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The History of the Common Law of England|
by Hale, Matthew
| Concerning the Communication of the Laws of England
unto the Kingdom of Scotland|
Because this Inquiry will be of Use, not only in itself, but also as a
Parallel Discovery of the Transmission of the English Laws into Scotland, as
before is shewn they were into Normandy; I shall in this Chapter pursue and
solve their several Queries, viz.
1st, What Laws of Scotland hold a Congruity and Suitableness with those
2dly, Whether these be a sufficient Ground for us to suppose, that that
Similitude or Congruity began with a Conformation of their Laws to those of
3dly, What might be reasonably judged to be the Means or Reason of the
Conformation of their Laws unto the Laws of England.
As to the First of these Inquiries; It is plain, beyond all
Contradiction, that many of the Laws of Scotland hold a Congruity and
Similitude, and many of them a perfect Identity with the Laws of England, at
least as the English Laws stood in the Times of Hen. 2. Richard I. King John,
Henry 3. and Edw. I. And altho, in Scotland, Use hath always been made of the
Civil Law, in point of Direction or Guidance, where their Municipal Laws,
either Customary or Parliamentary failed; yet as to their particular Municipal
Laws, we shall find a Resemblance, Parity and Identity, in their Laws with the
Laws of England, anciently in Use; and we need go no further for Evidence
hereof, than the Regiam Majestatem, a Book published by Mr Skeen in Scotland.
It would be too long to Instance in all the Points that might be produced; and
therefore I shall single out some few, remitting the Reader for his further
Satisfaction to the Book itself.
Dower of the Wife to be the Third Part of her Husband's Lands of
Inheritance; the Writ to recover the same; the Means of forfeiting thereof by
Treason or Felony of the Husband or Adultery of the Wife; are in great Measure
conformable to the Laws of England. Vide Regiam Majestatem, Lib. 2. cap. 16,
17. and Quoniam Attachiamento, cap. 85.
The Exclusion of the Descent to the elder Brother by his receiving
Homage, which tho' now antiquated in England, was anciently received here for
Law, as appears by Glanville, Lib. 7. cap. I. and Vide Regiam Majestatem, Lib.
2. cap. 22.
The Exclusion of Daughters from Inheritances by a Son: The Descent to
all the Daughters in Coparcenary for want of Sons; the chief House allotted to
the eldest Daughter upon this Partition; the Descent to the Collateral Heirs,
for want of Lineal, &c. Ibid. cap. 24, 25, 26, 27, 28, 33, 34. But this is
now altered in some Things Per Stat. Rob. cap. 3.
The full Ages of Males 21, of Females 14, to be out of Ward in Socage
16. Ibid. cap. 42.
That the Custody of Idiots belonged to the King, Ibid. cap. 46.
The Custody of Heirs in Socage belong to the next of Kin, to whom the
Inheritance can't descend. Vide Regiam Majest. cap. 47.
The Son born before Marriage, or Bastard eigne, not to be legitimate by
the Marriage after, nor was he hereditable by the ancient Laws of Scotland,
though afterward altered in Use, as it seems, Regiam Majest. cap. 51.
The Confiscation of Bona Usurariorum, after their Death, conform to the
old Law here used. Ibid. cap. 54. tho' now antiquated.
The Laws of Escheats, for want of Heirs, or upon Attainder. Ibid. cap.
The Acquittal of Lands given in Frank-Marriage, till the fourth Degree
be past, Ibid. cap. 57. Homage, the Manner of making it with the Persons, by,
or to whom, as in England, Ibid. cap. 61, 62, 63, &c.
The Relief of an Heir in Knights Service, of full Age, Regiam
Majestatem, cap. 17.
The Preference of the Sister of the whole Blood, before the Sister of
the half Blood. Quoniam Attachiamento, cap. 89.
The single Value of the Marriage, and Forfeiture of the double Value,
precisely agree with the Statute of Marlbridge. Ibid. cap. 91.
The Forfeiture of the Lord's disparaging his Ward in Marriage, agrees
with Magna Charta, and the Statute of Marlbridge. Quoniam Attachiamento, cap.
The Preference of the Lord by Priority to the Custody of the Ward. Ibid.
The Punishment of the Ravisher of a Ward, by two Years Imprisonment,
&c. as here. Ibid. cap. 90.
The Jurisdiction of the Lord in Infangtheof. Ibid. cap. 100.
Goods confiscate, and Deodands, as here, Liber De Modo tenendi Cur.
Baron. cap. 62, 63, 64.
And the like of Waifs. Ibid. cap. 65.
Widows, not to marry without Consent of the Lord, Statute Mesei. 2. cap.
Wreck of the Sea, defined precisely as in the Statute Westm. 2. Vide
Ibid. cap. 25.
The Division of the Deceased's Goods, one Third to the Wife, another
Third to the Children, and another to the Executor, &c. conformable to the
ancient Law of England, and the Custom of the North to this Day. Lib. 2. cap.
Also the Proceedings to recover Possessions, by Mortdancester, Juris
Utrum, Assise de Novel disseisin, &c. The Writs and Process are much the
same with those in England, and are directed according to Glanville, and the
old Statutes in the Time of Edw. I. and Hen. 3. Vide Regiam Majestat. Lib. 3.
cap. 27 to 36.
Many more Instances might be given of many of the Municipal Laws of
Scotland, either precisely the same with those in England, or very near, and
like to them: Tho' it is true, they have some particular Laws that hold not
that Conformity to ours, which were introduced either by particular or common
Customs, or by Acts of their Parliaments. But, by what has been said and
instanced in, it appears, That like as hetween the Laws of England and
Normandy, so also between the Laws of England and Scotland, there was anciently
a great Similitude and Likeness.
I come therefore to the Second Thing I proposed to enquire into, viz.
what Evidence there is, That those Laws of Scotland were either desumed from
the English Laws, or from England, transmitted thither in such a Manner, as
that the Laws here in England were as it were the Original or prime Exemplar,
out of which those parallel or similar Laws of Scotland were copied or
transcribed into the Body of their Laws: And this appears evident on the
following Reasons, viz.
First, For that Glanville (which, as has been observed, is the
ancientest Collection we have of English Laws) seem to be even transcribed in
many entire Capita of the Laws above-mentioned, and in some others where
Glanville doubts, that Book doubts; and where Glanville follows the Practice of
the Laws then in Use, tho' altered in succeeding Times, at least after the
Reign of Edw. I. there the Regiam Majestatem does accordingly; for Instance,
Glanville, Lib. 7. cap. I. determines, That a Man can't give away part
of the Lands which he held by Hereditary Descent unto his Bastard, without the
Consent of his Heir, and that he may not give all his Purchases from his eldest
Son; and this is also declared to be the Law of Scotland accordingly, Regiam
Majestatem, Lib. 2. cap. 19, 20. Tho' since Glanville's Time, the Law has been
altered in England.
Also Glanville, Lib. 7. cap. I. makes a great Doubt, Whether the second
Son, being enfeoffed by the Father, and dies without Issue; whether the Land
shall return to the Father, or descend to his eldest, or to his youngest
Brother; and at last gives such a Decision as we find almost in the same Terms
and Words recited in the Question and Decisions laid down in Regiam. Majest.
Lib. 2. cap. 22.
Again, Glanville, Lib. 7. cap. I. makes it a difficult Question in his
Time, Whether the eldest Son dying in the Life-time of his Father, having
Issue, the Nephew or the youngest Son shall inherit; and gives the Arguments
Pro & contra: And Regiam Majestatem, cap. 33. seems to be even a Transcript
thereof out of Glanville.
And further, the Tract concerning Assizes, and the Time of Limitation,
the very Form of the Writs, and the Method of the Process, and the Directions
touching their Proceedings are but Transcripts of Glanville, as appears by
comparing Regiam Majestatem, Lib. 3. cap. 36. with Glanville, Lib. 13. cap. 32.
and the Collector of those Laws of Scotland in all the before-mentioned Places,
and divers others, quotes Glanville as the Pattern at least of those Laws.
But Secondly, A second Evidence is, because many of the Laws which are
mentioned in the Regiam Majestatem quoniam Archiamento, and other Collections
of the Scotish Laws, are in Truth very Translations of several Statutes made in
England in the Times of King Hen. 3. and King Edw. I. For Instance; the Statute
of their King Robert 2. cap. I. touching Alienations to Religious Men, is
nothing else but an Enacting of the Statute of Mortmain, 13 E. 1. cap. 13. The
Law above-mentioned, touching the Disparagement of Wards, is desumed out of
Magna Charta, cap. 6. and the Statute of Merton, cap. 6. So the Law abovesaid,
against Ravishers of Wards, is taken out of Westm. 2. cap. 35. So the said Law
of the double Value of Marriage, is taken out of Westm. 1. cap. 22. The Law
concerning Wreck of the Sea, is but a Transcript out of Westm. 1. cap. 4. and
divers other Instances of like Nature might be given, whereby it may appear,
that very many of those Laws in Scotland which are a part of their Corpus
Juris, bear a Similitude to the Laws of England, and were taken as it were out
of those Common or Statute Laws here, that obtain'd in the Time of Edw. I and
before, but especially such as were in Use or Enacted in the Time of Edw. I and
the Laws of England, relative to those Matters, were as it were the Original
and Exemplar from whence those Similar or Parallel Laws of Scotland were
derived or borrowed.
Thirdly, I come now to consider the Third Particular, viz. By what
Means, or by what Reason this Similitude of Laws in England and Scotland
happened, or upon what Account, or how the Laws of England at least in many
Particulars, or Capita Legum, came to be communicated into Scotland, and they
seem to be principally these two, viz. First, The Vicinity of that Kingdom to
this. And Secondly, The Subjection of that Kingdom unto the Kings of England,
at least for some considerable Time.
Touching the former of these; First, It is very well known, that England
and Scotland made but one Island, divided not by the Sea or any considerable
Arm thereof, but only by the Interjacency of the River Tweed, and some Desart
Ground, which did not hinder any easy common Access of the People of the one
Kingdom to the other: And by this Means, First, The Intercourse of Commerce
between that Kingdom and this was very frequent and usual, especially in the
Northern Counties, and this Intercourse of Commerce brought unto those of
Scotland an Acquaintance and Familiarity with our English Laws and Customs,
which in Process of Time were adopted and received gradually into Scotland.
Again, Secondly, This Vicinity gave often Opportunities of transplanting
of Persons of either Nation into the other, especially in those Northern Parts,
and thereby the English transplanted and carried with them the Use of their
Native Customs of England, and the Scots transplanted hither, became acquainted
with our Customs, which by occasional Remigrations were gradually translated
and became diffus'd and planted in Scotland; and it is well known, that upon
this Account some of the Nobility and great Men of Scotland had Possessions
here as well as there: The Earls of Angus were not only Noblemen of Scotland,
but were also Barons of Parliament here, and sate in our English Parliaments,
as appears by the Summons to Parliament, Tempore Edvardi Tertii.
Again, Thirdly, The Kings of Scotland had Feodal Possessions here; for
Instance, The Counties of Cumberland, Northumberland and Westmoreland, were
anciently held of the Crown of England by the Kings of Scotland, attended with
several Vicissitudes and Changes until the Feast of St. Michael, 1237, at which
Time Alexander King of Scotland finally released his Pretensions thereunto, as
appears by the Deed thereof enter'd into the Red-Book of the Exchequer, and the
Parliament Book of 20 E. I. and in Consideration thereof, Hen. 3. gave him the
Lands of Penreth and Sourby, Habend' sibi Heredibus suis Regibus Scotiae, and
by Virtue of that Special Limitation, they came to John the eldest Son of the
eldest Daughter of Alexander King of Scotland, together with that Kingdom; but
the Land of Tindale, and the Manor of Huntingdon, which were likewise given to
him and his Heirs, but without that Special Limitation, Regibus Scotiae, fell
in Coparcenry, one Moiety thereof to the said John King of Scotland, as the
Issue of the eldest Daughter, and the other Moiety to Hastings, who was
descended from the younger Daughter of the said Alexander: But those
Possessions came again to the Crown of England by the Forfeiture of King John
of Scotland, who through the Favour of the King of England he had Restitution
of the Kingdom of Scotland, yet never had Restitution of those Possessions he
had in England, and forfeited and lost by his levying War against the Kingdom
of England, as aforesaid.
And thus I have shewn, that the Vicinity of the Kingdoms of England and
Scotland, and the Consequence thereof, viz. Translations of Persons and
Families, Intercourse of Trade and Commerce, and Possessions obtained by the
Natives of each Kingdom in the other, might be one Means for communicating our
Laws to them.
But Secondly, There was another Means far more effectual for that End,
viz. The Superiority and Interest that the Kings of England obtain'd over the
Crown and Kingdom of Scotland, whereby it is no Wonder that many of our English
Laws were transplanted thither by the Power of the English Kings. This
Interest, Dominion, or Superiority of the Kings of England in the Realm of
Scotland may be considered these Two Ways, viz. 1st. How it stood antecedently
to the Reign of King Edw. I. And 2dly, How it stood in his Time.
Touching the former of those, I shall not trouble myself with collecting
Arguments or Authorities relating thereto; he that desires to see the whole
Story thereof, let him consult Walsingham, sub Anno 18 Edw. I. as also Rot.
Parl. 12 R. 2. Pars secunda, No. 3. Rot. Claus. 29 E. I. M. 10. Dorso, and the
Letter of the Nobility to the Pope asserting it. Ibid.
And this might be one Means, whereby the Laws of England in elder Times
might in some Measure be introduced into Scotland.
But I rather come to the Times of King Edw. I who was certainly the
greatest Refiner of the English Laws, and studiously endeavoured to enlarge the
Dominions of the Crown of England, so to extend and propagate the Laws of
England into all Parts subject to his Dominion. This Prince, besides the
ancient Claim he made to the Superiority of the Crown of England over that of
Scotland, did for many Years actually enjoy that Superiority in its full
Extent, and the Occasion and Progress thereof was thus, as it is related by
Walsingham, and consonantly to him appears by the Records of those Times, viz.
King Edw. I. having formerly received the Homage and Fealty of Alexander King
of Scots, as appears Rot. Claus. 5 E. I. M. 5. Dorso, was taken to be Superior
Dominus Scotiae Regni.
Alexander dying, left Margaret his only Daughter, and she dying without
Issue, about 18 E. I. there fell a Controversy touching the Succession of the
Crown of Scotland, between the King of Norway claiming as Tenant by the
Curtesy, Robert de Bruce descended from the younger Daughter of David King of
Scots, and John de Baliol descended from the elder Daughter, with divers other
All the Competitors submit their Claim to the Decision of Edw. I. King
of England as Superior Dominus Regni Scotiae, who thereupon pronounced his
Sentence for John de Baliol, and accordingly put him in Possession of the
Kingdom, and required and received his Homage.
The King of England, notwithstanding this, kept still the Possession,
& Insignia of his Superiority. his Court of King' sBench sate actually at
Roxborough in Scotland, Mich. 20, 21 Ed. I. coram Rege, and upon Complaint of
Injuries done by the said John King of Scots, now restor'd to his Kingdom, he
summoned him often to answer in his Courts, Mich. 21, 22 Edw. I. Northumh.
Scot. He was summoned by the Sheriff of Northumberland to answer to Walbesi in
the King's Court, Pas. 21. E. I. coram Rege. Rot. 34. He was in like wanner
summoned to answer John Mazune in the King's-Bench for an Injury done to him,
and Judgment given against the King of Scots, and that judgment executed.
John King of Scots, being not contented with this Subjection, did in the
24th Year of King Edw. I resign back his Homage to King Edward, and bid
Defiance to him; wherefore King Edw. I the same Year with a powerful Army
entered Scotland, took the King of Scots Prisoner, and the greatest part of
that Kingdom into his Possession, and appointed the Earl Warren to be Custos
Regni, Cressingham to be his Treasurer, and Ormsby his Justice, and commanded
his Judges of his Courts of England to issue the King of England's Writs into
And when in the 27th Year of his Reign, the Pope, instigated by the
French King, interpos'd in the Behalf of the King of Scotland, he and his
Nobility resolutely denied the Pope's Intercession and Mediation.
Thus the Kingdom of Scotland continued in an actual Subjection to the
Crown of England for many Years; for Rot. Claus. 33 E. I. Membr. 13. Dorso, and
Rot. Claus. 34 E. I. Memb. 3. Dorso; several Provisions are made for the better
ordering of the Government of Scotland.
What Proceedings there were herein in the Time of Edw. 2 and what
Capitulations and Stipulations were afterwards made by King Edw. 3 upon the
Marriage of his Sister by Robert de Bruce touching the Relaxation of the
Superius Dominium of Scotland, is not pertinent to what I aim at, which is, to
shew how the English Laws that were in Use and Force in the Time of Edw. I
obtained to be of Force in Scotland, which is but this, viz.
King Edward I having thus obtained the actual Superiority of the Crown
of Scotland, from the Beginning of the Reign until his 20th Year, and then
placing John de Baliol in that Kingdom, and yet continuing his Superiority
thereof, and keeping his Courts of Justice, and exercising Dominion and
Jurisdiction by his Officers and Ministers in the very Bowels of that Kingdom,
and afterwards upon the Defection of this King John, in the 24th of Edw. I
taking the whole Kingdom into his actual Administration, and placing his own
Judges and great Officers there, and commanding his Courts of King's-Bench
(&c.) here, to Issue their Process thither, and continuing in the actual
Administration of the Government of that Kingdom during Life: It is no Wonder
that those Laws, which obtained and were in Use in England, in and before the
Time of this King, were in a great Measure translated thither; and possibly
either by being enacted in that Kingdom, or at least for so long Time, put in
Use and Practice there, many of the Laws in Use and Practice here in England
were in his Time so rivetted and settled in that Kingdom, that 'tis no Wonder
to find they were not shaken or altered by the liberal Concessions made
afterwards by King Edw. 3 upon the Marriage of his Sister; but that they remain
Part of the Municipal Laws of that Kingdom to this Day.
And that which renders it more evident, That this was one of the
greatest Means of fixing and continuing the Laws of England in Scotland, is
this, viz. This very King Edw. I was not only a Martial and Victorious, but
also a very Wise and Prudent Prince, and one that very well knew how to use a
Victory, as well as obtain it: And therefore knew it was the best Means of
keeping those Dominions he had powerfully obtain' d, by substituting and
translating his own Laws into the Kingdom which he had thus subdued. Thus he
did upon his Conquest of Wales; and doubtless thus he did upon his Conquest of
Scotland, and those Laws which we find there so nearly agreeing with the Laws
of England used in his Time, especially the Statutes of Westm. 1 and Westm. 2
are the Monuments and Footsteps of his Wisdom and Prudence.
And, as thus he was a most Wise Prince, and to secure his Acquests,
introduced many other Laws of his Native Kingdom into Scotland; so he very well
knew the Laws of England were excellent Laws fitted for the due Administration
of Justice to the Constitution of the Governed, and fitted for the Preservation
of the Peace of a Kingdom, and for the Security of a Government: And therefore
he was very solicitous, by all prudent and careful Means imaginable, to graft
and plant the Laws of England in all Places where he might, having before-hand
used all possible Care and Industry for Rectifying and Refining the English
Laws to their greatest Perfection.
Again, It seems very evident, that the Design of King Edw. I was by all
Means possible to unite the Kingdom of Scotland (as he had done the
Principality of Wales) to the Crown of England, so that thereby Britain might
have been one entire Monarchy, including Scotland as well as Wales and England
under the same Sceptre; and in order to the accomplishing thereof, there could
not have been a better Means than to make the Interest of Scotland one with
England, and to knit 'em as it were together in one Communion, which could
never have been better done than by establishing one Common Law and Rule of
Justice and Commerce among them; and therefore he did, as Opportunity and
Convenience served, translate over to that Kingdom as many of our English
Customs and Laws as within that Compass of Time he conveniently could.
And thus I have given an Essay of the Reasons and Means, how and why we
find so many Laws in Scotland parallel to those in England, and holding so much
of Congruity and Likeness to them.
And the Reason why we have but few of their Laws that correspond with
ours of a later Date than Edw. I or at least Edw. 2 is because since the
Beginning of Edw. 3 that Kingdom has been distinct, and held little Communion
with us till the Union of the two Crowns in the Person of King James I and in
so great an Interval it must needs he, that by the Intervention and Succession
of new Laws, much of what was so ancient as the Times of Edw. I and Edw. 2 have
received many Alterations: So that it is a great Evidence of the Excellency of
our English Laws, that there remain to this Day so many of them in Force in
that Part of Great Britain continuing to bear Witness, that once that excellent
Prince Edw. I exercised Dominion and Jurisdiction there.
And thus far of the Communion of the Laws of England to Scotland, and of
the Means whereby it was effected; from whence it may appear, That as in Wales,
Ireland and Normandy, so also in Scotland, such Laws which in those Places have
a Congruity or Similitude with the Laws of England, were derived from the Laws
of England, as from their Fountain and Original, and were not derived from any
of those Places to England.