660 



L A W. 



Law 



of Scotland. 



Arts of SC- 



lU-iunt- 



Anthority 

 or civil and 

 canon laws. 



Unwritten 

 or customa- 

 ry law. 



Its proper- 

 ties. 



Decisions 

 of Court of 

 Session. 



mencemcnt of David I. ; and though no express con- 

 firmation of that treatise by the legislature appears, yet 

 it is admitted to have been the ancient law of the Scots, 

 by express statutes 1471. c. 47 14-87,0. 115. The 

 borough-laws, which were enacted by the same king 

 David, and the statutes of William, Alexander II. 

 David II. and the three Roberts, are universally allow- 

 ed to be genuine. The Scottish parliaments once and 

 again appointed commissioners to revise and amend the 

 Regiam Majestatem, and the other ancient books of 

 their law, and to make their report ; but as no report 

 appears to have been made, nor consequently any rati- 

 fication by parliament, none of these remains are recei- 

 ved, as of proper authority, in the Scotch courts ; yet 

 they are of excellent use in proving and illustrating 

 ancient customs. 



4. The written law comprehends, second, the Acts 

 ofScderunt, which are ordinances for regulating the 

 forms of proceeding before the* Court of Session in the 

 administration of justice, made by the judges, who have 

 a delegated power from the legislature for that purpose, 

 1540, c. 93. Some of these acts touch upon matter of 

 right, which declare what the judges apprehend to be 

 the law of Scotland, and what they are to observe af- 

 terwards as a rule of judgment. 



5. The civil and canon laws, though they are not 

 perhaps to be deemed proper parts of the written law 

 of Scotland, have undoubtedly had the greatest influ- 

 ence in that kingdom. The powers exercised by the 

 Scottish sovereigns and judges, have been justified upon 

 no other ground than that they were conformable to 

 the civil or canon laws, 14Q3, c. 51 1540, c. 69, &c. 

 And a special statute was deemed necessary upon the 

 Reformation, to rescind such of their constitutions as 

 were repugnant to the Protestant doctrine, 1567, c. 31. 

 From that period the canon law has been little respect- 

 ed, except in questions of tithes, patronages, and some 

 other articles of ecclesiastical right. But the Roman 

 continues to have great authority in all cases where it 

 is not derogated from by statute or custom, and where 

 the genius of the law suffers it to be applied, 1493, c. 

 511540, c. 701587, c. 31. 



6. The unwritten or customary law of Scotland, is 

 that which, without being expressly enacted by statute, 

 derives its force from the tacit consent of king and peo- 

 ple ; which consent is presumed from the ancient cus- 

 tom of the community, as the laws of primogeniture and 

 succession, the legitirn, terce, courtesy, &c. No precise 

 time can be fixed as necessary for constituting this sort 

 of law, because some things require in their nature 

 longer time, and a greater frequency of acts to establish 

 them than others. Custom, as it is equally founded in 

 the will of the lawgiver with written law, has therefore 

 the same effects. Hence as one statute may be ex- 

 plained or repealed by another, so a statute may be ex- 

 plained by the uniform practice of the community, and 

 even go into disuse by a posterior contrary custom. 

 But this power of custom to derogate from prior sta- 

 tutes, is generally confined by lawyers to statutes con- 

 cerning private right, and does not extend to those 

 which regard public policy. 



7. A uniform tract of the judgments or decisions of 

 the Court of Session, is commonly considered as part 

 of the customary law ; and without doubt where a par- 

 ticular custom is thereby fixed or proved, such custom 

 of itself constitutes law ; but decisions, though they 

 bind the parties litigating, have not in their own na- 

 ture the authority of law in similar cases ; yet where 

 they continue uniform, great weight is justly laid on 



them. Neither can the judgments of the House of Law 

 Peers of Great Britain reach farther than, to the parties of Scotland, 

 in the appeal, since in these the peers act as.judges, not I ""T Y ~~' * 

 as lawgivers. Nevertheless where a similar'judgment O "H^' 

 is repeated in the court of the last resort, it must have i> e er. 1 

 the strongest influence upon the determinations of in- 

 ferior courts. 



BOOK I. 



Of the Rights arising from the state or condition of Men 

 in Society, and from their more intimate relation, or 

 more usual connection with one another > usually called 

 Rights of Persons. 



TITLE I. Of Ecclesiastical Person.*. 



1. Upon the abolition of the Pope's authority at the Church go,- 

 Reformation, the regular clergy were totally sirjipres- vernment 

 s i - '" Scotla " d 



" 



sed ; and in place of all the different degrees which dis- 

 tinguish the secular clergy, the Scots had only at first ^" 

 parochial presbyters or ministers, and superintendents 

 who had overseeing of the church within a certain dis- 

 trict. Soon thereafter the church government became 

 Episcopal, by archbishops, bishops, &c. 1606, c. 2 ; and' 

 after some intermediate turns is now Presbyterian, by 

 kirk-sessions, presbyteries, synods, and general assem- 

 blies. 



2. He who founded or endowed a church, was enti- Patronage. 

 tied to the right of patronage of it, or advocatio eccle- 



sias ; whereby among other privileges, he might pre- 

 sent a churchman to the cure in case of a vacancy. 

 The presentee after he was received into the church, 

 had a right to the benefice proprio jure ; and if the 

 church was parochial, he was called a parson. The 

 Pope claimed the right of patronage of every kirk to 

 which no third party could shew a special title ; and 

 since the Reformation, the crown, as coming in place 

 of the Pope, is considered as the universal patron where 

 no right of patronage appears in a subject. Where two 

 churches are united which had different patrons, each 

 patron presents by turns. 



3. Where a fund is gifted for the establishment of a Patronage 

 second minister, in a parish where the care is thought of coiiegi- 

 too heavy for one, the patronage of such benefice does at e church- 

 not belong to the donor, but to him who was patron of cs 



the church ; unless either where the donor has reserved 

 to himself the right of patronage in the donation, or 

 where he and his successors have been in the constant 

 use of presenting the second minister without challenge 

 from the patron. The right of presenting incumbents 

 was, by 1690, c 23, taken from patrons, and vested in 

 the heritors and elders of the parish, upon payment to 

 be made by the heritors to the patron, of 600 merks ; 

 but it was again restored to patrons, 10 Ann, c. 12.' with 

 the exception of the presentations sold in pursuance of 

 the former act. 



4. That kirks may not continue too long vacant, the Patrons 

 patron must present to the presbytery, (formerly to the must pre- 

 bishop,) a fit person for supplying the cure within six sent witn irt 

 months from his knowledge of the vacancy, otherwise six monlhs * 

 the right of presentation accrues to the presbytery jure 

 devoluto. Since the final abolition of Episcopacy at the Forn ? ? f 

 Revolution, a judicial act of admission by the presby- adm 

 tery, proceeding either upon a presentation, or upon a 



call from the heritors and elders, or upon their own 

 jus devolution, completes the minister's right to the be 

 nefice. 



