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Such persons will find Mr. Innes's volume easy yet profitable reading. If any of them find in it nothing new, and many things omitted which they expected to be included, they will do well to recollect that it was addressed in the form of lectures to young Scotch lawyers, whose acquaintance with the subject is not extensive, and to communicate to the public the information they have found wanting. This is a field in which the harvest is plenty but the labourers as yet few. Mr. Innes's lectures-omitting the first, which is devoted to a graceful recognition of previous writers, however obscure and forgotten; and the last, which gives somewhat too short notices of useful books-treat of Charters, the Parliament, the Old Church, old forms of Law and Rural Occupation. Leaving the reader to find for himself what they contain on these subjects, and remarking only that they sometimes excite a curiosity they do not fully gratify, we prefer to use this occasion to say a few words on the uses of the study of the history of the law, and to give a summary sketch of the course that history has run in Scotland.
The uses of this study are chiefly for the historical inquirer and the lawyer, and in modern times more for the former than the latter; for modern law, though it rests upon ancient, has been so altered, especially in recent times, that its historical rationale is in most cases remote from practice.
To the historian ancient laws, whether customary or written, ancient processes or lawsuits in which the collision of interests bring out in sharp relief individual rights and wrongs, are one of the many mirrors in which he must look to see the reflexion of the dim face of the distant past. In them he sees the habits and usages of the people stereotyped. The relations of the family, the village, the city, and the state-property in its various kinds and shifting modifications-the different classes of obligations, wrongs and remedies, necessarily find expression in law. It is always those characteristics which have in them an element of permanence which are here represented. Few laws regard only the passing moment, they are the offspring of the past-of some long-felt evil requiring remedy-of some common usage requiring sanction; and they are powerful causes in the formation of the future. How different would the social progress of Scotland have been, if no Act had been passed securing the right of the labourer of the ground or tenant in 1469, or if the entail Statute of 1685 had not become law!
Nor can the lawyer of the present day, however well furnished his memory may be with precedents, safely neglect the knowledge of the origin of the law which he interprets or applies. It is singular and often perplexing to notice the various quarters from which judges in this country draw the reasons of their judgments. Sometimes they say it has been so decided before: sometimes they observe it would not be just, at other times it would not be expedient, to decide otherwise-one judge is unwilling to differ from the opinions expressed by his brethren, another is constrained to do so.
again, and this more nearly concerns the present subject, it is pointed out that circumstances were different when a former decision was given, or that the origin of a custom or a statute shows that it was or that it was not intended to cover such a case. Now, although the last class of reasons-which may be called the historical rationale of law-requires to be handled with peculiar caution, the consideration of them should never be absent from the mind of the judge. The history of the law, though it may not often require to be explicitly stated, should always be in his view. Ignorance of it is a frequent cause of bad judgments.
There is another light in which the history of the law may be regarded-it makes law interesting. To some minds of acuteness and subtlety rather than breadth, the exercise of the intellectual skill necessary in distinctions, or to sustain a long chain of accurate reasoning, or to give clear and simple expression to complicated matters, or the exercise of the practical skill required in the prudent conduct of business, is adequate to create that amount of interest without which a calling can seldom be followed with pleasure and success. To others the heat of controversy, the desire of triumph-ambition-the hope, too often disappointed, of acquiring an honourable livelihood, or the ignoble love of gain, supply the necessary incitement. But there are those in whom none of these motives act strongly, who sometimes turn with disgust from the dull routine of the legal profession-from the intricacies and minutiæ of practice-from the dry terms and hard lines in which so much of law is expressed. Such persons will do well to study the history of legal institutions. They will learn from it that few things in law, however apparently trivial, are without meaning-however apparently dry are without life. Its various parts are not only related to each other, they spring from and react upon important processes of society and politics, and they form an integral and important part of moral and political philosophy in their concrete form.
Seen in this light the laws of few countries have more claim to attention than those of Scotland. They have survived for more than a century and a half its separate political existence; but although their vitality is not yet extinct, the symptoms are too palpable to be mistaken which show that their independent life is nearly ended. Hence, if we may continue the metaphor, their biography is almost closed, and may be studied in its entirety, not merely for the light it casts upon the past, and for its practical application to the present, but also for the service of the future.
Were our lawgivers and law reformers to devote a portion of the time to their own education which they give to schemes for the education of others, they would feel that a knowledge of the history of the law is a necessary part of it. How lamentable it is to see the way in which would-be members of Parliament flounder in their attempts-often made after diligent coaching--to say what the law
on a particular subject has been and is. When these attempts are transferred to the inside instead of the outside of Parliament, their results are still more fatal. Certainly there may be statesmen who are not lawyers-unfortunately too many of our present representatives are only men of money or impudence, who desire to be called members of Parliament. We would do well to ponder the wise saying of a French ordinance of the sixteenth century, "Qui ignore les loix et coustumes de son pays est digne d'être reputé au nombre des estrangers."
The law of Scotland has had a long and eventful life. In the course of its history, which has now extended over more than twelve centuries, five stages may be clearly distinguished; or, to use a more accurate expression, the law of Scotland is the result of five influences. The first influence was that of the primitive Celtic customs, of which only few and faint traces remain and little is certainly known.
The second is the introduction and development of the Feudal law, under which written charters and sasines, based on the relation of superior and vassal, long regulated in practice, and still regulate in theory, rights in land. To this source we owe succession by primogeniture and the territorial jurisdictions which endured till the suppression of the Rebellion of 1745, the ecclesiastical divisions of the parish and the diocese, and the civil divisions of the shire or county and the burgh.
The third is the reception of the Roman canon and civil laws, which, in the absence of particular customs, became the common law of the kingdom, as the municipal law grew sank to the position of a subsidiary law, and are now recognised only by virtue of reasonableness, not of authority, but have retained sufficient power to systematize and differentiate the law of Scotland from the law of England. The fourth is the Municipal law of Scotland, a complex whole composed partly of the pre-existing elements, Celtic, Feudal, Roman, partly of the Acts of the Scottish Parliament and the decisions of the Supreme Court, the Committee of Parliament called first "ad causas," afterwards Domini Auditores, the King's Council, the Session of James I. (1406-37), the Daily Council of James IV. (1488-1513), and the College of Justice or Court of Session of James V. (1513-42).
The fifth is the Assimilation of the laws of Scotland and England, which, had the result of the War of Independence been different, might have commenced in the fourteenth century, but was delayed till the personal union in the seventeenth, and only became powerful since the real union in the eighteenth century. Its slow but sure progress since then has been retarded by the chaotic state of English law divided between the rival jurisdictions of common law and equity, and the strongly conservative force of the maturely developed system of land law which Scotland had borrowed from feudalism, and of personal law which it derived from the jurisprudence of Rome.
Although it is possible to fix a period during which each of these influences was predominant, none of them should be regarded as ceasing entirely to operate when that period closed. The Celtic influence commenced in the dark ages prior to written records, during which the chiefs and judges, whose rude figures are still traceable on our most ancient monuments, administered justice to the savage tribes of the Picts and Scots which peopled the east and west of Scotland north of the Forth and the Britons of Strath-Clyde and Galloway. Its earliest historical landmark is the Kain Adamnan, the law or custom which about the close of the seventh century was sanctioned by an assembly of chiefs and ecclesiastics at Tara in Ireland, and was soon after recognised by Brude, son of Derile, King of the Picts. It may be said to close when the law of the Brets and Scots was abrogated by the ordinance of Edward I. in 1306, but it lingered in the peculiar customs of the Celts of Galloway in the early part of the fourteenth century, and lingers still in a few traditional customs of the Celts of the west and north Highlands unrecognised by law.
The Feudal influence commences with the earliest written charters or grants by Duncan II. and Edgar, the sons of Malcolm Canmore (1057-93), in the last years of the eleventh century, but did not become the determinating factor till the reign of David I. It ends with the abolition of heritable jurisdictions in 1748. We still preserve, but cannot much longer retain, in the theory of feudal conveyancing the shadow of its former greatness.
The Roman influence may have begun to operate when Valentia became a province of the Empire, and have been transmitted in the constitutions and customs of the earliest towns, Berwick, Roxburgh, Stirling, Edinburgh; but this cannot be affirmed with certainty.
From the eighth century, however, when the Celtic Church of Scotland first submitted itself as a disciple to the See of Rome, the ecclesiastics, the only learned and the only lawyers, must have begun gradually to introduce the law and language of the Latin race. But we do not reach firm historical ground till the middle of the twelfth century, when the school of Bologna began to diffuse scientific knowledge of Justinian's books, and Vacarius, a member of that school, taught at Oxford, a university at that time frequented by Scotch students. From this date down to the present time the civil and canon laws have exercised a constant but variable influence upon the law of Scotland, although, since 1750, when the municipal law of Scotland was first taught in the University of Edinburgh, that influence has steadily diminished in importance.
The influence of the proper or Municipal law of Scotland dates from the earliest assizes of its kings, succeeded by the Acts of Parliament, which may be said to begin with the reign of Robert the Bruce (1306-29), and the decisions of the royal courts of the justiciar and chamberlain officers, who first appear in history in the reign of Alexander I. (1097-1124). Its statutory part continued pure till the abolition of the Scotch Parliament in 1707, and is still
carried on by the Acts which the British Parliament passes peculiar to Scotland. Its judicial part is maintained nominally intact by the decisions of the Court of Session, but in reality is largely affected by the decisions of the English Courts, and of the House of Lords in Scotch Appeals, as well as by the Acts passed both with and without the avowed object of assimilating the laws.
The fifth and last stage consists of the Assimilation of the laws of Scotland and England. This Bacon prophesied "the secret operation of no long time would bring about," but his prophecy has not been fulfilled. The master mind and strong will of Cromwell tried to hasten the union of the laws, but his project failed. The reformation of law, though it must be directed by individuals, requires the co-operation of the nation itself. Complete assimilation, which has now become an urgent political necessity, is still delayed by the ignorance of the people and its leaders, both with regard to its value and its proper method, and by the prejudices of lawyers. Nor will it be fully accomplished till the laws of both countries are combined in a British code, a work of which the present generation may lay the foundation but can scarcely hope to witness the completion. Æ. M.
Centenary of the Juridical Society.-It may interest many of our readers to know that this venerable society attains its centenary on the 27th of this month. The occasion is to be celebrated by a dinner of the members, to be held in the Douglas Hotel upon that day, and at which Lord Colonsay, one of the oldest members, is expected to preside. A number of the judges and eminent members of the Bar are to be present, and there is every prospect of this dinner proving a brilliant success. The last similar celebration in Edinburgh was, it will be remembered, that of the Speculative Society. As a more lasting memorial of this interesting event, it is intended shortly to publish a history of the Society, which will contain an account of its various places of meeting, of the works undertaken by it, and also a complete list of its membership from its origin down to the present date. We understand that Mr. W. Reid, W.S., is the editor of this interesting work.
The Junior Bar in Scotland is either too careless or too timid to look after its own interests in regard to some matters of professional etiquette. It did take part with undue modesty in the recent movement for the amendment of Outer House procedure, which attained. but half its end. It has not made any suggestion for the revival of the proposal which the Lord Advocate was understood to favour some years ago for the distribution of silk gowns among leading counsel, beyond law-officers and ex-law-officers of the Crown. In short, it exhibits in many respects a lack of esprit de corps and of