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3 - Ius Civile in Scotland, c 1600

from FOUNDATION AND CONTINUITY

Published online by Cambridge University Press:  25 October 2017

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Summary

In 1922, J D Mackie and W C Dickinson published in the Scottish Historical Review an important document “unearthed from among the treasures of the British Museum”. The soil in which it had lain concealed was that of the famous Cottonian manuscripts. The particular manuscript was entitled Relation of the Manner of Judicatores of Scotland. The editors provided a short introduction in which they were mainly concerned with dating the text and speculating on its authorship through an analysis of the contents; while there was some contradictory evidence, they concluded, somewhat cautiously, that there was no reason why the “document should not be dated soon after the Union of 1603”. This seems convincing. They also speculated – quite plausibly – that “it was one of the very documents which formed the basis of negotiations between the commissioners appointed by England and Scotland” to fulfil James VI's dream of a union – including a union of the laws – of his kingdoms. The nature of the text – evidently drafted by a Scottish lawyer to inform an English lawyer about the institutions of the Scottish legal system and their procedures – supports this, although one could well imagine other reasons for its composition. Mackie and Dickinson suggested two possible authors: Thomas Hamilton, Earl of Melrose, and Sir John Skene, both of whom were Scottish commissioners for Union; one might also add the possibility of Thomas Craig of Riccarton, another Scottish commissioner, although this is unlikely. The two scholars also suggested that the memorandum was probably intended for the English Lord Chancellor, Thomas Ellesmere, largely because at one spot the intended recipient was apostrophised directly as “your Lordship”.

This fascinating document has attracted little attention from legal historians, although mentioned in Goodare's recent study, State and Society in Early Modern Scotland. It does, however, provide a starting point for this discussion. Whoever drafted the Relation was indeed very knowledgeable about the working of the Scottish courts. For example, the brief discussion of the College of Justice rather nicely supplements the account of procedure before the Court of Session found in Sir John Skene's Ane Short Forme of Proces, which is rather technical, by focusing on the way matters were practically managed, such as the layout of the Court of Session, how Outer House business relates to that of the Inner House, and so on.

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Law, Lawyers, and Humanism
Selected Essays on the History of Scots Law, Volume 1
, pp. 34 - 66
Publisher: Edinburgh University Press
Print publication year: 2015

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