CHAMBERS'S INFORMATION FOR THE PEOPLE. 



names as England. There appear to have been 

 many points on which the earlier laws of the 

 two divisions of the island were identical. In 

 England, however, the feudal system received 

 many checks, while in Scotland it was allowed to 

 grow rank, and the deference paid to the civil law 

 in all matters not directly governed by the feudal 

 law, served to widen the distinction between the 

 legal institutions of the two countries. 



Little information has yet been collected con- 

 cerning the practice of the law in Scotland pre- 

 vious to the sixteenth century. Edward I. probably 

 destroyed some vestiges, through which its history 

 might have been traced ; but he seems to have 

 been charged by antiquaries with the destruction 

 of more than ever existed. The earliest collection 

 of the laws, the Regiam Majestatem, bears so 

 near a resemblance to the English work of 

 Glanvil, noticed above, that it is evidently copied 

 from that work ; for the view of some Scotch 

 lawyers, that Glanvil copied the Regiam, is now 

 abandoned. There is also an old collection of 

 burgh laws, probably of the reign of David I. The 

 first Scottish legal writer whose works are quoted 

 is Balfour, who prepared, about the latter end of 

 the sixteenth century, a compendium, chiefly 

 derived from the Regiam Majestatem, the acts of 

 parliament, and the decisions of the court. In the 

 reign of James VI. a commission was appointed 

 to make inquiry into the laws, of which Sir John 

 Skene was a member. The commissioners col- 

 lected and published many acts of parliament, 

 the Regiam Majestatem and other consuetudinary 

 laws, such as the customs of the royal burghs ; 

 and Skene wrote an interesting treatise on the 

 meaning of technical legal expressions. Much 

 labour has been bestowed on these subjects in 

 quite recent times, and more accurate editions 

 of them have been published. 



The first scientific writer on the law of Scot- 

 land, however, was Sir Thomas Craig, whose 

 book on the Feudal Law was published in 1655. It 

 is a work of learning, in which the reader is 

 somewhat surprised to find that, though the work 

 professes to be a Scottish law-book, it should 

 derive so much from the practice of continental 

 nations. The next great authority is Lord Stair, 

 the statesman of the reigns of Charles II. James 

 VII. and the first years of William III. whose 

 Institute is remarkable for the depth of its legal 

 principles, and the acuteness with which they 

 are applied. Sir George Mackenzie, called ' the 

 bloody Mackenzie,' from his prosecution of the 

 Covenanters as Lord Advocate of James VII. 

 wrote treatises both on the civil and criminal law, 

 but these are not of much value. Soon after the 

 middle of the eighteenth century, a second Insti- 

 tute was prepared by Mr Erskine, Professor of 

 Scottish Law in the university of Edinburgh, on 

 the model of Stair's work, and better adapted to 

 modern times. Sir Walter Scott has justly de- 

 nominated Erskine's Institute the Scottish ' Coke 

 upon Lyttleton.' There were formerly few oppor- 

 tunities of acquiring a legal education in Scot- 

 land, and it was the practice for Scotch students 

 to repair to one of the continental universities, 

 of which Paris and some of the other French 

 universities in the sixteenth and seventeenth cen- 

 turies, Leyden and Utrecht in the seventeenth 

 and eighteenth centuries, were preferred. On the 

 occasion of the appointment to a chair of law in 



62 



Aberdeen, in the seventeenth century, Spalding 

 the Chronicler says, it was 'strange to see ane 

 man admitted to teach the lawes who was never 

 out of the countrie studieing and learning the 

 lawes ;' thus expressing his astonishment that any 

 man could be presumed to become acquainted 

 with the system of law on the spot where it is 

 administered. The first law-chair in the university 

 of Edinburgh, that of Public Law, was instituted in 

 1 707 ; five others have since been added ; and the 

 legal school of Edinburgh, though still far inferior 

 to those of the German universities, is the most 

 complete in this country. The German universities 

 are still, however, resorted to by Scotch students 

 for the study of Roman law. The civil law is 

 still studied in Scotland, but its ancient influence 

 has sunk, from the progress of commerce and the 

 increase of statutory regulations. 



Scotland has a considerable quantity of early 

 statute law, but not nearly so much as Eng- 

 land. Down to the Revolution, the general 

 principles only of the acts had the assent of the 

 assembled parliament the details were prepared 

 by a committee called the Lords of the Articles. 

 The older acts are remarkable for their brevity 

 and precision, which was commended by Lord 

 Bacon. It must be confessed, however, that in 

 some cases the brevity of the Scotch statutes has 

 produced obscurity, which it has required many 

 litigations to remove. According to a usage 

 derived from the civil law, acts of parliament 

 become repealed by disuse in Scotland, a principle 

 unknown in English law. 



The earliest tribunals in Scotland were either 

 the parliament, as the great council of the realm, 

 or committees of it, acting with the delegated 

 powers of the whole body, and the king's privy- 

 council. There was likewise, as in England, a 

 king's justiciar, whose authority was large, and 

 before the institution of the Court of Session, 

 extended to civil as well as criminal matters, 

 although the limits of his jurisdiction in the 

 former were not well defined. Committees of 

 parliament were, in the fifteenth and the begin- 

 ning of the sixteenth century, sometimes formed 

 into regular courts of justice. In 1532, the present 

 Court of Session was constituted, on the model of 

 the parliament of Paris. The chancellor, whose 

 principal duties disappeared at the Union, was 

 chairman of this body. It consisted of fifteen 

 judges, including a president, who was chairman 

 in absence of the chancellor. In 1830, the judges 

 were reduced to thirteen, which is the present 

 number of the court. It consists of two divisions, 

 which are separate tribunals of equal authority. 

 Five of the judges also act as individual judges in 

 courts of their own, in which capacity they are 

 termed 'lords ordinary.' An ordinary case, on 

 coming into court, is discussed before a lord 

 ordinary, from whom there is an appeal to 

 one of the divisions of the ' Inner House,' as it 

 is termed, where the remaining judges sit col- 

 lectively ; and from the Inner House there is an 

 appeal to the House of Lords. There is no such 

 conventional distinction as that between law and 

 equity known in Scotland, and hence the Court of 

 Session is sometimes called a court ' both of law 

 and equity.' There are two very useful descrip- 

 tions of action peculiar to this court : the one is 

 called an action of 'declarator,' which a person 

 may bring, to have the law as to his rights 





