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6 - Natural Law, National Laws, Parliaments, and Multiple Monarchies: 1707 and Beyond

from FOUNDATION AND CONTINUITY

Published online by Cambridge University Press:  25 October 2017

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Summary

Ditlev Tamm has pointed out that the gateway of the town of Rendsburg in Schleswig contained a stone marking the northern limit of the Holy Roman Empire. Among the many implications of this, one may be singled out. Whatever may have been the importance or effectiveness of the Empire, the territory beyond the river Eider could not even in theory be subject to the jurisdiction of the Reichskammergericht in Speyer (or later Wezlar) and hence subject, barring local statutes and customs, to the authority of the gemeines Recht applied by that court. South of the Eider, Holstein, however, also under the King of Denmark, was a Duchy of the Empire. This is just one indicator of the potential legal complexity of the territories of the Danish composite monarchy, which included through the eighteenth century, as well as these German territories, Norway, Iceland, Greenland, and some Caribbean islands. Scotland had no need of such a boundary stone to indicate it was not part of the Empire, although in 1469, shortly after James III's marriage to Princess Margaret of Denmark, Parliament, declaring that the king possessed “ful Jurisdictioune and fre Impire within his Realme”, deprived the work of imperial notaries of any authority in civil cases in Scotland. Ten years later, a clergyman was accused before Parliament of “tresonable usurpacioune” for his pretended legitimation of a child “in the name and Autorite of the Emperoure, contrare to our souverain lordis croune and maieste Riale”. So even in Scotland the universal claims of the Emperors had an impact.

Both Scotland and Denmark have an identity and national consciousness which may be traced to the Middle Ages. In both, the law has commonly come to be seen as one of many badges of that national identity. Without endorsing this (essentially nineteenth-century) view, comparison of the circumstances of the two countries brings differences rather than similarities to the front in assessing their laws. Thus, Scots law became a minority system in the British composite state; Danish law, on the other hand, was dominant in the Danish composite state. Despite the explicit rejection of the authority of the Roman Emperor in 1469, by 1700 Scots law had become strongly marked by a reception of the ius commune of Roman and Canon Law.

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Law, Lawyers, and Humanism
Selected Essays on the History of Scots Law, Volume 1
, pp. 115 - 143
Publisher: Edinburgh University Press
Print publication year: 2015

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