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Abstract

Scotland experienced no pronounced national development in law before the late seventeenth century. This is true of law both as a science — as an attempt to reduce the rules of law to their underlying principles — and as practice in the Scottish courts and counsel-chambers. Descriptive accounts there had been, and more or less systematic arrangements of prevailing rules of statutory and common law, with occasional attention to their historical origins. And of course there were records both of statutory enactments and of decisions of the high courts in particular “causes.” There were also lawyers’ handbooks called “practicks.” But there was little further systematization and even less attention paid to juridical theory.

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References

  1. 1.
    Sir James Dalrymple, 1st Viscount of Stair, The Institutions of the Law of Scot­land, etc. (Edinburgh, 1681).Google Scholar
  2. 2.
    Sir George Mackenzie, The Institutions of the Law of Scotland (Edinburgh, 1684).Google Scholar
  3. 3.
    For the findings of modern scholarship on the development of Scots law in the late seventeenth and the eighteenth centuries, particularly in its “institutional” approach, including an increasing recognition of Kames’s role therein, see particularly the following: Stair Society Publications, vol. I: A Survey of the Sources and Literature of Scots LawGoogle Scholar
  4. B.
    Smith, Scotland: The Development of its Laws (London, 1962), being PartGoogle Scholar
  5. 4.
    Kames, Elucidations, pp. vii-x; cf. also p. 117.Google Scholar
  6. 5.
    See supra p. 196. n. 3., and in particular the discussions by T. B. Smith and Peter Stein there cited.Google Scholar
  7. 5.
    Elucidations, p, viii.Google Scholar
  8. 7.
    HLT, p. xii.Google Scholar
  9. 8.
    Gilbert Stuart, a younger contemporary, well observes on this matter, “The insti­tution of feudal law requires that the same customs and pursuits should constantly prevail. They were suited to times which were simple and warlike, but could not exist under the influence of commerce and refinement. The restless genius of man courts new scenes of action and amusement ... New passions and propensities were to exhibit society under a new aspect. That system which had governed so long was to be assailed on every side. And its extensiveness, its nice dependencies and connections, its regularity itself, which seemed to give the promise of lasting duration, were to be fatal to it.” (Observations Concerning the Public Law and Constitutional History of Scotland, Edinburgh, 1779, pp. 92f.)Google Scholar
  10. 9.
    See Blackstone, Commentaries, Introduction, Sec. II, opening paragraph. 19 HLT, Tract 1, opening paragraph.Google Scholar
  11. 11.
    Equity, vol. I, pp. 43f.Google Scholar
  12. 12.
    Tytler, I, 217f.; also p. 157.Google Scholar
  13. 13.
    Equity, vol. II, pp. 84f.Google Scholar
  14. 14.
    HLT, p. 49n.; also Equity, Book I, pt. I, Ch. III.Google Scholar
  15. 15.
    Br. Antiq., p. 217.Google Scholar
  16. 16.
    Equity, vol. I, p. 24.Google Scholar
  17. 17.
    See especially HLT, Tract III and passim, and Essays on Several Subjects of Law (Edinburgh, 1732), essay on “Prescription,” and Elucidations, Art. XXXIII.Google Scholar
  18. 18.
    Essays etc., pp. 100ff., and HLT, p. 80f.; also Sketches, I, 117 (116–126).Google Scholar
  19. 19.
    Elucidations, p. 233.Google Scholar
  20. 20.
    Essays etc., pp. 100ff., Equity, sck im Recht.Google Scholar
  21. 22.
    See especially Sketches, IV, 334ff., 344f. and 348f.Google Scholar
  22. 23.
    Elucidations, pp. 333f.Google Scholar
  23. 24.
    At this point we suggest that the reader turn to the selections from the prefaces to Kames’s law writings presented infra, App. II. They throw much light on this subject. See also the two articles by Ian S. Ross cited supra p. 196, n. 3.Google Scholar
  24. 25.
    Elucidations, p. x.Google Scholar
  25. 24.
    The Statute Law of Scotland: Abbridged, with Historical Notes (Edinburgh, 1757), Historical Note XVIII.Google Scholar
  26. 27.
    Sketches, IV, 19f.; see also Elements, pp. 468f.Google Scholar
  27. 28.
    Elucidations, p. 145.Google Scholar
  28. 20.
    Essays etc., pp. 100–164.Google Scholar
  29. 30.
    Ibid., Essay I.Google Scholar
  30. 31.
    Ibid., p. L 1.Google Scholar
  31. 32.
    Elucidations, p. xiii.Google Scholar
  32. 33.
    Dictionary of Decisions (Edinburgh, 1741), p. ii.Google Scholar
  33. 34.
    Remarkable Decisions: 1730–17.52 (Edinburgh, 1766), Preface, opening para­graph.Google Scholar
  34. 35.
    Dictionary of Decisions, p. i. The following quotation, also from the Preface to the Dictionary of Decisions (p. iii), is particularly pertinent to Kames’s conception of the dynamics of the development of law as a science:Google Scholar
  35. 36.
    Statutes, tho’ commonly made with a view to particular cases, do yet enact in general upon all similar cases; and as man is but short-sighted with regard to conse­quences, `tis odds but, in remedying one evil, a greater is produced. A court of justice determines nothing in general; their decisions are adapted to particular circumstances. If upon any occasion they chance to stray, ‘tis but to return again, with greater certainty of the road. They creep along with wary steps, until, at last, by induction of many cases, which have been fix’d in the course of practice, a general rule is with safety formed. And for a proof that there is something here beyond mere fancy, let anyone who is curious, run over our law in this view, and he will find, that those branches of it, which have been modelled by the courts, are, generally speaking, brought nearer a standard, than those upon which statutes are most frequent.“Google Scholar
  36. 39.
    Dictionary of Decisions, p. iii; and Select Decisions, p. iii. 90 HLT, pp. 366 and 295.Google Scholar
  37. 41.
    We use the term “institutional” here in its sociological meaning, not in the juridical meaning of following the lines of Justinian’s Institutes, though Kames was also in this latter sense an “institutional” lawyer.Google Scholar
  38. 42.
    Equity, I, pp. 1ff.; also pp. 41ff.Google Scholar
  39. 43.
    Ibid., I, p. 1, also p. 96. It should be noted that while Kames speaks here of “courts of equity,” and while in England such courts, usually called courts of chancery, were separate from courts of law, in Scotland problems of equity were always dealt with in the regular high courts of law, never in separate courts.Google Scholar
  40. 44.
    Equity, I, p. 8.Google Scholar
  41. 46.
    James Reddie, Inquiries in the Science of Law (London, 1847), pp. 49f. See also, Lehmann, John Millar, pp. 42, 110 and 151.Google Scholar
  42. 49.
    Smellie, op. cit., pp. 128f.Google Scholar
  43. 47.
    See supra, p. 196, n. 3.Google Scholar
  44. 49.
    See supra, p. 127 and pp. 73f., and Lehmann, op. cit., p. 28. 49 Letter to Karnes, Oct. 17, 1754, S.R.O., GD 24/1/557.Google Scholar
  45. 50.
    Four letters in files of S.R.O., GD 24/1/553.Google Scholar
  46. 51.
    John Adams, Works (Cambridge, Mass., 1962), Vol. II, pp. 146ff., under dates Jan. 24, 1765 and Feb. 21, 1765.Google Scholar
  47. 52.
    Ibid., Vol. III, pp. 445–464; also, vol. II, pp. 146–148. 55 Preserved in John Adams Collection in Boston Public Library.Google Scholar
  48. 54.
    Thomas Jefferson, Papers, ed. F. Donovan (New York, 1963), pp. 209–211, 214 and 217.Google Scholar
  49. 55.
    Jefferson, Commonplace Book, ed. G. Chinard (Baltimore, 1926), pp. 95-,135:Google Scholar
  50. 56.
    John Dalrymple, An Essay towards a General History of Feudal Property in Great Britain (London, 1757).Google Scholar
  51. 57.
    Copy in Jefferson Collection, U.S. Library of Congress.Google Scholar
  52. 58.
    See supra, p. 75.Google Scholar
  53. 59.
    James Wilson, Works, J. de W. Andrews, ed. (Chicago, 1896), vol. I, pp. 38–40. 80 Ibid., vol. II, pp. 133–135.Google Scholar

Copyright information

© Springer Science+Business Media Dordrecht 1971

Authors and Affiliations

  • William C. Lehmann

There are no affiliations available

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