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were opposed to the introduction of the civil law, yet in their treatises (as noticed by Selden) they adopted much from the books of Justinian, as well in substance as in form. (g) It was their fashion, in the commencement of their books, to keep in view the proeme of the Institutes of Justinian. This is to be noticed in Glanvil, in Bracton, and in Fleta, compiled in England in three different reigns. The same thing was done by the author of Regiam Majestatem, to whatever age that work must be attributed.

Sir Thomas Craig, the distinguished writer on the feudal law, had a very different opinion in regard to these books of the Regiam Majestatem from that of Skene. (h) Instead of considering them as exhibiting the ancient and authentic law of Scotland, he appears to have held them almost in horror; he treats them merely as a transcript from Glanvil, and considers that the theft was manifest. He adds, "Sufficit hoc jam monuisse nullam auctoritatem eos libros "habere, nihil unde causæ decisio quæri potest continere, "et nunquam in foro pro authenticis consuetudinibus ha"bendos: imo ne nominandos quidem." (i)

In another place he breaks out almost into an execration against him who first held out these to be genuine books of the law of Scotland; he says, "Male sit illi, quicunque "is fuit, qui nobis leges Normannicas pro nostris obtru"sit." (k)

(g) Selden ad Fletam, p. 463. Wood, in his Institute of the Imperial, or Civil Law (Preface, p. 6.), speaking of the early English writers, "Fleta and Bracton, and the most ancient of their writers, would look very naked if every Roman lawyer should pluck away his

says,

"feathers."

(h) Craig was born in 1548, and died in 1608, consequently he never saw Skene's edition of the Regiam Majestatem, which was printed in

1609.

(i) Craig, lib. 1. d. 8. s. 11.

It would be very much out of place here, to enter at large into this celebrated controversy. Lord Hailes (1) has clearly detected some of the proceedings of Skene in editing these ancient books. It is not distinctly known what manuscripts were used by Skene in preparing his printed edition; but in the existing manuscripts of the Regiam Majestatem a reference is made in various places to Glanvil in the text, showing clearly that those manuscripts at least were of a date later than Glanvil. These references Skene has retained. Instead of keeping them in the text, however, he has placed them in the shape of notes in the margin of his book, amidst numerous other marginal references of the same kind. So in these existing manuscripts there are also references in the text to certain authorities in the canon law, to a gloss on the decretals of Gregory IX., and to the decretals of Boniface VIII.; but the decretals of Gregory were not published till 1230, nor the decretals of Boniface till 1298, the former 77 years, and the latter 145 years, after the death of David; and to have given the text correctly would have militated against Skene's hypothesis as to the book being compiled by David I. These quotations, therefore, are also expunged from the text, and thrown as notes into the margin. No doubt can thus exist that Skene merited the character given him by Lord Hailes of "a careless, if not an unfaithful publisher."

But even that admirable person Lord Hailes appears to treat the question in too confined a shape, as one merely in regard to the relative antiquity of the two treatises of Glanvil and of Regiam Majestatem. The real question in this matter is of more importance. Does the Regiam Majestatem, from whatever source taken, exhibit a view of

(1) Examination of some of the arguments for the high antiquity of Regiam Majestatem. Edinburgh, 1769.

the ancient laws of Scotland; or is it to be treated, as Craig treats it, merely as a theft and a forgery?

Notwithstanding the high celebrity of Craig, and his opinion so strongly given, there is reason to conclude that he was mistaken upon this subject, and that this body of Scoto-Norman laws had been of authority in Scotland during a very considerable period. Craig had been educated in France at a time when the French and Scottish nations were intimately blended together, and long after some of the most important legal institutions of Scotland had been borrowed from France. In various parts of his book, he appears to have had no partiality for the law of England; and he notices that he had little acquaintance with the English courts. (m) It is not to be wondered at, therefore, that in some places he is under misapprehension when stating the law of England. (n)

It is not unimportant to notice, that some of his objections to the Regiam Majestatem are clearly founded in error in regard to the state of the ancient law of Scotland. Craig, when treating on the subject of reversions, says, "Mirum tamen est quod in toto nostro jure antiquo, viz.

(m) "Nam ut ingenue fatear fori Anglici formam vix ipso in limine salutavi.”— Craig, Epistola nuncupatoria, p. 6. edit. 1732.

(n) Some instances of this may be noticed. When treating of the law of descent in real estate, he appears to have considered, that as in Kent, where gavelkind prevailed generally, so in Essex, Norfolk, Suffolk, and other places, there were general rules in the law of descent different from those of the common law of England (lib. 1. d. 7. s. 18.). Again, when treating of bastardy, and noticing that the law of England does not admit of legitimation per subsequens matrimonium, he says, the English law calls a son born before the marriage of his parents a mulier: “Mulierem per contemptum appellant." (lib. 2. d. 13. s. 27.) But this is also an error; the English law terms such a son "bastard

eigné." The son born after marriage is termed "mulier puisné." Co. Lit. 399. 2 Black. Com. 248. The law is stated upon this subject in the Regiam Majestatem as it still exists in England; lib. 2. c. 51.

C

"libris Regiæ Majestatis, de Judicibus, Quoniam Atta"chiamenta, Legibus cum Burgorum, tum Forestarum, "de reversione aut regressu nulla fit mentio; de re inva"diata aut mortuo vadio, plurima, quod longe a reversione "differt ut mox dicemus; nisi forte quis putet reversio66 num usum, cum hi libri scriberentur, ad nos nondum pervenisse. Ego, sane, illum librum Reg. Majest. a "nostris hominibus scriptum fuisse vix possum induci ut "credam. Anglorum enim leges et mores potius sapit ex "omni parte quam nostros." (o)

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But Lord Kaimes apparently more than solves this difficulty of Craig; he says, " Saving the respect due to "an author of established reputation, the wonder may be "justly retorted upon him that he should be so ignorant "of the laws and constitutions of his own country. It "need not be surprising that no mention is made of a "reversion in our first law books, when it was a late "invention in the days of James III." (p)

66

In another place, when noticing the tenure of villenage, Craig says, "Tenendriam de villenagio omnino præterii propter ejus apud nos insolentiam; nullus enim apud "nos ejus usus, et inauditum nomen, nisi quod nonnulla "in libro Regiæ Majestatis de nativis, et ad libertatem "proclamantibus, proponantur; quæ et ab Anglorum "moribus sunt recepta, et nunquam in usum nostrum "deducta." (9) Nothing, however, is now clearer than this, that villenage was at one period common in Scotland, as it was in England. This appears from numerous royal

(0) Craig, lib. 2. d. 6. s. 25.

(p) Statute Law abridged, Historical Notes, p. 429. He refers to the statute 1469. c. 27., which introduced reversions into the law of Scotland.

(q) Craig, lib. 1. d. 11. s. 32.

charters and transcripts of deeds in the chartularies of the Scottish monasteries. It is quite unnecessary to quote at length the numerous authorities upon this subject. (r)

Grounds, however, exist, upon which there appears to be reason to conclude that the Regiam Majestatem, notwithstanding any blots and uncertainties with which it may be charged, contains an outline of what was at one time the law of Scotland.

1. For several centuries after the Norman Conquest the connexion between England and Scotland was most intimate. During this period the Scottish kings had great fiefs in England, numerous Anglo-Norman families settled in Scotland, and the crown of that country was successively held by two of those families, the Baliols and Bruces. In the absence of all evidence it would be reasonable to conclude, that, while this state of things remained, there should be an approximation of the laws of the two countries.

2. The offices of sheriffs and coroners, and the practice as to justice-ayres, and the brieves or writs issuing from the Chancery, which were common to the laws of both countries, all tend to show that such approximation once existed. Some of these have disappeared from the law and practice of Scotland, but enough of them remains to show the landmarks of the ancient legal institutions of that country. (s)

(r) 1 Lord Hailes's Annals, p. 304. Robertson's Index of Royal Charters, pp. 16. 47. 66. 81. 91. 96. 134. &c. The chartularies referred to are specified in Chalmers's Caledonia, vol. i. p.719. et sequen.

(s) Daines Barrington, in his "Observations on the more ancient "Statutes” (p. 126), when treating of the writs contained in the Register in England, says, "I have likewise compared them with the "forms in that ancient book in the Scotch law entitled Quoniam "Attachiamenta. The comparison of these writs seems most fully to prove the great authority which is due to our Registrum Brevium, and

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