JURISPRUDENCE..

METHOD OF LEGISLATION.

On the Consolidation of the Statute Law of Scotland anterior to the Union. By PATRICK FRASER, Advocate, Sheriff of Renfrewshire.

THE purpose of this paper is to advocate the consolidation of the

Statute Law of Scotland anterior to the union. I shall proceed to state:-I. Of what that law consists; II. The attempts hitherto made to consolidate it; III. The reform I propose.

I. The statute law of Scotland, anterior to the union, is contained in eleven folio volumes, which were published by authority of the Government, under the careful superintendence of the late Mr. Thomas Thomson, advocate, one of the most learned and accomplished of our antiquarian lawyers. This immense body of statute law is composed of 2,190 Public Acts; 2,639 Acts of a local or personal character, or Parliamentary ratifications of grants from the Crown; and 106 Acts of the Convention of Estates. The Acts of the Convention of Estates have the same authority as Acts of Parliament, and only differ from Acts of Parliament in this, that the conventions met on occasions of sudden emergency, without the sovereign's writ, and confined themselves generally to the imposing of taxes, without making laws. There are some exceptions to this, as in the case of the conventions that met on the death of Cromwell and the flight of James VII., on which occasions very important general statutes were enacted.

Besides the 2,190 public statutes there are various treatises included in the above publications, which were long regarded as constituting books of Scottish law, and are indeed referred to as such in several authentic statutes; but which the severer criticism of later times has demonstrated to have been nothing else than compilations by private lawyers from foreign codes. The most remarkable of these is the treatise called Regiam Majestatem which falsely sets out with the statement that it was compiled by command of David the First, while the first evidence of its existence was in the year 1425, in the

For a similar account of the Irish Statutes previous to the Union, see Transactions of 1861, p. 133.

reign of James I., one of whose Parliaments directed that certain persons should be appointed "to examine the Books of the Law of this Realm, that is to say Regiam Majestatem and Quoniam Attachamenta." After the dissertation of Lord Hailes there can be no doubt entertained by any one that the Regiam Majestatem is a copy of the treatise De legibus et consuetudinibus Angliæ by Glanville, the Justitiar of England, written during the reign of Henry II. There are certainly interspersed through the volume passages of Scotch law, but this only proves that the person who made the compilation was a Scottish lawyer, and took this means of imposing upon the simplicity and credulity of his age.

There are other treatises contained in the first volume of the statutes, which are also destitute of any statutory authority. They are merely private compilations, apparently made by Scottish lawyers for their own instruction, and which have no title to be inserted among the Acts of the Parliament of Scotland, except from the fact that some of them (such as Quoniam Attachamenta) have been recognised by the legislature itself as authentic books of Scottish law.

The statutes which are authentic refer to very various subjects. The most of them are extremely short, very frequently merely stating a principle, leaving the Courts of Law to work it out; or a truism, which it was very unnecessary for the legislature to announce. Thus the Parliament of James I., in 1428, enacted "That no man interpret the statutes, otherways than the statutes bear, and to the intent and effect that they were made of before, and as the makers of them understood, and whoso does the contrary shall be punished as the king wills" (Vol. ii., p. 16, No. 11).

It is not necessary for my purpose to give any detailed account of the subject to which these Acts of Parliament refer; but at the same time, I cannot omit to give a few examples which I shall take from a class that are least familiar to modern lawyers, and are curious exhibitions of manners and customs long gone by.

In the year 1436, the Scottish Parliament passed a statute which, if it were now in force, and it has never been repealed, would have rendered unnecessary the now somewhat celebrated Forbes M'Kenzie Act. It was enacted "That no man in Burghs be found in taverns at wine, ale, or beer, after the stroke of nine hours, and the bell that shall be rung in the said Burghs, the which being found, the aldermen and bailies shall put them in the King's prison" (Vol. ii., p. 24, No. 8).. To this kind of legislation belongs another statute in the reign of James III., in the year 1482, which has not, as it ought, been put in practice during my time. "It is statuted and ordained that in time to come none of our sovereign lord's lieges bring corrupt or mixed wines within the realm, and if any such happen to be sent them, that no man sell nor tap it after it be declared by the bailies, and gustaris of wine that it is mixed or corrupt, but send it again forth of the realm, under pain of death, and that no person within the realm take upon hand in time to come, the mix wine or beer under the pain of death" (Vol. ii., p. 144, No. 7).

This ancient Parliament had a very clear notion of the enormity of this offence, but perhaps this Act, so far as regards the punishment, might be modified, so as to substitute penal servitude for a moderate period of (say) six or seven years.

The unsettled condition of the country, and the miserable state of the working population is indicated by the way in which the statutes speak of the wrongs perpetrated upon the defenceless population. They are always spoken of as the "poor people who labour the ground," and whose goods and effects were carried off masterfully by any robber who needed them. The principal way in which such oppressors were met was by embodying in Acts of Parliament injunctions that all people should keep the peace, and sheriffs and other officers of the law were ordered to take copies of the statutes so that they might know how to administer justice against such offenders (Vol. ii., p. 3, No. 2; vol. ii., p. 41, No. 1; vol. ii., p. 230, No. 4). Nay, there is one statute the title of which is "for universal concord amongst the king's lieges," in 1587, which gives a most deplorable description of the miseries consequent upon the "troubles and civil wars wherewith this country has been most heavily plagued." The Parliament therefore ordains all persons to be at "friendship and concord." If any one refuse a reasonable and honourable concord, then the King's Majesty is to put "sharp justice" on the party who is obstinate (Vol. iii., p. 458, No. 56).

Many statutes still unrepealed exist against superfluous banqueting, the inordinate use of confections and spices brought from beyond sea, and rich and gaudy clothing. Only persons of a certain income were allowed to have confections and spices at bridals and other banquets, and the magistrates were entitled to make domiciliary visits for the purpose of checking abuse and apprehending the offenders (Vol. iii., p. 221, No. 19). No one was to wear any apparel of velvet, satin, or silk, except noblemen, lords of Parliament, prelates, his Majesty's councillors, the lords of session, and barons of quality, and also provosts of burghs, and the wives of these persons. No one was to wear any pearls or precious stones except these privileged individuals. No servant man was to wear any clothing unless it were made of fustian or canvass. To this there was an exception in the following terms "It is always declared that it may be lawful for them to wear their masters or mistresses old clothes." And then it was positively enacted, "That the fashion of clothes now presently used (1621) not to be changed by men or women, under the pain of forfeiture of the clothes and £100 to be paid by the wearers and as much by the makers of the said clothes" (Vol. iv., p. 626, No. 25; vol. iii., p. 354, No. 15).

An equally careful supervision was preserved over the mode of education, and the amusements of the population. Of course there are the well-known statutes passed after the Reformation relative to educating the youth in the Protestant faith. But in 1607 it appeared expedient to Parliament to appoint a Commission, whose duty it was to prepare a grammar for universal use, and which all masters of

schools were, under pain of deprivation, to teach from (Vol. iv., p. 374, No. 9). Youths who went abroad, in like manner, were carefully looked after, because it was said, in 1609, that they returned home "possessed with superstition and heretical errors," and "might therefore be justly suspected as dangerous subjects." Therefore they were not to be allowed to go abroad unless accompanied by a tutor certified by the bishop to be a sound man (Vol. iv., p. 428, No. 3).

It was

As regards amusements there are statutes prohibiting the youth from playing at football (Vol. ii., p. 5, No. 18), and directing them to employ their leisure hours in acquiring skill in archery (Vol. ii., p. 6, No. 19). This however arose from prudent political considerations, the object being to train the youth so as they might on arrival at manhood be able to meet the famous English archers. declared unlawful in 1555 to choose "Robert Hood or Little John, Abbot of Unreason, Queens of May ;" and women were not to go through the streets crying, making perturbation to the king's lieges. This was a statute passed on the approach of the Reformation (Vol. ii., p. 500, No. 40).

The statutes against sorners, feigned fools, and "runners about" as they are called, were very numerous and very useless, and it was only when the country settled down after the Revolution of 1688,when the law triumphed over force and was respected, that sorners and runners about, and masterful beggars, to a great extent disappeared. To this class might be added statutes against another kind of sorners, who, even in the year 1424, were looked upon as they are still by many ignorant people as a nuisance, namely, Crows, who are said to do great skaith " upon Corns," and therefore under penalties the proprietors of the trees on which any nests were found were ordered to destroy them (Vol. ii., p. 6, No. 20; vol. ii., p. 51, No. 32). The same Parliament which persecuted the crows made also positive enactments, ordaining wheat, peas, and beans, of a certain quantity to be sown every year (Vol. ii., p. 51, No. 28; vol. ii., p. 13, No. 6).

In dealing with foreign countries the Scottish Parliament, as might be expected, passed severe enactments against the old enemies of the Scottish nation-the English. In 1466, it was enacted that "an Englishman have no benefice, secular or religious, within the realm of Scotland" (Vol. ii., p. 86, No. 9); and in 1535 it was enacted that no man should sell "nolt or sheep to Englishmen, nor send victuals, fish or salt, to England" (Vol. ii., p. 346, No. 25).

The Irish, in the year 1425, were treated with equal severity. They were only allowed to enter Scotland upon condition of proving that they were harmless, and intended no hurt to the kingdom. On the other hand, the Parliament in 1558 enacted, as regards Frenchmen, that they should obtain letters of naturalisation in Scotland, entitling them to hold lands, offices, and dignities in this realm (Vol. ii., p. 507).

In dealing with the native population the Bill was very rigid at all times. There are many statutes laying restrictions upon almost

every movement in social life, of the most minute and vexatious description and capable of being converted into instruments of irritating persecution. Thus, for example, in 1581, it is set forth that noblemen, prelates, barons, and gentlemen, contrary to the honest frugality of their forefathers, left their own dwelling-houses and went to reside in the towns, where they lived in hostelries, to the offence of God, and the defrauding the poor of their alms. This was forbidden under heavy pecuniary penalties (Vol. ii., p. 222).

Turning from these curious pieces of legislation, I may add that in nothing do the early Parliaments appear more anxious than in preventing delay in the administration of justice. In 1567 the Parliament ordered that no dilatory defence be allowed in time coming before any judge, and it is added that "if this be not sufficient, the pursuer shall be allowed to mend his libel at the bar at all times, so that short process may be had, and no frustrating of justice in time coming" (Vol. iii., p. 39, No. 30).

Again, in 1584, the King and Parliament were informed" of the plaints and lamentations of sundry his good subjects, of such enormities, corruption and delays, used in the session and college of justice," therefore a commission was appointed with power to apply a remedy, not tried in later times, namely,-dismissing the judges, who should be found guilty of these enormities and delays (Vol. iii., p. 310, No. 27). It would appear from one statute that we cannot at present rely upon the authority of precedents that are daily quoted as authority in our courts, for it is therein distinctly set-forth, in 1579, that some of the judges and their wives take bribes; so that in effect, says the statute," justice is coffed and sold" (Vol. iii., p. 153, No. 38).

So

II. It would be out of place here to dwell further upon the character of these ancient statutes. There are many of them deserving all the commendation which statutes, which have worked to the good of the people for three centuries, deserve. These, however, are buried amongst an immense mass of foolish enactments, totally unsuited to the times in which we live, and which ought now to be relegated to the storehouse of the antiquary. There have been various attempts by the Scottish Parliament itself to weed out obsolete laws. early as the year 1425, in the time of James I., "six wise and discreet men were appointed to mend the laws" (Vol. ii., p. 10, No. 10). This attempt seems to have been unsuccessful, for in the next reign, in the year 1449, twelve persons are appointed to examine all Acts of Parliament, and of general councils in the reigns of James I. and James II., and who are to report whether they were good, and according to the time (Vol. ii., p. 36, No. 10). This commission also appears to have proved abortive, for in the reign of James III. the matter was once more taken up. In the year 1469 the Parliament passed a statute ordaining the laws to be codified,-for it was ordained that there be a "reduction of the King's laws, Regiam Majestatem Acts, statutes, and other books to be put in a volume and to be authorised, and the rest to be destroyed" (Vol. ii., p. 97,