LECTURES

ON

LEGAL ANTIQUITIES.

LECTURE I.

INTRODUCTORY.

THESE Lectures have been twice read, with some variations. On the first occasion my audience consisted chiefly of a few gentlemen of my own profession, who gathered in our Library before the meeting of the Court in the cold and dark mornings of winter 1868-9, to hear what I could tell them of the antiquities of our law. Two years later, the Juridical Society did me the honour to ask me to repeat the course, and were so obliging as to change their evening hour and accustomed place of meeting, for mid-day in the Advocates' Library, to suit my convenience.

Before reading the Lectures at all, I thought fit to circulate a programme or table of contents,

A

2

OUR LEGAL ANTIQUARIES.

which attracted

some attention and

criticism.

More than one of the heads of the profession took up my project favourably, and suggested subjects deserving of elucidation, which I had omitted. It is to one of these, whose least suggestion commands our respect, that I owe perhaps my most important chapter, that on the Parliamentary Constitution of Scotland. I hope my readers may think I have been well advised. Rude and unsuccessful as our early efforts at Parliamentary government were, there are things in the legislation of Scotland of which a Scotchman may well be proud, and even precedents which a learned Englishman may find useful for solving some of the acknowledged difficulties in the working of the great machine-institutions which even the British Parliament might borrow with advantage.

We have not had many legal antiquaries in Scotland; and if you criticise them, you will find that as you go farther back the writers are the more ignorant of the precedents and practice of early times in their own country. I should perhaps except Sir Thomas Craig, whose admirable book, the 'Jus Feodale,' must always be spoken of with respect. But Craig wrote less as a Scotch lawyer, than as a learned student of the civil and canon and feudal law. He quotes cases that happened in his own day and a little before, in Scotland, but he had no care to distinguish the

history of our law from that of any other feudal nation; and whenever he makes a general assertion, I think you will find that he draws it from the Roman law or the book 'De Feudis'-which, united, were in fact the common law-the law of civilized Europe in his time.

Quite in an opposite direction was the failing of Sir John Skene, who, being employed to collect the old laws of Scotland, set his wits to make a respectable code of Scotch law, taking the materials wherever he could find them in lawyers' books, whether they were Scotch or English. Skene says very much of his labour in collecting and digesting his code, but it never occurred to him that the old laws of a country hitherto unpublished are to be found, or at least can best be tested and proved, in the written transactions of the people. I have tracked him and his manner of working, and I have not observed that he ever quotes an old charter, a brieve, or a step of old court procedure. He was satisfied with transferring to his work whole pages of the rambling note-books of nameless lawyers, and to attribute them to the legislation of fabulous kings from Malcolm Mackenneth downwards, while he put on his margins references to English books, wishing his reader to believe that these were borrowed from ours.

I have never found much satisfaction in consulting Sir George Mackenzie's Observations on

4

MACKENZIE-HOPE.

the Statutes.' That accomplished scholar to whom we owe, I suppose, the first foundation of our noble library, directed his studies for the most part to more congenial pursuits. Neither his studies nor the bent of his mind were very historical, and not at all constitutional. His 'Observations on the Statutes,' published in the worst time of our history (1686), are unfortunately suited to that bad time.

Books like Dirleton and Stewart (Dirleton's 'Doubts and Questions in Law,' and Stewart's 'Answers') are rather ingenious elucidations of the subtleties of the law than works of legal and historical antiquities. Dirleton, speaking of Sir Thomas Hope, calls him juris nostri peritissimus, but qualifies his praise by telling us that he was generally thought of extreme and captious subtlety (nimiae et captiosae subtilitatis); but it was the age of such subtlety, and the ingenious writer is himself open to the same blame. You will find some curious speculation in these books with regard to Crown lawyers stretching the royal prerogative-doubly interesting when you reflect that the Lord Advocate of Charles the Second, writing just before the Revolution, is explained and criticised by the Lord Advocate of William and Mary.1 Stewart reproaches Dirleton for taking his notion of prerogative from the Roman law.

1 Voce Prerogative.