CHAPTER XXI. THE LAW OF SCOTLAND ITS DEPARTMENTS, JUDGES, AND PRACTITIONERS. No English lawyer, of liberal education and comprehensive views of the principles of jurisprudence, can content himself with the knowledge, however accurate, of our own municipal law, merely; but should by all means endeavour to acquire a general knowledge of the principles of Scottish jurisprudence. It is based almost exclusively upon the Feudal and Civil Law, regulating, respectively, personal rights, and those of real and personal property. In this latter particular, the Scotch mercantile law has adopted much more directly and extensively than that of England, the doctrines of the Roman Law. Sir Edward Coke observed, the marvellous conformity in the ancient laws of England and Scotland.' This resemblance, however, did not exist at the time of the Norman Conquestat which period the Scottish Institutions were exclusively Celtic, and those of England, Anglo-Saxon: but it had become established as early as the twelfth century,‡ and not only continued to prevail at the time of the Union * 4 Instit. 345. + Hall, Const. Hist. vol. iii. p. 404 (3d ed.); and 1 Steph. Comm. p. 83. The oldest book of Scottish law is called the Regiam Magistatem: which is as clearly a copy of our own Glanvil (tempore Hen.II.), as his treatise was servilely copied by Fleta, and was itself little else than a transcript of Justinian's Institutions. See Irving's Civil Law, p. 93. A. D. 1707, but is even yet, in some particulars, distinctly perceptible. The diversities of practice, however, observes Mr. Serjeant Stephen,* in two large and independent jurisdictions, and the acts of two distinct parliaments, have in process of time naturally tended to introduce great diversities. A co-operative cause of this diversity may be also found in the ancient connection of Scotland with France, where the civil law chiefly prevailed,—and to which the Scottish jurisprudence ultimately became in many respects conformable,† but principally with reference to contracts and commerce. In saying, however, that the civil law is more directly adopted in Scotland than in England, let us not be misunderstood as intimating that the civil law, quá civil law, has any more force or efficacy there than here. In the language of Lord Stair, the greatest authority that can be cited, the civil law is not recognised in Scotland as a law binding for its authority, but as a rule is followed for its equity.'§ By the Act of Union, it was expressly stipulated that Scotland should preserve the existing municipal laws, subject to any subsequent legislative alteration. Our common law is of no more force there, than theirs is here. Our courts will not even take judicial notice of the state of the law in Scotland; but, as in the case of a foreign country, if any question happen here to arise concerning it, it is considered as a matter of fact, to be ascertained *Comm. 83. Ersk. Inst. Book I. tit. i. § 41; and 1 Steph. Comm. 83, 84. Ante, p. 629, et seq. § Lord Stair's Instit. Book I. tit. i. § 12. Nor does the Civil Law seem to be, in any proper sense, the law of the land in Holland or Germany, but the source whence have been derived almost all their municipal laws, not plainly of a feudal origin. Irving's Civil Law, p. 122. like any other matter of fact, by EVIDENCE. See the late case of Woodham v. Edwardes, 5 Adol. & Ell. 771.-The proper STATUTE law of Scotland commences with those Acts which were passed in the reign of James I. of Scotland; continuing from that period down to the Union with England. Acts of parliament passed since that period, extend to Scotland, though that country be not expressly named. If it be intended to except Scotland from the operation of the Act, such exception must be effected either by an express provision in the Act, or the intention of the Act must be otherwise sufficiently indicated.* Let us proceed, however, to give a sketch of the existing state of law in Scotland, and of the practical administration of it. It was not till after the middle of the seventeenth century, that the law of Scotland was reduced to a regular system, which was effected by the celebrated "INSTITUTIONS" of Lord Stair: a work surprisingly, in advance of the age in which it was produced, and reflecting honour upon the name and family of its gifted author. It is to be regarded, says a distinguished living writer on the Law of Scotland, as in truth a Digest of the judgments of the Court of Session, reduced to order according to the spirit and arrangement of the Roman jurisprudence. It must not, however, be considered in the light of a mere digest of municipal law. It certainly deserves the character given of it by the learned editor of the latest edition -viz., of being a Treatise on General Jurisprudence, illustrated by reference to the Law of Scotland—which appears to have been the noble author's great object. * See Rex v. Cowle, 2 Burr. 853, and 1 Steph. Comm. 87. Perhaps the principles of contracts, or obligations,' says Mr. More, 'explained and illustrated with reference to the natural business of life, have never been more ably stated, or more clearly expounded than in Lord Stair's "Institutions." His numberless references to the law and practice of England, of Rome, and other foreign countries, prove how extensively he had made jurisprudence the object of his study, and furnish a practical illustration of the results of his own observation, that 'no man can be a knowing lawyer in any nation, who hath not well pondered and digested in his mind, the common law of the world.' Our own greatest juridical authors make frequent use of the writings of Lord Stair, who is often cited, for instance, by Blackstone. Nearly a century afterwards appeared another Institute of the Law of Scotland, published posthumously from the Lectures of Mr. Erskine, who had been Professor of Scottish Law in the University of Edinburgh. It has ever since been received as a standard work, characterised by conciseness and perspicuity-and has passed through several editions, the last of which is that of Mr. Ivory, one of the present Scottish judges. Since the period of the appearance of this second 'Institute,' a remarkable change has come over the national jurisprudence of Scotland, owing to the extensiveness of trade, which occasioned a development of the principles of mercantile jurisprudence, and an anxious adaptation of them to the novel exigencies of modern commerce. For a long period, however, the Scottish lawyers adhered too closely to that Roman law, in the learning of which the ancient Scottish lawyers so greatly excelled. A proposal to introduce a law of bankruptcy, similar to that of England, met with a most determined opposition from the Scottish lawyers. The occurrence of a great mercantile disaster, however, seemed to allay their hostility, by demonstrating the necessity of introducing the modern maxims and rules already established in England: and in 1772 the Scottish nation were reconciled to the passing of the first Bankrupt Law, which proved a salutary remedy, at a very critical moment.' It is only from this period that the rise of the mercantile law is to be dated. Since then, there has been a gradual, but only a gradual and reluctant, approximation to the commercial jurisprudence of England. It was impossible, however, that constant commercial intercourse should not have the effect of assimilating, at least in the principal points, the jurisprudence of the two countries. The intelligent merchants and lawyers of each, would see the practical excellence and defects of the two, and of necessity adopt the one, and reject the other. An approximation has been made of late. years, in the English law respecting debtor and creditor, to that of Scotland, by adopting, to a considerable extent, those principles of cessio bonorum, which they regard as an equitable relief from the severity of the law of imprisonment for debt.‡ Whether a complete assimilation between the two systems, is to be expected, we cannot pretend to say; nor shall we offer any opinion as to the expediency of further inroads on the law of imprisonment for debt on final process.-The admirable development of our own system of mercantile law (so often adverted to in previous pages of this work) by Lord Mans+1 Bell's Comment. p. 15. * The fall of the Douglas Bank. Dict. and Dig. of the Law of Scotland, p. 136. |