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The History of the Common Law of England
X.
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 of England.

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 England. And,

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. 55.

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. 92.

The Preference of the Lord by Priority to the Custody of the Ward. Ibid. cap. 95.

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. 23.

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. 37.

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, viz.

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 Competitors.

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 Scotland.

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.

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