Law and Opinion in Scotland During the Seventeenth Century by J.D. Ford

By J.D. Ford

In Britain, a minimum of, alterations within the legislations are anticipated to be made via the enactment of statutes or the choice of instances by way of senior judges. attorneys convey evaluations concerning the legislation, yet don't anticipate their critiques to shape a part of the legislations. It was once no longer constantly so. This ebook explores the connection among the reviews expressed through attorneys and the improvement of the legislations of Scotland within the century previous the parliamentary union with England in 1707, while it used to be determined that the non-public legislations of Scotland was once sufficiently specific and coherent to be useful of renovation. credits for this unbelievable selection, which has led to the survival of 2 separate felony structures in Britain, has usually been given to the 1st Viscount Stair, whose associations of the legislations of Scotland had seemed in a revised version in 1693. This publication locations Stair's treatise in ancient context and asks even if it could actually were his purpose in writing to specific the kind of authoritative critiques that may were used to consolidate the rising legislation, and even if he might have been prompted in writing by means of a wish to make clear the connection among the legislation of Scotland and England. In doing so, the ebook offers a clean account of the literature and perform of Scottish legislations in its formative interval and whilst sheds gentle at the heritage to the 1707 union.

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Scot was also described by Sir James Balfour of Denmylne, Historical Works, vol 2, p 147, as ‘a bussie man in foule wether’, seemingly quite independently. For the Menteith affair and Scot’s part in it see Snoddy 1968, pp 90–111; Lee 1985, pp 119–26; Macinnes 1991, pp 82–6. 95 ‘Scotstarvet’s “Trew Relation”’, (1914–15), pp 76–81. See too Snoddy 1968, pp 112–29, and Acts of the Parliaments of Scotland, vol 6(1), pp 774–6, and vol 6(2), pp 15–20, 244–6 and 708–9. 96 ‘Scotstarvet’s “Trew Relation”’, (1913–14), p 168.

5(i); EUL, La III 528; Register of the Great Seal; Register of the Privy Council, 1st and 2nd ser; Acts of the Parliaments of Scotland; Brunton and Haig 1832; Fraser 1889, pp 78–9; Cokayne 1900–09; Balfour Paul 1904–14; Hannay 1933, pp 112–27; Donaldson 1976, pp 9–11. 100 Hannay 1933, pp 147–8, appears to indicate that the proportion of advocates raised to the bench was actually slightly higher before the seventeenth century. 101 ‘Scotstarvet’s “Trew Relation”’, (1913–14), pp 168–86. See too the Report on the Manuscripts of the Earls of Mar and Kellie, pp 139–44.

Scot could have reproduced his lesson as an example of the kind of academic discourse from which the consensus of learned men might emerge as a source of law alongside statute and custom. Yet as Scot himself observed, Stair’s lesson was not presented in a disputational style, with arguments and authorities assembled and appraised on either side of the question, but was ‘declamed’ in the style of a ‘publick oration’. 115 If another orator were called upon to defend the other side, the outcome would be similar to a disputation, but the style of argument would be quite different.

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