777 



STATUTE. 



STATUTE OF FRAUDS. 



7/8 



Before the wnr of independence, the lands of the southern districts of 

 Scotland had been in a great measure partitioned among Norman 

 adventurers, some of whom owed a double allegiance to the crowns 

 both of England and Scotland ; and it was natural that they should 

 bring with them the practices and opinions of the country with which 

 they were earliest connected. A large proportion of the lowland popu- 

 lation of Scotland were at the same time Saxon refugees from England. 

 So early as the reign of David I. (1125) we begin to find that the 

 municipal corporations had a voice in the ratification of the laws. 

 " The parliament," says Mr. Innes, " assembled by John Balliol at 

 Scone, on the 9th of February, 1292, was probably the first of the 

 national councils of Scotland which bore that name in the country at 

 the time, although later historians have bestowed it freely on all 

 assemblies of a legislative character. We have no reason to believe 

 that any change in its constitution occasioned the adoption of the new 

 term, which soon became in Scotland, as in England, the received 

 designation of the great legislative council solemnly assembled. It 

 was not till a few years later, on occasion of negotiating an alliance 

 with France, that Balliol, probably at the desire of the French king, 

 procured the treaty to be ratified, not only by the prelates, earls, and 

 barons, but by certain of the burghs of his kingdom. That treaty was 

 finally ratified at Dunfermline on the 23rd day of February, 1295; and 

 the seals of fix burghs were then affixed to the deed, along with those 

 of four bishops, four monasteries, four earls, and eleven barons. Not- 

 withstanding this very formal ratification, however, it may be doubted, 

 both from the peculiar phraseology of the deed itself, and from the 

 silence of historians as to any meeting of a parliamentary nature in 

 which it could have been voted, whether the parties stated as con- 

 senting, and especially whether representatives of those six burghs, 

 were actually present as in a national assembly or parliament." 



The acts which were thus sanctioned sometimes, perhaps, by the 

 separate adhesion of the principal interests of the country, sometimes 

 in assemblies were of a mixed character. Some were judgments in 

 particular disputes, accompanied probably by the announcement of a 

 principle on which such questions should thenceforth be decided; 

 others were acts of executive authority ; and others might be regu- 

 lations having the character of fixed and general laws. When these 

 proceedings related to matters of private right, the recording instru- 

 ment would be put into the hands of the party interested. " When 

 the proceedings of the national council," says the authority already 

 cited, " related to matters of a more public nature, such as negotiations 

 with foreign states, its earliest records were probably of a similar kind, 

 and consisted of nothing more than the indentures or other diplomacy 

 which embodied the results of its deliberations. Perhaps the earliest 

 instances of this kind that now remain are those important deeds of 

 the reign of Alexander III., when, however, a more artifical system 

 must have been beginning to prevail. It would be still more interesting 

 to ascertain the modes in which the more general ordinances and Laws 

 of the realm were enacted and recorded ; but on this head the loss of 

 every original document has left us entirely to conjecture. Judging, 

 however, from the mutilated and imperfect transcripts of a later age, 

 and from the analogy of the other states of Europe, it would appear 

 that the more important and general statutes were framed into short 

 capitulars, and ingrossed into a writ, addressed, in the name of the 

 king, to the chief ministers of the law in the different districts of the 

 kingdom, requiring the publication and observance of them. The laws 

 of the burghs, the assizes of David I. and of William, and the statutes 

 of Alexander II., as found in the old manuscript compilations of 

 lawyers, seem to be the fragments of various capitulars of this kind." 

 The assizes of David I., ' Assist Regis David,' are reported to be the 

 oldest fragments of legislation in Scotland, and are partly, but not 

 entirely, traceable to so early a period as the reign of the king with 

 whose name they are associated. The burgal laws, ' Leges Quatuor 

 Burgorum,' constitute the oldest systematic collection of laws. They 

 too may be referred to the reign of David ; and though historians give 

 him the credit of having planned the whole system of the municipal 

 corporations, it is more likely that this code of laws embodies the 

 privileges and restrictions which had gradually come into existence 

 with the growing influence of the burghs. The coincidence between 

 these early vestiges of Scottish legislation and the old law of England 

 is remarkable. Both in the assize and in the burgh laws technical 

 phraseology is frequently used, which still belongs to the law and 

 practice of England, but has long been disused in Scotland. Indeed, 

 it is very clear that before the attempt of Edward I. there was much 

 harmony in tone and spirit between the two nations, and that Scotland 

 generally followed or accompanied England in her constitutional pro- 

 gress. There is a still more remarkable coincidence of legislation in 

 the celebrated ' Kegiam Majestatem,' or general code of the old laws of 

 Scotland. It was, like the fragments mentioned above, attributed to 

 David I., who had obtained the character of the Justinian of Scotland ; 

 but it is undoubtedly of later date. In the 16th and 17th centuries it 

 was very popular, as an undoubted early national code ; but it was 

 subsequently discovered to have many features in common with the 

 compilation ' De Legibus et Consuetudiuibus Anglioe,' attributed to 

 Kanulph de Ulanvil, justiciar of England; and then it acquired the 

 evil reputation of being a code prepared by Edward I., for the purpose 

 of subjecting Scotland to the law of England. 



fhe ' Kegiam Majestatem/ so named from the words with which it 



commences, is, along with the burgh laws, and other vestiges of early 

 legislation, printed in the first volume of the edition of the Scottish 

 statutes issued by the Kecord Commission. None of the contents of 

 this first volume, however, come within the description of the accepted 

 statute law of Scotland. In 1566 a commission was issued for the col- 

 lection and publication of the statute law, and they speedily published 

 a series of statutes reaching from 1424 to 1564. It is at the former 

 date that the statute law, properly speaking, commences, and it 

 proceeds thence in a regular series to the Union with England. The 

 Scottish acts are referred to by the date of the parliament in which 

 they are passed, and their numerical order ; as, " The Act 1 424, c. 25 ;" 

 " The Act 1661, c. 16." These early statutes are brief and sententious, 

 and were admired by Bacon for " their excellent brevity." 



From the date of the accession of Bruce, after the war with England, 

 the Scots long entertained a feeling of national jealousy and enmity 

 towards England ; and though some of the kings introduced southern 

 practices, we do not find that steady imitation and adoption of the con- 

 stitutional movements of the English parliament which characterise 

 the earlier period, but rather an isolated creation of, and adherence to, 

 national peculiarities. The subsequent creation of the Court of 

 Session, in imitation of foreign tribunals, to administer justice, 

 according to the rules of the Civil Law, has eradicated nearly all the 

 traces of similarity in laws and procedure which formerly existed 

 between the judicial systems of Scotland and England. 



Of the Statutes of the Scottish parliament, those only are now law 

 which are said to be { riridi obserrantid. By this principle the 

 statute law has silently adapted itself to the character of the times : 

 and, though not formally repealed, the barbarous laws of periods of 

 bigotry or violence have ceased to be enforceable. Since the Uuion of 

 1707, it has been considered, in conformity with the English doctrine, 

 that an act passed by the British parliament must be held as law, and 

 judicially enforceable, until it is repealed. 



The law of Scotland, the judicial and executive system, and the 

 ecclesiastical polity, being quite distinct from the corresponding institu- 

 tions of England, many statutes are from time to time passed by the 

 British legislature solely applicable to Scotland, prepared by persons 

 professionally acquainted with the institutions of that part of the 

 empire. The revenue laws of Scotland were formerly distinct ; but 

 now, with few exceptions, one system embodied in one series of acts 

 applies to the United Kingdom. In matters of national policy, and 

 frequently in the criminal law and in legislation for internal economy, 

 acts are made applicable both to England and Scotland at the same 

 time. 



STATUTE (IRELAND). In Ireland, the method by which the early 

 irregular convocations, called parliaments, passed their acts, appears to 

 have been a close imitation of the English practice. The authenticated 

 printed statutes begin in the year 1310, 3 Edw. II. After five short 

 acts of this parliament there is a hiatus until the year 1429, although 

 it is known in history that repeated parliaments were held in the 

 interval. Many of these statutes are characteristic indications of the 

 state of the country, and throw light on the domination of the English 

 over the natives for example, the 25 Hen. VI. c. 4, "An Act, that he 

 that will be taken for an Englishman, shall not use a Beard upon his 

 upper Lip alone ; the Offender shall be taken as an Irish Enemy : " 28 

 Hen. VI. c. 3, " An Act, that it shall be lawful for every Liegeman to 

 kill or take notorious Thieves, and Thieves found robbing, spoiling, or 

 breaking Houses, or taken with the manner : " and in later times (the 

 7 Will. III. c. 21), " An Act for the better suppressing Tories, Robbers, 

 and Rapparees; aud for preventing Robberies, Burglaries, and other 

 heinous Crimes." The Statute of Drogheda, commonly called 

 Poyning's Law, passed in 1495 (10 Hen. VII.), had a marked influence 

 on the later legislation and constitutional history of Ireland ; as by it, 

 all the acts then or late passed in England, " concerning or belonging 

 to the common and public weal of the same," should be law in Ireland. 

 It further provided that no measure should be proposed for the adop- 

 tion of parliament until it had first received the royal assent in 

 England. It is believed that this badge of servitude prevented the 

 passing of many exterminating acts, which, in times of anarchy, dis- 

 cord, or tyranny, the Irish ministry, and their partisan-parliaments, 

 would have readily passed. This act was repealed, and the indepen- 

 dence of the Irish legislature restored by the measure of 1783. At the 

 Union, in 1800, the Irish Parliament was merged in that of Great 

 Britain and Ireland. 



STATUTE OF FRAUDS. This name is applicable to any statute 

 the object of which is to prevent fraud, but it is particularly applicable 

 to the 29 Car. II. c. 3, which is entitled the " Statute of Frauds and 

 Perjuries." One object of the statute was to prevent disputes and 

 frauds by requiring in many cases written evidence of an agreement. 

 Before the passing of this statute many conveyances of laud were made 

 without any writing as evidence of the conveyance. An estate in fee- 

 simple could be conveyed by livery of seisin, accompanied with proper 

 words, and a use could also be declared by parol. No writing was 

 necessary to convey any estate in possession, for such estate is technically 

 said to lie in livery ; but a reversion could only be conveyed by deed. 

 The Statute of Frauds declared that all leases, estates, and interests of 

 freehold or terms of years or any uncertain interest in any lands or 

 hereditaments, made by livery and seisin only, or by parol, and not put 

 in writing and signed by the parties, &c., shall have the force of leases 



