 361n, 419, 439–40, 463, 516, 532 precepts of, 193–4, 234, 236, 239, 252–3, 558 Mudie, Alexander, 561 Muirhead, John, 96n municipal law, 26, 45–6, 104, 129, 143, 252–3, 352, 357, 359, 370n, 408 of Scotland, 19–20, 37–8, 45–6, 128–33, 143, 150, 247, 281, 439–40, 461, 463, 495–7 see also proper law; Skene, on Scots law as municipal law; statute law Murray, Sir Thomas, of Glendook, 375–7, 402 Mynsingerus, Ioachimus, 191, 516 National Covenant, 16, 35, 76, 91, 187, 424–5 National Library of Scotland, 60, 65, 70 natural law, see ius naturale et gentium Naylor, John, 115n Nicolson, Sir Thomas, of Carnock, 84, 469, 471 Nisbet, Sir John, of Dirleton, 212–13, 247, 323, 423, 472, 475, 534, 540 biographical notes on, 75–6, 83, 188, 285–6, 338, 353–5, 373 decisions reported by, 286, 297, 340, 342–4, 346–7, 353, 356–61, 370–1, 394–5 Doubts and Questions by, 348–56, 380, 460, 506, 538 on union with England, 452, 454–5, 457 pleadings as advocate by, 189–90, 274–5, 277, 308, 459–60, 491, 497–8 use of Craig’s Ius feudale by, 250–1, 285 Nisbet, Sir Patrick, 188 nobile officium, 483–90, 505–6, 511, 514–15, 524–30, 532, 540 Norton, John, 551–2 notaries public, 52, 61, 100 Nottingham, Lord, 546n Norvall, George, 80n, 96n Novels, 12, 216–17, 219–20, 226, 242, 263, 350

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Index 647 Obertus de Orto, 14–15, 18, 225–7, 240, 242 old books and acts, 37–40, 46, 53, 57, 128, 130, 181, 204, 207, 211, 228, 248–54, 257–65, 272–3, 398, 414, 461, 463 see also Craig, on sources of Scots law; Hope, on sources of Scots law; Leges burgorum; Leges Malcolmi Mackenneth; Quoniam attachiamenta; Regiam maiestatem; Skene, editing of old books and acts by and on old books and acts; Stair, on sources of Scots law; Statuta Wilhelmi regis Oliphant, George, 45n Oliphant, Sir James, of Newton, 45n Oliphant, Sir William, of Newton, 53–4, 236 opinion, 25, 32, 34, 58, 171, 309, 397, 400, 405–8, 413, 418, 420–2, 430, 438, 460, 467, 512, 516–17 common, 25, 194, 200, 212–13, 236, 240, 242, 244–6, 256, 269–71, 275, 306, 309, 355–6, 367–8, 401, 419, 516 expert, 149, 200, 202–3, 207, 212–13, 244, 270–2, 302, 343–7, 349, 352–6, 362, 405–6, 470, 498, 567 juristic, 8, 29–30, 195, 197, 219, 221, 365, 433, 534–6 learned, 9, 16–17, 24–5, 28, 32, 34–5, 55, 58–9, 105, 200, 212–14, 235–6, 244–6, 256, 276, 379, 419, 498, 534 personal, 33–5, 59, 374, 385, 394, 396, 424 see also artificial reason; consensus Orpheus, 7–8, 11 Ortelius, Abraham, 551, 553, 557–8, 561–3 Overbury, Sir Thomas, 74 Owen, Andrew, 94, 98, 143, 147, 149, 166, 541 Oxford, University of, 94–5, 115n, 142–3, 182 Panormitanus, 306 Pape, Guy, 192–4, 196, 199, 206, 210–11, 224, 255, 278, 288–9, 299–300, 304 Papon, Jean, 195–7, 199, 201, 204, 206, 211, 237, 255, 288–9, 330 Paris, University of, 197 parlements, 196, 209, 237, 314–15, 329–30, 336, 362, 364, 370, 501–2 of Bordeaux, 193 of Dauphiné, 192–3, 300 of Dijon, 194 of Paris, 199, 231, 300, 313–15, 425, 432–3 as model for session, 312–13, 317, 319–21, 473, 507, 553, 415, 437 see also Mackenzie, on parlement as model for session practitioners in, 194–5, 197, 199, 241, 268–9, 349, 365 of Provence, 349

of Toulouse, 224, 231, 349 procedure of, 292, 336–7, 510–13, 546 parliament: English, 100, 111–13, 116–18 Barebone’s, 97–8, 100, 158–9, 162, 166, 176 Long, 92, 97, 118–20, 158, 166, 174 Scottish, 6, 22, 55, 58, 134, 316–17, 414–15, 450–2, 454, 489–90, 500–1, 558 appeals to, 318–19, 390, 416, 431, 435–7, 452, 456, 473, 500, 503 radical (1649), 22, 27, 175–6, 282 Restoration, 121, 315–16 see also acts of parliament Parliament House, 6–7, 61–2, 121, 137, 186, 389, 425, 513 Parsons, Robert, 564 Pasquier, Etienne, 365–6, 559 Paul, 225 Pavia, University of, 191–2, 194, 227 Pearson, Alexander, of Southall, 99–100, 109–10, 112–13, 176 Petrus, Ioannes, de Ferrariis, 191, 198 Pitcairn, Patrick, 69 Plato, 222–3, 482 Plowden, Edmund, 126–7 Plutarch, 222–3, 312 poetry, theory and practice of, 50, 198, 233, 240, 550–1, 555, 559, 564 Poitiers, University of, 197 Pomponius, 30, 197, 433, 526 Pont, Timothy, 28, 550–2 postnati, case of, 102–3, 104–5, 112, 368, 408–9, 411–12, 449 practicks, 42–6, 52–4, 60, 66, 81–2, 123–4, 181–2, 202–6, 208–9, 285 meaning of term, 85–6 see also Baird, reports of decisions by; Balfour, composition of practicks by; Burnet, on practicks and treatises; Gibson, decisions reported by; Gilmour, reports of decisions by; Haddington, reports of decisions by; Hope, major practicks by and minor practicks by; Lockhart, composition of own reports by; Nisbet, reports of decisions by; Spotiswoode, composition of practicks by; Stair, Decisions by and use of case reports by; Wedderburn, reports of decisions by praetor, 219, 482, 506–7, 524–32, 546, 564 see also civil law, literature, history and sources of Pragmatic Sanction of Bourges, 224, 255–6 Prideaux, John, 182 Pringle, Robert, 45n, 63n

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648 Index Pringle, Sir Robert, of Stichel, 45n Pringle, Sir Walter, of Newhall, 45n printing of law books, 48–9, 375–81, 396–9 see also acts of parliament, editions of; acts of sederunt, printing of; Burnet, publication of Ius feudale by; Craig, Ius feudale by, publication of; Gibson, printing of reports by; privy council, publications licensed by; Stair, Decisions by, printing of and Institutions by, printing of privy council, 121, 249, 283, 286, 316–17, 392, 425, 437, 448, 517, 555, 569, 572 acts of, 228, 248, 250 as court of equity, 505–6, 536, 548 lords of session on, 23, 184, 373 publications licensed by, 48–9, 58, 376 procedural manuals, 52, 60, 70–2, 85, 507–8 Prometheus, 222 proper law, 39, 41, 50, 128, 229–31, 233, 239, 247–8, 253, 258, 265, 440 see also municipal law; statute law protocol books, 52, 487 Prynne, William, 413, 454n Publicius, Quintus, 528 Purves, Sir William, 448n Quoniam attachiamenta, 62n, 249, 308, 443, 459–60 Ramsay, James, 96n Rebuffi, Pierre, 197–8, 237 Regiam maiestatem, 44, 46, 48–9, 55, 175, 251–2, 254, 257–65, 398, 442, 445, 461 authority of, 37–41, 249, 273, 429, 438–9, 446, 463 citation of in forensic argument, 131, 224 Regulae cancellariae, 224, 230, 256, 261, 370 res communes, 13, 233, 239–40, 260–1 res iudicatae, 202, 290–1, 339 decisions described as, 195, 224, 237, 305–6, 335, 349, 364 rhetoric, 10, 26–9, 34, 195, 362, 356–7, 383, 387, 395–6, 406, 495, 531, 533 Robert, Anne, 194–5, 199–200, 206, 255, 289, 365 Robert I, 556–7 Robert III, 40 Rochester, Viscount, 74 Rolandinus de Passageriis, 517 rota Romana, 192–3, 224, 237–8, 370 Rothes, earl of, 447–8 Rushworth, John, 98n Sachsenspiegel, 130 St Andrews, University of, 28 St German, Christopher, 106–7, 156–7, 467 Sanderson, William, 550, 557

Saxon law, 129–30, 507 Saxton, Christopher, 552 Scaevola, 225 scepticism, 33–4 Schneidewinus, 516 Scot, Sir John, of Scotstarvet, 21–7, 43, 49, 54, 76n, 81, 170, 175–6, 184, 517 involvement of in publication of Craig’s Ius feudale, 551, 557 promotion of cultural programme by, 27–8, 550–60, 567 Scota, 561–3 Selden, John, 142, 148, 177, 180, 224, 274–5, 277–8, 365, 408–9, 443–4, 446, 549 senatusconsulta, 42–3, 219, 221, 319–21, 526 decisions described as, 195, 223, 237–8, 312–13, 335, 365, 533 Seneca, 528 Seton, Alexander, earl of Dunfermline, 185, 553n Seton, Sir Alexander, of Pitmedden, 332–3 Shakespeare, William, 265 Sharp, John, 237 Sibbald, Sir Robert, 461, 561 sibyl, Cumaean, 7–8, 10 Signorolus de Homodeis, 125 Sinclair, John, 84, 203, 205, 207, 210–11, 239, 382, 470 Sinclair, Sir Robert, 96n, 338, 491 Skene, Sir James, of Curriehill, 184–5 Skene, Sir John, of Curriehill, 150, 180, 184, 413, 516, 519, 544, 549–50, 570 De verborum significatione by, 57–9, 250–1, 256–7, 507 editing of legislation by, 40, 77, 84, 376, 398, 402, 563 editing of old books and acts by, 37–9, 44, 46, 48–9, 53, 130, 256–7, 398, 402 on Anglo-Norman law, 256–7, 262, 264, 272, 443, 462, 464 on old books and acts, 39–40, 56–9, 254, 281, 308, 446 on Scots law as municipal law, 129–30, 148–9, 440–1 procedural manual by, 52, 60, 507–9, 511, 540 use later made of works by, 77, 143, 149, 170–3, 207, 213, 244, 249–50, 459–60 see also Bisset Smith, George, 95, 98–100, 109, 112–15, 542 Snell, John, 455 Solon, 223 Somerset, earl of, 74 sovereignty, 551–2, 554, 560–8 legislative, 34, 55–9, 106, 130, 144, 169–70, 177–8, 219, 221, 223–31, 240, 259, 362, 445–6, 456, 465, 471–2, 498, 546–7, 567, 572

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Index 649 of parlements, 200, 313–15, 320–1, 329–30, 332, 369, 501–2 of session, 315–42, 346, 350–1, 394–6, 416–17, 421–30, 473–4, 499–505, 511, 536–9, 548–9, 569 see also Bodin, on sovereignty Speed, John, 552, 561 Spotiswoode, Alexander, 209n Spotiswoode, John, archbishop of St Andrews, 182–3, 187, 319n, 557 Spotiswoode, Sir Robert, of Pentland, 170, 181–2, 350, 371 availability of practicks by, 53–4, 80–5, 122, 149 biographical notes on, 182–90 composition of practicks by, 185–8, 200–9, 212, 215, 250–1 promotion of translatio studii by, 209–11 trial of, 189–90, 274–5, 277, 352, 454, 497 use later made of practicks by, 244, 307n, 382, 394, 468, 470 use of Balfour’s practicks by, 201, 203–5, 207–12 use of continental works by, 190–6, 200, 206–7 use of Craig’s Ius feudale by, 206–8, 248 use of earlier practicks by, 185–6, 201–6 Stair, first Viscount, 81, 91, 180, 240, 281–2, 353–5, 452, 455–6, 480–1, 490, 519–20 abridgement of books of sederunt by, 332–3 academic theses by, 11, 26 academic qualifications of, 6, 10 Apology by, 1, 391–5, 399 Decisions by: composition of, 286, 333–5, 340–2, 345–8 printing of, 382–9, 393–5, 398–9, 418, 430 reports in, 295, 297, 300–4, 306–8, 316–17, 321–5, 357–61, 491–2 emulation of Craig by, 86–9, 151, 180–1, 214–15, 281, 371, 549–50, 567–8 forensic experience of, 108, 111, 113–17, 120, 283, 338, 373–5, 390–1 Institutions by: manuscripts of, 60–1, 63–9, 74 naming of, 85–9, 176–7 printing of, 1, 60, 168, 376–81, 399–400, 402–3, 418, 560–1 reception of, 403–4 structure of, 71, 87–8, 376–8, 403, 435 writing of, 1, 70–4, 84–5, 121–2, 285, 470–1 lesson presented by, 7–22, 26–9, 176, 217 Modus litigandi by, 70–1, 377, 508–14 on authority of learned laws, 240–6, 254, 275–7, 279, 417–21 on contract law, 213–14 on court procedure, 520–32, 539–40 on equity, 498–9, 502–7

on forensic custom, 306–7, 414–17, 534–9, 548–50 on ius naturale et gentium, 19–20, 86, 218 on property law, 215–17 on sources of Scots law, 273, 407–8, 410, 412–39, 444–6, 473–4, 499–500 response of to appointment of English judges, 567–71 use of case reports by, 65–6, 70–3, 84–6, 404–5, 470–1 use of Craig’s Ius feudale by, 17, 215–22, 240–8, 279, 378–80, 502–3, 566–7 use of Spotiswoode’s practicks by, 213–14 see also Mackenzie, interaction with Stair by Statuta Wilhelmi regis, 439 statute law, 110, 123–32, 137–8, 140–1, 149–50, 222–3, 227–30, 268, 270, 281, 379 see also legislation; municipal law; written law Stawell, Sir John, 166–7 Stewart, Sir James, of Goodtrees, 351–3, 356 Stewart, Sir Lewis, of Kirkhill, 46, 54 style books, 52, 516–18, 522, 530–1, 533 see also writers to the signet stylus curiae, 299–301 Sulpicius, Servius, 197–8 Surdus, Ioannes Petrus, 191 Swinburne, Henry, 188n Swinton, John, of that ilk, 94, 97–100, 109, 114, 115n, 116, 118–19, 127–9, 160 Sylvanus, Laurentius, 236 Terrien, Guillaume, 257, 263, 271–2 Thomson, John, 81, 201 translatio imperii, 51–2, 200, 534, 562 translatio studii, 32, 534, 150–1, 278–9 to France, 49–50, 199–200, 269 to Scotland, 50–1, 57–8, 150, 211–16, 239–40, 549–50, 559–60, 568 see also Burnet, promotion of translatio studii by; Spotiswoode, promotion of translatio studii by Tribonian, 48, 378 Trotter, Robert, 96n Turin, University of, 192, 194 Tweeddale, earl of, 447–9, 452 Ulpian, 29, 225, 291, 299 union with England, achieved in 1707, 465, 571 after the Restoration, 122, 446–56 during the Interregnum, 92–3, 97–8, 109, 111–12, 114, 175, 555 Jacobean project of, 100–2, 465–7, 552–3 see also Bacon, on legal union; Charles II, promotion of union by; Craig, De unione regnorum Britanniae by; English law; James VI and I; Mackenzie, on

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650 Index union with England (cont.): union with England; Nisbet, on union with England Urquhart, Sir Thomas, of Cromarty, 101–2 usus modernus Pandectarum, 9–10, 49, 89, 150–1, 440 Veitch, Thomas, 45n, 96n Virgil, 460, 559 Voet, Paulus, 299 Wallace, Sir Thomas, of Craigie, 81–2, 84, 86–7, 149–50, 211–12, 215, 247–8, 338 Wallace, William, 556 Walter Lucy, 168 Ward, Richard, 96 Watson, A, 71, 276, 400–1, 403 Watson, Daniel, 115n Wedderburn, laird of, 128 Wedderburn, Sir Peter, of Gosford, 288, 338, 451, 469 reports of decisions by, 286, 294–5, 297, 328–9, 334–5, 344, 371, 394, 534

Welsh law, 112, 121 Welwood, William, 52, 398 Whalley, Henry, 96, 134, 162 William II and III, 373–4, 389–91, 436 Winzeat, Thomas, 96n Wiseman, Robert, 144–5, 177–80 Wittenberg, University of, 130, 516 writers to the signet, 2–3, 5, 52, 61–2, 77, 99, 100, 508, 516–19, 531, 536–7, 555 required to preserve styles, 96, 110–11, 152, 515, 522–3, 530, 544–5, 549 written law, 29–32, 34, 50–2, 56–7, 229, 241, 251–2, 257–9, 269–70, 441–2, 461 of Scotland, 41–2, 58, 228–31, 247–8, 250–2, 254, 257–65, 327, 436, 439 Wylie, Robert, 457n XII Tables, 30, 47, 197, 216–18, 221, 223, 232, 427, 444–5, 526, 531, 564 Yeoman, William, 96 Zouche, Richard, 142, 145