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INTRODUCTION.

OF THE LAW OF SCOTLAND.

1. THE customs which spring from the notions of right and wrong of a rude and simple community, form the groundwork of the legal arrangements of Scotland, as of every other nation.

2. These customs, modified and supplemented by the increased experience, the growing requirements, and the external relations of each generation, and defined by the enactments of the Legislature and the decisions of the Courts, constitute the law of Scotland as it now exists.

3. In the earliest form in which it has been transmitted to us, the law of Scotland bears a close analogy to that of Anglo-Saxon England, and of the other nations of Northern Europe which were peopled by Teutonic races. Amongst the external causes which have modified it at a more recent date, there are two which may be singled out as the most important: the intimate connection which subsisted for several centuries between this country and the continent of Europe, more particularly France; and the Union with England.

(1st.) To the French connection, which at one time amounted to actual internationalization (1558, c. 66), we trace a large infusion of the principles of the Roman civil law into our law of marriage, of guardianship, of contracts, and the like; and the adoption of several judicial arrangements peculiarly French, such

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as the constitution of the College of Justice on the model of the Parliament of Paris, and the institution of a public prosecutor of crimes. Similar effects must have been produced by the custom of our lawyers resorting for instruction to the universities of Italy and Holland.

(2nd.) To the Union we ascribe the assimilation which has already taken place, and which is daily going on, between the laws of Scotland and England. This assimilation has hitherto been most perceptible in the different departments of our mercantile law and in our law of evidence.

4. The statute law of Scotland divides itself into two distinct and, in many respects, dissimilar portions; the first having been enacted by the Parliament of Scotland previous to the Union, the second by the Parliament of Great Britain.

5. A third division has commonly been made between that which is prior and that which is subsequent to the reign of James I.; the authority of statute law in the stricter sense being confined to the latter, whilst the former is held "gradually to have lost its force, because not having been preserved from interpolation by any public record." (Ersk. i. 1, secs. 36, 37.)

6. In this view, the earliest statute now in force is the 11th of the First Parliament of King James I. (1424), "Of Cruves, Zaires, and Satterdaies Slop," as interpreted by the Act 1477, c. 73, "Anent Cruves." In both of these Acts reference is made to an "old statute made by King David," requiring that "ilk heck of the foresaidis Cruves be three inche wide." It thus happens, by a singular chance, that this unimportant regulation

Much of the legal and official terminology by which the law of Scotland is distinguished from that of England, and which it possesses in common with the legal and judicial systems of the Continent, is to be ascribed to the same cause. The ouverture of the French Estates still lives in the overtures of our ecclesiastical courts; the English mayor with us becomes a provost or prévôt; the alderman becomes a bailie, the barrister an advocate or avocat, the agent a procurator or procureur, and the like.

as to the mode of catching salmon is the oldest statutory provision now in force in Scotland.

7. In some respects the early legislation of Scotland was advanced beyond that of conterminous and contemporary nations. The important Act by which agricultural leases are made effectual against the successors of the granter was passed in 1449 (c. 18); and the Act establishing the prescription of obligations by the lapse of forty years, in 1469 (c. 28). In opposition to the English view, it has always been held that the ancient statute law of Scotland may be repealed by desuetude (Stair, B. i. tit. i. 25, note a, Brodie's ed.; Ersk. i. tit. i. 45, notes 12, 13, Ivory's ed.); and the circumstance to which the old statutes which we have mentioned owe their binding force at the present day, is consequently not that they were once enacted, but that they have been in continual observance, and are still in accordance with the requirements of the community.

8. The Acts of Sederunt, or ordinances made by the Court of Session for regulating the forms of proceeding to be observed in actions, are likewise regarded as a part of the written law of Scotland; the Court having a delegated power from Parliament to "make sik actes, statutes, and ordinances, as they sall thinke expedient, for ordouring of proces, and haistie expedition of justice." (1540, c. 93.)

BOOK I.

OF THE FAMILY RELATIONS.

9. The family being the original seat of legal as well as of moral rights and duties (Arist. politic. i. 4-6), it has been customary with lawyers to give to the relations which subsist between its members, and the obligations which spring from them, precedence over those between the members of the same or separate communities simply as such.

CHAPTER I.

OF HUSBAND AND WIFE.

L. OF THE CONSTITUTION OF MARRIAGE.

10. Marriage, in the eye of the law of Scotland, as of that of Rome, is a civil contract, constituted, like every other civil contract, by consent. (Ersk. i. 6. 2; D. lib. 50, tit. 17, L. 30, and lib. 35, tit. 1, 1. 15; Confess. of Faith, xxiv. 3. But see Fraser, Husband and Wife, p. 155 et seq.)

11. Nor does the fact of consent to this contract require to be established by any peculiar civil solemnities, but admits of being proved by ordinary evidence, either parole or written. (Ersk. i. 6. 5 and 6; Fraser, 294 et seq.)

12. Fully alive, however, to the peculiar importance of this contract, of which Lord Stowell has justly said (Dalrymple v. Dalrymple, 2 Hagg. p. 63) that it is the "parent, not the child, of civil society," the law of Scotland has always watched with

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