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7 - Attitudes to Codification and the Scottish Science of Legislation, 1600–1830

from FOUNDATION AND CONTINUITY

Published online by Cambridge University Press:  25 October 2017

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Summary

INTERPRETATIONS OF SCOTS LAW, c 1600

James VI and I and union of the laws

On the death of Elizabeth I of England on 24 March 1603, James VI of Scotland inherited the throne of England. This was the great triumph of the Stewart dynasty, which had reigned in Scotland since 1371, having inherited the Scottish throne through the marriage of James's ancestor Walter the Stewart to Marjorie, the daughter of Robert I (Bruce). Educated by the brilliant Scottish Humanist, George Buchanan, James was a talented poet in his native Scots; more than this, he was – rare among monarchs – an intellectual who could theorise cogently and interestingly about poetry and, perhaps more significantly here, about politics, kingship and government.

James was a man with a broad and, indeed, imperial vision, which was coupled with a political realism acquired during his difficult – and no doubt sometimes terrifying – childhood and adolescence in Scotland. This is not to say that he always achieved his aims: by no means. But, much more importantly, he was careful not to overreach himself. He had a streak of pragmatism that his second son, Charles, singularly lacked. One of James's favoured projects was a union of his two kingdoms of Scotland and England. This was to involve a union of the laws. James's ambitions were not achieved. This topic will not be explored here. But it is useful to start with the debates about a possible union of the laws – not really much wanted by his subjects in either kingdom – because they produced interesting attempts to characterise Scots law in contrast to English law in the late-Renaissance period.

A notable feature of these characterisations was that those in favour of a union of the laws tended to argue that, at a fundamental level, the Scots and English laws were similar. The argument was essentially historical. King James himself stated in 1607 in a speech to the English Parliament:

All the Lawe of Scotland for Tenures, Wards and Liueries, Seigniories and Lands, are drawen out of the Chauncerie of England, and for matters of equitie and in many things else, differs from you but in certaine termes: James the first, bred here in England, brought the Lawes thither in a written hand.

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Law, Lawyers, and Humanism
Selected Essays on the History of Scots Law, Volume 1
, pp. 144 - 220
Publisher: Edinburgh University Press
Print publication year: 2015

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