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THE HAMLYN LECTURES

THIRTEENTH SERIES

BRITISH JUSTICE:THE SCOTTISH CONTRIBUTION

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British Justice:

The Scottish Contribution

BY

T. B. SMITH, Q.C, D.C.L., LL.D., F.B.A.Professor of Civil Law in the University of Edinburgh

Published under the auspices of

THE HAMLYN TRUST

LONDON

S T E V E N S & S O N S L I M I T E D

1961

First published in 1961 byStevens & Sons Limitedof 11 New Fetter Lane inthe City of London andprinted in Great Britainby The Eastern Press Ltd.of London and Reading

Stevens $ Sons, Limited, London1961

PAHENTIBVS SCOTIS

CONIVGI CARISSIMAE EX ANGLIA ORTAE

VTRIVSQVE SANGVINIS LIBERIS

CONTENTS

The Hamlyn Trust . . . . . page x i

1 . P E R S P E C T I V E S : H I S T O R I C A L A N D C O M P A R A T I V E 1

P r o l o g u e . . . . . . . 1T h e F o u n d a t i o n s . . . . . 6

S c o t s L a w i n T i m e . . . . . 6S c o t s L a w i n S p a c e . . . . . 2 2

I n t e r n a t i o n a l L a w . . . . 2 2N a t u r a l i s a t i o n . . . . . 2 4D i p l o m a t i c P r i v i l e g e . . . . 2 7F u g i t i v e O f f e n d e r s a n d R u n a w a y M a r -

r i a g e s . . . . . . 2 7I n t e r n a t i o n a l M o v e m e n t f o r U n i f i c a -

t i o n o f L a w . . . . . 2 9M i l i t a r y L a w . . . . . 3 0P r i v a t e I n t e r n a t i o n a l L a w . . . 3 3D i a s p o r a o f t h e B r i t i s h P e o p l e s a n d

M i g r a t i o n o f E n g l i s h L a w . . 3 5S c o t t i s h L a w y e r s a n d t h e A n g l o - A m e r i c a n

L a w 4 3

2 . M A C H I N E R Y O F J U S T I C E . . . . 5 3

T h e B a s i c S y s t e m 5 3T h e E f f e c t o f U n i o n w i t h E n g l a n d . . 6 1

T h e U n i o n A g r e e m e n t . . . . 6 1T h e E x c h e q u e r C o u r t . . . . 6 2T h e P r i v y C o u n c i l 6 3T h e J u s t i c i a r y C o u r t . . . . 6 3A p p e a l s t o t h e H o u s e o f L o r d s . . 6 5

R e o r g a n i s a t i o n a n d R e f o r m . . . 6 9R e o r g a n i s a t i o n o f t h e C o u r t o f S e s s i o n . 6 9C o n s o l i d a t i o n o f t h e C e n t r a l C o u r t s . 7 1T h e J u r y C o u r t 7 3

v i i

viii Contents

2. MACHINERY OF JUSTICE—cont inued .

Reorganisation and Reform—continued.Evidence and Procedure . . . . 75Central Courts other t han the Court of

Session . . . . . . 80The Sheriff Court 81House of Lords 83High Court of Just ic iary . . . 89Sheriff Court (Criminal) and Inferior

Courts 91Resume 92

3. PATTERNS OF CRIMINAL J U S T I C E . . . 95

Scottish Criminal Law . . . . 95Breach of the Criminal Law and the

Power to Declare New Crimes . . 97Dole and Guilty Mind (Mens red) . . 101Insani ty and Diminished Responsibility . 105Criminal Conduct . . . . . 108

The Administration of Criminal Just ice . 115Crown Office and Public Prosecution . 115Arrest to Trial 120Pre-trial Procedure and Publicity . . 121Trial 125Evidence from the Accused at Firs t and

Second H a n d 127

4. T H E PATRIMONY OF PRIVATE L A W . . 141

Persons and Family Law . . . . 141Children 142

Status 142Capacity . . . . . . 145

Husband and Wife . . . . 1 4 8Marriage . . . . . . 148Divorce and Judicial Separation . 149Legal Proceedings between Spouses • 154

Obligations 155Delict 157

Contents

4. THE PATRIMONY OF PRIVATE LAW-Obligations—continued.

Quasi-Delict (Strict Liability)Quasi-ContractVoluntary Obligations

Promise .Contracts .

Proof of ObligationsProperty

Land OwnershipMoveable Property .Trusts .

Succession .Legal Rights .Testate Succession .Intestate SuccessionExecutors .

Conclusion . . . .

IX

-continued.

. 168

. 168

. 172

. 172

. 174

. 180

. 181

. 181

. 184

. 186

. 191

. 191

. 192

. 193

. 194

. 194

5. CONSTITUTIONAL QUESTIONS . . . . 1 9 6

The Basic Freedoms 196Rights t o Sue the Crown . . . . 198Church and State 199The Fundamenta l Constitution and Judicial

Review 201Epi logue: The Destiny of Scots Law . . 213

HAMLYN LECTURERS

1949 The Right Hon. Lord Denning

1950 Richard O'Sullivan, Q.c.

1951 F. H. Lawson, D.C.L.

1952 A. L. Goodhart, K.B.E., Q.C, F.B.A

1953 Sir Carleton Kemp Allen, Q.C, F.B.A.

1954 C. J. Hamson, M.A., LL.M.

1955 Glanville Williams, LL.D.

1956 The Hon. Sir Patrick Devlin

1957 The Right Hon. Lord MacDermott

1958 Sir David Hughes Parry, Q.C, M.A., LL.D., D.C.L.

1959 C. H. S. Fifoot, M.A., F.B.A.

1960 M. C. Setalvad, Padma Vibhufhan

1961 T. B. Smith, Q.C, D.C.L., LL.D., F.B.A.

THE HAMLYN TRUST

THE Hamlyn Trust came into existence under thewill of the late Miss Emma Warburton Hamlyn, ofTorquay, who died in 1941, aged eighty. She cameof an old and well-known Devon family. Her father,William Bussell Hamlyn, practised in Torquay as asolicitor for many years. She was a woman ofdominant character, intelligent and cultured, wellversed in literature, music and art, and a lover of hercountry. She inherited a taste for law, and studiedthe subject. She travelled frequently on the Continentand about the Mediterranean and gathered impressionsof comparative jurisprudence and ethnology.

Miss Hamlyn bequeathed the residue of her estatein terms which were thought vague. The matter wastaken to the Chancery Division of the High Court,which on November 29, 1948, approved a scheme forthe administration of the Trust. Paragraph 3 of theScheme is as follows:

" The object of this charity is the furtheranceby lectures or otherwise among the CommonPeople of the United Kingdom of Great Britainand Northern Ireland of the knowledge of theComparative Jurisprudence and the Ethnology ofthe chief European countries, including the UnitedKingdom, and the circumstances of the growth ofsuch jurisprudence to the intent that the Com-mon People of the United Kingdom may realisethe privileges which in law and custom they enjoy

xi

xii The Hamlyn Trust

in comparison with other European Peoples andrealising and appreciating such privileges mayrecognise the responsibilities and obligationsattaching to them."

The Trustees under the Scheme number eight, viz.:(a) Mr. S. K. COLERIDGE

(executor of Miss Hamlyn's Will)(b) Representatives of the Universities of London,

Wales, Leeds, Glasgow and Belfast, viz.:Professor G. W. KEETONProfessor D. J. LI. DAVIESProfessor P. S. JAMESProfessor D. M. WALKERProfessor J. L. MONTROSE

(c) The Vice-chancellor of the University ofExeter, ex officio (Dr. J. W. COOK).

(d) Dr. JOHN MURRAY (co-opted).The Trustees decided to organise courses of lectures

of high interest and quality by persons of eminenceunder the auspices of co-operating Universities orother bodies with a view to the lectures being madeavailable in book form to a wide public.

The thirteenth series of Hamlyn Lectures wasdelivered in October 1961 by Professor T. B. Smithof Edinburgh University.

JOHN MURRAY,Chairman of the Trustees.

October, 1961.

CHAPTER 1

PERSPECTIVES: HISTORICAL ANDCOMPARATIVE

PROLOGUE

THIS particular series of Hamlyn Lectures—thethirteenth—must contend with more than superstition.The previous twelve series have been delivered byjudges of exceptional eminence—such as Lord Denn-ing, Lord MacDermott and Lord Justice Devlin; byscholars of world-wide reputation—including TheMaster of University College, Oxford, Professor SirCarleton Allen, and the Professors of ComparativeLaw at Oxford and Cambridge. Most recently theAttorney-General of India, who is largely responsiblefor guiding in legal matters the 500 millions of thatvast Republic in its first generation of independencehas made a memorable contribution. My predecessorshave been American, Australian, Indian, Irish, Welshor English—yet the theme of each has been, mainly,the contribution of English law. The principles of theAnglo-American common law are applied in manylands throughout the world, and, indeed, govern—apoint to which I shall return later—the daily lives ofmillions of men and women whose ethnic roots do notreach down into Anglo-Saxon soil. Now, after variousaspects of this system have been expounded by mytwelve distinguished predecessors, for the first time theScottish contribution to British justice, nourished in a

1

2 British Justice: Scottish Contribution

very different legal tradition, is to be discussed—infulfilment of the object of the Hamlyn Trust to further" the knowledge of the Comparative Jurisprudenceand the Ethnology of the chief European countries,including the United Kingdom, and the circumstancesof the growth of such jurisprudence to the intent thatthe Common People of the United Kingdom mayrealise the privileges which in law and custom theyenjoy in comparison with other European peoples."

The law of the sister kingdom of England has inearlier series of Hamlyn Lectures had its full measureof praise already; and the tributes paid to thatoriginal product of English genius were well merited.Let me at the outset make one thing very clear.Though my great purpose in life has been to servethe law of Scotland in Aberdeen and Edinburgh, Ihave also had the privilege of studying the Englishlaw at Oxford under great teachers such as Goodhartand C. K. Allen; and I have shared in the corporatelife of that Inn of Court which the present LordChancellor and his predecessor, the Earl of Birken-head, F. E.—the greatest of all legal Smiths—haveadorned. These English legal influences I rememberwith gratitude; and I should be both ungrateful andunscholarly were I to compare Scottish and Englishlaw in any spirit of chauvinism or national intolerance.Such behaviour may in the past have been in order—as we shall see—for certain legislators at Westminsteror for certain judges in the House of Lords whenadjudicating on Scottish appeals. It would be unfit-ting for a Scotsman of integrity nurtured in thecosmopolitan Civilian traditions of Scots Law. Much

Perspectives: Historical and Comparative 3

in English culture and English law I admire, but likemy forebears, I cannot brook with patience thoseperiodic manifestations of arrogance or ignorancewhereby—in the supreme confidence that they knowwhat is best for us—certain southern mandarins havesought to subvert valued and valuable Scottish insti-tutions. Nor do I find the reflection comfortable thatScotsmen and Scots lawyers, who should have knownbetter, so often proved willing accomplices. More-over, even though comparisons may certainly beinvidious, I must sometimes make them. I shall notconceal from you my conviction that an impartialarbiter would often prefer, or have preferred, solutionsof Scottish law to those of English law. Further, itmay be noted that when Scots law has influencedEnglish law this has always proceeded on serious com-parative evaluation, and thus has almost invariablybeen beneficial to the receiving system. Conversely,though English legal influence has been beneficial incertain fields of Scottish jurisprudence, the introduc-tion of English solutions into Scots law has too oftenbeen prompted—not by comparative method—but bya policy of unconscious or deliberate anglicisation, andhas certainly not always resulted in improvement.

The Hamlyn Trust seeks to further in particular thestudy of comparative jurisprudence. Of Scots law Ishall assert the claim that it provides the ideal founda-tion for such a study—not only for what has beenachieved, but also as a warning against the confusionwhich can result from pseudo-comparative methods.Some, like Professor Lawson, may regard the Scottish

4 British Justice : Scottish Contribution

system as the "Paradise Lost" of the comparatist.1

Others take a rosier view. Levy-Ulmann, in a paperread in Paris in 1924 claimed2 " Scots law, as itstands, gives us a picture of what will be some day(perhaps at the end of this century) the law of thecivilised nations, namely a combination of the Anglo-Saxon system and the Continental system." Morerecently, Professor Friedmann of Columbia haswritten,3 " A comparative consideration of Scottishlaw might well help to form a bridge between thesystems and methods of Anglo-American and Conti-nental jurisprudence." In my final lecture I shallgive my own assessment of " The Destiny of ScotsLaw." Meanwhile to the pessimists I would justobserve that Milton wrote another epic in sequel to" Paradise Lost," and stress in general the importancewhich Scots law has already had for comparative juris-prudence. As in Ceylon, Quebec, Louisiana and SouthAfrica, so in Scotland, one can discern a fluctuatingcontest between, or comparative evaluation of, roman-istic principles and the principles of Anglo-Americanlaw: also to some extent the achievement of a syn-thesis between them. The late Lord Cooper of Culrossrightly observed that, without the stimulus of com-parative law Scots law " will assuredly perish." 4 Lawteachers and practitioners in the so-called " mixedsystems " must, of necessity, deal with legal conceptsand rules derived from basically different genera—not

1 Current Legal Problems (1949) at p. 229; Common LawyerLooks at the Civil Law (1955), n. 18.

2 (1925) 37 Jur.Rev. 370.3 Legal Theory, 4th ed., p. 469.4 Selected Papers, p. 144.


merely different varieties—of legal thought. Somegrafting from modern solutions of Anglo-Americanlaw, especially in the mercantile and economic field,has proved useful, but the roots of the Scottish systemof private law, in particular, go deep into a European,romanistic legal soil, and similar principles are to befound in other " mixed systems " or in those of theContinent of Europe. These principles we have insome measure (as Professor Rene David 5 of Paris andothers have noted) even mediated to English law; andmoreover in recent years study of Scottish criminallaw and procedure has provided English lawyers witha number of solutions worthy of imitation. Thoughno system of " British Law " exists, Scotland hasmade no mean contribution to British justice—both byevolving the particular Scottish system, and also byinfluencing the neighbouring system of England.David has discussed earlier this year " Existe-t-il UnDroit Occidental?"6 He concluded that the expres-sion " Western Law" has meaning already in thesociological and philosophical sense, and may well inthe future have an actual juristic content. In muchthe same way one may refer to British justice. Britishjustice is a term which I use in a broad sense, todescribe the sum total of legal ideas and aspirationswhich the British peoples share, despite differences intheir methods of achievement.

These Lectures are intended primarily for the benefitof " The Common People of the United Kingdom of

5 " XXth Century Comparative and Conflicts Law," 62; DroitCivil Compart, 309.

6 "XXth Century Comparative and Conflicts Law," 56.S.H.L. 2


Great Britain and Northern Ireland," and—though Iam privileged to address directly an audience mainlyof my fellow countrymen in the capital city of Scot-land—through the publication of these Lectures inbook form, I hope also to speak indirectly to a wideraudience. Therefore, the legally learned must forgiveme if I spend time on matters which (to them) areelementary or self-evident; while the " CommonPeople " may pardon me if I credit them with lesslegal background than some of my predecessors havebeen able to assume. But then, through press, film,radio, and the detective novel English law has receivedmuch wider publicity—not all, I must confess, to itscredit. So far as possible, I shall avoid technical legalexpressions when the currency of ordinary speech willserve. Stair, author of Scotland's greatest classic, firstpublished in 1681, hoped that his description of ourlaws " might not only be profitable for judges andlawyers, but might be pleasant and useful to allpersons of honour and distinction." My more modestaim is to serve those who enjoy the honour and dis-tinction of being citizens of this realm, and those inother lands who are linked with Scottish institutionsthrough ties of blood or sympathy.

THE FOUNDATIONS

SCOTS LAW IN TIME

The English monarchy as early as the time of thePlantagenets established its effective political autho-rity and firm control over the administration of justice


in England. Precedent by precedent, the King'sjudges built up, largely drawing on local customs andby manipulation of writs or forms of action, thatsystem called " The English Common Law." Thiswas essentially a professional law, based on the Innsof Court, which were close corporations of lawyers.At quite an early stage these lawyers adopted a semi-insular and self-sufficient outlook; and, in particular,set their faces against the competition of ecclesiasticalcourts, against the Roman law, against the authorityof academic treatises and against a system of pro-fessional legal education based on the Universities.(The activities of the English lawyers of Doctors'Commons who accepted these influences were re-stricted to certain specialised fields.) By the time ofthe Union of 1707, the creative genius of the Englishcommon lawyers—though manifest in the field ofpublic law, particularly in the vindication of personalliberties of Englishmen—had apparently reached atemporary stage of exhaustion so far as the develop-ment of private law was concerned. Especially beforethe era of Mansfield, the system of private law hadbecome arid and formalistic. A partial remedy forthe inadequacies and injustices of the common lawwas found in the separate but parallel legal system,equity, evolved by the Chancellors. This system,administered in the Court of Chancery, in due coursewas to become dilatory and technical, until reformedin the nineteenth century. Under Mansfield's leader-ship during the eighteenth century, mercantile law wasdeveloped vigorously in England. To achieve this,the insularity of the common law had to be overcome,


and account taken of Law Merchant, the lex merca-toria of Europe. In general, however, English lawyerspreferred their system to grow in isolation, until it hadbegot children of its own to share the family way ofthinking—though these are not necessarily accepted onterms of equality.

Looking at English law since the Union withScotland in 1707, an objective observer might selectfor admiration the quality, courage and integrity ofjudge and practitioner; the development of publiclaw; and, in private law, the working out of the trustand certain branches of mercantile law. In such fieldsof private law as delict, contract and unjustifiableenrichment, family law and the law of moveables, theEnglish system matured late; and, unlike Americanjurisprudence, was restricted by doctrines of strictprecedent and by a certain professional arrogance fromprofiting more fully by the experience of neighbouringCivilian systems. An added misfortune has been, asI shall demonstrate later, that English lawyers in thepast often so little understood the Civilian's solutionsto problems of private law—frequently solutions whichwould be preferred in England today—that throughParliament, the House of Lords or the Privy Councilthey imposed their own doctrines when politicalfactors provided them with influence over others.

The background and ethos of Scots law have beenvery different. By the end of the seventeenth century—shortly before the Kingdoms of Scotland andEngland were united in the new kingdom of GreatBritain—Scottish private law had become a coherentand rational system, largely as the result of a creative


and authoritative restatement in one treatise, TheInstitutes of the Law of Scotland by Viscount Stair,Lord President of the Court of Session, first publishedin 1681. The smaller but valuable Institutes of SirGeorge Mackenzie of Rosehaugh was published threeyears later; while the first edition of the same author'sLaws and Customs of Scotland in Matters Criminalhad been published in 1678. Clearly neither constitu-tional nor criminal law had achieved the same levelof maturity as had private law, nor can it be saidthat the quality of justice administered in Scotland atthe time of Union can be assessed only by reading theworks of Stair and Mackenzie. I shall, however, dealin due course with the actual machinery of justice.What lies behind these treatises is largely of academicinterest—and of great academic interest—but of littledirect relevance today. I shall therefore touch on itvery briefly.

Effective centralised royal justice came much laterin Scotland than in England, and until this wasachieved a national legal system in the full sense ofthese words could not emerge. Nevertheless, thesources which Stair and Mackenzie would use, and theEuropean orientation of Scots law, were determined inthe late thirteenth century. For some time beforeEdward I attempted to annex Scotland, relationsbetween Scotland and England had been on the wholeamicable; and, at this early period, Anglo-Normanlegal influence in Scotland is apparent. Edward'srapacity resulted in the Franco-Scottish alliance of1295, which, though primarily political and militaryin its objects, had even more durable consequences in


cultural matters, including the course of legal develop-ment.7 The " Auld Alliance " remained in force evenafter the Union of the Crowns in 1603. Feudal andother customary law, as well as national statute law,was important; but the other main sources relied onin Scotland, as in other countries of medieval Europe,were civil or romanistic law and canon law. Profes-sional lawyers, who were often clerics, studied thesedisciplines in the Universities as a preparation forpractice in the Courts. Though the three pre-Reformation Universities in Scotland taught law—andElphinstone's foundation at Aberdeen was in particu-lar intended as a school of civil and canon law for thetraining of laymen as well as clerics—it was to theleading law schools of Northern France, in particularOrleans and Bourges, and to Louvain—that manyScotsmen resorted. In the fourteenth century theywere sufficiently numerous at Orleans to constitute a" nation," and the Civilist at Aberdeen was instructedto follow in his teaching the method of Orleans.Scotland in effect received her Roman law at secondhand from France in the first phase of legal develop-ment, and Scots lawyers were particularly interestedin how the French courts handled in practice thevarious elements of feudal, customary, canon and civillaw. It was therefore a " learned " law, the law taughtin the universities and expounded by leading Euro-pean commentators in their treatises, which wasapplied where custom or statute provided no readysolution—at least when trained judges or procurators

7 See the author's "Influence of the 'Auld Alliance' on theLaw of Scotland," 1961 S.L.T. (News) p. 125.


were present. The church courts exercised wide juris-diction even in lay disputes, while even in the localfeudal courts, trained lawyers might represent parties.Thus the civil law grew up from below in the centuriesbefore the constitution of the Court of Session as theCollege of Justice in 1532 prepared the way for theformulation of a consistent and unified Scottishsystem, strongly influenced by the Civilian and Euro-pean background of the leading judges and advocates.Vixere fortes ante Agamemnona.

With the establishment of this court stimulus wasgiven to rather rudimentary forms of legal literature,represented either by collections of decisions such asDurie or Dirleton or works on procedure from whicha good deal of substantive law can be deduced, suchas the Practicks of Balfour, Spottiswoode and Hope.In 1655 (nearly half a century after the author'sdeath) Craig's Jus Feudale was published—the first" institutional " treatise on Scots law, a work stronglyinfluenced by Francois Hotman. Being written inLatin, it enjoyed a considerable vogue on the Con-tinent. This work was in fact not restricted to feudallaw, but was the first attempt to reduce the variouselements of Scots law to a coherent system. It incor-porated, to quote Professor Stein,8 " much Romanlaw, using it, as it were, as mortar to bind togetherthe irregularly shaped slabs of feudal law into aharmonious whole." Scots customary law had neverbeen consolidated like the Coutumes of France, and

8 " The Influence of Roman Law on the Law of Scotland "(1957) 23 Studia et Documenta Historiae et Juris, 154; andsee generally for the classic treatment of this subject.


there was particular need for Roman law to introducesystem and to supply deficiencies. Craig's methodwas comparative, and he himself had studied inFrance. Later, however, during the seventeenth cen-tury, the law schools of the Netherlands, such asLeiden, Utrecht and Groningen soared in reputation,and it was to these universities that Scotsmen—especially those who were Protestant and did not wishto be associated with Jacobitism—tended increasinglyto send their sons for legal training. Between 1600and 1800 some 1,600 Scottish law students studied atLeiden alone.

The Natural Law school, associated with the nameof Grotius in particular, had a profound effect onseventeenth century Scots lawyers in general, and onStair in particular. Grotius in 1631 published thefirst edition of his Introduction to Roman Dutch Law—and, despite the fact that others had written in thatfield before him, he became Father of Roman Dutchlaw. Fifty years later Stair, by publishing his morecomprehensive treatise, became truly the Father ofScots law. Gathering the various threads of Roman,Canon, Feudal and other Customary law which hadalready been recognised by the courts, and drawingupon the learning of Europe's leading Civilian com-mentators, Stair " restated " the law of Scotland inan original, selective, comprehensive, systematic andrational manner. He was a very experienced judge ofphilosophical mind and academic background, but wasno antiquarian. Undoubtedly he made an originalcontribution to Scots law of first importance. Underthe guise of recording what the law of Scotland was


in his day, he gave the whole system a " new look "—in a European style, which could be worn withurbanity in Paris or Leiden. The full title of his workis The Institutions of the Law of Scotland, deducedfrom its originals and collated with the Civil, Canonand Feudal Laws and with the Customs of Neighbour-ing Nations. His contemporary Mackenzie's treatiseon criminal law is entitled The Laws and Customs ofScotland in Matters Criminal wherein is to be seen howthe Civil Law and the Laws and Customs of otherNations doth agree with, and supply Ours. That verydistinguished French judge and scholar, Marc Ancel,has recently stressed that until the eighteenth centurythe lawyers of the European continent lived in thetradition of a universal common law, represented byRoman law, to such an extent that national laws werein effect exceptions to a general pattern. For Stair,who had come under Dutch influence, in particular,and for Mackenzie too, who had studied in France,this " common law of the world " had real meaning—and how very different that meaning was from thecontemporary English use of the words " CommonLaw" to describe the consolidated customs ofEngland. Scotland, of course, like the various regionsof France had her own customary or common law, andthis looms large in the older reports and treatisesbefore Stair. With Stair, however, the process ofsystematising the law, under the influence of the civillaw, superseded some customary law, and rationalisedmuch of what was retained.

Thus at the time of Union with England in 1707Scots law as administered in the Central Courts was


cosmopolitan and comparative—in striking contrast toEnglish law, and was set forth in modern, systematicand intelligible treatises written in English. Theleaders of the Scottish Bench and Bar, through legaleducation on the Continent of Europe and intellectualcontact with European legal literature, could scarcelybe other than cosmopolitan. Scotland became acountry of the civil law through legal educationnourished by legal literature. The treatises in generaluse by practitioners—as Lord Dunedin has pointedout,9 a determining factor in legal development—areset out in the Catalogue of the Advocates' Library,founded by Sir George Mackenzie in 1680. The rangeis wide—especially in Dutch and French materials—and the collection was maintained up to date. Thereare few English legal writings included—but then itwas the lack of comparable English legal literaturewhich in the early eighteenth century drove the youngMurray (later, as Mansfield, to be Lord Chief Justice ofEngland) to the works of Stair and Mackenzie, to theCorpus Juris and the compilations of French jurists.

The Union Agreement provided express safeguardsfor the Scottish courts and legal system, and thepattern set by the time of the Union was on the wholemaintained during the eighteenth century and over-lapped into the nineteenth. New institutional works,following Stair and Mackenzie, systematised develop-ments in case law—though, of course, the doctrineof the binding single precedent was not accepted.Bankton, Erskine and Kames who wrote in theeighteenth century, together with Hume and Bell who

9 Encyclopaedia of the Laws of Scotland, Preface to Vol. 1.


completed their labours in the early nineteenth cen-tury, have been recognised as " institutional writers "—that is to say that a statement of the law by oneof these authors has approximately the same authorityeven today as the decision of a bench of judges of theCourt of Session or High Court of Justiciary. Theirrole may be compared with, for example, Domat,Pothier, Grotius, or the Voets on the Continent; andin Scotland, it may be noted, institutional status wasaccorded to " professorial" treatises as well as tothose of judges. Bankton's Institutions, which in1751 attempted a comprehensive comparison of Scot-tish and English law, are important. Kames in hisPrinciples of Equity champions against the Englishdoctrine of dichotomy the view of Scottish and otherEuropean lawyers that equity and common law shouldbe united in one court10—" for what is originally arule in equity, loses its character when it is fullyestablished in practice; and then it is considered ascommon law." Of much greater influence, however,were Erskine's Institutes (published posthumously in1773) and Bell's Principles and Commentaries whichappeared in the early nineteenth century. Erskine asa writer was less original than Stair, but restated thelaw of his time in a masterly and comprehensivefashion—paying particular attention moreover tofeudal law which increased in importance with theconfiscations and redistribution of land following theJacobite Risings of 1715 and 1745. In some ways hewas also closer to the original Roman law than wasStair.10 Principles of Equity, 4th ed., p. 20.


The economic setback which followed the Union of1707 had arrested development in Scottish mercantilelaw. Bell's main contribution was to supply thedeficiencies in Scottish commercial jurisprudence tomeet the challenge of Scotland's economic revival inthe latter part of the eighteenth century. He turnedto Pothier and Toullier and other French authorities,but in particular to the system of mercantile lawworked out by Mansfield and his successors inEngland. This was perhaps the most cosmopolitanchapter of English law and well worth considering indeveloping Scots law. Even so, Bell prepared theway for subsequent confusion by quarrying too muchmaterial from a system whose technicalities he had notmastered completely. Moreover, his example ofquoting English precedents in mercantile matters wascopied by advocates in fields of law where Englishdecisions could only confuse rather than clarify. Thefactor of a common language has not infrequentlyblinded those concerned with Scots and English lawto the dangers of indiscriminate citation, in inappro-priate contexts, of decisions from one system indealing with the other. Though Scots law andEnglish law have come closer since his time, there isstill force in Lord Justice-Clerk Hope's protest in1852," " I am only the more confident that we do notunderstand nine out of ten of the (English) caseswhich are quoted to us, and that in attempts to applytheir law, we run the greatest risk of spoiling our ownby mistaking theirs."

Throughout the eighteenth century the tradition ofii McCowan v. Wright (1852) 15 D. 229 at p. 232.


legal study in the Netherlands 12 continued, thoughlatterly the stream dwindled as facilities for legaleducation in Scotland improved, and as, throughScottish institutional treatises and judicial decisions, amore complete municipal law of Scotland was devel-oped. The background and outlook of the leadingjudges was, of course, essentially feudal and Civilian,though more and more they favoured their owndecisions. No longer the Natural Law school, but therationalist comparative approach to law, the thoughtof Montesquieu in particular, influenced judges such asKames and Monboddo.13 In 1750 the Faculty ofAdvocates (the Scottish Bar) insisted on an examina-tion in Scots law as such, as well as in civil law, as acondition of admission to practice. Scottish lawyers,nevertheless, had kept themselves well supplied withthe latest contributions made to legal thought byContinental scholars. As Professor Walker observedin his Report on the civil law collection in the Advo-cates Library,14 " Down to 1800 the collection seemsto include the principal works of all the importantCivilians. . . . Thereafter the connection withEurope as evidenced by the collection dries up." Itis as definite as that. The influence not only of theliterature, but also of Continental legal education, wassuddenly extinguished. In 1793 revolutionary Francehad conquered Belgium, was threatening the Nether-lands, had torn up the Treaty of the Scheldt. For

12 See the author's " Scots Law and Eoman-Dutch Law," 1959Acta Juridica, 36.

« Stein, "Legal Thought in 18th Century Scotland," 1957 Jur.Eev. 1; Lehmann, John Millar of Glasgow, Chap. 10.

11 Not published (1952).


the next twenty-two years Britain and France were tobe engaged in a life and death struggle, during whichScotland was cut off from her traditional contactswith Europe. When peace came, too much hadaltered for these to be renewed as before. TheNapoleonic Codes had been established in France andthe Netherlands; feudalism had been abolished;academic study in their law schools focused on theCodes or " pure " Roman law. Scots law in LordCooper's opinion 15 in the early nineteenth century wasa " finished philosophical system well in advance ofits times"; during the eighteenth century it "camewithin an ace " of sinking its identity in the Europeanschool, " and only failed to do so because of thegrowing power of . . . forces introduced by the Unionof 1707." The system of Scottish private law mightwell have been codified on the basis of the institutionalwritings of Stair, Erskine and Bell—but there is noevidence of pressure in Scotland for that solution, norwould it have been approved at Westminster. Duringthe nineteenth century Scottish jurisprudence was thusisolated—at least temporarily—from a cosmopolitantradition, and in isolation was not immune from thedangers of a restricted horizon. Moreover, legaleducation at the Scottish Universities was inadequateto meet the challenge of the times. After over acentury, " the forces introduced by the Union of1707 " had eventually brought Scottish private lawinto contact with English law on less than equalterms; and the assimilating policies of Parliament andthe House of Lords became increasingly manifest. In15 Selected Papers, pp. 178-179.


the period after the Napoleonic Wars new economicand social problems, confronting Britain as a whole,were more and more tackled through United Kingdomor Great Britain legislation, and the area covered bycommon principles between Scotland and Englandincreased greatly. In short, the Napoleonic Warsmark the end of one era of Scottish legal development,and the beginning of another, characterised by a closerassociation with English law especially in the field ofprivate law. This I can best consider in futurelectures devoted to modern law. If the era whichhad passed was characterised for Scots law as onestrongly influenced by a comparative and cosmopolitanoutlook, that which followed was to be marked, notonly by genuine comparative efforts to secure syn-thesis in certain fields between systems of differenttraditions, but also by many examples of pseudo-comparative law—in short, the tendency to assimilatelegal systems, not by evaluating their respectivemerits, but according to the political and economicpower which each can call to its support. Suchpseudo-comparative techniques were most used in theperiod up to 1867, when no Scottish judge sat in theHouse of Lords. Today that illustrious tribunalwould not deliberately override a principle of Scotslaw if convinced that it exists—but as I shall explainin due course, this is not an infallible safeguard.

Let me sum up, however, the main characteristics ofScottish private law at the end of its Classical Period—the turn of the eighteenth century. By this timeScots law had become " a finished philosophicalsystem in advance of the times." The leading judges


were obviously robust Scotsmen, as Raeburn has por-trayed them, trained in a civilian tradition, but notdiffident about relying on their own interpretations,and maintaining them as the law of Scotland. Theland law was essentially feudal; and mercantile law,when it developed, was strongly influenced by thosedoctrines of the cosmopolitan Law Merchant whichMansfield had made part of English law. The lawregarding moveable property, obligations, civil wrongsand unjustifiable enrichment was essentially Roman-istic, and very close to the solutions of other Europeansystems—yet containing original and valuable doc-trines worked out in Scottish practice. The Romanlaw itself—in its original form or as expounded by thelater commentators—though not actually binding on aScottish court, was regarded as the most powerfulpersuasive authority in cases where no rule hadalready been settled. In the field of family relations,custom, Roman law and canon law had all contributedto a result which was unique and well adapted to theconditions of the age. The essentials of the law wereclearly expounded in Scottish institutional treatiseswhich were regarded as authoritative sources of law.Principle ruled rather than precedent; and doctrinesof equity were applied in the ordinary courts ofjustice.

I have said little about the historical developmentof criminal law. Sir George Mackenzie writing at theend of the seventeenth century held that the civil orRoman law was to be followed by the ScottishCriminal Courts where " our own Statutes and Cus-toms are silent or deficient." By the time Hume


wrote his celebrated Commentaries on the Laiv ofScotland in Matters Criminal at the very end of theeighteenth century, there had certainly been a driftfrom Roman influence, and an independent system ofScots criminal law really first clearly emerged as aresult of Hume's own treatise. The House of Lordshas no appellate jurisdiction from the Scottish criminalcourts, and the legislature has not endeavoured, onthe whole, to assimilate Scottish and English lawwhere the graver crimes are concerned. Paradoxically,Scottish criminal law—about which I shall have moreto say later—benefited by the fact of its relatively latedevelopment. It was less rigid in the nineteenthcentury than was the English system. During theeighteenth century valuable doctrines had been bor-rowed from English criminal law, but, due to strictprecedent and a jungle of legislation, the Englishsystem eventually became rigid, harsh and confused.Though the Scottish judges of Braxfield's time werenot noted for their benevolence towards lawbreakers,it may be noted that for the period of thirty yearspreceding 1797, the average of capital sentences inScotland was six per annum, and during the fifteen-year period prior to 1782 the average of executions inthe Capital City of Scotland was two each three years.This may be contrasted with the position in theSouthern Kingdom where at the same period therewere over two hundred capital offences, and a sicken-ing slaughter of offenders was perpetrated in the nameof justice. In the mid-twentieth century Scottishpractice was again to provide an example to England

S.H.I..-3


in restricting capital punishment. But this must bediscussed in a later lecture.

SCOTS LAW IN SPACE

Having surveyed Scots law in time, it may be well tosketch the position of Scots law in space. The firstreflection, no doubt, of the casual observer would bethat English law has become a world-wide system,while Scots law is restricted to a population of somefive million. This is true, but not the whole truth;nor did the migration of the common law across theseas depend on any superiority of principle or tech-nique to the largely civilian jurisprudence of Scotland.During over a century of " personal union " (1603-1707) and over a quarter millennium of "incorporatingunion " (1707-1961) with England, a constant policy,which has never lacked influential adherents, may bediscerned of seeking to exclude Scottish law in dealingwith British problems—both as regards external andinternal affairs. This policy has seldom, if ever, con-sidered these solutions on their merits at the time,though these solutions may eventually prevail. Someof the consequences of this policy which concernBritain internally, I shall consider in my lecture onconstitutional questions. Meanwhile, I wish to discussthose which may relate to external relations.

International LawAddressing the Grotius Society in Edinburgh in

1953, Lord McNair (then Sir Arnold) observed,16 " I

is Transactions, 1954, p. 183.


must not be thought to overlook the former impor-tance of public international law in Scotland, and thespecial interest in private international law which hasbeen characteristic of Scots lawyers for some centuries.. . . It would seem probable that the importanceof public international law and the frequency of itsapplication in Scotland have diminished since the Actof Union." So far as public international law is con-cerned, I would, with respect, suggest that Scotland'sactive participation in public international law is whathas been restricted since 1707. The foundations ofinternational law were laid by the Civilians. It is notsurprising that lawyers of Civilian background inScotland should have made Britain's first contribu-tions to European literature in this field, nor that theCourt of the Lord High Admiral of Scotland shouldhave been kept well occupied. I shall mention the" pirating " of Scottish admiralty jurisdiction, whendiscussing the various Scottish courts. Lord Nor-mand addressing the International Law Association in1954 stressed 17 " one topic in which Scotland has, byher geographical situation, her long and much in-dented coastline, her many islands and her largeseafaring population, always had a lively interest, isthe law of the sea." This interest appears from thewritings of Scots lawyers such as King, Balfour,Bisset, Welwood and Stair in the sixteenth and seven-teenth centuries. Welwood, whose writings were wellknown in Europe, in his Abridgement of All Sea Laws(1613) and De Dominio Maris (1615) engaged in con-troversy with Grotius, attacking the doctrine of the17 Report of the 46th Conference, p. 6.


latter's Mare Liberum; and sought to distinguishbetween liberty of navigation and liberty of fishing.Welwood was the only critic whose arguments Grotiusdeemed worthy of a reasoned answer. Generally, pre-Union Scottish lawyers on the whole seem to havebeen much more in accord with the views urged byNorway and Iceland in the fishing disputes of thetwentieth century, than have been the contentions ofthese English lawyers who have spoken for Britainsince the Union. It has just been assumed thatEnglish law regarding territorial waters must, afterthe Union, be that of Great Britain. It has unfor-tunately seldom occurred to those concerned withlegal aspects of Britain's external relations that Scotslaw and Scottish lawyers might have something usefulto contribute or some interest for consideration. LordMcNair has done much research on the opinionsdelivered to the British Government by English LawOfficers on international questions. How often, Iwonder, have the Scottish Law Officers been asked toadvise—except, perhaps, where as in the Moray FirthFishing Case in 1906 18 the relevance of Scottishinterests would be too obvious to miss.

NaturalisationIn other contexts pretensions have been made

only too often to uphold English law as the imperiallaw, and to regard Scots law as a provincial system,excluded from equal participation in British affairs.

is Mortensen v. Peters (1906) 5 Adam 121. The ironical sequelis discussed: Sir Thomas Taylor, The Scotsman, June 6, 1961.Scottish doctrine regarding territorial waters is fully consideredby Pulton Sovereignty of the Sea (1911).


This attitude resolves itself into the proposition thatScottish means Scottish, and English means British,and British means English. A remarkable example ofthis attitude is the recent case19 in which PrinceErnest of Hanover sought a declaration from theEnglish courts that he was a " British subject" byvirtue of the pre-Union English Act which, to encour-age them to study the English law and constitution,conferred the privileges of English nationality ondescendants of the Electress Sophia of Hanover; oneof whom, of course, as George I succeeded to theBritish Crown. Perhaps personal legal study was notthe entire incentive for the Prince's action, but hecertainly has given others occasion for a good deal.Until his case reached the House of Lords, counsel onboth sides, and the judges in their opinions, assumedwithout question that a pre-Union Act grantingEnglish nationality must confer British nationalitytoday. In the House of Lords, however, judgeslearned in Scottish and English law participated, andcounsel were requested to argue the effect of the Unionupon legislation of this kind. By pre-Union Scottishlegislation the privileges of naturalisation in Scotlandhad been conferred upon all Frenchmen, and onvarious other groups of foreign nationals. Legalopinion in Scotland had concluded that these pre-Union Acts were probably abrogated by the Union 20

—since, for example, it was scarcely to be supposed

1 9 Att.-Gen. v . Prince Ernest Augustus of Hanover [1957] A.C.436.

2 0 See 1956 S .L .T . (News . ) 8 9 ; 1957 S .L .T . (News . ) 22 for refs.


that the English in 1707, in the midst of Marlbo-rough's wars, would have been happy in a situationwhereby Frenchmen generally could claim to beBritish. In 1820 21 the Court of Session held that aforeign shareholder in the Bank of Scotland could notfound on a pre-Union Scottish Act to claim Britishnationality. The Scottish lawyers concerned werevery much aware that in a case of this kind Englishinterests were also involved. This opinion was vigo-rously, and indeed offensively, confirmed by the Houseof Lords, which at this time comprised no Scottishlawyers. Lord Redesdale denied vehemently that theCourt of Session could competently pronounce on amatter which affected the whole United Kingdom andinvolved the rights of persons in England. At theUnion, he asserted, without any authority save hisown prejudice, " the Court of Session became a Courtof local jurisdiction, and not of general jurisdiction."In the light of this Scottish case, one might haveexpected the Attorney-General (Sir Reginald Manning-ham Buller) to have argued in Prince Ernest ofHanover's action that like reasoning should apply,and that the English courts could not disregard Scot-tish interests. Far from it: he declined to press thepoint at all. As a result their Lordships were left inthe embarrassing position of not being able to pro-nounce thereon in the absence of argument. PrinceErnest accordingly obtained a declaration of Britishnationality which is effective within the jurisdiction 23

21 Macao v . Officers of State, November 14, 1820, F . C . ; (1822) 1Sh.App. 138.

22 The Scotsman, December 25, 1956.


of the English courts—but not necessarily so in Scot-land. The moral seems to be that what is sauce forthe goose is not necessarily sauce for the gander, atleast if one is dealing with a certain sort of cook. Ifthat is not the moral, then a good number of French-men would seem entitled to British nationality underthe Scottish Act of 1558—which might have an inte-resting effect on negotiations regarding the EuropeanCommon Market.

Diplomatic PrivilegeFrom the time of the Union statutes dealing with

Britain's foreign relations have failed to grapple ade-quately with severalty of administration of justice in aunitary state. An early example, which still remainson the Statute Book, is the Diplomatic Privileges Act,1708. This provides that certain " violators of thelaws of nations " shall be brought for punishmentbefore one or more of the principal English judges.This Act was passed because " several turbulent anddisorderly persons " in England had insulted theperson of the ambassador of " his Czarish Majesty ofGreat Russia," by taking him with violence out of hiscoach and detaining him. It may have been assumedthat the Scots were too courteous to proceed in thisway, but it seems only fair to warn H.E. A. A.Soldatov of the U.S.S.R. that the statute could notbe enforced in Scotland.

Fugitive Offenders and Runaway MarriagesMuch more topical and relevant is the question of

how to deal with alleged fugitive offenders from other


jurisdictions. By international agreement Britainundertakes to surrender such persons if certain re-quirements are fulfilled. If the fugitive is a foreignerthe procedure to be followed is prescribed by theExtradition Acts, 1870-1935.23 Certain offences, tobe construed according to the law of England or of" a British possession " are regarded as extraditioncrimes, and—unless the health of the accused is injeopardy—the appropriate judge to decide on extra-dition is a Metropolitan Magistrate at Bow Street inLondon. What, however, if the person whose extra-dition is sought is in Scotland, and, if, though hisconduct might be an " extradition crime " by the lawsof the foreign power and of England, it would not beso by the laws of Scotland? In 1956 a German agedtwenty-nine was reft from Christmas festivities, andtaken off to Bow Street with a view to his surrender inrespect of the abduction of a Dutch girl aged eighteen.They had come to Scotland to be married—since Scotslaw does not require parental consent to the marriageof persons over sixteen years. On another occasion inrecent years an American in Scotland seems to havebeen expelled 24 on a deportation order from Londonbecause he intended to marry in Scotland an" infant " ward of an English court. Whether hisconduct was illegal and merited deportation should

2 3 A curious anomaly is t ha t fugitive offenders from the Domin-ions m a y be commit ted by a Sheriff in Scot land; and it isperplexing to unde r s t and the principle upon which the Eng l i shcourts purport to exercise " imper ia l " jurisdiction in terr i toriessubject to the jurisdict ion of the Br i t i sh C r o w n : Ex p.Mwenya [1960] 1 Q .B . 241.

2 4 Anton and Francescak i s , " Modern Scots ' R u n a w a y Marr i -ages ' , " 1958 J u r . R e v . 253 at p . 270.


surely have been decided by the Scottish courts.Some may well think, as indeed I do myself, thatScots law should not give marriage facilities foreloping foreigners, who would be disabled from marry-ing by the law of their domicile. Legislation wouldbe necessary, but the General Assembly of the Churchof Scotland—perhaps the body most representative ofScotland as a whole—has been told this year that noaction can be taken at present on their request forparliamentary action. This is an international prob-lem affecting Scotland, but Scotland is powerless totake appropriate measures. No difficulties, of course,arise regarding marriages of Scottish minors.

International Movement for Unification of LawMany matters of private law are debated these days

on an international level—aiming at a measure ofunification among the legal systems of the world.There is, for example, the International Institute forthe Unification of Private Law in Rome, whereuniform law on sale of goods, formation of contract,agency, domicile, and arbitration have recently beenconsidered. The Hague Conference on Private Inter-national Law has been concerned with matters such asinternational sale of goods, alimentary obligations tochildren and legalisation of documents. The generalcoalescence of the West in the post-war era; develop-ment of American interests in Europe; the emergenceof the European Common Market and other Europeanorganisations have stimulated, and, indeed, compelled,the nations to strive for greater uniformity of lawregulating not only commercial matters but other


fields as well. Broadly speaking, reconciliation has tobe achieved between the traditional attitudes of civillaw systems and those of the Anglo-American commonlaw. Writers of authority have constantly noted thatthe " mixed " systems, such as that of Scotland, mayhave a particularly valuable contribution to make inharmonising the contending principles. Ironically,however, Scottish participation in British efforts toachieve uniformity of law with other nations has beenalmost completely excluded.

Military LawThe armed forces of the Crown are drawn from all

parts of the United Kingdom, and may serve at homeor overseas. A body of law is clearly necessary topunish purely military offences, such as " cowardly "or " insubordinate " behaviour, and also to deal withcertain " civil " crimes, such as murder, theft andrape which may be committed by a member of theforces. In this situation it might have been thoughtthat the wisest course would be to enact a code,specifying military offences and also defining a num-ber of the graver " civil offences " triable in certaincircumstances by a military court, offences such asmurder, culpable homicide, rape, theft, and so forthwhen committed by a soldier. This self-containedcode could be supplemented by a section providing forpunishment of conduct to the prejudice of good orderand military discipline—which would be comprehen-sive enough to deal with minor cases of anti-socialactivity either within or without the scope of militaryduty. Such a course was indeed contemplated in the


nineteenth century, but when the Army Act, 1879,was promulgated, a section was included making pun-ishable under military law any act which " whencommitted in England is punishable by the law ofEngland." This incorporation by general referenceof the whole of English criminal law led to manifestabsurdity, as when a Scottish soldier was tried bycourt-martial in Scotland under the extremelytechnical rules of English law relating to crimes ofdishonesty. After Hitler's war the Army Act (andthe Acts dealing with discipline in the Royal Navyand Royal Air Force) were recast. At the time whenthese measures were being considered (1954) I ven-tured to suggest25 that the military code for the Armyshould be self-contained: " In completing a militarycode for the British Army it would be appropriate. . . to take into consideration at each stage thesolutions not only of the English legal system, but ofthe Scottish legal system as well. The better of thetwo should be adopted, or indeed it might be possiblein some respects to improve on both." I had in mindthat in addition to purely military offences, a smallnumber of " civil offences " such as murder should becodified, an offence of " conduct to the prejudice ofgood order and military discipline" should be re-tained, and the section of general reference to theEnglish criminal law should be done away with. Iwas convinced that the law of Scotland had much tocontribute in improving trial procedure, in rationalis-ing such crimes as murder and theft, and in freeing

25 See correspondence The Glasgow Herald and The Scotsman,November 26, 1954; The Times, November 27, 1954.


defences such as provocation and insanity from thethen current restrictive interpretations of English law.Two questions put in Parliament to the Secretary ofState for War were as follows: " If, in considering anew military legal code for the British Army, he willtake into account at each stage on their merits thesolutions not only of the English legal system, butalso of the Scottish legal system," and " if, in con-sidering any future changes in the Army Act, he willtake steps to define the various military offenceswhich may be charged and the defences available topersons who may be charged with such offences; and,in doing so, if he will incorporate, on their merits, theprovisions of the relevant Scottish law as well as thoseof the relevant English law." These proposals werelaid before Parliament and were treated with ridiculeby the majority of both parties. Thus the Army Act,1955, was enacted, with section 70 incorporating bygeneral reference the whole criminal law of England.This, at a period when Scotsmen were conscripted forNational Service, meant, for example, that if a soldierwere charged with murder, the doctrine of construc-tive malice applied, insanity was assessed by theM'Naughten Rules, provocation was most narrowlyand technically construed, and no defence of dimin-ished responsibility was competent. Consideration ofScottish criminal law would have eliminated, as theHomicide Act, 1957, eventually did, these blemishes;but to Parliament, discussing the Army Bill in 1955,it appeared that bad English law was preferable toimpartial consideration of available solutions. TheHomicide Act has not, of course, done away with the


other defects of section 70, which incorporates Englishcriminal law generally. The opportunity was lost toaccomplish in a limited field a codification of Britishlaw for the British Army. The Acts governing dis-cipline in the Royal Navy and Royal Air Force followthis policy of uncritical rejection of Scottish solutionsfor no better reason than that they were Scottish.

Private 'International LawThere is a particular irony in the virtual exclusion

of Scotland from participation in British policy-making in the private international law field, since itmay be no exaggeration to contend that, only throughunion with Scotland, did English law take account ofthis branch of jurisprudence at all. The Union itself,of course, gave a new urgency to the development ofthis branch of law in Britain. That Scotland had theadvantage of a long start was due to the cosmopolitanbackground of her legal system, which, in matters of" foreign law " or conflict of laws—as in many others—drew upon the learning of Europe. Both beforeand after the Union the Scottish courts expressedastonishment that in England the judges refused toapply the " law of nations." Cheshire indeed pointedout that it was not until the close of the eighteenthcentury that, through Mansfield's influence, the dutyof English courts to give effect to foreign laws wasrecognised. This result, including the introductioninto English practice of Continental theories of con-flict of laws, may be largely attributed to the fact thatMansfield himself, as counsel in Scottish appeals, hadbeen brought into contact with the decisions and


literature, including the writings of the Europeanauthorities, which were familiar in Scottish practice.The Scottish system, knowing no division between lawand equity was well adapted to handle questions of"foreign law." Lord Kames was a vigorous andversatile Scottish judge of the eighteenth century. Inthe chapter on " Foreign Matters " of his work onEquity dedicated to Mansfield in 1767, he advertedto the English practice of trying " foreign matters "on the fiction that the cause of action had originatedin England, and commented,26 " Lucky it is forScotland that chance, perhaps more than good policy,hath appropriated foreign matters to the Court ofSession, where they can be decided on rational prin-ciples, without being absurdly fettered, as in England,by common law." It has been suggested by ProfessorAnton, certainly the outstanding Scottish scholar inthis field, that though Mansfield and others had accessto authors such as Huber when acting as counsel inScottish appeals, the effective reception into Englishlaw of Continental theories regarding conflict law wasprimarily due to a series of Scottish appeals as lateas the 1790s. The chapter in Kames' Principles ofEquity upon " Foreign Matters " was brought to thenotice of American lawyers through Blackstone'sattack on the views expressed by the former as to therole of equity—namely that equity and ordinary juris-diction should blend in the administration of justice,and not be exercised in separate courts. Thus Kames

26 Principles of Equity, 4th ed., p. 541; and see generally on thistopic Anton (1956) I.C.L.Q. 534; Nadelmann, Festgabe furMax Gutzwiller (1959) p. 263.


became an authority cited as early as 1788 also in theUnited States, and must have been known to Story.American lawyers also took note of Mansfield's judg-ments across the Atlantic, and these reflected hisknowledge of current principles gained in Scottishappeals. The importance for the development ofprivate international law, both in England andAmerica, of Scotland's contribution after the Unionhas been recognised by experts such as Anton,Llewelfryn Davies, Nadelmann and Westlake. Scot-land's potential contribution to British justice in thisfield was not necessarily exhausted after English law-yers had been instructed in the essentials. Theaddition of a Scottish specialist on private interna-tional law to the Lord Chancellor's Committee on thatsubject could be of general benefit and importance.

Diaspora of the British Peoples and Migration ofEnglish Law

One of the most astonishing developments in theworld's legal history has been the expansion of theAnglo-American common law—which, with variationsfrom country to country and from state to state, nowapplies to many millions of people in the UnitedStates and throughout the Commonwealth, whoseracial ancestry is certainly not Anglo-Saxon.27 Withthe Renaissance and the widening of the mental

27 The Lord Chancellor has noted with pride that Anglo-Americancommon law governs nearly a third of the world's population.Professor Goodhart has noted, however, that whenever therehas been a choice between this common law and Eoman law,the decision has always been in favour of Eoman law (1960)76 L.Q.E. 44-45.


horizons of Europeans, came also a great expansion ofthe physical world in which they were to work outtheir dreams, desires, and destinies. European lawmigrated across the oceans of the earth in the era ofdiscovery and colonisation to America, Africa, Asia,and Australasia. Civil law and English law alikefollowed in the train of discoverers, merchant adven-turers, colonists and conquistadores, sea beggars andbuccaneers, viceroys and governors, missionaries andslave traders. Spain and Portugal were first in thefield of colonisation, favoured by the bounty of PopeAlexander VI who bestowed lavishly what was neverhis to give. In the seventeenth century England,and to a lesser extent Scotland, entered seriously intothe competition for colonies in North America—whereFrance too, impelled by the initiative of Colbert, wasplanting the fleur de lys by the Mississippi and St.Lawrence. The Netherlands, shaking themselves freefrom Spanish rule, emerged as a leading sea powerwith world-wide trade interests, which they buttressedby settlements along the main trade routes. Whereeach of these colonial powers imposed its dominion,it established ideas and ideals of law. The juristicpattern then established has proved more durablethan colonial rule. Today the Spanish-American andPortuguese-American Empires are no more; but theRepublics of the South American sub-continent con-tinue in the tradition of the civil law, transplantedby Iberian colonists whose other conquests havecrumbled away. Through codification, moreover,law-makers in these Republics have supplementedvoluntarily their debt to the civilian jurisprudence of


Europe, which had been imposed on their forefathers—for the civil law, unlike the common law, has notdepended on political factors alone for its expansion.Netherlands traders and administrators carried theRoman-Dutch law to the Cape of Good Hope, Cey-lon, Indonesia, Guiana and elsewhere; and establishedCivilian foundations which stood firm even afterBritish rule supervened. In retrospect, however, themost important transplantation of a legal system inhistory was probably the establishment in the eigh-teenth century of the fundamentals of English law inNorth America. This phenomenon, in due course,was to be of enormous importance for many millionsof men and women, who from various cultures andethnic stocks became citizens of what is now theworld's most powerful republic. The transplantationof English law to America was to make cosmopolitanan insular system. In fact, a better solution wasavailable.

At the time of Union in 1707, the main success ofEnglish law had been in the constitutional field, andin developing principles of criminal law.28 On theother hand, private law was going through a phase offormalism, rigidity and insularity before Mansfieldinfused his civilising and civilianising influence.Moreover, the law of England could only be foundthrough the jungle of reported cases, or in forbiddingtreatises such as those of Coke in the pre-Blackstoneera. The young Murray (later Lord Mansfield) we

28 Eeference in particular must be made to the unpublishedlectures on this theme delivered in 1959 in Paris by Prof. C. J.Hamson of Cambridge.

S.H.L.-4


are told20 was repelled by " crabbed and uncouthcompositions " of English law which reduced him todespair, and turned for enlightenment to the worksof Stair and Mackenzie. These were not merelyexpositions in English of Scots law—but expositionsof that law in a comparative, civilian spirit. Theyprovided in large measure a compendium of Europeanlegal thought—which could be carried in a saddle-bag—for the solution of legal problems in newly settledterritory. Looking back, I cannot but reflect howrational it would have been if the works of Stair andMackenzie had taken the place later filled by Black-stone as the basic legal manual for the Americancolonies in the eighteenth century. Blackstone'sCommentaries on the Laws of England, first publishedby him in 1765—and the first comprehensive andreasonably comprehensible treatise on English law—had tremendous importance for the development ofAmerican law. Had a true comparative approach toBritish questions in 1707 been made we might wellby now have had a " common law of the world " inmany chapters of jurisprudence.

Dis aliter visum. Though both Scotland andEngland had colonising ventures before the Union,the pre-Union Scottish colonies in Nova Scotia andDarien were lost—in the latter case with the conniv-ance at least of William of Orange and his Englishadvisers. When Nova Scotia was recovered from theFrench in 1713, it became a British Colony. Afterthe Union of 1707 the arbitrary rule had been imposed

2° Campbell's Chief Justices of England, Vol. ii, pp. 327-328.


from London that British emigrants—Scottish as wellas English—to territories overseas with no establishedlegal system should take with them the essentials ofthe English common law. Thus it was that the manythousands of Scotsmen who sought new homes acrossthe Atlantic during the economic and political up-heavals of the eighteenth century, or who voyagedfurther to Australia and New Zealand, took withthem, paradoxically, the principles of a legal systemwhich in the private law field at least was inferior totheir native jurisprudence. A synthesis of Britishlaw was, of course, unthinkable to the majority whenGreat Britain came into existence at the beginning ofthe eighteenth century—except in the sense ofanglicising certain aspects of public law as contem-plated in the Union Agreement. It was less justifi-able to overlook Scotland's potential contribution tothe jurisprudence of British Colonies established in thenineteenth century, many of which are now emerginginto nationhood, especially in Africa. One couldwish that lawyers and missionaries alike—those menwhose labours in Africa redeem so many errors andinjustices—might have given a less divided witness.

It may well be that in the century that lies ahead,the African nations—often carved out by Europeanpolicies with frontiers which disregarded ethnic orreligious considerations—will come together in one ormore large federal groups. Far-sighted men like LordDenning have been thinking in terms of linking theformer British colonies in Africa to Britain throughlegal education and the Judicial Committee of the


Privy Council,30 while a great deal of research on" African law " is being carried out from London. Ihave yet to be convinced that any or adequate con-sideration has been given to the fact that, apart fromIslamic law and customary native law, the Englishlegal system is not the only European law of relevancefor Africa's future. The civil law in accessible codi-fications, or uncodified as in Southern Rhodesia—notto mention South Africa—may well have an importantpart to play in African jurisprudence. Syria, Egyptand other countries of the Middle East have a civillaw tradition. Belgian, Dutch, French, Italian andPortuguese colonists have carried the same traditionto vast areas of this awakening continent. Itspolitical groupings and frontiers are unlikely toremain as the Europeans left them, and African legalinstitutions of the future will probably have to har-monise Romanistic and Anglo-American doctrine.Great though my admiration is for English law, Ithink that Lord Denning and others overstress it inplanning for Africa. The importance of sound legaleducation for the African lawyers we train in Britainis obvious, but they will cease to come in theirthousands (as did Indians in the past) when they havetheir own law schools. Meanwhile, I should havethought it politic not to exclude the civil law fromtheir curriculum, but to ensure that some understand-ing of the evolved civil or Romanistic law wasimparted to all.

30 See his Eeport on Legal Education for Students from Africa,Gmnd. 1255/1961. Scottish participation in this DominioDenterprise has been excluded. See also The Times, July 11,1960; The Observer, March 20, 1960.


Nor do I share the unqualified confidence, so oftenexpressed, about the part which the Privy Council isto play in the future. Whatever be the outlook ofcertain older Dominions such as Australia towards thePrivy Council, the trend for new Dominions to con-tract out of appeal to the Privy Council will probablycontinue. It is not merely a matter of national pride—though the country which in such matters as per-sonal liberty cannot achieve justice with its ownresources is scarcely ripe for emancipation. TheJudicial Committee of the Privy Council, howevererudite and Olympian, is a remote and expensivetribunal with limited experience, if any, of local con-ditions in many of the jurisdictions from which theappeal is brought. Ability, integrity and impartialityare beyond dispute—except perhaps for the possiblesubconscious predilection of a majority for the solu-tions and methods of English law. Resentment atthe tendency of the Privy Council, in the past, toconstrue the Canadian Constitution like an Englishstatute may suggest caution in assuming that a bodyof mainly English-trained lawyers is necessarily mostsuitable to interpret the constitutions of other coun-tries. It would be strange indeed if judges, whohesitate to scrutinise judicially the constitution oftheir own country, were to prove the best interpretersof other constitutions. Only Scottish judges have sofar faced the challenge of upholding the fundamentalConstitution of Great Britain.31

The interaction of Scots law and English law, which3 1 MacCormick v. Lord Advocate, 1953 S.C. 396; and see for other

references " The Union of 1707 " [1957] Public Law 99.


I shall deal with incidentally in later lectures, neednot be developed now. It is sufficient to say thatthrough legislation, the Privy Council and the per-suasive authority of House of Lords' decisions, thefruit of such rapprochement as there has been wastransmitted not only to Britain, but to much of theCommonwealth as well. Scottish judges in the PrivyCouncil have, as a rule, been particularly vigilant toprotect the integrity of Romanistic systems withinthe British Commonwealth. It would be tedious, andperhaps pretentious, to catalogue in detail theoccasions upon which particular aspects of Scots lawhave commended themselves to other systems—aswhen in framing the Indian Specific Relief Act of1877, the Scottish action of declarator was used as themodel for the chapter on " Declaratory Decrees " ; oras when in preparing the English language version ofthe Quebec Civil Code of 1866, Scottish legal termin-ology was used to ensure a civilian construction.Perhaps, however, I may mention in passing thereciprocal influence which existed between Americanlaw in its formative era and Scots law at the end ofthe eighteenth century 32—the classical period—andthe early decades of the nineteenth century. LordKames' chapter on " Foreign Matters " in his Prin-ciples of Equity was cited in the American courts in1788 and may indeed have introduced there the theoryof comity in dealing with questions of foreign law.Moreover, in 1790 James Wilson, Scottish-bornmember of the Supreme Court of the United States,

32 See Nadelmann, " Joseph Story and George Joseph Bell," 1959Jur.Eev. 31.


in his lectures at the University of Pennsylvaniareferred frequently to the writings of Kames. Kent'sCommentaries (1826), the first treatise on Americanlaw, makes numerous comparative references to Scotslaw—including citations from Fergusson's consistorialreports and Bell's Commentaries—while Joseph Story,whose Commentaries were first published in 1832,refers on many occasions to Stair, Erskine, Kamesand Bell. This influence was by no means one-sided,and Bell in the 1839 edition of his Principles reliesfrequently on Kent and on Story, with whom hecorresponded on terms of mutual admiration. TheScots lawyer and the American lawyer—selective,creative and comparative in outlook—had ground forcommon understanding. Neither believed that theultimate revelation of legal wisdom had been given toone chosen people at one particular period in time.

SCOTTISH LAWYERS AND THE ANGLO-AMERICANLAW

Scotland's influence on legal thought and administra-tion through Scots law has been limited by factorssuch as those I have already mentioned. It is adifferent story when one considers the world-wideimpact which Scotsmen as practising lawyers havehad on other legal systems. Earlier this year thatdistinguished English judge, Lord Denning, in hisDavid Murray Lecture33 delivered at Glasgow Uni-versity, claimed that over the past two hundred yearsEnglish law had been borrowing from ScotlandS3 Not yet published: Press reports, Glasgow Herald and The

Times, May 6, 1961.


" principles and men, in both of which Scotland hadno equal in the world." Whatever the presentsituation, these words are not altogether extravagantwhen applied to the Scotland of my forefathers, andto the Scotsmen who left home to seek livelihood andliberty, or fame and fortune, in other lands. Overmany centuries Scotland's chief export has been hersons—a matter of pain as well as pride. So often ithas been the cream of the nation which set out tomatch its talents against the fiercest challenges ofhuman competition or of nature. Scholars, soldiersof fortune, doctors, teachers and missionaries, engi-neers and mariners, traders and pioneers, administra-tors and lawyers—what magnificent men they havebeen. The majority of those descended from theScots of 1707 are now overseas, and the ethnic centreof Scotland is probably on the west shore of theAtlantic. Many Scots of the diaspora have risen tothe highest judicial and executive offices, and,through law, even to the rank of Prime Minister inthe Dominions. Paradoxically, there are those in thiscountry who doubt the ability of Scotsmen to governtheir own domestic affairs wisely. Few legislatures inthe Commonwealth can have less Scottish lawyersthan Parliament at Westminster—where one advocatealone (the Lord Advocate) sits in the House ofCommons.

As I reflected on the potential contribution whichScots law could have made to the world, I washaunted by the realisation that often the men whocould best have made that contribution were serving


with distinction in the various systems of Anglo-American common law. The tradition of the Scottishnation—tattered, alas, in the twentieth century—seems to have fitted the Scotsman for the professionof law wherever he may be. Through the Presby-terian ethos, a love of dialectic and argument wastransmitted—qualities well suited to judge and advo-cate; while the "bonny fechter" suits well bothforum and the field.

Time would fail me to tell of the noble contributionof so many Scottish lawyers to common law jurisdic-tions—in Africa, Australia, Canada, India, NewZealand and many more. For the Colonial (now theOverseas) Legal Service, moreover, there was, and isstill, no differentiation against a Scottish qualification.Grasping this opportunity, numerous Scottish advo-cates have risen to high judicial office outside theirown country. I cannot pause to name them, nor topay individual homage to the part played by Scottishlawyers in the various Dominions where Anglo-American common law is administered. The mainpivots of that system—England and the United States—however, must be mentioned briefly.

At the time of the American War of Independenceabout 7 per cent, of the colonial population wereScots. Yet nine of the 56 signatories of the Declara-tion of Independence and twelve of the 54 delegatesto write the American Constitution came from thatminority. I shall refer later to the significant factthat the descendants of those who had accepted theUnion of 1707 showed no enthusiasm for the solutionof a unitary state or a legislature beyond judicial


control. They did not write into the Constitution therequirement that all American citizens by the thirdgeneration must have acquired a Scottish ancestor.This depends on tacit convention. Two of the fivemembers of Washington's first Cabinet came from thesame Scottish minority, as did two of the five originalAssociate Justices and the second Chief Justice of theUnited States Supreme Court. It has been estimatedthat of those who have served on that court, at leasta third have been of Scottish descent. A similarpattern may be traced in other American courts—State and Federal—and among leaders of thepractising profession.

The contribution made by Scotsmen in England tothe common law is a theme for a course of lectures.Fortunately in 1954 the present Lord Chancellor (thenHome Secretary) addressed the Canadian Bar Asso-ciation on " Scottish Influence on the English Bar," 34

and this year Lord Denning at Glasgow dealt withthe contribution made by Scotsmen as judges inEngland. Lord Kilmuir is a master of English law,but is so dedicated to all matters small as well asgreat affecting his native Scotland that he even volun-teered to take the chair at one of these HamlynLectures—the first series in Scotland. At Winnipeghe chose for discussion four of his Scottish predeces-sors to reach the highest judicial offices in England—Mansfield, Loughborough, Erskine and Haldane.Alexander Wedderburn, Lord Loughborough, was theonly one of the four to have practised as an advocatein Scotland before attaining the glittering prizes of3" [1954] 32 Can.Bar Eev. 844.


Bar and Bench in England. In the eighteenth cen-tury when Scots in England had to contend withprejudice and hatred, he proved nevertheless thatthese prizes were within a Scotsman's reach. ThomasErskine (born 1750), though he became Lord Chan-cellor, will be remembered above all else for hiscourageous and forceful advocacy. He was, accord-ing to that caustic critic, Lord Campbell, " thegreatest forensic master that Britain ever produced "and, as Lord Kilmuir has said, the master and fore-runner of such militant advocates as Russell, Carsonand F. E. Smith. Haldane, the philosopher con-cerned with first principles, made a major contributionnot only in the House of Lords, but also in the PrivyCouncil—which he was anxious to develop as the oneunified Supreme Court of Appeal for the Common-wealth.

I have already mentioned the contribution ofMansfield (who became Lord Chief Justice in 1756)to the development of mercantile law and privateinternational law in England, and also his earlyinterest in Scots, Roman and French law as lawstudent and as counsel in Scottish appeals heard inthe House of Lords. His Scottish practice indeedlaunched him on his career, and Edinburgh, in par-ticular, was grateful to him for his representation ofthe city's interests after the Porteous Riots. Duringhis lifetime he was assailed with charges of Jacobit-ism, and of introducing Scottish legal doctrines intoEnglish law. Even in our own times Sir WilliamHoldsworth, most distinguished of English legalhistorians, assesses Mansfield rather grudgingly as


follows35: " Lord Mansfield was a Scotchman bybirth, but he was educated at Westminster andOxford, and he was a barrister of Lincoln's Inn. Hehad kept up some connection with Scotland and Scotchlaw, so that both his birth and his education, as wellas the qualities of his mind, tended to make him ajurist learned in Roman and Continental law as wellas in English law. The breadth of his learning pre-vented him from attaining that accurate knowledge ofthe development of common law rules which couldonly come to an English lawyer who had devoted thelargest part of his time to the study of its complextechnicalities. . . . But, naturally, the continuedexercise of these qualities tended to make him thinkthat he could settle on rational principles all thebranches of the common law. This was a mistake."In fact, Mansfield was careful to avoid giving theimpression that he wished to civilianise the commonlaw of England,36 even though " The law of Englandwhen he came to the Bench was an archaic survivalin an age of rationalism." So far as lay within hispower, and using the traditional techniques whenpossible, he attempted to reform many branches ofEnglish law. Such was his authority as a judge thathe was only reversed on six occasions during overthirty years on the Bench. Significantly, these wereinstances when legal conservatism revolted success-fully against reason and common sense. Today thedoctrine of consideration remains as the anachronisticbut indispensable badge of simple contract in

35 History of English Law, Vol. vii, pp. 45-46.36 See generally Pifoot, Lord Mansfield.


England. Had Mansfield had his way, a solutionsimilar to that of Scots law might well have been inoperation. But the House of Lords would have noneof it. Another aspect of legal conservatism haseventually tended to limit Mansfield's achievement.Through his close contact with the merchants, whoseadvice he valued, mercantile custom and usage wasbrought within the common law. Once flexible cus-tom had been incorporated into the law, however, thedoctrine of precedent exercised a fossilising effect.Today mercantile law lags behind the needs andpractices of commercial men.

Two other native Scots who made important contri-butions as English lawyers may be mentioned. LordCampbell (born near Cupar in 1779), after a successfulcareer at the English Bar and in politics, became inturn Lord Chief Justice and Lord Chancellor. He isone of the select few to have their names immortalisedby association with a statute. Lord Campbell's Act—as the Fatal Accidents Act, 1846, is known—gave inEngland a right of action to near relatives of a personkilled wrongfully—a right which already existed bythe common law of Scotland. This may have encour-aged Lord Campbell to make like provision forEngland, but it must be said that the learned judgeproved a better influence on English law than on Scotslaw when, sitting as Lord Chancellor, he adjudicatedon Scottish appeals. Men of Scottish birth who attainhigh judicial office in England have not alwaysshown sympathy or understanding for their nativejurisprudence.

Lord Finlay, who became Lord Chancellor in 1916,


and was Lord Rector of Edinburgh University in1902, had studied medicine in that university beforeturning to law. He made an important contributionto the development of English law in several fields,especially perhaps in connection with international lawquestions. Later he was appointed British judge ofthe Permanent Court of International Justice.

Let me touch on another aspect of the influence ofScotsmen in English law. Since 1876 there has alwaysbeen at least one, and usually two, Lords of Appealin Ordinary from the Scottish legal profession who sitin the House of Lords. These are Scottish lawyers,but they spend a good deal of their time dealing withappeals from the English courts, and in so doing haveundoubtedly made contributions of great importanceto the development of English law. The names ofLords Dunedin, Thankerton and Macmillan, to selectonly three from the past, will be remembered amongthe architects of English law. A Scottish judge oradvocate must of necessity in the course of his pro-fessional life have acquired a certain knowledge ofEnglish law before he is appointed to the House ofLords, and owns the English reports and treatises;while an English lawyer may be appointed with noprevious knowledge of Scots law. Moreover, aScottish judge in the House of Lords is constantlyconcerned with questions of English law, and, thoughhe will seek to reach the most just solutions, isunlikely to do it on the basis that Scottish and Englishlaw on the point in issue must or should be the same.This may explain why there has never been an outcryfrom the English " oppressed majority," as Mr.


Megarry puts it,37 when Scottish judges hold thebalance of power in English appeals.

Perhaps, however, the most surprising way in whichScottish Lords of Appeal have managed to develop thecommon law of England is by their decisions in Scot-tish appeals concerned with questions of Scots law—during which there has been some incidental discus-sion of English law—and which have subsequentlybeen adopted as though they were great achievementsof English jurisprudence. One example—a notableone—must suffice, the so-called doctrine of Donoghuev. Stevenson,3* popularly known as the " Snail in theBottle Case." Since the seventeenth century at leastthe law of Scotland recognised that the fact that Ahad contracted with B was no reason why he shouldnot be liable in delict for his carelessness, if he harmedC, with whom he had no contract. This doctrine had,however, been obscured during the nineteenth centurythrough the grafting onto Scots law of English notionsregarding privity of contract. In 1931 an appeal wastaken from the Scottish courts to the House of Lordsto establish whether, if a lady had sustained damagethrough consuming ginger beer polluted by the de-composing remnants of a snail, she had a remedy (onthe principle of culpa or fault) against the manufac-turer with whom she had no contract. To this theHouse of Lords gave an affirmative answer—whichrestored the status quo in Scots law. This decisionwas then immediately accepted in England as a mile-stone in the development of the common law—as

" (1956) 19 M.L.B. 95.38 1932 S.C.(H.L.) 31; [1932] A.C. 562.


recognising a " tort of negligence," a concept whichis certainly not identical with culpa or fault in Scotslaw. I doubt, however, if nine English lawyers outof ten realise this fact, or that the decision in theSnail Case was not an English tort action at all. LordWalker, a Scottish judge, at the American Bar Asso-ciation Meeting in Washington in 1960, made thispoint very clear:

" Within the last two days in this city, Donoghuev. Stevenson—better known as ' the Snail in theBottle '—has been mentioned as though it were anEnglish case exemplifying the merits of the commonlaw. The hypothetical snail may perhaps haveoriginated in England, but the damage whichallegedly it did to the lady who swallowed it occurredin Scotland, and her claim was for reparation underScots law. That the claim succeeded was due nodoubt to the fact that, of the five judges who sat inthe House of Lords, two were Scots lawyers. Hadthe decision depended solely on the votes of the threeEnglish lawyers, the lady's claim would, I fear, havefoundered on the common law rock of privity ofcontract! "

Donoghue v. Stevenson has had almost revolution-ary importance in the common law world as a whole.The trail of the snail leads from London to Adelaide,from Ottawa to Singapore. Scottish lawyers hadprovided their learned friends in the South with a newrevelation, and grist for their mills for years to come.Vindicated at last, Scottish judges of the classical ageslumber peacefully again in Greyfriar's Kirkyard.

CHAPTER 2

MACHINERY OF JUSTICE*

THE BASIC SYSTEM

PERHAPS alone among the countries of WesternEurope in medieval times, the King of Englandsucceeded in establishing central control over theadministration of justice throughout his realm. Thishad many advantages, but, as Professor Plucknetthas pointed out, the cost was heavy. English com-mon law developed in isolation without an effectivecompetitor, and, to quote this distinguished legalhistorian,1 " England had to wait until 1846 for aco-ordinated system of local courts. The crown'sincurable fear of the sheriff is largely responsible forthis. How great an opportunity was missed can beseen by looking at the vigorous and useful institutionof the sheriff in Scotland, where the office was allowedto develop along natural lines." In discussing thecourts in Scotland, I need make no apology for stress-ing the role, not only of the superior courts, but alsoof the Sheriff, the territorial judge, as he is today.If the quality of a country's laws may best be assessedby considering the pronouncements of the highesttribunals, the quality of a country's justice is mostfrequently tested in those lower courts which handlethe great bulk of civil and criminal business.

An account of the Scottish courts in medieval times

* See diagrams of courts, pp. 136-139.I Concise History of the Common Law, 5th ed., p. 105.

538,H.L,-5


would be largely concerned with the local courts.Apart from the ecclesiastical courts, which weremanned by professional lawyers and exercised ex-tensive jurisdiction, civil and criminal justice wasadministered by laymen in burgh courts or by feudalproprietors exercising heritable jurisdiction either assheriffs or by grant of a franchise such as a baronyor regality. When the King was strong his Justiciarsand Chamberlain exercised supervision and adminis-tered peripatetic justice, hearing the pleas of theCrown and " falsing dooms " of the lower courts, but,in the troubled era which followed the Wars ofLiberation, these duties were often neglected. Reformof the local administration of justice was thereforeattempted. In 1496 a statute required all baronsand freeholders to send their heirs to study Latin andlaw at the universities—Latin being of course essentialto a study of Roman law. Had this project suc-ceeded, those who presided in the feudal courts, orattended as suitors, would (or at least could) havebeen learned in the law—but the disaster of Flodden(1513) blighted this hope, and wiped out those whoshould have fulfilled it. Reform of justice at the topof the hierarchy thus became an increasingly urgentproblem. The principal hope of the party aggrievedby delay or denial of justice in a feudal court was tolay his complaint before the King as fount of justice.From the varying committees of Parliament andPrivy Council set up to deal with this business,developed the Lords of Council and Session, and ulti-mately, in 1532, the College of Justice or Court ofSession—Scotland's supreme civil tribunal. For the

Machinery of Justice 55

establishment of this tribunal, which was constitutedpermanently in 1541, James V had secured a Bullfrom Pope Paul III. The money to pay the newpermanent professional judiciary—comprising half lay-men and half churchmen—was intended to be derivedfrom ecclesiastical revenue. At the time when theCourt of Session was constituted as the College ofJustice, Scotland's relationship with France was par-ticularly close culturally and politically. Predomi-nantly French influence may be discerned in theorganisation and procedure of the College of Justicein Scotland, though it has been suggested—erroneouslyI submit—that the model was the Collegio dei Giudiciat Pavia.2

From the sixteenth century until well into the nine-teenth the basic structure of Scotland's superior civilcourts remained substantially unaltered, though noappointments of Chancellor or Extraordinary Lords ofSession were made after the early eighteenth century;and after the Reformation clerical appointments tothe Bench were forbidden. The permanent judiciaryof the Court of Session, therefore, comprised the LordPresident and fourteen Ordinary Lords. The courtwas essentially a collegiate or unitary tribunal sittingpermanently in Edinburgh. In cases of great moment" the haill fifteen " sat together in the Inner House,while nine judges were normally a quorum, and twelvehad to examine any proof. Judges sent to the Outer

2 See esp. Stein, " The College of Justices at Pavia " (1952) 64Jur.Eev. 204. For the history of the Scottish courts gener-ally, see Stair Soc, vol. 20, Introduction to Scottish LegalHistory. The present author prefers his own conclusions ona few points.


House were little more than commissioners, executingdelegated functions and reporting back to the wholecourt. No matter of importance was disposed of by asingle judge. By marked contrast with the positionin England, a bench of judges were masters both offact and law. Though in criminal trials and forvarious purposes in the local courts facts were foundby juries, this method was regarded as too uncouthfor the Court of Session.

Professional lawyers, acting as counsel, agents ornotaries, had practised in Scotland long before theconstitution of the Court of Session as the College ofJustice. Indeed, the first statute dealing with legalaid to poor persons goes back to 1424; and in 1469 theKing asserted the right to appoint notaries—thesehaving hitherto derived authority from Pope orEmperor. Nevertheless the establishment of theCollege of Justice influenced the organisation anddiscipline of the legal profession. During the six-teenth century, from the ten procurators originallylicensed to appear before the Session, evolved theFaculty of Advocates (the Scottish Bar) with theDean of Faculty (corresponding to the batonnier inFrance) as its elected head. In the same century theSociety of Writers to H.M. Signet—the senior cor-poration of solicitors in Scotland—emerged as anorganised body, sharing with the advocates member-ship of the College of Justice; while other societies ofsolicitors (such as the Royal Faculty of Procuratorsin Glasgow) were organised in the principal burghs ofScotland, and maintain their identity today within theLaw Society of Scotland, which was created in 1949.


From the outset the Court of Session exercisedcontrol over the local courts, and attracted to itselfmost important civil litigation. It was not, however,the court of first instance for all types of cause—admiralty and consistorial matters for example. Untilthe nineteenth century various central courts main-tained their independence though subject to reviewby the Court of Session. Thus the Admiral of Scot-land exercised jurisdiction both in civil and criminalmatters and also in prize. The expedition and sim-plicity of process before the Court of Admiralty madeit a serious rival to the Court of Session for commer-cial litigation, while the Justiciary Court grudged thiscompetitor in the criminal field.

Before the Reformation, the ecclesiastical courts inScotland has been conceded wide jurisdiction, andthereafter their place was taken by the CommissaryCourts. The local commissaries, though largelyoccupied with executory matters, had also limitedjurisdiction to adjudicate on obligations fortified byan oath, or in actions by widows and other " poorand miserable persons," and for slander. The judgesof the Superior Commissary Court in Edinburgh wereadvocates, many of whom later became Senators ofthe College of Justice. Besides their local jurisdic-tion the Edinburgh Commissaries exercised a generaljurisdiction covering Scotland as a whole, in suchmatters as legitimacy, marriage and divorce.

Though dependent on Royal favour for appointmentduring the Stuart era, Senators of the College ofJustice held office for life and, even if their selectionor their administration of justice were not always


beyond reproach, it was from the judges of the Courtof Session—not from Coke—that James VI and I wasto receive his first sharp lesson on judicial indepen-dence. In the case of Bruce v. Hamilton 3 in 1599James intervened in person in the debate on behalf ofone of the parties. The best account is perhaps thatof an Englishman, George Nicolson, Elizabeth Tudor'sagent in Scotland, reporting to his master, Cecil, inLondon. " The Lord of Newbottle (Newbattle) thenalso stood up and said to the King that it was said inthe town to His slander and theirs, that they durstnot do justice but as the King commanded them;which he said should be seen to the contrary, for theywould vote against Him in the right in his ownpresence." The Lords then so voted, " Whereat theKing raged marvellously and is in great anger withthe Lords of Session—The King swears he will haveMr. Robert Bruce's case reversed, which the Presi-dent understanding, says he will pen in Latin, Frenchand Greek to be sent to all the judges of the world tobe approved, and that by his vote it shall never bereversed. And so say the whole Session." As LordBirkenhead observed of Seton's opinion, " A noblerand more courageous expression of judicial indepen-dence was never made." It rings across the centuriesand may atone for less worthy conduct among some ofthe successors of Seton and Newbattle whose impar-tiality was not always beyond the reach of influence.I regret to disclose that the greatest name in Scotslaw, Viscount Stair, Lord President and author of our

3 For various accounts, see Lord Cooper, Selected Papers, p. 116;also Lord Normand, 46th Hep., Int.L.Assoc. at pp. 9-10.


leading legal treatise, accommodated Lauderdale,favourite of Charles II, by having a cause called outof order so that it could be dealt with by judges welldisposed to one party. When the loser appealed tothe Parliament of Scotland, the King was induced tointervene and to prohibit all such appeals for thefuture. As a result those members of the ScottishBar who upheld the right were barred from practice.After making their submission eventually, the incidentso rankled in the breasts of many that in the Claimof Right, 1689, the right to appeal to Parliament for" remeid of law " was reasserted. But for the inci-dent which I have mentioned, it might never haveoccurred to Scottish litigants to invoke the appellatejurisdiction of the House of Lords in civil causes afterthe Union of 1707.

While the Court of Session, sitting permanently inEdinburgh, from the mid-sixteenth century estab-lished its control over civil causes, administration ofcriminal justice from the Capital became effective onlyat a much later date. The early justiciars when theywent on ayre had exercised criminal jurisdiction, butin troubled times the holding of ayres was discon-tinued. Eventually in 1672 the High Court ofJusticiary, Scotland's supreme criminal court, wasconstituted, and the office of justice-depute wasabolished. It was provided that the judges of thenew court were to be the Lord Justice General, theLord Justice-Clerk, together with five judges of theCourt of Session sitting as Lords Commissioners ofJusticiary. These were required to hold circuit courtsoutside Edinburgh, but during most of the Stuart


period it is clear that royal justice was not effective indealing with crime throughout Scotland. Indeed, notuntil the heritable jurisdictions were abolished in 1748after the second Jacobite Rising was this end achieved.The local feudal courts were controlled by territorialmagnates, who might condone crimes of their follow-ers which the Crown wished punished. Though theSheriffs had originally been appointed as royal officialsresponsible to the King, through operation of theheritable principle they became substantially indepen-dent, and valued their jurisdiction as a source ofrevenue. The judicial duties of the Sheriff wereusually performed by deputes, who also appointedsubstitutes—and various Acts of Parliament encour-aged the appointment of such as had legal training.

James VI was greatly concerned by the unsatisfac-tory situation which obtained under the system ofheritable jurisdictions. He did not, however, abolishthem. Instead he attempted to graft the Englishinstitution of Justices of the Peace on to the Scottishsystem. This institution was introduced by the Actof 1609, and this Act was followed by many more—in particular that of 1661 which is the basic Acttoday, and the Act of 1708—endeavouring to increasethe effectiveness of the Justices. By an astonishingstroke of ignorance or arrogance the Commissionissued after the post-Union Act of 1708 included thetwo English archbishops, the English law officers andall English members of the Privy Council. Despiteefforts made by the central government before andafter the Union, however, Justices of the Peace inScotland have not flourished as an institution. Their


role in criminal matters is very restricted, and theircivil jurisdiction today is negligible. At times it istrue, before the reform of the Sheriff Courts in theeighteenth and nineteenth centuries, the justices hadmany duties to discharge, and they also gained juris-diction from the burgh courts and moribund baroncourts. Since then, unlike the situation in England,administration of justice locally in Scotland, inmatters of more than minor importance, has been inthe main kept out of the hands of laymen, and hasbeen committed to professional judges. In England" magistrate " usually implies Justice of the Peace.When a Scotsman refers to a " magistrate," heusually means either a stipendiary, or an elected localgovernment representative who may sit in a burghcourt.

THE EFFECT OF UNION WITH ENGLAND

The Union AgreementBefore passing to consider the changes made in the

machinery of justice in Scotland, mainly by nineteenth-century statutes, I must comment briefly on the effectof the Union of 1707 upon the Scottish courts.Though, since the Union, Queen and Parliament haveboth been established in London, Scotland's supremecourts have sat on in the Parliament House in Edin-burgh symbolising, as it were, the nation's survivalin her laws. The Union Agreement—the fundamentallaw of the new Kingdom 4 of Great Britain and of thenew Parliament of Great Britain which on May 1,

* See generally T. B. Smith, " The Union of 1707 as Funda-mental Law " [1957] Public Law 99,


1707, replaced the former Kingdoms and Parliamentsof Scotland and England—contains important safe-guards for the administration of justice in Scotland.Scotland's supreme civil and criminal courts, theCourt of Session and High Court of Justiciary, wereto remain " in all time coming " within Scotland asconstituted at the Union, with the same authority andprivileges as before. No causes from Scotland wereto be " cognoscible " in any court in WestminsterHall. The Scottish Admiralty Court was to be con-tinued, subject to Parliament's right to make regula-tions and alterations for the whole United Kingdom—a weaker safeguard than those provided for the Courtof Session and Justiciary. The Exchequer Court inScotland was only to continue until a new courtshould be settled by Parliament after the Union;while it was provided that " the Queen's Majesty andher royal successors may continue a Privy Council inScotland . . . until the Parliament of Great Britainshall think fit to alter i t . " The Union Agreementalso safeguarded Presbyterian government and discip-line in the Church of Scotland—the established Church—and thus recognised the authority of the courts ofthe Church within their jurisdiction.

'The Exchequer CourtAfter the Union an Exchequer Court on the English

model was established in Scotland to deal with mattersof customs, excise and revenue of the Crown. Withinthis limited field prerogative writs such as habeas andcertiorari were introduced to the utter bewildermentof the profession. Though this Exchequer jurisdiction


was absorbed by the Court of Session in 1856, theghosts of these writs remain to haunt us still, andBelhaven's gloomy prophecy on the eve of the Unionwas fulfilled,5 " I think I see our learned judges . . .studying the common law of England, gravelled withcertioraries, nisi priuses, writs of error, verdictsindovar . . . etc."

The Privy CouncilThe Scottish Privy Council was abolished a year

after the Union. So far as the administration ofjustice was concerned this had important repercus-sions. The Privy Council, by virtue of the royalprerogative, had supplemented action by the supremecourts both civil and criminal. It had been useful tocurb the over-mighty subject, but had also been anengine of persecution. Though the Court of Sessionhad always administered law and equity together—equitable principles guiding the development of legalrules—the Privy Council had also exercised an extra-ordinary equitable jurisdiction by virtue of the nobileofficium. After the abolition of this body by statute,the Court of Session, Kames observed,6 succeeded tothis " noble office " to modify or abate the law—though in modern times, I may add, it has becomerestricted in practice through the influence of pre-cedent. Not only in England is there scope for a" New Equity."

The Justiciary CourtThe privileges of the High Court of Justiciary were

5 /. R. C. v. Bans, 1960 S.L.T. 278. " Hist. Law Tracts, p. 231.


expressly safeguarded by article XIX of the UnionAgreement, yet the Treason Act, 1708, might well beconstrued as a breach in spirit at least, if not also ofthe letter, of that article. True, the Agreement byArticle XVIII permitted the new Parliament, subjectto certain express reservations, to assimilate the lawsof Scotland and England in matters " concerningpublick Right, Policy and Civil Government." Par-liament, however, achieved this end, so far as the lawof treason was concerned, by a most regrettabledevice; and proceeded to divest the High Court ofJusticiary, as such, of jurisdiction to try personsaccused of treason. The former Scottish law oftreason has been denounced by Hallam as " one of themost odious engines of tyranny ever designed againstpublic virtue," and certainly it was in need of reform;but in fact it was the relative leniency of the law ofScotland to those who had participated in the abortiveJacobite Rising in the year following the Union whichinduced Parliament to extend the English law oftreason to Scotland, and to provide for Commissionsof Oyer and Terminer on the English model to trypersons accused thereunder. Despite the strong pro-test of the Scottish peers in Parliament, no statementof the English treason laws was provided in theScottish statute. Perhaps DO one was able or willingto provide the schedule requested. Procedure as wellas substantive law were to follow English example—which meant that the accused was deprived of therights which he would have had under Scots law tofull particulars of the indictment and witnesses against


him, representation by counsel and so forth. In factthis ill-contrived legislation has on the whole beenseldom invoked. After the 'Forty-Five Rising Scottishprisoners were in the main tried at Carlisle. Whenin 1820 Commissions of Oyer and Terminer on theEnglish model were set up to try Scotsmen on treasoncharges in Scotland, as Cockburn recalls, the servicesof an English sergeant were provided to keep thecourt right on the law of treason. The experimentleft a bad taste 7—" They were all guilty of hightreason, no doubt; as any old woman is who choosesto charge a regiment of cavalry. But to make sucha parade about such treason did no good either to thelaw or to the people." Perhaps it did this much good—no prosecution for treason has been known in Scot-land for the last 140 years. In 1945 jurisdiction totry treason was restored to the High Court of Justi-ciary, and in 1950 they were at long last relieved ofthe prospect of imposing the gory penalties of drawingand quartering. Nevertheless, the former Lord Jus-tice General publicly expressed 8 the disinclination ofScottish judges to try persons charged under this stillhighly technical branch of English law. The con-viction of William Joyce (Lord Haw Haw) surprisedand disturbed him.

Appeals to the House of LordsA more important consequence of the Union has

been the recognition of the appellate jurisdiction of

7 Cockburn, Memorials, p. 366.8 In evidence to Eoyal Commission on Capital Punishment, 18th

Day.


the House of Lords in civil causes. The Union Agree-ment had expressly provided that no Scottish casesshould be cognisable by any court sitting in West-minster Hall, but the articles were silent (perhaps, asDefoe suggests, deliberately so—since English claimswould never have been agreed to by the Scots)regarding the competency of appeal from the supremecourts of Scotland to Parliament. As I have alreadymentioned, at the end of the seventeenth century thecompetency of appeal to the Parliament of Scotland" for remeid of law" had been reasserted withinnarrow limits. Soon after the Union of 1707, thequestion was raised as to whether the House of Lordsas judicial organ of the new Parliament of GreatBritain had succeeded to the jurisdiction formerlyexercised by the Three Estates of the Scottish Parlia-ment. In the first session of Parliament after theUnion, the House of Lords of the new Parliament ofGreat Britain accepted jurisdiction in a Scottish civilappeal, on the assumption that it had succeeded tothis jurisdiction. Thereafter appeals multiplied, andappellate jurisdiction was exercised far beyond thelimits of " protestation for remeid of law." Theconsequences for Scotland of allowing appeals from theCourt of Session to the House of Lords really onlybecame fully apparent in the nineteenth century.These included the emergence of more rigid doctrinesof precedent (stare decisis); the introduction of civiljury trial; the mystique of the single judge as anevaluator of testimony; radical changes in civil pro-cedure; and the extension of English legal influenceto various chapters of the law of Scotland. I shall


comment on these presently in a modern context.During the eighteenth century, though one could citeinstances of the House of Lords altering establisheddoctrines of Scots law, and intervening in partisanfashion when political passions were roused, the Scot-tish judges did not at first regard the Lords' decisionsas binding on them for future cases, and in any eventthey were not collected systematically until 1807.Lord Denning in his Romanes Lecture has paid histribute to coroneted amateurs in the ultimate appel-late tribunal.9 Study of the conduct of Scottishappeals in the eighteenth century—when any peer,except, of course, Scottish peers not of the Sixteen,could intervene and vote—does not fill me with likeenthusiasm. When the issues lacked political interest,and were therefore left to the lawyers in the House ofLords—in effect to the Lord Chancellor or his deputy—no person trained in the law of Scotland attended toadvise, and often no Scottish counsel were heard inargument. Though purporting to construe defini-tively the laws of a substantially Romanistie system,their lordships, even as late as the mid-nineteenthcentury, did not have access in their library even tothe Corpus Juris of Justinian—by which time Scottishadvocates were forgetting or despairing of its use. Itis fair I should add that in the main it was Scottishlitigants and their advisers who invoked this strangejurisdiction. Where a right of appeal exists, itsattractions are irresistible. Indeed, the increasingnumber of Scottish appeals to the Lords became anintolerable burden to successive Lords Chancellor, who

9 From Precedent to Precedent, p. 18.


did not relish coping unaided with the problems ofan unfamiliar system of jurisprudence and not infre-quently protested or displayed their ignorance of itsprinciples. " I know something of the law," criedLord Chancellor Erskine,10 " but of Scotch law I amas ignorant as a native of Mexico! " It is perhapsnot surprising that the House of Lords tended toapply the law which its legal members did understand.They, as much as Scots lawyers, were victims of anunjustifiable system.

On the other hand, on the assumption that theformer Scottish Parliament had exercised no equiva-lent jurisdiction in criminal causes, the House of Lordsdeclined to entertain appeals from the High Court ofJusticiary. Though the matter was raised afresh in1876 by one Mackintosh "—who complained that hehad been certified insane—the conclusive declinatureof jurisdiction was in the case of Bywater 12 in 1781.In that case Lord Mansfield repeated the advice hehad given fifteen years earlier, when Katharine Nairnor Ogylvie, according to his recollection,13 hadattempted to appeal to the Lords against her convic-tion for adulterous incest and murder. This lady,being of rank and fortune, as Lord Mansfield noted,had the best legal advice available. Her trial andits sequel stirred the public imagination of her daymuch as did that of Madeleine Smith in the nineteenthcentury. Though the House of Lords would not hearan appeal—which had little to favour it on the merits10 Cit. Gibb, Law from over the Border." (1876) 3 E.(H.L.) 34; 2 App.Cas. 41.12 (1781) 2 Paton 563.13 But see Trial of Katharine Nairn, ed. Boughead, Appendix IX,


—she was not at the end of her resources. Herexecution being deferred on grounds of pregnancy,she escaped after delivery in the clothes of the mid-wife; and, after hiding for some time in the house ofher uncle, an advocate, escaped abroad escorted bythe latter's clerk. As for the lady herself, she isreputed either to have married and lived happily everafter amid a multitude of progeny, or, alternatively,to have taken the veil in France, dying at a ripe oldage in England. Her uncle became Lord Dunsinnan,a judge both of the Court of Session and of the HighCourt of Justiciary.

REORGANISATION AND REFORM

By the early nineteenth century the need to improvethe organisation and procedure of the Scottish courtswas generally accepted; but the proposals for reformsuggested by a succession of Select Committees andRoyal Commissions disclose little agreement as to themost expedient solutions. Empiricism and at timesprejudice determined the course of certain earlierlegislative changes, while others have proved wise andfar-sighted.

Reorganisation of the Court of SessionFirst, we may note that the Court of Session, for

the conduct of normal business, lost its unitarycharacter. After various experiments the organisa-tion (which still operates) was adopted of dividing thecourt into an Inner House of two permanent cham-bers or Divisions, and an Outer House in which the

S.H.L.-6


eight junior judges sit singly as Permanent LordsOrdinary—judges of first instance. The First Divi-sion of the Inner House is presided over by the LordPresident, and in the Chair of the Second Division isthe Lord Justice-Clerk. Unlike the system of judicialpromotion in England, a Lord Ordinary is promotedto the Inner House according to seniority of appoint-ment, while vacancies in the offices of Lord Presidentand Lord Justice-Clerk are usually filled by formerlaw officers. Each Division (comprising four judges,but with a quorum of three) exercises both an originaland an appellate jurisdiction, though its work ismainly appellate. The appellate jurisdiction of theDivisions comprises appeals from the Lords Ordinaryand from the Sheriff Courts.

The original unitary character of the Court ofSession has, however, survived for certain importantpurposes. Questions of special difficulty or import-ance may be argued before five judges or seven judgesor before the whole court. Moreover, a Lord Ordi-nary may report a case of difficulty, without decidingit himself, in order to have an authoritative ruling.Though strictly a decision by one Division may not bea binding precedent except for single judges, in factchoice between conflicting precedents, or the over-ruling of an unsound precedent, is usually achieved byconvening a court of seven judges—or if necessary,all sixteen—who could overrule any precedent otherthan that of the House of Lords. This is a veryconvenient device, and results from the theory thatin a collegiate court the majority of judges cannot


be bound by a minority regarding law or fact. Theconverse solution has been reached by the Court ofAppeal in England.

Consolidation of the Central CourtsThe next development to be noted is the merging

during the nineteenth century of other central civilcourts—over which there had previously been appel-late jurisdiction—into the Court of Session itself.There was, of course, no question as in England ofneed to fuse law and equity—since these had neverbeen separated in Scottish practice. (Lord Eldon,in the era described in Bleak House, concluded—sombre thought—that until a division between lawand equity had been achieved in Scotland, the Houseof Lords could not deal properly with Scottishappeals. Fortunately, on this point at least he wasrestrained.) The Court of Session by a succession ofreorganising statutes absorbed the higher CommissaryCourt, the civil jurisdiction of the Admiralty Court,the Court of Exchequer and the Jury Court—this last,as will be explained, itself a creature of the nineteenthcentury. In 1836 the Commissary Court was sup-pressed; and so thereafter consistorial matters such asmarriage and divorce and also most questions ofstatus generally have been within the exclusive juris-diction of the Court of Session—though the Sheriffshave concurrent jurisdiction regarding judicial sepa-ration and custody of children. The Scottish Courtof Admiralty—administering a law in which Scotsmenhad given the lead to Britain—succumbed to the


jealousy of three rivals. In 1825 by a particularlyoffensive example of the tendency of certain influen-tial interests to regard the English courts as imperialand the Scottish as local and limited, jurisdiction inprize was taken from the Scottish court, and vestedsolely in the High Court of Admiralty of England.This attitude had already been manifested withoutstatutory warrant in 1783 when Lord Mansfieldadvised 14 the House of Lords that a Scottish priva-teer bringing her prize to Port Glasgow should haveresorted " to the Admiralty of England to bring theproper process." (I may interpolate in this connectionthat in 1953 the Faculty of Advocates, whose thenDean had served afloat with distinction in two WorldWars, urged on the Royal Commission on ScottishAffairs 15 that prize jurisdiction should be restored toScotland. The Clyde, Scapa and Rosyth—not tomention the Scottish air bases, since prize law nowextends to aircraft—were key centres of Britain'sdefence. And what is one to say in 1961 about theHoly Loch ?) In 1827 the civil and criminal jurisdic-tion of the Scottish Admiralty Court was distributedbetween the Court of Session, the High Court ofJusticiary and the Sheriffs. The Scottish Court ofExchequer set up after the Union to deal with revenuequestions was absorbed into the Court of Session in1856, but Exchequer jurisdiction is still subject tocertain specialties due to the English origin of manymatters which concern it.

" Hendricks v. Cunningham (1783) 2 Paton 609.15 Cma. 9212 (1952-54).


The Jury CourtI must comment at greater length on the Jury

Court and its ultimate amalgamation into the Courtof Session. The House of Lords—which in practicemeant the Lord Chancellor or his deputy—at thebeginning of the nineteenth century complained thatScottish appeals were presented with prolix and (totheir lordships) largely incomprehensible pleadingsdealing with fact and law combined. Lord Eldon,who became Lord Chancellor in 1801, sought to finda solution to his difficulties by thrusting on Scotlanda system of civil jury trial, which was totally alien,and was resisted by many enlightened men in bothcountries. The Jury Trials (Scotland) Act, 1815, hasbeen censured both by Holdsworth and by LordCampbell, who rightly concluded that a better planwould have been to provide for a clearer separation oflaw and fact in the Scottish record (pleadings) andreforms in the law of evidence. Eldon, however, hadhis way, and a separate Jury Court was set up inScotland with a political lawyer trained in Englandbut of Scottish descent as first Chief Commissioner.In 1830 this jurisdiction, too, was merged in the Courtof Session. Hence the existing institution of civiljury trial for certain " enumerated causes." Thejury of twelve is chosen from the Sheriffdom of theLothians and Peebles only, and is entitled to give amajority verdict. Civil jury trial has never com-manded the confidence or support of the Scottish legalprofession as a whole; but among its defenders maybe counted those who make somewhat speculative


claims, and those whose knowledge of history is sodefective as to assume that Magna Carta had some-thing to do with Scotland. All efforts to secureabolition have so far failed. No Royal Commissionor departmental committee has been satisfied with theoperation of civil jury trial, yet none has recom-mended its total abolition. Paradoxically, todaywhen actions for damages for personal injury arenormally heard in England by a judge sitting alone,these actions are usually sent for jury trial in Scot-land. I t is a matter for reflection that the staplediet of the Court of Session today is probably divorceactions and jury trials in respect of personal injuries—both being nineteenth century acquisitions of juris-diction. The most recent Report—that of theStrachan Committee in 1959 16—by a majority hasagain recommended the retention of jury trial—describing it as " a plant which has taken root andflourished " but is now overgrown. The majorityrecommended abolition of civil jury trial in the SheriffCourt (where it is rarely used) and of " the enumer-ated causes " in the Court of Session—thus restrictingthe procedure in the Court of Session to actions inrespect of death or personal injury, breach of promise,seduction and wrongful arrest. (These categories,except the first two, are rarely encountered in theCourt of Session.) The minority, noting that themajority opinion in the legal profession was opposedto civil jury trial, while no evidence had indicatedlack of confidence in the single judge, recommendedtotal abolition. One of the minority, Sheriff Kermack,is Cmnd. 851.


considered that, if a plurality of minds was desired—associating the layman with the administration ofjustice—there was much to be said for associatingwith the professional judges panels of " lay judges,"who gained experience in court work—unlike thejuror who sits perhaps once in a lifetime. Otherevidence suggested a more extensive use of expertsor assessors. Traditionally, of course, the Court ofSession brought to bear a plurality of trained mindsto questions both of fact and law (though one judgeheard evidence in the first place), and, as on theContinent today, so in Scotland until the changes ofthe nineteenth century, the single judge was not leftto determine matters of importance. Today, accord-ing to the statutes governing Court of Session proce-dure, on appeal the judges of the Inner House havestill a duty to apply their minds to the probabilitiesof conduct to be inferred from the recorded evidence,giving due weight to impressions made by the wit-nesses on the Lord Ordinary. Nevertheless, theHouse of Lords, having in mind, no doubt, the Queen'sBench judge sitting without a jury (and succeedingto its mastery of fact), has in a series of judgmentsin the present century (with the assistance of ScottishLaw Lords) sought to reduce the Inner House'spowers of review over fact to conform to thoseconceded to the Court of Appeal in England.17

Evidence and ProcedureDuring the nineteenth century striking innovations

« See (1950) 62 Jur.Rev. 7.


were also introduced by statute in the field of Adjec-tive Law. From the sixteenth century the procedureof the Court of Session had been based on Romano-Canonical styles such as were used in France.Pleading for centuries had for the most part been bywritten " papers," in which the parties set forthmatters of fact, law and inferences from the evidence:all adorned by an abundant citation from the Romanand canon law and from the leading juristic writings.Such pleadings might be very numerous and diffusewithout the area of real dispute between pursuer anddefender being very clearly defined. To the judgesin the House of Lords, accustomed to Englishmethods, where in common law proceedings facts andlaw were clearly divided by the functions of judgeand jury, Romano-Canonical pleading and practicewas particularly vexatious. In two stages (1825 and1850) pleading by " written papers " was abolished inScotland, and the " closed record " was introduced.This required the pursuer to set forth in explicitterms the nature, extent and grounds of his cause ofaction, and the relief he asked the court to grant;while the defender for his part had to set forth allhis defences and pleas in law. As a result oral argu-ment became normal—one interesting indirect conse-quence being the virtual disappearance of citationfrom the Corpus Juris of Justinian or of the learnedCivilians such as Voet and Heineccius.

Before the nineteenth century reforms, when oralevidence was received at all, it was taken down inwriting by a Lord Ordinary or by a Commissioner,


and was later deliberated upon in the form of deposi-tions by a collegiate court. Technical rules of lawexcluded the testimony of various categories of wit-ness, such as parties or their spouses, or admitted itonly in certain circumstances and subject to qualifi-cation. The Evidence (Scotland) Acts of 1853 and1866 not only made competent witnesses of severalcategories of person formerly excluded, but providedfor the taking of evidence before a Lord Ordinary ata diet of proof, while the whole process was greatlyexpedited by the authorisation of shorthand-writersto record the evidence.

In the Court of Session today proceedings, thoughsometimes by petition, are usually initiated by sum-mons in the Outer House. The summons, a writrunning in the name of the Queen and passing theSignet, is prepared by the pursuer's legal advisers.After the summons proper identifying the parties andrequiring the defender to appear, there follow " con-clusions," i.e., brief statements of the remediesclaimed, a condescendence (i.e., numbered paragraphssetting forth the facts on which the pursuer relies)and pleas in law, which are brief propositions of lawstating the legal foundation of the pursuer's case.The defender in his defences must answer statementby statement the pursuer's allegations of fact;counterclaim when appropriate; and state his pleas inlaw. An " open record " is then prepared, so thatthe several paragraphs of the pursuer's condescend-ence are each followed by the defender's answers, andthe defender's pleas in law follow those for thepursuer. After adjustment, the record is " closed "


by interlocutor of a Lord Ordinary, and (unlesssubsequent amendment is permitted) this defines thelimits of competent argument. A " plea to therelevancy "—equivalent to demurrer in English law—is very frequently encountered; and it was thus on ahypothetical statement of facts that the law wasenunciated in Donoghue v. Stevenson.1*

In completing my account of the jurisdiction of theCourt of Session, I may note that its judges also sitto determine legal questions as members of statutorycourts such as the Valuation Appeal Court and Elec-tion Petition Court and on the Restrictive PracticesCourt (which, with the Courts-Martial Appeal Court,is perhaps the nearest approach to a British courtapplying British law).

A point which would surprise the Americanand English observer in Scotland is the lack ofspecialisation on the Bench and at the Bar. Thoughsome counsel are particularly sought after in certaintypes of case, none can specialise in one field exclu-sively. This has merits and disadvantages. (Oneadvantage is that a judge on appointment has widegeneral experience, while among the disadvantagesmay be counted the fact that in very technicalbranches of law such as patent law, Scotland cannotproduce a Stafford Cripps. The leading experts infields such as company law, taxation and financialtrusts may be found among specialists in firms ofsolicitors.) For the very great majority of entrantsto the legal profession, advocates and solicitors, theprofessional qualification is a university degree in lawis 1932 S.C.(H.L.) 31; [1932] A.C. 562; supra, p. 51.


—which facilitates transfer from one branch to theother, if, for example, a solicitor wishes eventuallyto specialise in advocacy. Moreover, there is noatmosphere of stratification between the two branches.Members of the Faculty of Advocates alone (the Scot-tish Bar) have right of audience in the superior courts,but solicitors may plead in the Sheriff Courts whichhave very considerable jurisdiction. Advocates whopractice in the Parliament House have an address inthe New Town of Edinburgh and may not combinein partnership. Solicitors, on the other hand, nor-mally practise in partnership. Recruitment for thepractice of law in Scotland is democratic; but, par-ticularly since the Union, those who maintain thelegal heritage of Scotland—especially in the Parlia-ment House—have become a professional aristocracyby function.

In civil actions, whether in the Court of Session orSheriff Court, much less use is made of extemporejudgments than in England: taking the case to aviz-andum (scil. taking time for consideration) is normalpractice. A further point worthy of comment is thatinterlocutory proceedings are dealt with by the judgein court—not by an officer of the court such as aMaster in Chambers. The late Lord President was ofopinion 19 that pre-trial procedure in Scotland wastoo dilatory, and the expense of litigation correspond-ingly too great. He had studied with interest theReport by the Evershed Committee on Supreme CourtProcedure in England, but favoured more drastic

19 " Defects in the British Judicial Machine " (1952) 2 J.S.P.T.L. (N.S.) 91.


solutions—in effect the judge taking control of thelitigation once it had been brought into court. Thisis not, I think, a probable development in the fore-seeable future. Rules of Court were made in 1948by authority of the Administration of Justice (Scot-land) Act, 1933, and these are the basis of contem-porary procedure—though the Court of Session hasalso powers to make Acts of Sederunt regardingmatters of process and judicial administration. Inthe past these powers were invoked in effect forpurposes of general legislation.

Central Courts other than the Court of SessionThe other courts which exercise civil jurisdiction in

Scotland are the Lyon Court, which has jurisdictionin questions of arms; the Land Court, set up by theSmall Landholders Act, 1911, but now concernedwith a wide variety of questions relating to agricul-tural land, and the Sheriff Court. From all thesecourts (which have their own series of reports) appeallies to the Court of Session. The presbyterial courtsof the Church of Scotland have sole right to legislateand adjudicate finally in all matters of doctrine,worship, government and discipline in that Church.The General Assembly of the Church of Scotland isits highest court, and also legislates without Royal orother lay consent. Recognition by the civil power ofthe separate and independent jurisdiction of thisChurch in matters spiritual gives no authority to thecivil power to interfere with the judgments of theChurch within its own jurisdiction, and this recogni-tion of the " Two Kingdoms " in Scotland is expressly


affirmed in Articles Declaratory annexed to theChurch of Scotland Act, 1921.

The Sheriff CourtI must stress in particular the importance of the

Sheriff Court in Scotland today—and contrast the roleof the Sheriff with the very different arrangementsmade in England for the administration of justiceoutside the Supreme Courts. After the abolition ofthe hereditary sheriffdoms in March, 1748, the SheriffsDepute were paid from public funds. These Deputeswere advocates practising in Edinburgh, but wererequired to reside in their sheriffdoms for four monthsin the year—a duty which they frequently shirkedwhen it conflicted with the claims of practice in thecourts. They were authorised to appoint substitutesto act in their absence (whose salaries after 1787 werepaid by the Crown). These substitutes might be menwith no adequate legal experience, and therefore anymatter of consequence was reported to the SheriffDepute for decision. Thus Walter Scott as SheriffDepute of Selkirk handled much more judicial workhimself than most writers have realised.20 In 1838Sheriffs Depute (other than those appointed to Edin-burgh and Glasgow, which are full-time appointments)were released from the duty of residence in theirsheriffdoms, while a series of statutes increased greatlythe status of and qualifications required of SheriffsSubstitute. They were required to be advocates orsolicitors of at least five years' standing; they were

2» J. Aikman Smith, " The Great Shirra," The Scotsman,January 12, 1959.


appointed and remunerated by the Crown, and thusbecame the territorial judges of Scotland. No titularSheriffs can now be appointed. (The Sheriffs Depute,now generally known as Sheriffs Principal are thustoday not in fact depute to anyone, while the designa-tion Sheriffs Substitute is equally misleading, sincethey are not in fact substitutes for anyone.) Bothcategories are addressed on the Bench as " My Lord "and off the Bench as " Sheriff."

Though in civil causes an appeal lies from the inter-locutor of a Sheriff Substitute to the Sheriff Principal,it is equally competent for a litigant to appeal directto the Court of Session. The original jurisdiction ofSheriffs Principal and Substitute is the same. Byamalgamations of the less populous counties thenumber of sheriffdoms has been reduced to twelve.To each a Sheriff Principal, a senior member of theFaculty of Advocates, is appointed, while one or moreSubstitutes reside in each sheriffdom, and administerjustice in the principal towns. There are about fiftysuch judges. As a court of original jurisdiction incivil causes the Sheriff Court has, in general, concur-rent jurisdiction (without monetary limitation) withthe Outer House of the Court of Session. A Sheriffcan grant interdict or decree specific implement; hecan deal with judicial separation, custody and ali-ment. Other actions involving status, however, suchas declarator of marriage, divorce and bastardy arereserved to the Court of Session, as are actions forsetting up or setting aside documents and certaincompany matters. Moreover, if an action begun in


the Sheriff Court is to be tried by jury, it must—subject to one anomalous exception—be remitted tothe Court of Session. If the cause does not exceed £50in value the Sheriffs have privative jurisdiction, anda special procedure applies in the Small Debt Court,i.e., where the claim does not exceed £20. Actionsinvolving many thousands of pounds and intricatequestions of law may originate before the Sheriff.Though no decision of a single judge establishes abinding precedent in Scotland, Sheriff Court cases arereported. Strangely enough, however, as yet no pro-motion to the Bench of the Court of Session has beenmade from the ranks of the Sheriffs Substitute; whilein England a number of successful promotions havebeen made to the High Court from the county courtBench, which has attracted the talents of many ablelawyers. Yet in the field of contract and tort, forexample, their jurisdiction is surprisingly restrictedcompared with that of the Scottish Sheriffs, and thedecisions of county court judges are not generallyreported. In Scotland as in England, to use ProfessorPlucknett's words, the Crown had an " incurable fearof the Sheriff "—but after the roots of that fear hadbeen eradicated the policy in Scotland has been todevelop the role of the professional territorial judge,while in England devolution of judicial powers in civilcauses has been recent and limited.

House of LordsBefore I turn from civil jurisdiction, I must

comment briefly on the part played by the House of


Lords as an appellate tribunal.21 Strictly, I doubtwhether this is a Scottish court—and consider itrather as a United Kingdom court applying Scottish,English or Northern Irish law, according to theforum in which the cause originated. The implica-tions of this conclusion cannot be argued, but include,for example, the proposition that their lordships mayex proprio motu express views on Scots law in anEnglish appeal (or English law in a Scottish appeal)without formulating a precedent binding on the courtsof the system which was under discussion. More-over, their lordships' decisions on construction of astatute or of a general principle in a Scottish appealmay justify the Court of Appeal in England followingthe Scottish precedent rather than their own previousview. Similarly, the Court of Session in like circum-stances may elect to follow the precedent establishedin an English appeal, rather than involve a litigantin the expenses of an appeal which he would almostcertainly lose. It is, however, dangerous to assumethat a question of general jurisprudence is in issuewithout full examination of the relevant basic prin-ciples of both systems. Formerly, of course, Scotslaw like other Civilian systems did not recognise thestrict doctrine of stare decisis, and even today it isprobable that the only single decision which the Courtof Session could not disregard is a precedent estab-lished by the House of Lords in a Scottish appeal.It has never been expressly decided that the House

21 See generally G-ibb, Law from over the Border; also by theauthor " House of Lords Precedents and The Law ofDamages," 1956 S.L.T.(News) 13.


of Lords is bound by its own precedents in a Scottishappeal. Nevertheless, during the past century and ahalf, largely due to the influence of the House ofLords, a modification of the English approach to pre-cedent has infiltrated generally into Scottish practice.

Moreover, over the same period the same augusttribunal has been the main influence, apart fromlegislation, assimilating the two legal systems. Todayits judges are men of courtesy and profound learning,but sometimes in the eighteenth and nineteenth cen-turies a policy of anglicising Scots law was pursuedin a deliberate and indeed offensive manner. Themore familiar technique, however, has been foreminent English lawyers, confronted with a Scottishappeal and protesting ignorance of Scots law, totranslate the problem into terms of English law andthen draw the conclusion that the solution in Englishlaw must obviously be a principle of universal justice—hence also to be applied to Scotland. Thus, inBartonshill Coal Co. v. Reid 22 the House of Lords,reversing the Court of Session, imposed the doctrineof common employment on Scotland. Lord Cran-worth's approach illustrates the technique of assimi-lation : " In England the doctrine must be regardedas well settled; but if such be the law of England, onwhat ground can it be argued not to be the law ofScotland? The law as established in England isfounded on principles of universal application. . . . Ithink that it would be most inexpedient to sanction adifferent rule to the north of the Tweed." Ninety

22 (1858) 3 Macq. 266 at p. 285.S.1I.L.-7


years 23 later, when sufficient dissatisfaction with this" universal principle" had been generated inEngland, statute restored the law of Scotland to thestatus quo. In fairness, I should add that thereinforcement of the House of Lords with one or moreScottish Lords of Appeal after 1876, though ensuringthat a judge experienced in Scots law is available,has not invariably ensured that its principles will beregarded. The main objections stated in 1852 byLord Cockburn to the project of sending a Scottishjudge to the Lords were, first, that he would havedisproportionate influence with his English colleagueson questions of Scots law (thus in effect outvoting allthe judges of the Court of Session, though he mighthave no previous judicial experience) and, secondly,that he would be doing so little Scottish appellatework that he would tend to lose his sense of Scotslaw.24 " Nothing oozes out of a man so fast as law."His fears, though exaggerated, have not provedaltogether unfounded. The Occupiers' Liability (Scot-land) Act, 1960, was required to annul the law as laiddown by the House of Lords in two decisions revers-ing the views of the Court of Session. In each caseit was a Scottish judge who gave the leadingjudgment. In the first of these decisions25 LordRobertson (a Scottish judge) introduced the doctrineof Cavalier v. Pope 26 which refused to a member of a

23 L a w Eeform (Personal Injuries) Act, 1948 (11 & 12 Geo. 6,c. 41).

2 4 Cockburn, Journal, I I , p . 278.25 Cameron V. Younq, 1908 S .C . (H .L . ) 7.26 [1906] A.C. 428.


tenant's family any remedy in delict against a land-lord who had leased defective premises: in thesecond27 (Homer again nodding) Lord Dunedinsuperimposed the categories of invitee, licensee andtrespasser on the principle of culpa.

I cannot call to mind any House of Lords appealfrom Scotland in recent years in which the ScottishLaw Lords have been outvoted on a question of Scotslaw, or in which their lordships have ignored a Scot-tish doctrine which was fairly set before them. Thedifference in result between decisions over Crownprivilege in the cases of Duncan v. Cammell Lajird 2S

and Glasgow Corporation v. Central Land Board29

are very much in point. In England, ministerialobjection to the production of documents on groundsof public interest was held to be conclusive; while theHouse of Lords upheld the view that the ScottishCourts have inherent powers to override such objec-tions if other aspects of the public interest so require.Nevertheless, I can think of numerous occasions uponwhich Scottish counsel have gained support for theircontentions by conceding quite unwarrantably thatthe laws of Scotland and England were identical onthe question in issue—and this is a very popular flywith which to fish in troubled waters. It must beremembered, however, that an advocate's concern isto maintain his client's interests rather than thepurity of jurisprudence. Except in a very clear case,it would be desirable that these concessions were notmade, and, in particular, that their lordships would

« Dumbreck v. Addie, 1929 S.C.(H.L.) 51; [1929] A.G. 358.28 [1942] A.C. 624. ™ 1956 S.C.fH.L.) 1.


not ask counsel in Scottish appeals whether the rele-vant rules of Scottish and English law were the same.Relatively few advocates practising in the Scottishcourts have made a detailed study of English law, andcannot be aware when superficial similarity obscuresdifference of principle or method. Thus, as I havesaid before, no one who had studied the developmentof the English law of tort could assent to the proposi-tion that the tort of negligence corresponded to theconcept of culpa in the Scottish law of delict, thoughtheir solutions often overlap. The danger of con-ceding that they are identical is that technicallimitations restricting the English tort may be im-posed per incuriam on the Scottish principle of fault—which is not restricted, incidentally, to negligentwrongdoing. Significantly, counsel in English appealsare seldom, if ever, asked the question whether theEnglish law is the same as that of Scotland. Evenfewer of them, of course, have studied or practisedlaw in Scotland.

The Royal Commission on Scottish Affairs whichreported in 1954, made no firm recommendations onthe proposal urged by the Law Society of Scotlandthat, on grounds of relative convenience and cheap-ness, the Appellate Committee of the House of Lordsshould sit in Scotland. This proposal was not, how-ever, supported by evidence given on behalf of theFaculty of Advocates. There are precedents for theAppellate Committee of the House of Lords sittingoutside the Chamber, and personally, I consider thatfrom time to time it would be an excellent idea to


make welcome the Appellate Committee in the Parlia-ment House at Edinburgh. Not only would this bemore economical for litigants, but such an arrange-ment could bring home more cogently than argumentthe fact that their lordships sit as successors to theThree Estates of Scotland, and as ultimate arbiterson the principles of a national and cosmopolitansystem. Until the Administration of Justice (Scot-land) Act, 1933, any judge appointed to the Bench ofthe Court of Session had as a preliminary to undergotrial or examination of his qualifications. Indeed, hefirst sat as Lord Probationer. I wonder whether arevival of the system for the benefit of distinguishedEnglish judges destined to hear Scottish appealswould appeal to them. A doctorate utriusque jurismight be added for good measure !

Though the official views of the Scottish legal pro-fession favour retention of the right to appeal to theLords in civil causes, there is no desire to invoke thisjurisdiction to deal with criminal matters—and, if Imay say so without disrespect, the reasons for keep-ing the ultimate decision in Scotland seem to haveincreased rather than diminished. Scottish criminallaw and procedure are substantially different from thesystem which operates in England and Wales.

High Court of JusticiaryWhile I think that criminal justice in Scotland is

very fairly and efficiently administered today, thesystem is not necessarily suitable for export. Muchdepends on certain conventions which have developedwithin the Crown Office and by the etiquette of a


small profession, which I shall discuss in my nextlecture on " Patterns of Criminal Justice." Let us,however, just look very briefly at the organisation ofcourts of criminal jurisdiction in Scotland today. TheHigh Court of Justiciary is Scotland's supremecriminal court, exercising both original and appellatejurisdiction. Since 1887 all Senators of the College ofJustice—that is sixteen judges—are by virtue of theirappointments also Lords Commissioners of Justiciary.They may sit in Edinburgh or go on circuit to thevarious towns in Scotland to try the gravest crimes.(There are four circuits, North, West, South, andHome.) As a rule one judge only sits at the trial ofan accused, but in complicated cases two or eventhree judges may sit. Moreover, if some question ofexceptional difficulty emerges at a trial, the presidingjudge may certify the case for the opinion of thewhole court. Fundamentally the court is a collegiatebody. Any matter involving the nobile officium or" criminal equity " of the High Court must be dealtwith by a Bench of judges, and not by one alone. Ifthe traditional power remains to declare a new crimesui generis, or to consider the legal validity of a doubt-ful defence, such power can only be exercised in thisway. Thus in Sugden 30 the whole court sat to deter-mine whether the rule of Roman law, that crimes couldnot be prosecuted after twenty years from the date ofwrongdoing, was part of the law of Scotland. In Kirk-wood 31 sentencing policy in dealing with cases of dimin-ished responsibility was considered by all the judges.

30 1934 J.C. 103.31 1939 J.C. 36


Though the High Court has always exercised controlover criminal proceedings in the lower courts, it wasnot until the Criminal Appeal (Scotland) Act, 1926,came into force that there was jurisdiction to hearappeals from conviction and/or sentence after trialon indictment. In fact, Oscar Slater, who in 1909had been found guilty of murder, had his convictionquashed in 1928 after completing a life sentence.32

It is largely as a result of this appellate jurisdictionthat the criminal law of Scotland is developed inmodern times, since the opinions of single judges donot bind their brethren. Decision between conflictingprecedents pronounced by quorums may be achievedby convening a Full Bench—usually of five or sevenjudges. It is a moot point whether the Whole Courtcould repudiate an earlier precedent by the WholeCourt—but is probably entitled so to do.33

Sheriff Court (Criminal) and Inferior CourtsThe Sheriff has long exercised a very wide criminal

jurisdiction indeed, though he may not try certaincrimes such as murder, attempt to murder, rape orincest. His powers of punishment are, however,limited. If he is exercising solemn jurisdiction—whenthe accused is tried by a jury of 15—after convictionthe Sheriff himself can generally impose no heavierpunishment than two years' imprisonment. On theother hand, he may remit the accused to the HighCourt for sentence; and this procedure is frequently

3 a Slater, 1928 J.C. 94.33 T. B. Smith, Doctrines of Judicial Precedent in Scots Law.

p. 30.


adopted these days to secure speedy trial. If theSheriff is exercising summary jurisdiction he sitsalone, and, unless statute has prescribed a heavierpenalty, cannot normally impose a sentence of morethan three months' imprisonment. His decision maybe appealed by way of stated case.

The Sheriff's criminal jurisdiction is universal,subject to certain crimes being reserved to the HighCourt. Other inferior courts, however, only havesuch jurisdiction as is conferred on them by statuteor necessary implication. Moreover, the Sheriff hasconcurrent jurisdiction with every other court withinhis sheriffdom. Such courts may be Justice of thePeace Courts, Burgh Courts or the Court of theStipendiary Magistrate in Glasgow. The powers ofthese courts are restricted to awarding up to 60 days'imprisonment or a fine not exceeding £10. Appeallies to the High Court by way of stated case. A highproportion of offenders are tried each year in thesecourts for relatively trivial offences. There are onlyfour specially constituted juvenile courts in Scotland,and thus most young offenders are dealt with by theSheriffs under a special procedure.

ResumeMay I in conclusion summarise the interaction of

Scots law and English law so far as judicial machineryis concerned. Scots law showed England the advan-tages to be gained from fusing Law and Equity in thesame courts, granting the same remedies and relief.Moreover, the Sheriff Courts in Scotland provided apattern for the decentralisation of civil jurisdiction,


which the county courts might well follow even moreclosely. English influence, mediated mainly throughthe House of Lords, introduced to Scotland doctrinesof strict precedent, civil jury trial, the elimination ofjudicial colleagueship as normal in cases of impor-tance, and the investing of the single judge withsomething approaching the jury's mystique regardingquestions of fact. These may be set largely on thedebit side. On the credit side, however, it was bene-ficial to subdivide the Court of Session for ordinarybusiness, and to encourage more oral evidence andpleading. These changes in pleading had the unfor-tunate side-effect of weakening the rapport betweenpractical lawyer and jurist, which had been close inScotland. If this was due to examples and techniquesborrowed from the English, they are now giving a leadin healing the breach. Though academics are not, asin America, appointed to the Bench, many judgeswould make admirable academics. Sheriff C. de B.Murray has proclaimed: " No one in his sober senseswould say that a law professor had the ability of aMaster of the Rolls or a Lord Chief Justice—evensupposing a professor had the brains of a LordChancellor, he could not give an opinion of muchvalue ! " 34 The proportion of first-class honours menin the House of Lords is impressive, and they notonly write for, but even read, the learned journals—especially The Law Quarterly Review—to discoverwhat the " school solutions " to their problems were.In Scotland, though of course in the past the Univer-sities have strengthened the Bench, I look forward to34 1950 S.L.T.(News) 2.


an era when we shall recruit professors from the creamof the judiciary, and remunerate them comparably.Perhaps the Lord Chancellor, when he finds theWoolsack too soft a seat, might consider a Chair.

CHAPTER 3

PATTERNS OF CRIMINAL JUSTICE

SCOTTISH CRIMINAL LAW

SCOTTISH criminal law did not reach maturity untilthe late eighteenth century. The Romanistic approachof Mackenzie's time (late seventeenth century) hadbeen followed by a period of selective borrowing fromEnglish practice, until by the time of Hume anarticulate synthesis had been achieved. Since thattime there have, of course, been progressive develop-ments in Scottish criminal justice, which today is notonly well suited to the needs of Scotland, but alsoinspires liberal reforms in England. A comparativelawyer may note that in the field of criminal law—bystriking contrast to that of private law—Englishinfluence was on the whole accepted only after propercomparative evaluation and scrutiny. It was notimposed by the House of Lords, which had no appel-late jurisdiction in criminal matters; nor did thelegislature seek to assimilate established Scottish andEnglish laws defining the graver forms of crime.(When, of course, new conditions required the enact-ment of criminal sanctions—as for road traffic offences—legislation was often extended to Britain as awhole; and today, there are now myriad statutoryoffences.) I suspect that Scottish criminal lawenjoyed immunity from interference after the Unionbecause the Establishment of those days were not

95


greatly interested in how the criminal classes—themurderers, thieves and swindlers—were suppressed,provided the means were effective. The one crimewhich might tempt gentlemen and imperil the statewas treason; and, as we have seen, the Treason Act,1708, was forthwith passed to impose the proteanEnglish law upon Scotland. In Scotland the criminallaw is not codified, and relatively few, even of thegraver crimes, are defined in statutory form. Thoughmuch of English criminal law is set forth in a numberof consolidating Acts, no similar policy has beenadvocated for Scotland—perhaps through apprehen-sion that the more liberal principles of Scottishcriminal law would be submerged in a British CriminalCode or complex of consolidating statutes. Thus thelate Lord Cooper, who favoured the idea of a Scottishcivil code to preserve the basic principles, wasopposed ] to the idea of a criminal code. The factthat Scottish criminal law avoided premature rigidityand has retained its flexibility—through the powerretained by the Justiciary Court to review anddevelop its precedents, and through the discretionarypowers exercised in the Crown Office—weigh thebalance against the potential benefits of codificationin leonine partnership.

Sir Thomas Taylor has summarised the content ofScottish criminal law admirably—" Apart from legis-lation, the sources of the criminal law are to be foundin the practice of the criminal courts, influenced tosome extent by the civil (Romanistic) and canon law,

1 Evidence to Eoyal Commission on Capital Punishment,H.M.S.O. 18th Day, q. 5406, 5434, 5442.

Patterns of Criminal Justice 97

and mediated through the institutional writers andthe Justiciary Reports." Thus today, apart fromlegislation and reported decisions, the main reposi-tories of Scottish criminal law are to be found inthe works of the institutional writers—Hume inparticular.

Scots law knows no division between felonies andmisdemeanours. Though the terms are sometimesused in a comprehensive as well as in a limited sense,the graver forms of delinquency are designated" crimes," and the lesser forms " offences." Forpresent purposes I may be permitted to refer to" crimes " in the comprehensive sense. For a personto be convicted of crime in Scotland, the prosecutormust in general establish (a) a breach of the criminallaw; (b) a blameworthy state of mind—technicallyknown as " d o l e " ; and (c) conduct in which thatmental state (whether it be " intention " or " criminalnegligence ") is manifested.

Breach of the Criminal Law and the Power to DeclareNew Crimes

Normally the indictment or complaint will specifyby name the crime with which an accused is charged,but this is not essential. In developing the criminallaw of Scotland, the High Court of Justiciary exer-cised the power to declare and punish new crimes.Thus Hume asserted 2 " Our Supreme Criminal Courthave an inherent power to punish . . . every act whichis obviously of a criminal nature; though it be such

2 Commentaries, p. 12.


which in time past has never been the subject ofprosecution." This power, which can be exercisedonly by a bench of judges, has seldom been invokedin modern times, except, perhaps, under cover ofasserting that the act falls within an already recog-nised principle. Clandestine borrowing of a motor-vehicle was recognised as a crime 3 in 1926, withoutexpressly deciding whether furtum usus was part ofScots law. In 1933, however, Lord Justice-GeneralClyde observed i that " I t would be a mistake toimagine that the criminal law of Scotland counte-nances any precise and exact categorisation of theforms of conduct which amount to crime. . . . Ineed only refer to . . . Baron Hume's institutionalwork in which the broad definition of crime—a dolefulor wilful offence against society in the matter of' violence, dishonesty, falsehood, indecency, irreli-gion' is laid down. . . . In my opinion, the state-ment in Macdonald's Criminal Law that ' all shame-lessly indecent conduct is criminal' is sound." Thusin his view, indecent practices between consentingmale adults would be criminal at common law. Onthe other hand, not all acts which we may considermorally reprehensible justify judicial intervention tocreate new crimes; and in 1937 Lord Justice-ClerkAitchison said 5 that it was for the legislature, if sominded, to treat as criminal the supplying ofabortifacient drugs for use by a woman who was notpregnant. Hume's statement of the law seems much

3 Strathern v. Seaforth, 1926 J.C. 100.4 McLaughlan v. Boyd, 1934 J.C. 19 at p. 22.s Semple, 1937 J.C. 41.


too broad to describe the modern law, and the variousheads mentioned by him are facets of immorality,which have justified treating various acts as particularcrimes, rather than crimes in themselves. It isperhaps not self-evident that the acceptance of certaingeneral principles in criminal law (delicta publica)need be more harmful than the acceptance of generalprinciples in the civil law of delict, nor perhaps shouldall mala in se be anticipated and catalogued in detailab ante.* The graver crimes are already cata-logued and defined, and it would be difficult toenvisage a type of conduct, hitherto unknown—ascontrasted with a new way of committing a recognisedcrime—which was as offensive morally as fire-raisingor robbery. It is in respect of less heinous anti-social behaviour that pressure is brought to bear onthe courts to extend the criminal law—in particularwhere sexual morality and administration of justice isconcerned.7 Such behaviour may be anti-socialwithout being so grossly immoral and mischievous asto merit the sanctions of criminal punishment, andit may be hoped that the development of such crimesas " hindering the course of justice " will be strictlycontrolled and will not be construed to include just" bothering the police." For an individual not yetcited as witness at a trial to disappear so as to avoidcitation shows a sad lack of civic responsibility—but

6 See Smith, The United Kingdom (Scotland), British Common-wealth Series, Vol. 1, pp. 701, 703-707 (hereafter calledSmith); (1957) Eev.Int.de Droit Penal, 292-293; Elliott (1956)1 Jur.Eev. 22.

? Young v. Heatly, 1959 S.L.T. 250.


it may be doubted whether such conduct should bemade criminal except by statute.8

As in delict, so in crime, Scots law still probablysupplements the categories which are clearly recog-nised with broader principles of liability, dependenton the facts proved. Indeed in Scotland it is notnecessary to specify in the indictment any particularnomen juris (technical name) for the crime alleged.It will suffice to state facts which would constitute acrime in law; and it may then be debated whichrecognised crime has been proved or whether anycrime known to the law is disclosed. Even a criminalcode does not eliminate the need for interpretation,and some of the crimes specified in a code may bestated in terms of broad principles like the crimen falsiunder the lex Cornelia. Dr. Glanville Williams haswritten 9 " although nullum crimen (sine lege) is nowsupported by the strong weight of professionalopinion, it is not so plainly right that no two opinionsare possible about it." Two opinions are representedin Scotland, but for over a hundred years few, if any,responsible judges or advocates would have beenprepared to urge that Hume's statement of the lawrepresents the modern attitude; nor has the policy ofthe Crown Office—which is very important for Scot-tish criminal jurisprudence—favoured developmentsbeyond recognised principles of liability. Neverthe-less, some recent cases in Scotland suggest the desir-ability for a considered and authoritative statement

8 Compare Martin, 1956 J.C. 1, and Mannion, Glasgow Heraldand Scotsman, February 10, 1961. The view of a singlejudge in the latter case is, of course, not conclusive of a matterconcerning the nobile officium. 9 Criminal Law (1953), p. 460.


by the Justiciary Court as a whole regardingdeclaratory power.

It was of particular interest to observe that in arecent English appeal10 to the House of Lords themajority asserted a power very similar to that claimedin the past for the High Court of Justiciary inScotland. The English judges held that the Englishcourts as custodes morum of the people exercised aresidual power to superintend those offences whichwere prejudicial to the public welfare. Accordinglythey held that the accused, by publishing a " Ladies'Directory," advertising the services of prostitutes,was guilty of a conspiracy to corrupt public morals.They did not reject the proposition that the elementof conspiracy was unessential. Paradoxically LordReid, a former Lord Advocate, and the one ScottishLord of Appeal in Ordinary sitting, dissented stronglyfrom the majority view, and asserted that the Englishcourts cannot in modern times create new criminaloffences.

Dole and Guilty Mind (Mens Rea)There is no fixed mental state applicable to all

forms of wrongdoing. So far as most crimes are con-cerned, no more may be implied by " guilty mind "than that the accused has intentionally done an actwhich the law prohibits, or has failed to take suchcare as the law requires in the circumstances. Ignor-ance of the law is no excuse. For certain gravercrimes, however, the guilty intention of the accusedis related to his knowledge of facts which are essential10 Shaw v. D. P. P. [1961] 2 W.L.E. 897.

S.H.L.-8


elements of the offence. Thus a man who in goodfaith, believing his wife to be dead, goes through aform of marriage with another woman, is not guiltyof bigamy.

The mental state which is an essential element ofguilt may be excluded or reduced in culpability bycertain defences. The older authorities, though notuniform in their conclusions, agreed in fixing theminimum age for criminal liability as much higherthan eight years which, to conform with English law,statute has now prescribed. This is a blemish in ourjurisprudence, and does not correspond to the realitiesof penal policy. Other defences include error—aswhere a man takes another's property believing him-self to be owner; also cases of necessity, or compulsion—as where a surgeon terminates pregnancy to save awoman's life or a soldier shoots in obedience to anapparently lawful order. Again, it is a good plea inexculpation that death or injury was caused toanother in the course of lawful defence—as where aman to save himself or another from attack, whichcannot be evaded otherwise, overcomes it withoutresort to immoderate force. Provocation is to bedistinguished from lawful defence. Provocation neverexcuses guilt, but merely operates in mitigation.Thus it may reduce the degree of guilt from thatrequired for conviction of murder to that appropriateto culpable homicide. That indeed seems to be theonly clear case where the effect of provocation isactually to alter the category of the crime itself. Thereason for this is, presumably, because only for thecrime of murder is the minimum penalty fixed by


law. In other cases provocation is taken into accountto palliate punishment. Nevertheless, though thecourts in England have taken a different view,11 itseems proper to include provocation among generaldefences in the sense I have explained. The Homi-cide Act, 1957, has now extended to English law thepresumed principle of Scots law that provocation asa defence is to be tested by determining whether areasonable man would have lost his self-control in thecircumstances—without discriminating between pro-vocation by acts or words.12 This leaves unsolvedthe question of how the standard of the reasonableman is to be set. How far can factors affecting theparticular accused be taken into account ? In Englishlaw the House of Lords has decided 13 that, if theaccused suffers from some peculiarity of body, suchas club foot, or special sensitivity of mind, as mightbe expected in an impotent man, this may not betaken into consideration when assessing the effect ofprovocation on him. The Scottish courts are notbound to follow this somewhat arbitrary rule, andmay take into account the subjective element. Thoughthe average Scot on a jury might feel that he himselfas a reasonable man would be unmoved by suchvulgar abuse as " dirty nigger," a visitor fromAlabama or Ghana might be expected to reactdifferently.

Scots law also recognises that there may be casesshort of mental illness where a person may not be

n R. v. Cunningham [1959] 1 Q.B. 288.12 But see Dodson, Scotsman, July 28, 1961.is Bedder v. D. P. P. [1954] 1 W.L.B, 1119.


responsible for harm which he has caused—on theprinciple of dissociation. This may result fromfatigue, carbon monoxide poisoning from a leakingexhaust pipe and so forth. In a recent Englishmurder trial,14 the accused, Boshears, an Americanserviceman, was acquitted, after explaining that hehad strangled the deceased girl while asleep, andawoke to find his hands round her throat. Two dayslater he disposed of the body in a ditch. The trialjudge asked if there was any record of such adefence. There had been in Scotland. In the case ofFraser 15 (1878) it appeared that the accused, whileasleep, and believing himself to be attacked by a wildanimal, had killed his eighteen-month-old child. Hewas discharged on undertaking to sleep alone infuture. This precedent might have been useful toMr. Justice Glyn Jones in the English case—though Ido not think that the courts in England, except ongrounds of insanity, have powers to assert the publicinterest even after acquittal. It may be regrettedthat Boshears' discharge was therefore not, as inFraser's case, conditional on his undertaking to sleepalone. Mental dissociation through drunkenness—ifthe state has been induced voluntarily—is not,however, a valid defence. The older law took accountof intoxication through the defence of diminishedresponsibility. In modern law the legal consequencesof drunkenness on criminal responsibility are verysimilar to those laid down in the leading English case

« B. v. Boshears, The Times, February 16 & 17, 1961.15 (1878) 4 Coup. 70.


of D. P. P. v. Beard.16 Thus if the accused isincapable of forming the particular intent required fora specific crime, he must be acquitted of that crime,but may be guilty on a lesser charge. If drink hasmerely caused the accused to give way more readilyto his passions, this factor is disregarded. Howeverreprehensible the voluntary inducing of drunkennessto reduce self-control may be, I myself should regardit as more properly treated as an aspect of diminishedresponsibility—in the broad sense of that expression.

Insanity and Diminished ResponsibilityIf it is proved that the accused was insane at the

time he did an act which, if done by a sane personwould have been criminal, this constitutes a completedefence. The illogical verdict " guilty but insane "has no place in our system. In fact this defence israre in Scotland, because an accused who was insaneat the time of the crime is usually found unfit toplead at the time of trial; while in cases where therehas been aberration or weakness of mind short ofinsanity, the defence will usually found on " dimin-ished responsibility." There has thus been in thepast a striking contrast between the attitudes of theScottish and English courts towards mental illness orinstability in connection with criminal prosecution,and contrasts can still be made.17 The M'NaughtenRules are not part of the law of Scotland. In Scot-land courts of law which are bound to follow, so faras they can, the discoveries of science and the results

16 [1920] A.C. 479; cf. Kennedy, 1944 J.C. 171.17 Eefs. Smith, pp. 716 et seq.—published before current legisla-

tive provisions on Mental Health.


of experience, have altered the definitions and rulesalong with the experts. When insanity is raised as adefence, the jury is charged in the circumstances ofthe case, having particular regard to the evidence ledby specialists in mental illness. The question ofinsanity is, however, much more likely to arise in barof trial. The issue of the fitness of the accused toplead may be raised by defence, prosecution, or bythe presiding judge; and is seldom in practice amatter for contention. If the experts report that anaccused is insane, he will not be tried. Since therecent English case of R. v. Podola 18 the relevanceof hysterical amnesia to plea in bar of trial has beenmuch discussed by lawyers. In that case the accused,who was convicted of capital murder, claimed thatdue to hysterical amnesia he had no recollection ofevents at the time of the crime. His counsel arguedthat in the circumstances he was unfit to plead. Thejury did not believe that the accused had lost hismemory, but the relevance of loss of memory to pleain bar was considered by the Court of CriminalAppeal, which applied the rule laid down in theScottish case of RussellI9—the only authority directlyin point. It had been held by the High Court ofJusticiary that loss of memory covering past events—without other evidence of mental disorder—was not abar to trial. Through drink or the consequences, say,of a vehicle accident caused by his reckless driving,an accused may often have no recollection of conductwhereby he caused death or injury to others.

is [1959] 3 W.L.R. 718; 1959 S.L.T. (News) 242.™ 1946 J.C. 37; see also (1952) 37 Grotius Soc. Transactions 114.


The defence of " diminished responsibility" wasimported from Scotland into the law of England—butfor murder only—by the Homicide Act, 1957—ratheras a compromise between abolition of capital punish-ment and retention of the M'Naughten Rules. InScotland the earliest traces of the doctrine of dimin-ished responsibility can be traced back as far asMackenzie in the seventeenth century and Braxfieldin the eighteenth; but the modern development beginswith its application by Lord Deas in Dingwall in1867.20 All three sponsors, I may add, had a reputa-tion for harshness in their sentencing policies. The" Bloody Advocate," the model for Stevenson's" Weir of Hermiston," and " Auld Deas " of manyan anecdote, were certainly not opponents of capitalpunishment; but they had a sense of proportion. Ifthe insane are exempt from punishment, it seemsreasonable that those who suffer from mental weak-ness or aberration should not suffer the full pains ofthe law. The principles first clearly enunciated byLord Deas have been in operation for nearly a cen-tury, and the courts have wisely refused to restrictthe doctrine by narrow definition. Presumably thecourts, while not surrendering their control of thedoctrine to psychiatrists, will develop it, taking intoaccount the consensus of expert opinion. So far" psychopathic personality " has not been accepted inthe Scottish courts as justifying a plea of diminished

20 5 Irv. 466. For Scottish refs.: Lord Keith (1959) 27 Medico-Legal Journal 4. Smith, p. 721 and [1957] Crim.L.K. 354;cf. J. LI. J. Edwards, Essays in Criminal Science, p. 301;Glanville Williams, " Diminished Responsibility," 1 Med.Sci.& L. 41; Lady Wootton (1960) 76 L.Q.E. 224.


responsibility, but they are not precluded fromaccepting in the future some cases of character dis-order as within the scope of the doctrine. The effectof a successful plea of diminished responsibility is insome ways very similar to that of provocation. Ifthe indictment was for murder, the quality of thecrime is reduced to culpable homicide—which permitsthe exercise of judicial discretion as to punishment.The Royal Commission on Capital Punishment waswrong in supposing that in Scotland the defence ofdiminished responsibility was relevant only in murdercases. It has been invoked in cases of theft by house-breaking, fire-raising, and assault. In these cases, asin cases of culpable homicide, the doctrine is relevantto punishment.21 However, unlike sentencing policyin cases of provocation, a convicted person whoseresponsibility has been diminished may, in the publicinterest, be sentenced to life imprisonment—fromwhich he can be released when the Executive deemsproper. It is not a question of " punishing the badand excusing the mad."

Criminal ConductAs I have said, the mental element in crime must

concur with a " material " element—criminal con-duct. The accused may, of course, not have achievedwhat he set out to do. If, however, his intention wasto kill an enemy, and through error he kills a strangeror friend, the crime will nevertheless be murder. Ifthe full crime is not accomplished, there may beconviction for the attempt. The distinction between21 See Keith and Smith for leading Scottish oases.


mere preparation and attempt is narrow. Perhapsthe test may be put this way—" Had the accused putit beyond his power to prevent the consequences ofhis plan by his own voluntary act? " Lady Macbethwent, dagger in hand, to the chamber of the sleepingDuncan—but recoiled. " Had he not resembled myfather as he slept, I had done't." In theory she wasnot guilty of attempted murder, but, had she beenarrested in the King's room, her story might havefailed to convince a jury. Unlike the position inEngland, where conspiracy has been given very widescope—so as to make criminal agreements to do actswhich would not be unlawful if done by an individual—in Scotland conspiracy seems to be merely an exten-sion of the law regarding attempts. Formerly thedeclaratory power of the High Court was also used tostrike at attempts to commit crime 22—though now,of course, statute law makes general provision forthe punishment of attempts to commit crimes andoffences.

In dealing with questions of principal and accessory,Scots law has adopted a simple and uncomplicatedapproach. There are no principals in the first andsecond degree. In short, generally speaking, no dis-tinction is made between the criminal consequencesof actual commission and accession. Indeed theindictment or complaint need not specify in whichcapacity the accused participated. It is quite possiblethat the accessory, as in the case of Fagin, would bepunished more severely than the principal whom he

22 Lord Walker, " The Growth of the Criminal Law," 1958 Jur.Eev. 230, 236.


had instigated and influenced. (Now, however, bythe Homicide Act, 1957, certain distinctions betweenprincipals and accessories have been made in cases ofmurder.) Accession may be before the fact—bycounsel, instigation, or by the giving of practicalassistance; or accession may be given in the actualperpetration of the crime—but " accession after thefact " is not recognised, except for treason whereEnglish law applies.

It would be impossible to explain here the elementseven only of the graver crimes in Scotland. Themost I can attempt is a few comments of generalinterest to illustrate for the most part the flexibilityof the system in modern times. During the presentyear legislation was introduced to remove suicidefrom the categories of crime in England, and it waspointed out that in Scotland no such crime is known.There is no doubt, however, that " self-murder " wasregarded as criminal in Hume's time, and the rulesas to escheat or forfeiture continued well intothe nineteenth century. Those with a taste for themacabre may read in the pages of Maclaurin 23 of thecallousness of the Edinburgh mob in 1777 to the bodyof Mungo Campbell who had killed himself whileawaiting execution for the murder of the Earl ofEglinton. They dug his body up from the grave nearArthur's Seat " and tossed it about till they wereweary." " However just," says the author, " theirabhorrence of self-murder may be; yet surely theyought to have compassionated the hard fate of thatman." The control23 Criminal Cases, p. 532.


by the Crown Office and operation of the doctrine ofdesuetude presumably accounted for the disappear-ance of self-murder from the modern criminal law ofScotland. The same may be said with regard to thedisappearance of what in England would be calledcriminal libel. The Roman delicts had a penal aspect,while also providing compensation for private citizens.Thus real and verbal injury (injury—injuria—havingthe specialised Roman law meaning of insult) wereformerly both within the compass of Scottish criminallaw. Real injury covered insult by physical means,such as assault; contumely by verbal injury might ingross cases also be criminal, and one aspect survivesin theory under both common law and statute,namely " murmuring" or insulting of judges. Tosome extent but not completely this merges into con-tempt of court. I believe that the last time prosecu-tion for " murmuring " of judges was contemplatedwas in respect of an article written for the JuridicalReview by N. J. D. Kennedy in 1896,24 entitled " TheSecond Division's Progress." Instead of being prose-cuted, however, Kennedy was appointed Professor ofLaw at Aberdeen University, and subsequently tookhis seat on the Bench as Lord Kennedy.

Among crimes of dishonesty, theft was regarded asmost heinous, and, when capital punishment was morein vogue than today, it might be a matter of seriousconsequence whether the crime proved amounted totheft or only to embezzlement or the crimen falsi(swindling). Today this is no longer of great import-ance, because of statutory provisions which authorise2* (1896) 8 Jur.Eev. 268.


conviction for dishonesty, though the exact crimealleged in the indictment is not established; andfurther because the prosecution is not bound to stateab ante which crime of dishonesty is appropriate tothe facts alleged. I may mention that plagium, thestealing of a child under puberty, is aggravated theft,and also that clandestine " borrowing," as of amotor-vehicle, is punishable quite apart from statu-tory provision. Though the Roman law definition offurtum was applied to Scots law in 1838, it does notnecessarily follow that " clandestine borrowing " fallswithin the category of furtum usus.

The declaratory power of the High Court ofJusticiary has been important in the recognition ofsexual offences. While rape was a capital crime, thetendency was, naturally, to restrict its scope. Accord-ingly, rape was confined to cases where there had beennot only connection without consent of the victim, butalso actual violence. Thus, except where statute hasaltered the common law, Scots law treats as assaultaggravated by indecency cases of clandestine injuryto women—where access to a woman has beenachieved by guile or by her own inability to resist—as when she is found stupefied by drink.25

The law regarding murder and culpable homicidehas developed considerably during the past century inparticular. So far as murder is concerned, Scots lawwas fortunately free from those doctrines of " con-structive malice" which, until the Homicide Act,1957, came into force, might in England result in the25 1932 J.C. 40.


prosecution for murder of a person who had no inten-tion of causing death or serious injury. The lateLord Justice-General told the Royal Commission onCapital Punishment, " in Scotland we have practicallyreached the position where only intentional killing ismurder." Recently, however, there have been indi-cations of what might possibly be construed as judicialsupport for a stricter rule. Thus in Miller andDenovan26 the High Court of Justiciary upheld adirection withdrawing from the jury the competencyof returning an alternative verdict of culpable homi-cide in a case where a robber had struck his victim asingle blow on the head with a piece of wood. Thiscase was, however, very special, and the presidingjudge could have had no doubt that the accused hadno inhibitions as to the consequences of his acts.Clearly to strike one such blow with reckless disregardof whether death were to result or not, could bemurder; but the intent is—short of perverse disregardof the evidence—a question of fact for the jury andnot of law for the judge. If a verdict of culpablehomicide (provocation and diminished responsibilityapart) is only to be competent where death hasoccurred " by mischance," the Scottish doctrinewould be more severe than that laid down forEngland by the House of Lords in D. P. P. v.Smith.27 An interpretation such as that reached bythe South African courts may ultimately be recog-nised; namely,28 " intention is now present only26 November, 1960, unreported.27 [1960] 3 W . L . B . 546.2 8 Burchell in Hahlo and Kahn, South Africa (British Common-

wealth Series), p. 297.


where it is proved that the accused foresaw the conse-quences of his act. It is not sufficient that, althoughthe accused did not foresee, as a reasonable man heought to have foreseen those consequences." ThoughPart I of the Homicide Act does not apply to Scot-land,2811 the statute extends to Scotland the unhappycompromise based on expediency which specifieswhich murders shall be regarded as " capital." Inshort, a murderer is only to hang if he kills a manin blue, makes a loud noise, intends theft (but notother crimes) or contracts the habit of killing. TheAct cuts across established Scottish principles regard-ing " art and part " (accession), and introduces termssuch as " grievous bodily harm," which have a tech-nical meaning in England but are used in a popularsense in Scotland. Perhaps no appreciable differencein the numbers of murderers executed in Scotlandwill result. If this is so, it would have been prefer-able to have preserved the Scottish law of murderfrom statutory alteration until such time as the deathpenalty for this crime is done away with. I may aswell, however, declare myself a convinced abolitionist,except for military crimes or treachery in war—and even in such cases I feel revulsion against thepractice of hiring a hangman. Between the years1929-1944 (inclusive) we in Scotland had no need toborrow his services from England.

Culpable homicide comprises cases of deliberatekilling—where, however, there are mitigating factorssuch as provocation or diminished responsibility—cases of killing as the result of a wrongful act which28a Because it is assumed to be Scots law already.


was not intended to endanger life; and cases wheredeath was caused through gross negligence in theperformance of an otherwise lawful act. It is clearthat Crown Office policy has for some time temperedthe rigour of former practice, by treating as cases ofculpable homicide crimes where formerly the indict-ment would have been for murder, as when a motherkills her child soon after birth or when death followsillegal abortion. Over the past century, moreover,the degree of negligence required to support convic-tion for culpable homicide has been raised consider-ably. The reluctance of juries to convict drivers ofmotor-vehicles of this crime resulted ultimately in theintroduction of a statutory offence of causing deathby dangerous driving—where the burden of proof onthe Crown is less exacting. This prompts the reflec-tion that when Alison wrote his work on criminal lawin 1833, it was competent for a private prosecutor todemand not only the punishment of a wrongdoer, butalso reparation for the damage he himself hadsuffered, though long before this time public prosecu-tion had become the general rule in Scotland. Theadvantages of disposing at one trial of questions bothof criminal and civil liability are obvious, but whilesuch very different standards of care operate in thecriminal and civil law today, it would probably beunsafe to ask the same jury to decide both on guiltand civil liability—especially in motoring cases.

THE ADMINISTRATION OF CRIMINAL JUSTICE

Crown Office and Public ProsecutionThe real pivot of criminal justice in Scotland is the


Crown Office. Ultimately—subject to one exception—all criminal prosecution in Scotland is now underthe control of the Lord Advocate, assisted by a smallnumber of Advocates-Depute, appointed by him fromthe Scottish Bar, and by the permanent officials of theCrown Office in Edinburgh. In the sheriffdoms thepublic interest is represented by Procurators Fiscalwho are responsible to the Lord Advocate forprosecution, preliminary investigation of crime, andinquiries into sudden death. (There are no Coroner'sinquests in Scotland.) Though considerable discretionis delegated to these Procurators Fiscal in handlingoffences, all matters of difficulty or importance arereported by them to the Crown Office for decision andadvice.

The Lord Advocate, directly or through his repre-sentatives, has very wide powers. He decides whetherto prosecute or not; he decides what crime shall becharged in the indictment, e.g., murder or culpablehomicide (anglice "manslaughter"); he determineswhether trial shall be in the High Court or SheriffCourt and (if the latter) whether by solemn or sum-mary procedure. He may " desert the diet " (aban-don the prosecution) even after trial has begun, ormay accept a plea of guilty on a lesser charge. Evenafter verdict has been given, the prosecutor maydecline to move for sentence, or " restrict the painsof the law "—that is, not ask for sentence of deaththough competent. In modern times, however, thepower to restrict punishment has usually been exer-cised either in drafting the indictment or beforeverdict. The use of discretionary powers in the Crown


Office is comparable to some extent to the exerciseof the prerogative of mercy by the Secretary of Statefor Scotland or by the Home Secretary in Englandafter sentence—in that the practice is largely deter-mined by rules laid down by successive Lords Advo-cate which are screened from public scrutiny. Thusin deciding whether or not to prosecute, or whetherto prosecute for murder or culpable homicide, theCrown Office may take into account such factors asthe public interest, diminished responsibility, provo-cation, insanity, and so forth. In Scotland murderhas for many years been restricted in effect to casesof intentional killing or of infliction of savage injuryreckless of the consequences. Because of the wiseexercise of this discretion no Infanticide Act wasrequired in Scotland to prevent the prosecution formurder of women who killed their children shortlyafter childbirth, and genuine cases of " mercy killing "have been regarded with like sympathy. Not onlyhas the defence of diminished responsibility beenaccepted by the Scottish courts as a general defence,but the Crown Office has often taken it into accountwhen framing indictments and accepting pleas ofguilty to culpable homicide.

Except where statute empowers some body toprosecute in respect of a minor statutory offence (say)concerning school attendance or quality of milk sup-plied, the private prosecutor in Scotland is virtuallyunknown. It is theoretically possible for a privatecitizen to prosecute an indictable crime; but, unlessthe Lord Advocate concurs, a bill for criminal letters

S.II.L.-9


must be obtained from the High Court of Justiciary,which can grant the request despite the Lord Advo-cate's objection. To succeed, however, the complainermust show some substantial and peculiar personalinterest which, notwithstanding the Lord Advocate'srefusal in the public interest to concur, would justifythe court in allowing proceedings. Moreover, thecourt declines to review the reasons for the exerciseof the Lord Advocate's discretion not to prosecute inthe public interest. Though private prosecution wasthought by many to be obsolete in 1909, leave wasgiven then to a private prosecutor to proceed inrespect of fraud, and I may add that this proceduremight have been a more economical and satisfactorysolution than the setting up of a Parliamentary Tri-bunal of Enquiry in respect of an alleged assault bythe police on the Thurso boy, John Waters.29 Theonly other modern attempt to obtain " criminalletters " this century was in February 1961, when aprivate citizen presented a bill for criminal letters tothe High Court of Justiciary seeking to prosecute abook seller for exposing for sale and selling the bookLady Chatterley's Lover. This attempt failed.30

Having considered the public interest, the Lord Advo-cate refused concurrence, and since the complainercould show no special personal interest in the matterbeyond that of other members of the public, the HighCourt of Justiciary refused to grant criminal letters.It may be noted in passing that to ensure that noprosecution of this kind should be brought in a court

2g Cmnd. 718 (1959).30 McBain v. C, 1961 S.L.T. 209,


where he had no direct control over the prosecutor(such as a burgh court or J.P. court) the Lord Advo-cate had at an earlier stage directed that any proceed-ings concerning this publication should be taken onlyin a court where he had such control.

In the Sheriff Courts, as has been said, the Procura-tor Fiscal prosecutes in the public interest. The policehave a duty to assist him in his investigations as herequires, but they have no control over the prosecu-tion. The decision whether to prosecute is a matterfor those alone who are concerned with the publicinterest. A Memorandum of Evidence submitted thisyear by the Inns of Court Conservative and UnionistSociety to the Royal Commission on the Policeexpressly recommends for England (Recommendation13) " that consideration be given to the possibility ofintroducing a system similar to the Scottish systemof the procurator-fiscal for the conduct of prosecu-tions." The Law Society of England in its Memo-randum also expressed dissatisfaction with the presentpractice of police prosecution in England. In particu-lar they considered that police officers should notdiscuss with the accused what plea should be made.They recommended that all prosecutions should bebrought in the name of the Crown, and conducted bysolicitors. England is a country much larger in sizeand population than Scotland, and it may well be thatthe close links which exist between Procurators Fiscaland the Crown Office in Scotland could not be repro-duced exactly in English practice. Some form ofdecentralisation might be necessary or a substantial


increase in the staff of the Director of Public Prose-cutions. Nevertheless the Scottish example is wellworth consideration.

Private prosecution has been defended by some asone of the valued and traditional rights of Englishmen.I do not share this enthusiasm, and observe that inother systems based on English law the modern trendis to entrust prosecution to a responsible publicprosecutor.

Arrest to TrialAfter arrest—and usually no later than the morning

following his apprehension—an accused is broughtbefore a judge (in cases of serious crime usually theSheriff) for judicial examination. In modern prac-tice this is, for practical purposes, a formality, butdoes ensure judicial supervision of pre-trial procedure.Though the Sheriff commits an accused to be keptin custody, or liberates him on bail, he does not inmodern times decide whether a prima facie case hasbeen disclosed by the prosecution. The Scottish atti-tude to bail is liberal, but wider considerations aretaken into account than in English or Americanpractice.31 There is a general review of the publicinterest, and considerable weight is given to theattitude of the prosecutor, who alone is adequatelyinformed of the various factors involved—such as thedanger of witnesses being intimidated. Inadequacyof means will not prevent the grant of bail in a propercase, but, on the other hand, a suspect who can lay

31 See generally " Bail before Trial. Reflections of a ScottishLawyer " (1960) 108 U.Penn.L.E. 305.


down a high price cannot compel release. Release onbail no longer depends on " the presumption ofinnocence "—a presumption which is really relevantonly for the trial court, and applies to all accusedpersons. The current Scottish view is that the courtshave a general discretion to grant bail in all casesunless satisfied that this would be contrary to thepublic interest and the ends of justice. Supervisionof detention in custody and bail procedure in Scotlanddoes not involve invocation of habeas corpus. Anyperson in custody who has not been committed fortrial may petition the High Court of Justiciary forrelease; while there are statutory provisions to expe-dite the trial of persons committed to custody. Thelimit of incarceration without trial is 110 days fromcommitment, unless factors outside the control of theprosecution—such as illness—justify extension of theperiod.

Pre-trial Procedure and PublicityThe Inns of Court Memorandum to which I referred

earlier further observed that " if a system of prose-cution similar to that which operates in Scotlandwere to be introduced in England, the cost of thereform might be offset by making preliminary hearingsbefore magistrates more economical." The presentwriter is tempted to go further, and to suggest that,if England introduced a prosecuting system compar-able to that of Scotland, the same officials, responsibleto a higher authority, could carry out the preliminaryinquiry, as is done in Scotland, without the need fora pre-trial hearing at all. The one advantage to the


accused which clearly attaches to the English proce-dure of pre-trial hearing before magistrates is thatthe accused is thereby informed of the evidence to beadduced against him. This end is achieved in Scot-land by supplying the defence before trial, not onlywith the indictment, but with a full list of the Crown'switnesses and productions, and in appropriate circum-stances—including all cases of murder—by disclosingto the defence the Crown's precognitions (anglicedepositions) of witnesses. In England, for the privi-lege of hearing what case he has to meet, the accusedmust usually pay by exposing himself to prejudicialpublicity at a stage when the defence is not usuallyin a position to offset by evidence the impact of theprosecutor's allegations. In Scotland, as in certainother countries, pre-trial procedure is quasi-inquisi-torial—in no pejorative sense. The accused himselfis not a participant in the Procurator Fiscal's investi-gation—except for his formal appearance before theSheriff, usually not later than the morning of the dayafter arrest; there is no confrontation of prosecutionwitnesses nor questioning of them by the defence atthe pre-trial stage. Evidence from other sources issifted by the Procurator Fiscal and a dossier on thecase prepared. In appropriate cases the Crown Officewill advise, supervise, and take over control. Onlyif, bearing in mind the general Scottish requirement ofcorroboration, the public authorities are satisfied thata prosecution should succeed will an accused bebrought to trial. This is a more exacting test thanshowing a prima facie case as in England. The publicauthorities may be wrong: a frightened witness to a


gang murder, for example, may go back on evidencewhich he gave on precognition (which in any event hecan require to have destroyed before testifying). Theproblem of whether the public should pay the expensesof the defence in criminal proceedings when theaccused is acquitted is not of the same magnitude inScotland as in England. So far as graver crime isconcerned, few are tried in Scotland unless there is anobjective assessment of at least a strong probabilityof guilt. It may be a legitimate criticism of Scottishprocedure that too many guilty persons escape trial.

The main objection, from an outside observer'spoint of view, to the English system of pre-trialhearing before magistrates is their publicity. Origin-ally, the fact that the public had access to suchproceedings was a protection to the accused againstabuse of power to his prejudice. Today, publicity ismore likely to be a curse than a blessing to him. Ifa suspect is socially prominent or notorious, or if thecrime alleged against him is of a type which excitespublic interest or indignation, the evidence adducedat the pre-trial hearing will nevertheless as a rule bemade accessible to members of the trial jury longbefore they are called on to serve. The right topublish such evidence is defended as one of theimmemorial privileges of Englishmen to repudiate"justice behind closed doors." A Scotsman mayconsider that justice will be better served if the pre-trial inquiry is behind closed doors, and if the accused,when he appears before the Sheriff in Chambers, sothat judicial cognisance may be taken of his arrest,is safeguarded by the presence of his legal adviser.


In Scotland as in England, once an accused has beenapprehended, the function of the Press in commentingupon the guilt of a suspected person or the natureof the charge against him is suspended under severesanction of law. This in Scotland is not a right solelyof the accused, nor is infringement necessarily anaspect of contempt of court; interference with theadministration of justice can take many forms. Thusno comment is permitted which might influence themind of the public in favour of an accused awaitingtrial—as by attacking the merits of the prosecution.Scottish protection against injurious publicity goesfurther. Publication of statements by witnessesbefore they testify at the trial is absolutely forbidden,as is publication of photographs of persons undersuspicion, especially after arrest, since this mightinfluence the reliability of evidence of identification.The overriding purpose is that the accused should betried by a jury which comes to its duty without anypreconceptions whatsoever regarding guilt or inno-cence.32 After arrest—in one view, as soon as theofficial investigation has started—and before trial ofan accused, the Press in Scotland is permitted topublish only the bare facts that a named person hasappeared before the Sheriff, charged with a particularcrime and that he has been committed for trial. Thiscontrasts sharply with the situation in other parts ofthe United Kingdom.

In Scotland, of course, the co-operation of the Pressin reporting fully and fairly the vindication of justiceat the actual trial of a suspect is encouraged both32 (1958) 32 Tul.L.B., 249; Howard Journal, 1961 (in press).


in the interest of the individual and the public.Experienced reporters, who have specialised in courtwork, have made a much greater contribution to theadministration of justice in this country than has everbeen recognised. It may be added that pre-trialpublicity cannot in Scotland, as in England, prejudicean accused if the jury fail to agree. In Englandretrial must follow: in Scotland conviction or acquit-tal is decided by the majority vote of a jury of fifteen.The problem of the " hung jury," to use the Americanexpression, does not arise and experienced criminallawyers in England have on occasion regretted theunanimity vote which operates there.33

TrialTrial takes place in two stages when trial is on

indictment. At the " pleading diet," in the SheriffCourt, the accused pleads to the indictment, and anypreliminary pleas are noted. The second " diet,"according to the gravity of the crime, takes placeeither in the High Court or in the Sheriff Court.Before trial both Crown and Defence must haveexchanged information regarding the witnesses andproductions on which they intend to rely, and, more-over, the defence must have given notice of " specialdefences " such as alibi, self-defence, insanity or" impeachment " (that another specified person com-mitted the crime). This may deprive a Scottishcriminal trial of some of the dramatic interest of thePerry Mason series, where the prosecution is oftentaken by surprise, but our methods assist in thess [1954] Crim.Ij.B. 50g.


ascertainment of truth. The accused is " remitted tothe knowledge of an assize "—in other words is triedby a jury of fifteen, who may return their verdict bya majority, and have the choice of three verdicts—"Guilty," "Not Guilty," and "Not Proven."These last two are verdicts of acquittal. The imputa-tion often made in England that a " Not Proven "verdict reflects unfairly on a person who has beenacquitted, is not in my view justified. In most ofthese cases the accused would have been found guiltyin England, and thus the not proven verdict operatesin favour of the accused. In particular, it must beremembered that by the Scottish law of evidencecorroboration is a general requirement, and accord-ingly a jury is not entitled to convict if the accusedis linked with the crime by the testimony of only onewitness, no matter how trustworthy. Formerly,following the Scriptures and Roman law, the Civilianjurisdictions of Europe applied, as Scots law doestoday, the rule unus testis nullus testis. In such casesas that of John Donald Merrett, who in 1927 wasfound not proven to have murdered his mother,34 thedoubt has been justified by the event. In 1954the West Middlesex Coroner found him guilty of themurder of his wife and mother-in-law. By this timeMerrett alias Chesney had died by his own hand.35

In a Scottish criminal trial, there is no " opening "by prosecution or defence, so that the jury hearthe evidence as given, not as counsel hope that it will

3 4 John Donald Merrett (Notable British Trials Series); also cit.note 32.

3 5 Ibid.


be given. There is often a material difference. Asin most countries outside the Anglo-American tradi-tion, counsel for the defence has the right to make theclosing address. Thereafter the judge " charges " thejury, summarising and analysing the facts, and directsthem on law—before they consider their verdict.

Evidence from the Accused at First and Second HandI may be permitted to add some observations on

the admissibility of evidence elicited from the accusedhimself—a topic of special interest while the English" Judges Rules " regarding confessions are underreview.

In determining whether a statement made by anaccused and prejudicial to his interests should beadmitted as evidence, the overriding principle laiddown in a long series of Scottish Judiciary Cases is"fairness to the accused." As the accused is notcompelled to give evidence at his trial, it is consideredcontrary to principle that he should be compelled orinduced to supply such evidence at second hand as aresult of police interrogation. When a crime has beencommitted, the police will, as a rule, be the firstofficial investigators—seeking to trace the culprit. Itis expected of responsible citizens that they will assistin the detection of criminals, and the police mayquestion whom they please in the course of theirinitial investigations. If, before anyone has beendetained or charged, the person who ultimately comesunder suspicion (even as a result of his own disclo-sures) incriminates himself by answers to police ques-tioning, there is no reason in law to exclude the


statement from evidence at his trial. On the otherhand, the police cannot compel any person to respondto their interrogation, though the Procurator Fiscal,who is independent of the police, can require anindividual to appear for precognition or examination;and, except on the grounds that his answers wouldtend to incriminate him, he must reply to questionsrelevant to his knowledge of a suspected crime, undersanction of imprisonment.

A suspect who has actually been arrested is entitledby law to certain safeguards made specifically for theprotection of his interests. He cannot be interro-gated, and must be told that he is entitled to theservices of a law agent before appearing before theSheriff for "judicial examination." An anomalouscategory has also been suggested—those who, thoughnot arrested, have been " invited " to remain at thepolice station while under suspicion to assist the policein their inquiries. In such cases, it has been saidjudicially that the courts should be more jealous tosafeguard the rights of the reluctant " guest " thanin cases where a charge has actually been made.Strictly, however, it is suggested, no person who hasnot been arrested and charged can be lawfullydetained " on suspicion." Once an accused has beentaken into custody and has been cautioned andcharged, and his answer (if any) to the caution andcharge noted, the police are regarded as having com-pleted their official function. They are not entitledto testify as to what an accused said in answer toquestioning after arrest, and even an invitation tospeak without actual interrogation will exclude from


evidence a statement made to the police by an accusedwhile in custody. It is sometimes said that the policemay not question a suspect in custody. The morecorrect view is that no evidence of what a suspectsaid as a result of questioning while in custody isadmissible. The distinction may be important. If,after a suspect has been taken into custody, the policeask him certain questions, e.g., as to where a certainknife may be found, the prisoner is not bound toanswer, but the police officers do not necessarily actimproperly in asking the question. If the suspecttells the police officer where the knife may be found,and the police find it with his finger-prints upon it,there would seem to be no objection in law to puttingin the knife and the finger-prints as productions at thetrial. Unlike the position in English law, however,the production could not be linked with the accused'sstatement—which would be inadmissible in evidence.

Until 1898 the accused had not been a competentwitness at his trial either in Scotland or in England,but this situation was changed by the Criminal Evi-dence Act, 1898, which made the accused a compe-tent, but not a compellable, witness. That is, hemay elect to testify on oath, or he may remainimmune from cross-examination by declining to giveevidence. It may, however, be stressed in passingthat in Scotland it is unusual for a judge to commenton the fact that an accused did not elect to giveevidence; while, if the accused does testify, he doesnot expose himself to cross-examination as to creditor as to previous convictions to the same extent asunder the English interpretation of the 1898 Act. If


a substantive defence involves challenge of the prose-cutor's evidence—say by alleging that a policemancharging the accused with assault was himself drunkand the aggressor, this does not justify cross-examination as to credit if the accused gives evidence.The statutory change, by which an accused was madea competent witness at his trial, affected the practicalimplications of the older Scottish practice, wherebyan accused within forty-eight hours of arrest wasbrought before the Sheriff for judicial examination andto emit a declaration which was put in writing.Formerly, in the presence of his law agent, he wasquestioned before the Sheriff; and the questions putand the suspect's answers thereto could later be readto the jury at the subsequent trial. He could alwaysdecline to answer particular questions on the groundthat his answers might tend to incriminate him, buthis objections would also be placed before the jury,who might draw certain inferences therefrom. As aresult of the 1898 Act, the accused, since he cantestify at his trial, is not judicially examined, in thesense of being questioned, at the pre-trial stage unlesshe so desires. As he has had opportunity to consulta law agent before appearing before the Sheriff, hepractically never elects to emit a declaration. Theinquiry, therefore, no longer requires his active parti-cipation, even though he may later decline to giveevidence at the trial.

Though my views are probably not shared by mostof the profession in Scotland, I think that there wasmuch to be said in favour of the former Scottishpractice of compulsory pre-trial judicial examination


of the accused, subject to the suspect's right to refuseto answer incriminating questions. It is not self-evident that justice is best served if a suspect ispermitted to remain altogether silent throughout thepre-trial and trial stages of investigation into his guiltor innocence. Thus I would favour the restoration inScotland of the practice of compulsory judicial exami-nation (in its traditional sense) before a judge (theSheriff) with the safeguards attached to this procedure—including the right to refuse to answer particularquestions if the answers would tend to incriminate.The accused's statement would be competent evi-dence, especially if he declined to testify at his trial.If this procedure were restored, it is suggested thatthe main inducement to the police to secure " volun-tary statements " of doubtful spontaneity would beremoved.

In the leading case of Chalmers in 1954 36 a FullBench of the High Court of Justiciary quashed aconviction of murder, and reviewed the law regardingthe evidence of alleged confession by an accused.Although the judges thought it impossible to lay downcomprehensive rules which would cover every situa-tion, they made it clear that, if at any stage—evenbefore arrest—suspicion has become centred on aparticular individual as the likely perpetrator of thecrime, further interrogation by the police becomesdangerous from the viewpoint of admissibility ofevidence. If questioning is carried too far, as byextracting a confession by cross-examination, the con-fession will be excluded. After an individual has36 1954 J.C. 66.


come under serious consideration as the likely perpe-trator of a crime, only his voluntary statement isadmissible; this must be a statement made withoutpressure or inducement and not under cross-examination.

A declaration made by a suspect before a Sheriff,they suggested, would be free from the suspicionswhich, justly or unjustly, may attach to allegedlyvoluntary statements made in a police station in thepresence only of police officers. If an accused wishesto volunteer information, he should preferably bepermitted to emit a declaration before the Sheriff inthe presence of his solicitor. The court added, thatif property is recovered as the result of questioningwhich would be inadmissible for the foregoing reasons,it is incompetent to link the finding of such propertywith statements made by the accused. Evidence ofwhat the accused did, obtained as the result ofimproper questioning, would not be admissible. Thusin Chalmers it was held that the trial judge hadwrongly admitted evidence that the suspect, afterpolice interrogation, had led the police to a placewhere the wallet of the murdered man was found.On the other hand, if there is no linking of the findingwith an inadmissible confession, it would be competentfor the prosecution to produce the article found whichmight, for example, bear the finger-prints of thesuspect.

So far as " real " or " material " evidence obtainedby illegal search is concerned, the rules of exclusionin Scotland are not so severe—possibly because realevidence is less suspect than alleged oral confessions


and involves the person of the accused less closely.37

Evidence secured by improper or unwarranted searchwill not be excluded in all circumstances. The HighCourt of Justiciary has stated that each case must bedecided on its own facts, having regard to the gravityof the crime and the gravity or triviality of theirregularity by which the evidence was obtained.Two principles, in the view of the Scottish courts,are relevant, neither of which can be insisted on tothe utmost: first, the interest of the citizen to beprotected from illegal or irregular invasion of hisliberties by the authorities, and, secondly, the interestof the State to secure that evidence bearing upon thecommission of a crime should not be withheld fromthe court merely on technical grounds.

After Chalmers it was for some time doubtful towhat extent statements made by an accused in cus-tody to the police—and not to a magistrate such as aSheriff—could be admitted as evidence at trial.However, in Manuel,31* a case in which the accusedwas convicted of one non-capital murder and sixcapital murders, it was held that evidence of theaccused's written statements (made while in policecustody) and evidence of his conduct in leading thepolice to where he had admitted to concealing a bodyand shoes was admissible evidence at his trial. Thecrucial passage in the opinion of the Lord Justice-General (Clyde) was as follows: " The law of Scotlandgoes further than many other legal systems in pro-tecting a person who is detained by the police from

" Lawrie v. Muir, 1950 J.C. 19; Fairley, 1951 J.C. 14.38 1958 J.C. 41, at p. 48; 1959 S.L.T. 23.S.H.L.-10


any risk of being driven or cajoled or trapped intoadmissions of guilt, even though this may complicatethe quite legitimate detection of crime by the autho-rities. So anxious is our law to secure that suchpersons get fair play under our system of criminaladministration, and so firmly rooted in our law is theprinciple that no man is bound to incriminate himself.Although this is all true there is nothing to preventa man who is so detained by the police or whohas even been charged with a crime from making avoluntary statement to the police, if he chooses todo so." The court were satisfied in this case thatthe accused had not been questioned by the police;that he had been actively discouraged by the policefrom committing himself to paper; that they hadwarned him of the dangers involved; and that theyhad gone out of their way to try to get a solicitor forManuel before he made the incriminating confessionto the officer whom he had asked to see. It may,however, be observed that they did not offer to takehim before a Sheriff so that, to quote the Lord Justice-General, he could " unburden his soul of the darkdeeds which he narrated with such convincing detail."So far as I am aware the police in Scotland have neveradopted the late Lord Justice-General's suggestion,which would put the spontaneity of such confessionsbeyond all doubt. A learned justice in the SupremeCourt of the United States has cited with approval39

a comment on this situation. " The opportunities forexerting pressure on a suspect to confess are greatest

s9 Justice Douglas in Crooker v. State of California (1958) 78S.Ct. 1287.


when there is no judicial supervision, no legal repre-sentation and no public scrutiny. If an accused at histrial seeks to retract a confession allegedly extortedby third degree methods his word will stand aloneagainst several police witnesses who may be expectedto deny improper pressure." It must, however, bestressed that there is no such danger, as in Englishlaw, of an accused in Scotland being convicted solelyupon his own confession. A confession of guilt shortof a formal plea of guilty will not suffice for convic-tion. The doctrine of corroboration applies gener-ally 40 in Scottish criminal evidence, and it is afundamental rule that no one can be convicted on theevidence of one witness, and that each material linkin the chain of evidence against an accused must bederived from two separate sources.

To sum up briefly, I shall venture to assert thatcomparative study of various doctrines developed inScots law has resulted in the improvement of criminallaw in England through legislation. There are,however, many aspects of Scottish procedure whichare equally deserving of consideration on their merits.I suggest in particular that our system of publicprosecution, our standards of fairness to the accusedand our rules regarding pre-trial disclosure of defencesmight well make a wider contribution to Britishjustice. Even the architects of the Army Act mighthave second thoughts. I am making no boasts,however, regarding the " end product " of criminaljustice—rehabilitation of the offender. The Scottish

40 A course of criminal conduct may, however, be proved bysingle witnesses speaking as to the several crimes in the series.


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contribution in this field is so far very meagre, thougha promising start has been made. One may reason-ably expect a lead from the universities—wherevarious disciplines can combine their experience andknowledge. Hume, as Professor of Law at EdinburghUniversity, laid the foundations of our moderncriminal law. There is a vacant pedestal waiting foran institutional writer on criminal science.

CHAPTER 4

THE PATRIMONY OF PRIVATE LAW

BY the title of this lecture I wish to emphasise thatthe only aspects of private law which I can hope totouch on concern the core of essential principles whichwould find their place in a civil code in other systems.It is probable that the greater part of many apractising lawyer's time in Scotland is devoted to suchmatters as estate duty, income tax, town and countryplanning and so forth—all of which provide lucrativeand important business, and some of which have anesoteric intellectual appeal. A good deal of modernlegislation, however, to adopt Lord Cooper's phrase,has no better title to be recognised as " part of oursystem of jurisprudence than the current issue of therailway timetable " would be to recognition as partof English literature. The analogy is apt: no onecan deny the practical importance of such printedmatter, but few find it a stimulus to reflection orcomparative evaluation. My remarks will thereforebe confined to " lawyer's law," the basic principleswe have received—though they may have beenmodified by statute.

PERSONS AND FAMILY LAW

Among legal systems which resemble each othergenerally, the most substantial divergencies willusually be found in such chapters as family law and

141


succession. Even in countries which have drawnlargely on Roman law, rules dating back to oldercustomary law may continue. Moreover, the influenceof canon law may be reflected in such matters asmarriage, legitimacy and succession to moveableproperty. As a result of these various factors Scot-tish and English law have reached markedly differentsolutions, though by statutory reforms, largely in-spired by comparison with Scots law, English lawhas latterly moved closer to ours.

ChildrenStatus. A child in its personal status may be

legitimate, illegitimate, or adopted. Scots law, hereinfluenced by the canon law, always favoured theconferring of legitimate status whenever possible, andgranted it in circumstances where formerly it wasdenied by the law of England. Thus a child bornout of wedlock is legitimised by the subsequentmarriage of his parents, provided they were free tomarry at the time of his conception. Again, by thedoctrine of " putative marriage," a child may bedeclared legitimate, even though his parents' marriagewas in fact void, provided that one parent had reason-able grounds for believing that a valid union hadtaken place. This type of case may arise when, forexample, a man goes through a marriage ceremonywith a woman who does not know that he already hasa wife. These two benevolent doctrines of Scots lawin large measure inspired the Acts of 1926 and 1959,which brought English law into line with the Euro-pean tradition. The barons of England by the Statute

The Patrimony of Private Law 143

of Merton, 1236, had declared emphatically "Nolumusleges Angliae mutare "—and they had their way forsome seven centuries.

In many respects the status of an adopted child isassimilated to that of a legitimate child, but in Scot-land the anomaly continues that adoption does not,as in England, confer the same rights of successionto adopting parents as are enjoyed by those born intoa family. This is due to anachronisms in the Scottishlaw of succession to land, which are long overdue forstatutory reform. Time and again successive govern-ments have been urged to legislate—and legislationwas even promised in the Queen's Speech two yearsago—but no action has yet been taken on the groundsor pretext that parliamentary time is not available.Volumus leges Scotiae mutare is a cry which falls ondeaf ears.

The misfortune of illegitimacy has been mitigatedto some extent by United Kingdom legislation overthe past century, but there is no general support forabolishing all distinctions between legitimate andillegitimate status in Britain. In this connection Imay note that the majority of the Feversham Com-mittee in their Report on " Human Artificial Insemi-nation " * published last year reached the soundconclusion that children thus conceived are bornillegitimate, and that to make an exception to thisrule only in favour of an A.I.D. child whose motherwas married would be illogical and undesirable. TheFeversham Committee was set up as a result of publicdiscussion following the decision by Lord Wheatley 2

i Cmnd. 1105/1960. 2 1958 S.C. 105.


in Maclennan v. Maclennan that artificial inseminationwith the seed of a donor did not constitute adulteryaccording to the law of Scotland, and the consequentassertion of a contrary view by the then Archbishopof Canterbury.

The legitimate parent-child relationship involvesrights and duties regarding custody, education, ali-ment or maintenance and succession. By statute thewelfare of the child is the paramount consideration inquestions of custody, and the father's overriding claimhas been cut down; but unless his authority is super-seded or relinquished, he alone exercises patriapotestas (paternal power over a child under years ofmajority) which cannot be transmitted to another.This "power," if the child is over puberty, is tocounsel, rather than to direct. Stair thought that afather had a right to control his children after major-ity and appropriate their earnings. This is certainlynot the law today, and even with regard to his minorchildren the father can probably only use his child'searnings for maintenance purposes. The hard-pressedparent who fathers a teen-age pop singer featuringin the " Top Ten " can at least levy contribution forbed and board—tL_,agh he could not indulge himselfwith a Rolls Royce and winter at Cannes. The dutyto aliment in Scotland is reciprocal between parentand child and is life-long, so that, if children overmajority are disabled from earning their livelihood,or parents fall upon evil days, they may look to thefamily for support in maintaining within reason thestandard of life to which they have been accustomed.


CapacityEnglish law makes little distinction between the

legal capacity of children aged ten and twenty—andclassifies all those under twenty-one by the inappro-priate category of " infants." An important division,based upon Roman law, is recognised in Scots law—both in matters of capacity and guardianship. Pupils,that is children below the age of puberty (twelve inthe case of girls, fourteen for boys) have no legalcapacity. Not only are they under the personalcontrol of a guardian, but a guardian must act forthem in all legal matters. Over puberty and underthe age of twenty-one, however, a child becomes a" minor," and enjoys quite substantial legal capacity,especially if the father is dead and if no curator hasbeen appointed. Though by will a father mayappoint his wife after his death as curatrix of theirminor children, she does not automatically succeed toguardianship as in the case of a pupil child; and otherguardians may be nominated. The curator to a minorchild does not exercise the paternal power of a fatherover the person of his ward—in such matters, forexample, as to fix his residence—but is solely con-cerned with advising on or concurring in legal transac-tions entered into by the minor. Thus the generalassumption that in Britain a person under twenty-one cannot change his domicile would seem to beerroneous, so far as a Scottish minor is concerned,after his father's death. I should, however, add thatcertain provisions of statute law, which supplementwithout abrogating the common law, impose personalcontrol over some minors up to the age of sixteen.

146 British Justice; Scottish Contribution

Apart from cases where factors such as care andprotection or delinquency are involved, orders relatingto custody and control cannot be made in Scotlandafter a child has reached the age of sixteen, andprobably cannot be enforced against the wishes of aminor. English law takes a very different view. Aperson under the age of twenty-one who happens tocome within the jurisdiction of the English courts mayreadily be subjected to control as a ward in Chancery.Moreover, there have been regrettable instances 3 ofthe assertion by these courts of powers in custodyproceedings generally which pay scant regard toprinciples of comity or to the courts of the youngperson's domicile.

Though a minor may make reasonable purchases inready money transactions and may in general incurpersonal liability for necessaries, according to hisstation in life, if he has a guardian most acts of legalconsequence require the guardian's concurrence if theyare to be enforceable against the minor. In anyevent, however, a transaction which is clearly to theprejudice of a child—whether entered into by a tutorfor a pupil, or by a minor acting with or without hiscurator—may be set aside by the courts within thequadriennium utjile, that is, if the party concernedtakes steps before he reaches the age of twenty-five.Restitution on these grounds is less likely if the minoracted with a curator, and thus (unless the minor is

3 Babbington v. Babbington, 1955 S.C. 115, and subsequentunreported English proceedings; cf. McKee v. McKee [1951]A.C. 352.


trading on his own account) people will be reluctant todeal with him unless a guardian concurs.

It is perhaps not generally known that a minor inScotland may make a valid will of his moveable estate—a reflection which may not cheer fathers who, toavoid death duties, have transferred money or sharesto teen-age sons whose lives are at risk on motorcycles. The ecclesiastical courts before the Reforma-tion were largely concerned with wills affecting move-ables, and their influence is also apparent today inScottish marriage law. In a matter as closely con-cerned with spiritual wellbeing as indissoluble unionfor life, the Church declined to require parentalconsent as an essential requirement for marriage eitherof adults or minors. The temporal power in manycountries has introduced the element of parentalconsent to marriage not only in the hope of promotingprudent and desirable matches, but also for reasonsconnected with family property rights. Thus severalcountries even require adults to seek approval formarriage. In Scotland the tradition of the medievalcanon law has remained as the law of the land, sofar as consent to marriage is concerned—though theminimum age of consent is now sixteen. Until 1929the age of capacity for marriage was that of attainingminority. This rule which might have been suitablefor those wafted to maturity by the South Wind inconditions of Mediterranean luxuriance, was mostinappropriate for Northern latitudes. The nymphetsof contemporary Scotland can no longer opt formatrimony in lieu of secondary education.


Husband and WifeMarriage. The Scottish law of marriage long

retained doctrines of irregular marriage which sur-vived through an interesting historical accident. TheReformation in Scotland and consequent breach withRome came in 1560, three years before the Council ofTrent swept away the whole fabric of irregularmarriage in Catholic Europe, and for a valid unionrequired the presence of a priest and witnesses. Thepre-Tridentine canon law which recognised the fact ofconsent between spouses as sufficient to constitutemarriage survived in Calvinist Scotland. It was forthis reason, and because parental consent was not aprerequisite either, that eloping couples from Englandresorted to Gretna—a village conveniently close to theborder. There was, in fact, no special magic aboutGretna. As from July 1, 1940, however, two of thethree forms of irregular marriage were abolished—namely marriage by mere exchange of consent or byintercourse following " engagement" to marry.Irregular marriage can, however, still be constitutedby consent proved by prolonged cohabitation—whichdoes not attract the passionate visitor. As LordNeaves put it in his Tourists Matrimonial Guidethrough Scotland:

" But you who are here as a stranger,And don't mean to stay with us long,Are little exposed to that danger,So here I may finish my song,

Woo'd and married an' a'," etc.There are now two forms of regular marriage in

Scotland—marriage after certain formalities by a


minister of religion or in the presence of a registrar.The reason why Scotland is still the Mecca for matri-mony as Reno is for divorce is because parental con-sent to the union is not required.4 If, of course,minors come from a jurisdiction where such consent isindispensable to constitute a valid marriage, a cere-mony in Scotland would be null; but few legal systemsgo quite so far.

Divorce and Judicial SeparationSo far as divorce by judicial sentence is concerned,

Scotland had at least three centuries start on England,and provided a system for emulation. Divorce foradultery was recognised from the Reformation, andfrom 1573, also founding on scriptural authority,malicious desertion was accepted as a ground.Divorce for adultery and malicious desertion underthe so-called " Pauline Privilege " was recognised byvirtually all the Continental reformers; and also bythe ecclesiastical commission set up by Edward VI inEngland. Their labours were frustrated by his death.The Divorce (Scotland) Act, 1938, adds grounds ofcruelty, sodomy and bestiality and incurable insanity;and also provides for dissolution on presumed deathof a spouse. The consequences of an action in Scot-land are not identical with those which emerge onpetition for divorce in England—though substantiallythe same grounds may now be stated. Thus, forexample, no question of " recrimination " arises in

4 See, generally, Anton and Francescakis, " Modern Scots' Bunaway Marriages'," 1958 Jur.Kev. 253; Ashton-Cross," Cohabitation with Habit and Repute," 1961 Jur.Eev. 21.

S.H.L.-ll


Scotland where adultery is alleged, though there maybe cross-actions alleging the same matrimonial offence.The mere fact that a pursuer has committed adulteryis no bar to his or her action. There is no Queen'sProctor in Scotland, and the prurient lore of the" discretion statement " is unknown. In decidingwhether adultery has taken place, the legitimacy of achild born to the wife may be in issue. The so-calledrule in Russell v. Russell5 in England preventedspouses in such cases from giving evidence as towhether they had had intercourse during a particu-lar period. Moreover, English courts have shrunkfrom hearing evidence on such matters, except whenenjoined by statute. In Scotland, however, thecourts rejected such pudency in evidence, and also therule in Russell v. Russell. The Lord Justice-Clerk(Thomson) rightly commented that6: "There seemsno reason why there should be anything more sacredthan the ascertainment of truth and the doing ofjustice." Eventually, in 1949, legislation extendedto England the Scottish rule.

For desertion, the three-year period is calculated inScots law from the date of abandonment; and not, asin England, retrospectively from the time of petition-ing for the remedy. Thus the pursuer acquires avested right which cannot be lost, except by condona-tion or forgiveness. The English ground of " con-structive desertion " has no place in Scottish practice,which would consider desertion an illogical ground for

s [1924] A.C. 687.6 Lennie v. Lennie, 1948 S.C. 466 at p. 475; see also Burman

v. Burman, 1930 S.C. 262.


a person to assert if he or she had left the matri-monial home. On the other hand, if one concedes thesocial desirability of divorce, Scots law is defective inthat it grants no such general remedy as divorce forintolerable conduct, not aimed at the pursuer (suchas disgusting personal habits) which would make itunreasonable for a court to require spouses to livetogether. " Habitual drunkenness " even though itdoes not involve conduct aimed at the other spouseis, however, cruelty by statute. The Royal Commis-sion on Marriage and Divorce did indeed recommend 7

that " intolerable conduct " generally should be madea ground of divorce in Scotland; but there is littlehope of legislation on any new grounds of divorce ifthis has to be achieved by an Act applicable withvariations to the United Kingdom. Certain ecclesi-astical interests have it in their power to obstruct themore fundamental recommendations of the MortonReport, and the views of the established Churchesin Scotland and England do not coincide on suchquestions.

Divorce on grounds of cruelty was introduced in1938 by an Act which imported the law and practicepreviously recognised in cases of judicial separation.This has had the unfortunate effect of making " futureprotection " an essential element, which, thoughreasonable in cases of judicial separation, is quiteunreasonable for divorce.8 A wife who has beenfrequently assaulted savagely by her husband, latercrippled by a stroke before her action is heard, would

7 Cmnd. 9678/56, paras. 169-170; Eecommendation 10.» Dunlop v. Dunlop, 1950 S.C. 227.


be denied divorce. It has recently been decided thatcertifiable insanity is a good defence to an actionbased on cruelty, though the defender knew his con-duct was wrong.9 When emphasis is laid on guiltvolition should be of the essence.

Undermined by exceptions, the idea of " guilt " nolonger provides a sound basis for divorce. A Scot-tish judge, Lord Walker, expressed his dissentingview10 from that of the majority of the MortonCommission, who would have restricted divorceostensibly to the doctrine of " the matrimonialoffence." However appropriate this may seem forjudicial separation, it is a very poor and illogicalfoundation for their recommendations on divorce.Insanity, most tragic of afflictions changing thehuman personality, they accepted as justifyingdivorce; and further unacknowledged inroads on thedoctrine of the " matrimonial offence " appear inconnection with recommendations regarding mentaldeficiency and presumed death. Dissolution of mar-riage whether by death or divorce is to be mourned;but I venture to assert that, though infidelity, crueltyand desertion may undermine marriage, the break-down which matters in the last resort can onlytechnically be attributed to isolated matrimonialoffences. Failure in love wounds more mortally thanfailure in duty.

Adultery and cruelty (including habitual drunken-ness) are also in Scotland grounds for judicial separa-tion, and the decrees can later be used to support an

9 Breen v. Breen, Scotsman, July 26, 1961.10 op. cit., note 7, pp. 340-841.


action for divorce. It may well suit a middle-agedwife, especially, to choose her remedies in two stages.Apart from cases of divorce for insanity, the successfulwife pursuer would on decree of divorce becomeentitled to that share of the husband's property whichshe would take had he died at that time. Unlikecontinuing awards of maintenance in England, whichScots law might possibly be wise to consider, thereis a once-for-all settlement. This means that, thoughan errant husband may earn a large salary or wage,if he has been living up to his income and savinglittle, the wife's legal rights in his capital will not beworth much. Under a decree of judicial separation,however, the defender can be ordered to makeperiodical payments of aliment (maintenance). Theenforcement of such orders in any legal system is nota simple matter, and can degenerate into wholesaleresort to the expedient of civil imprisonment. InScotland, however, there has long been in use proce-dure by " arrestment," whereby a person who is duepayment of a debt may " arrest " money or moveableproperty which is owed by a third party to the debtor.Subject to certain deductions, wages may be" arrested " in this way. Though I cannot claim thatwe have achieved a perfect solution, we have at leastproduced one which was thought worthy of introduc-tion into English practice, and which reduces to aminimum the sanction of civil imprisonment. In1959 the number of debtors sent to prison in Englandamounted to 5,355—a ratio of 1 in 17/18 judgmentdebtors. In Scotland, largely due to procedure byarrestment of a proportion of a debtor's wages, civil


imprisonment at the instance of private citizens isextremely rare. Between 1948 and 1957 in Scotlandthose imprisoned annually for wilful refusal to payaliment (maintenance) varied between a minimum of10 and a maximum of 34; and those imprisoned forrefusal to carry out other orders of the court (as toperform an act) varied between 0 and 3 each year.11

Now by the Maintenance Orders Act, 1958, inspiredby the existing Scottish practice, the English courtshave been empowered to " attach " the earnings ofdefaulters under maintenance orders. We may hopethat this reform will result in a marked reduction inthe numbers of those committed to civil imprisonment.

Legal Proceedings between SpousesThe present law as to when husband and wife can

bring actions against each other—apart from matri-monial disputes—is illogical and unsatisfactory. Eitherspouse can sue the other for breach of contract andeven, as Lord Wheatley has said,12 " It is the right ofevery Scotsman to exclude his wife from his castle."Nevertheless, due to incautious following of Englishlaw (where the theory obtains that husband and wifeare one person) the rule has been established inScotland that husband and wife cannot sue each otherfor delicts (civil wrongs).13 One alleged justificationwhich has been urged for this policy is that to allow

1 1 Efiport of the Committee on Diligence, Cmnd. 456/1958, para.127.

12 Duke of Argyll v. Duchess of Argyll, September 17, 1960(unreported).

13 Harper v. Harper, 1929 S.C. 220; Smith, p. 819; cf. Webb v.Inglis, 1958 S.L.T. (Notes) 8.


actions for delict would disrupt domestic harmony.In the usual case the converse is true. If the husbandby his negligent driving injures his wife and hischildren, the children can recover damages—whichwill be paid by the insurance company—while thewife's temper will not be calmed by the law's injunc-tion to suffer in silence. My wife and I now preferto be driven by our daughter.

OBLIGATIONS

A man is said to be under an obligation in the legalsense when he is bound to pay money, or to deliversome thing or to perform (or abstain from performing)some act. In the Civilian systems of Europe, by theeighteenth century, comprehensive principles ofliability had been worked out, incorporating somecustomary law, but mainly based upon rules of Romanlaw generalised through the influences of canon lawand the Natural Law School of Commentators. Scotslaw shared in this tradition. English law, however,was late in developing general doctrines of contractand tort. The legacy of the forms of action isreflected even today in a large variety of nominatetorts, each with its particular rules, while whatWinfield I4 called the " contract-tort catena " bedevilsthe English law of obligations. The English law ofcontract largely developed from the law of tort, andreturned the compliment by grafting onto the lawof tort ideas of " particular duty " and " privity ofcontract." Paradoxically, though adoption of Scots

14 Select Legal Essays, esp. p. 87.


law could have rationalised the English law of obliga-tions in the nineteenth century, through pseudo-comparative methods, restrictive English categorieswere superimposed on established Scottish principles.This unhappy result I have discussed elsewhere in apaper entitled " The Common Law Cuckoo." 15

Significantly the law of obligations in other Civiliansystems influenced by English law, such as those ofCeylon, Quebec and South Africa, has been distortedmore or less in the same way as in Scotland. It isironical that now in the twentieth century leadingEnglish lawyers such as Lord Denning are strivingtowards solutions which their predecessors attackedin other jurisdictions over which they had appellatepowers. They did what was best according to theirlights—but these, alas, were refracted through somuch medieval glass.

The sources of obligation in Scotland may beclassified as follows. First, irrespective of the will ofthe person obliged, an obligation may be imposed byforce of law. Such obligations may be, as Stair putit, " obediential," where law reinforces some moralduty—as to support relatives; or make reparation bypayment of damages for harm caused through fault;or to restore the proceeds of unjustifiable enrichment.Hence the categories of aliment, which we have con-sidered, delict (or civil wrongs) and unjustifiableenrichment or quasi-contract. Secondly, the law alsocreates certain other strict or absolute obligations as

15 1956 Butterworths S.A. Law Review 147; also " StrangeGods " 1959 Jur.Eev. 119.


a matter of public policy, irrespective of moral con-siderations. This is the field of quasi-delict, usingthe term properly. Thirdly, however, there are obli-gations created by the will of the person obligedwhereby wider duties are assumed than the law wouldotherwise imply. These voluntary obligations areeither enforceable unilateral promises (pollicitationes)or contracts.

DelictIn the era before the Scottish law of delict was

rationalised and Romanised, customary remedies weregiven, as elsewhere in Europe, for various forms offraudulent or violent wrongs. Moreover, the pro-vinces of criminal and civil liability were not strictlydefined. When Romanisation came, broad principlesof liability which had been developed in the evolvedcivil law were introduced without actually abolishingthe old particular remedies. However, though therewas some grafting of customary remedies ontoRomanistic principles, the various customary cate-gories tended to become obsolete and fade away. Butfor contact in the nineteenth century with the Englishlaw of tort—which is, as Lee puts it,16 " poor in prin-ciple, rich in detail " it would have been possible todescribe the Scottish law of delict as an outstandingexample of the Scottish lawyer's disposition to usethe 17 fewest possible number of tools to do the largestpossible number of jobs. This is still true, but the

16 Introduction to Roman-Dutch Law (5th ed.), p. 319.17 Cooper, Selected Papers, p. 179.


simplicity of the system has been overlaid with anumber of exotic categories of English origin.

The two broad bases of liability for delict inScotland, in my view, are both derived from Romanlaw, though elements survive from before the" Reception," and further categories have been addedfrom English law. First, as in other Civilian systems,there is the generalised concept of culpa or fault, de-rived from, or inspired by, the lex Aquilia.ls A manis bound to make reparation for harm caused to othersthrough fault. Fault implies both deliberate inflictionof harm, and also, which is more usually the casetoday, negligence—failure to take such care as isreasonable in the circumstances. The second broadprinciple of liability is derived from the actio injuri-arum,,19 of Roman law which was the appropriateremedy when seeking redress for insult or contumely.This might take many forms, the main division inScotland being between real injuries (as in cases ofassault) and verbal injuries (as by abusive language).

In the actio injuriarum, which is given to assuagewounded feelings, damages are given by way ofsolatium. By contrast, the Aquilian action based onfault came to be a general remedy for repairing actualpatrimonial loss—the money value of the damage done—and provides no compensation for hurt feelings.20

is Digest 9.2. « Digest 47.10.20 Judges of eminence have used the expressions actio injuriarum

and " verbal injury " in a loose and most misleading way,which I hope will one day be corrected by an authoritativestatement in the highest courts. In Eoman law, killing orinjuring a slave was, of course, damage to property, and amatter for Aquilian liability; but there was no general redress


In Scotland the action which is given against a personwho kills or injures another is based upon the Aquilianprinciple of fault, but in addition to a claim for com-pensation for financial loss, there is usually associatedwith it a separate head of liability—solatium for painor grief. This has probably been grafted from theold law of assythment onto the Romanistic concept ofculpa. Though English law was influenced in themid-nineteenth century by the Scottish example, soas to provide by statute an action to relatives of adeceased person killed by a wrongful act, these werenot allowed to claim for the sorrow of bereavement.On the other hand, when English law abolished therule that a personal action is cut off by the death ofthe plaintiff, such actions transmitting to executorsmight include claims for physical pain and loss ofexpectation of life. Thus statutory provision inEngland differed considerably from the common law

given for the killing of a free man. Germanic or Celtic custo-mary law, on the other hand, was concerned to deal with casesof killing or injuring free men by enforcing a tariff of moneypayments—wergeld, crow, or assythment—which had the dualfunction of compensating victims or their surviving relatives,and also buying off their vengeance. As European countriesEomanised their laws of delict they often preserved, neverthe-less, the custom of exacting composition for the killing orinjuring of a free man. The influence of the Canon law andthe medieval glossators had prepared the way. The tendencywas to graft onto the Aquilian action for fault an element ofsolatium for pain or bereavement. This element of solatium,it will be observed, has nothing whatever to do with the actioinjuriarum, though in deciding whether rights to claimdamages for such personal matters as pain or grief shouldtransmit to heirs and executors of the victim, it was reason-able to impose the same restrictions as already applied underthe actio injuriarum to claims for feelings wounded by insult.In short, the policy of the law was not to permit suchpersonal claims to transmit after death.


solutions of Scots law regarding the infliction of deathor injury.

The principle of liability for culpa (i.e., causingdamage through failure to take reasonable care in thecircumstances) has been illustrated in innumerablecases. Many of these cases—such as Donoghue v.Stevenson, which we have already discussed 21—wouldbe covered by the tort of negligence in England, butconfusion will result from any superficial assumptionthat the remedies are identical. While Aquilian faultcovers deliberate as well as negligent wrongdoing inScotland, English law has an armoury of separatetorts, including trespass, trover, and conversion, todeal with such cases. From time to time, unfortu-nately, some of the specialties of English law, whichcan be explained or justified only in the context oflegal history, have encroached on Scots law—thoughto some extent Scots law has helped English law todevelop broader principles of liability. It was largelythrough Scottish example that the general concept ofnegligence gained acceptance in England, and themost recent example of progress in England towardsthe abolition of anomalous categories is to be foundin the recommendation of the English Bar Councilthis summer that distinctions between " misfeasance "and " nonfeasance " should be abolished, so far ashighway authorities are concerned.

The tendency of English lawyers in the past toerect distinctions in fact into artificial legal categories,has at times caused confusion in Scots law. Thus,

21 See pp. 51, 52, supra.

The Patrimony of Private Lam 161

whereas the older Scottish common law treated ques-tions of liability of occupiers of land for personsinjured by dangers on the land according to thegeneral principle of fault, and also applied the sameprinciple in deciding on liability for harm caused byanimals, or the escape of dangerous agencies (such asaccumulated water) from land, English law approachedall these matters by applying a pigeonhole technique.The circumstances of the case were not viewed gener-ally to ascertain whether fault had been establishedbut, as soon as certain facts were proved, such asthat the person injured was a trespasser, the legalresult was predetermined by allocating the case to itsappropriate pigeonhole. Through statute and judicialconstruction many of these arbitrary distinctionsmade in English law are now being eliminated, but itwas the misfortune of Scots law to come stronglyunder the influence of English law at a time whencategorising was in vogue. There is a certain ironyin the fact that statutory reform may often be theonly possible way of restoring the legal status quo inScotland. Last year the Occupiers' Liability Act22

achieved that result so far as liability for dangerouspremises are concerned. The consensus of informedopinion among Scottish lawyers has recommendedsimilar legislative action to eliminate the limitedextension to Scotland of the English rule in Bylandsv. Fletcher23 (regarding the escape of dangerousagencies from land) and also the doctrine of scienter22 See "Full Circle: The Law of Occupiers' Liability in Scot-

land " in XXth Century Comparative and Conflicts Law,p. 128.

" (1866) L.E. 1 Ex. 265; (1868) L.E. 3 H.L. 330.


(knowledge of vicious propensity) where liability foranimals is concerned. In all these cases it is thoughtthat the test of liability should be fault or negligence,though of course the amount of care to be expectedof a defender must depend upon the circumstances ofeach case. Moreover, there is no objection to theimposition by statute of strict liability—where thepublic interest so requires.

One arbitrary category of English law will be lesseasy to eliminate from the Scottish law of reparation—the concept of "particular duty." Though inScotland, as in other Civilian systems, culpa or faultwas tested by ascertaining whether the defender hadtaken reasonable care in the circumstances, there haslatterly been a tendency to require the pursuer toshow that the defender owed him a duty to takecare.24 Paradoxically, where the defence of contribu-tory negligence is raised, it is not suggested that thedefender should have to prove that the pursuer oweda duty to him.

The English tort of negligence seems to afford no

24 Eegarding this "particular duty," the late Sir Percy Winfieldwrote: " I hope that the student of comparative law may findsome interest in the investigation of why tortious negligenceshould be permeated by a conception which was wholly aliento Eoman law and of which there is no trace in modernContinental systems." The student of pseudo-comparativelaw (a discipline which I commend to appellate judges andlegislators in particular) will also be interested to discoverthat this anomalous concept of " particular duty," which hasbeen traced to a failure in the past to distinguish clearlybetween contractual and delictual liability in English law, hasbeen pressed upon the various Eomanistic systems to beinfluenced by English law. See Dias (1956) 30 Tu.L.K. 377;Price, 1959, Ada Juridica 120; Baudouin, Droit Civil de laProvince de Quebec, p. 760.

The Patrimony of Private Lam 163

remedy in cases where the harm suffered by theplaintiff has not involved physical damage to personor property and where the harm was not inflicted byphysical means.24a Though damages for harm neces-sarily involve payment of a sum of money, if thedamage suffered is itself loss of money—caused, say,by a negligent report—the plaintiff can only succeedif he proves contract or fraud. American law has,of course, advanced beyond the English position, andLord Denning attempted in vain to persuade the Courtof Appeal in England to grant a remedy for negligentmisstatement.25 There are certain dicta which mightsuggest that the Scottish courts are equally limited,but there is also older authority from before the era ofEnglish influence which would give a remedy for finan-cial loss caused by non-physical means, such as words.26

While we are considering liability for words, I maydeal briefly with slander or defamation and verbalinjury in Scots law. (The English distinction betweenlibel and slander is not followed in Scotland.) Hereagain contact with English law has muddied whatwere formerly clear waters, and let me hasten to addthat most of the blame has been due to incautiousborrowing by Scottish judges and writers. Much ofthe confusion is due to the fact that the foundationsof liability for false and injurious statements differin Scottish and English law. For insult (injuria inits technical sense) redress is given for the affrontdone to a person's honour and dignity. He receives

24a But see Clayton V. Woodman, The Times, J u ly 6, 1961.25 Candler v . Crane, Christmas & Co. [1951] 2 K . B . 164.26 "Jus Quaesitum Tertio " (1956) Ju r .Kev . pp . 12-13.


solatium for his wounded feelings, and animus injuri-andi (the intention to insult or recklessness so grossas to be treated as intention) is, or should be, regardedas an essential element. This remedy, which isseldom invoked these days, has many potential uses.Though " trespass " in Scotland is a popular, not atechnical expression, and no action for reparation isgiven unless damage is caused by the intruder, themasterful trespasser who indulged in rude pantomimeoutside the dining-room window of a householdershould be liable for " injury " in the technical sense.Moreover, one can conceive of cases where this remedywould be available for other invasions of privacy.Lord Mancroft's Bill " may not be so urgently neededin Scotland as in England.

However, most cases of insult have arisen out of theuse of insulting words—though actions either fordefamation or insult have been very rare in modernScottish practice. When insulting language is com-plained of, proof of publication to a third party is notnecessary28; and before the reorganisation of thecourts in the nineteenth century, the appropriateforum was usually the Commissary Court. Englishlaw does not give any civil remedy for insult, and intheory awards damages in defamation actions for themoney value of the reputation lost. Hence theremust be publication to a third party. Scots law alsogives an action in respect of loss of reputationviewed as an economic asset, and the two elements

27 His attempt in 1961 to secure " p r i v a c y " by legislation wasfrustrated by lack of Parl iamentary time.

2 8 Mackay v . McCanUe (1883) 10 E . 537-


of insult and damage to reputation usually coincidein the same proceedings—as if the defender publishesof the pursuer, a pedagogue, that he seduces hisstudents.29 This coincidence is not, however, inevit-able. Insult addressed to the pursuer may not havebeen published to anyone else, and therefore hisreputation cannot have suffered; while to state falselyof a man that he is bankrupt may injure his reputa-tion and be actionable without implying contumely.Long ago Kames pointed out30 that while proof ofanimus injuriandi—intention to insult—was necessaryin actions for verbal injury, it was sufficient to proveculpa or negligence in cases where loss resulting fromdamaged reputation was in issue. Thus, in effect, theformer right of action is based on the actio injuriarumand the latter on Aquilian fault.31

If I am right in my analysis of the foundations ofScots law, at least two important inferences may bedrawn. First, negativing of animus injuriandi should29 As Lee states in Elements of Roman Law (4th ed.) at p. 390,

" Wherever the Eoman tradition exists, as on the continentand in Scotland and South Africa, both (i.e., affront anddefamation) are actionable wrongs. But it is not so inEnglish l aw."

30 Select Decisions, pp. 307-308; Historical Law Tracts, p. 242;cf. Hume Lectures III, p. 152.

3 1 A recent judgment of Hiemstra J . in South Africa 1959 (2)P . H . , J . 20 (W.) ; 1960 (3) S.A. 687 (A.D.), where very similardevelopments to those of Scots law have taken place, sum-marises my view—" The original actio injuriarum of theBoman-Dutch law has in our courts undergone extensiveinfluence of the English law. I need not trace the history ofthis process. That has been admirably done by ProfessorPrice (66 S.A.L.J. 4). . . . A defendant is today held liablein our courts for damage to a man ' s reputation, seen as aneconomic asset, and he is so held liable purely on the basisof culpa. . . . This liability is essentially the same asliability ex lege Aquilia in our law. I t seems to me that our

S.H.L.-12


be a good general defence.32 Secondly, if culpa ornegligence will suffice to support a claim for damagescaused by false statements affecting a man's reputa-tion, there seems to be no logical reason why financialloss caused by negligent misstatements should not berecoverable in other circumstances. This might wellencourage development of wider principles of liabilityeven in the sister system.

Before I part from delict, let me exhibit yet anotherweapon in our arsenal which might well be covetedSouth of Tweed—namely, the doctrine of abuse ofrights. In the well-known English case of Bradfordv. Pickles33 it was held that " no use of propertywhich would be legal if due to a proper motive canbecome illegal because it is prompted by a motivewhich is improper or even malicious." Lord Watson,indeed, was moved to proclaim that this would alsobe the view of Scots law—a spontaneous and obiterutterance which had no regard either for argument

defamation action can regain a true Boman-Dutch foundationif it is viewed as . . . an actio ex lege Aquilia and an actioinjuriarum rolled into one. . . . The effect is that thedamages are assessed under the two heads." This I believestill to be true of the law of Scotland, though I mustconfess that the situation has been greatly obscured throughincautious citation of English precedents on defamation, andreferences to the protean English term "malice." Moreover,Lord President Robertson, with the support of the First Divi-sion, endeavoured at the end of the nineteenth century toappropriate for the term " verbal injury " a novel meaning,which conflicts with that of every commentator on the civillaw—including all Scottish institutional writers. He appar-ently regarded an action for verbal injury as a remedy forpatrimonial loss and not for insult.

32 See in particular Lord Uthwatt in Perera v. Peiris [1949]A.C. 1 at pp. 19-20.

« [1895] A.C. 587.


or authority. In fact this view conflicts with theinstitutional authorities and the ethos of Scots law.This was, however, reasserted by Lord Dunedin andthe First Division si who held that acts, which mightbe quite lawful in the ordinary course of fishing,would be unlawful as in aemulatione vicini if donewith the malicious motive of disturbing the fishing ofa neighbour. The doctrine of " abuse of rights "remains available for exploitation in other circum-stances than quarrels between landowners—the prin-ciple being that, in balancing competing interests, aright may become a wrong if exercised from impropermotives. One chapter of the law which would—andmay yet—be held appropriate for the application ofthis doctrine is that of trade competition and indus-trial disputes. The English law of " conspiracy "maintains the somewhat anti-social and illogical pro-position that conduct, which would not be unlawfulif done by one powerful agency acting maliciously,may yet be unlawful if two or more individualscombine for the same end. The leading case, para-doxically, is the Crofter Harris Tweed Case 35 whichoriginated in Scotland. In the House of Lords theLord Chancellor (Lord Simon) with every encourage-ment from counsel participating, proceeded on thebasis that Scots law and English law on the matterwere identical, and, admitting the illogicality of theEnglish law, he discussed the evolution of the crimeof conspiracy in the English Star Chamber. As we

" Campbell v. Muir, 1908 S.C. 387.35 Crofter Handwoven Harris Tweed Co. v. Veitch, 1942 S.C.

(H.L.) 1; [1942] A.C. 435.


have seen, the Scottish crime of conspiracy did notfollow the same line of development at all, and it isdifficult to appreciate the relevance for Scotland ofLord Simon's fascinating historical excursus. Thesimpler approach is through " abuse of rights " whichoutflanks the technicalities of conspiracy. Thisapproach may be commended to Scottish lawyers,even though they have helped considerably to developthe tort of conspiracy in a jurisdiction where norecognition is given to the doctrine of " abuse ofright."

Quasir-Delict36 (Strict Liability)There are certain activities which are calculated to

cause injury, even though proper care is taken bythose responsible. In the public interest, the lawpermits such activities to be carried on only on con-dition that, irrespective of fault, those in control willcompensate persons injured. One may instance, forexample, air navigation and atomic installations andmany provisions of the Factories Acts. There mightbe good reason to include drivers of motor-vehiclesamong those made liable by law irrespective of faultas if they had been negligent. Compulsory insurancecan be made a concomitant of strict liability.

Quasi ContractThe term quasi-contract is a somewhat misleading

but convenient category to embrace various aspectsof the general equitable principle that restitution shall36 This term has sometimes been used incorrectly to imply

" negligence."


be made of unjustifiable enrichment and also, incertain circumstances, of what a man has lost onanother's account. In maritime law salvage andgeneral average (sharing of loss) give rise to quasi-contractual claims, but cannot be discussed. Theprinciple of negotiorum gestio is well established inScots law. This implies the management of the affairsof another who is absent, or incapacitated fromattending to them himself, in the reasonable beliefthat he would have authorised such intervention. Insuch cases a claim for payment may succeed, thoughthe services rendered did not ultimately prove bene-ficial—as if a sick animal were given veterinarytreatment, but nevertheless died. I may add thatwhen a surgeon operates on a patient who has beenincapable of consenting, his intervention would seemto rest on this same principle; and, as I see it, theconsent of relatives, except in the case of a childunder puberty, is strictly irrelevant.

The Roman jurists accepted, broadly speaking, theidea that no man should be unjustifiably enriched atthe expense of another, but instead of developinggeneral remedies devised a large number of particularactions to deal with certain cases. The later civilianscontinued where the Romans left off, and formulatedrules of general application. In Scotland, though werefer to the nominate Roman actions such as con-dictiones indebiti or causa data causa non secuta(i.e., the actions given to recover payments made inerror or where the purpose of an agreement has failed)this is merely to indicate the basis of a claim forrestitution. The duty to make restitution arises


generally, whenever one person comes into possessionof money or property which in equity he cannotjustifiably retain—as when he receives money fromanother who believed mistakenly that it was due; oras an advance under a contract which cannot becarried out due to supervening impossibility, suchas the outbreak of war or death37; or if he hastaken delivery of a second-hand car which turns outto be stolen. As restitution is based on morality orequity (an obediential obligation as the Institutionalwriters would say) the person bound to repay isentitled to deduct his own outlays incurred before,say, a valid contract was frustrated by events beyondthe parties' control.

The principle of recompense applies in certain caseswhere one person has benefited by the act of anotherwhich has involved the other in loss—as whereimprovements have been made in a house by a manwho believes himself to be owner, but whose title islater found to be faulty. In such cases the amountdue is assessed, not according to what has been spent,but according to the benefit accruing to the trueowner.

English jurisprudence has been particularly confusedand, on occasions, unjust in dealing with equivalentproblems. As far back as 1760 Lord Mansfield in acase evocative of cosmopolitan atmosphere—Moses v.Macferlan 3S—sought to introduce a general equitabledoctrine of unjustifiable enrichment into English law,

3 7 The leading case is Cantiere San Rocco v. Clyde ShipbuildingCo., 1923 S.C.(H.L.) 105; [1924] A.G. 226.

38 (1760) 2 Burr. 1005.


but his views subsequently came under heavy fire.Such questions have been overshadowed by thepeculiarly English dichotomy between law and equityand by forms of action. From time to time the Scot-tish judges in the House of Lords sitting in Englishappeals went out of their way to contrast the justiceachieved by the Scottish principles of restitution andrecompense with the tendency of English law to letloss rest where it fell. Eventually in 1942,39 LordMacmillan was able to express his " gratification " atthe fulfilment of Lord Shaw's prophecy in a Scottishappeal40 that one day the House of Lords wouldreconsider the English approach. The persuasiveeffect of Scots law in due course has assisted inrationalising part of the English approach of quasi-contract, both through judicial pronouncements in theFibrosa Case and through the Law Reform (Frus-trated Contracts) Act, 1943. There is, however, stillample scope for further persuasion and example.Thus in 1951, Lord Porter observed41: "The exactstatus of the law of unjust enrichment is not yetassured. It holds a predominant place in the law ofScotland, and I think of the United States, but I amcontent . . . to accept the view that it forms no partof the law of England." The English lawyers havebeen somewhat reluctant to accept the teaching ofMoses v. Macferlan and the somewhat self-righteousexhortations of Scottish judges. Perhaps theircomplete salvation will ultimately depend on the39 Fibrosa Spolka Akcyjna v . Fairbairn, etc., Ltd. [1943] A.C.

32.40 See note 37, supra.41 Reading v. Att.-Gen. [1951] A.G. 507 at pp. 513-514.


enlightening labours of Dawson, Seavey and Scott,who have risen as prophets on the far side of theAtlantic.

Voluntary ObligationsPromise. I have spoken of the " obediential

obligations," where law reinforces a moral duty, andhave also mentioned cases of strict liability based onpublic policy. Beyond these limits obligation is avoluntary matter. If a man declares his will to bebound, the law—provided his purpose is lawful andthe form of his declaration is sufficient—gives effectto his will. In Scots law, perhaps to a greater extentthan in any other system, effect is given to voluntaryincurring of obligation.42 This may take two forms—either unilateral promise (pollicitatio) or bilateralagreement—contract. If the promisee is actuallybound before the time for performance to accept per-formance, the obligation is contractual—even thoughthe benefit may be in favour of the promisee alone.On the other hand, if the promisee is not so bound,the obligation is constituted by unilateral promise.This remains true, even if to qualify for the benefitthe promisee must perform some act to fulfil a con-dition—such as reside in a particular county or havea painting accepted by the Royal Scottish Academy.Unlike the situation in English law performance doesnot convert " promise " into " contract." A man inmost systems can declare his last will in unilateralform, so that it will be given effect after his death.

42 See refs. " Pollicitatio—Promise and Offer," 1958 A eta Juridica141; also 1956 Jur.Eev. 3; Ashton-Cross, 1957 Jur.Eev. 147.


The legatee or beneficiary, unless he renounces thetestator's bounty, acquires an enforceable right with-out the prerequisite of acceptance. So also in Scotslaw, but in few other systems, a man may bindhimself generally by unilateral promise to confer somebenefit during his lifetime. Here Stair differedfundamentally from Grotius, who, through Pothier,influenced most Continental systems to repudiatepromise, and to accept contract as the one source ofvoluntary obligations enforceable against livingpersons.

Latterly, however, the advantages of what arecalled technically " unilateral juristic acts" havegained recognition in other civilian systems—especially where advertisements of reward for servicesare concerned. Thus a promise to keep an offer openfor a stated period creates a valid obligation, as ifthe would-be vendor writes to a prospective purchasersaying: " I offer such and such property to you for£5,000, and shall keep this offer open until nextFriday." Such a letter contains an offer, which, byacceptance, would create a valid contract of sale;but it is also forthwith a binding unilateral promisecovering the period of option. Again, if A contractswith B that B shall pay or perform something for thebenefit of C, this confers no right on C under theEnglish law of " privity of contract," because thereis no contract between B and C. Under Scots law,however, there can be two valid obligations—a con-tract between A and B, and an enforceable unilateralpromise by B to C. Not only can C sue for failureto perform, but also, despite dicta uttered by lawyers


nurtured in English doctrines of " privity of con-tract," he can also sue for faulty performance.

Further, in cases where there is advertisement tothe public of a reward upon condition that some actis performed by a member of the public—e.g., findingand returning a lost cat—the proper approach in Scotslaw (now emulated by French jurists) is to regardthe advertisement as a binding conditional promise.If the condition is fulfilled, the reward can be claimed.The English approach, as in Carlill v. Carbolic SmokeBall Co.,4'3 is to construe the advertisement as anoffer turned into a contract by performance of thecondition construed as acceptance and also as " con-sideration." Though some Scottish cases have beenalso thus construed, founding on English precedents(and the distinction between offer and promise issometimes very narrow) the basic principle of theenforceable unilateral promise—which may be condi-tional—has never been superseded. It must beadmitted that contact with English law has encour-aged the tendency to torture words and acts into thepattern of offer and acceptance where the sounderconstruction would have been conditional promise.Those who have gone awhoring after strange gods mayhave a change of heart when they see foreign pilgrimsfrequenting the ancestral altar.

ContractsThe other category of voluntary obligations is

" contracts "—which are created by the concurrenceof two wills. In an earlier series of Hamlyn Lectures,« [1892] 2 Q.B. 484; affirmed [1893] 1 Q.B. 256.


my friend the Professor of Comparative Law atOxford University,44 dealing with contract law, main-tained " Scots law as a standard of excellence," andsaid, " I would even be rash enough to say thatEngland would gain much and lose very little if itmerely substituted for its own law of contract that ofthe sister nation." These are generous words and onthe whole not unjustified, though I must in due coursenote a few blemishes in the Scottish system. Mean-while, however—considering the system on its merits—we have already noted that in Scots law thirdparties may benefit by the contracts of strangers.Moreover, it is fortunately free from the doctrine ofconsideration or quid pro quo, which in England isthe badge of enforceable agreement. Generally speak-ing, " every paction produceth action," as Stairasserted. Pledged faith is the basis of voluntaryobligation. Lord Mansfield in the eighteenth centuryendeavoured in vain to secure recognition in Englandof proof by writing as a sufficient foundation ofcontract, apart from consideration.

The development of Scottish contract law owedmuch to Roman law, except that it discarded theformal stipulatio, and accepted the efficacy of informaldeclarations of will to deal with matters outside therange of the usual " type contracts." These " typecontracts " might be based merely on consent, suchas sale or hire; or they might come into existence bydelivery of a thing, as in deposit. In the case of the" type contracts," once the parties have agreed on

44 Lawson, The Rational Strength of English Law (HamlynLectures, 1951), p. 43.


certain fundamental matters such as price, the lawproceeds to make the rest of the contract for them,and implies various terms which the parties are boundto observe, unless they expressly exclude them. Ifparties wish to contract for results not provided forin the ready-made categories of contract, they mustrely on their own ingenuity to secure fulfilment oftheir mutual expectations. Today, however, a newvariety of " type contract " has come into vogue—known in French as the contrat d'adhesion—the" take it or leave it contract." In many situationstoday in which men contract, the offeree is not freeto bargain. He has the option of accepting a" standard form " contract set out already in print,or not doing business at all. In Scotland he mayhave the added irritation of finding that, evendealing with Government departments, the standardform has been conceived according to the forms andterminology of English law. The consequences ofagreeing to a " standard form " of contract may bevery serious where high-pressure advertising andsalesmanship stimulate cupidity, and the parties areof unequal bargaining power. Therefore the Legis-lature has intervened in the case of hire-purchasecontracts to offer some protection to the hirer. Thecontemporary practice of excluding liability fordamage and injury by conditions printed on ticketsor notices has gone to great lengths. I have notchecked, with the undertakers and morticians, butthose who offer most of the essential services in thislife seem to have the users at their mercy. InScotland the late Lord Cooper indicated that the


courts might not be powerless to intervene to protectvictims of unreasonable contracts of adhesion. InMackay v. Scottish Airways4S he commented ad-versely on certain " ticket conditions " as of " amaz-ing width," tending to " create a leonine bargainunder which the aeroplane passenger takes all therisks, and the company accepts no obligations. . . .It was not argued that the conditions were contraryto public policy, nor that they were so extreme as todeprive the contract of all meaning and effect as acontract of carriage; and I reserve my opinion uponthese questions." One can but hope that his Lordshiphas not trailed his coat in vain.

Mention of the power of the court to supervisecontractual relations brings me to another reflectionof potential importance. The English approach tocontract was through bargain—and the " sacred "nature of bargain was often proclaimed. In Scotlandobligation was based on will and good faith. Scotslaw took over the doctrine of bona fides from theRoman law of contract and applied it generally—witha few exceptions. Thus unconscionable conduct ingeneral affecting a contractual relationship was underthe supervision of the court. Though such conductmight not be so gross as to justify an action fordamages for delict, it might well be regarded as" fraud "—in the broad sense of being inconsistentwith good faith—so as to justify reduction of a con-tract and restitution of the parties. The categoriesof English law such as " undue influence" and" innocent misrepresentation" would in Scots law

« 1948 S.C. 254.


have been regarded as aspects of conduct inconsistentwith good faith. There is nothing, incidentally, whichto my mind seems " innocent" about seeking toenforce or maintain a bargain which one well knowswas induced by one's own false representation—•however " innocent " the original misrepresentationmay have been.

The general doctrine of good faith (bona fides) inScots law seems to have suffered at least a temporaryeclipse46 due to contact with English law, whichaccepted no such general concept. English law didindeed recognise a few contracts, e.g., insurance, asuberrimae fidei (of exuberant faith) though I haveyet to find that the superlative adjective means morethan good faith, which in civilian systems imports ageneral duty of disclosure graduated according to thecircumstances and species of agreement. The replace-ment during the nineteenth century of Scotland'sRomanistic contract of sale by a statutory versionbased mainly on English law has had serious conse-quences for contract generally. In most systems, saleis the great master contract from which one arguesby analogy when dealing with other contractual situa-tions. In Scots law sale of goods is now an anomalouscontract in several respects, yet the tendency to argueby analogy continues. The Sale of Goods Act, 1893,has left a legacy of unsolved and virtually insolubleproblems. Many of these are highly technical47 andI must pass them by. I can only pause to mention

46 See Powell, Good Faith in Contracts (1955), p . 15.47 See, e.g., Q-ow, 1960 S.L.T.(News.) 109; 1961 S.L.T.(News.)

101.


that sale is the only bilateral contract in Scots law,except compromise, which is not in theory governedby general principles of good faith; that property insale passes by agreement (not as in pursuance of othercontracts by delivery); and that the warranty ofRoman law against latent defects rendering the thingunfit for ordinary use is no longer implied. The chainconsequences of these changes have never been fullyappreciated. They have, however, involved confusionin the law relating to " vices of consent "—that is tosay, when a contract may be set aside or declarednull because the consent expressed by a contractingparty was not a full or true declaration of his will.Formerly, the doctrines of good faith and the impliedwarranty against latent defects avoided difficultieswhich now tend to be discussed in connection witherror or fraud—or that demi-vierge category " inno-cent misrepresentation." The effects of fundamentalambiguity, or of offer and acceptance failing to meeteach other, are that no contract comes into existence.Other cases of essential error—where parties areagreed on the subject-matter but one party errsreasonably, e.g., regarding quality or price—mayentitle the courts to order reduction of the obligationand restitution on terms.48

The primary remedy for breach of obligation inScots law has always been " specific implement "—that is, the party in default is required by judicialdecree to carry out his undertaking. Since the fusionof law and equity in England the policies of the twojurisdictions have come closer in this respect. Where,4 8 For general discussion and refs. see (1955) 71 L.Q.E. 507.


however, damages are sought for breach, English lawhas influenced Scottish practice. If parties havestipulated for a money payment in the event ofdefault, the institutional writers permitted the partiesto fix a sum which would both cover the loss andpunish a recalcitrant party. The courts always hada discretion to " modify " this sum if it turned outthat the loss actually suffered was substantially lessthan the penalty agreed. This followed the Romanlaw. Through English influence, however, this kindof provision has been superseded by the concept of" liquidated damages." This implies that, if theparties at the time of contracting genuinely try toguess what the financial consequences of breach willbe, that sum only will be exigible whether the losswhich actually results is greater or less—but, intheory, no agreement which contemplates penalisingthe party in breach is recognised. This solutiondiverges from that of most civil law systems, and itmay be observed that steps are being taken in SouthAfrican law, on which the English doctrine wasimposed by the Privy Council,49 to restore the statusquo. The relative advantages of the two solutionsdepend on burden of proof, and in these days offluctuating money values and uncertain economicconditions, it seems not unreasonable to leave thedebtor to prove (if he can) that the stipulated penaltywas excessive in the light of hindsight.

Proof of ObligationsProof or evidence is the last topic which I wish to

« Pearl Assurance Co. v. Govt. of S.A. [1934] A.C. 570.


mention in discussing voluntary obligations; and it isone which calls urgently for legislative reform inScotland. It is only within the past century or sothat Scots law has relaxed that suspicion of oraltestimony which is characteristic of civilian systemsgenerally. Today certain obligations, such as thoseconcerning land, must still be constituted by formalwriting, and others such as gratuitous obligations andthose which are unusual and outside the categories ofrecognised named contracts must be proved bywriting. Through operation of the doctrine of desue-tude and contrary use, however, many obligationswhich would formerly have required written proof maybe set up today by oral evidence. Moreover, reiinterventus (analogous to part performance) andreference to the defender's oath retain their relevanceif other means of proof are lacking. Nevertheless,there is need for extensive and radical reform ofstatute law ancient and modern dealing withauthentication of documents and proof of obligations.Neither judges nor text writers are complacent aboutthe present state of the law.50

PROPERTY

Landowner shipIn discussing, however briefly, the law of property

in Scotland I must start by noting a basic distinctionwhich has been well expressed by Bell51: " A doublesystem of jurisprudence in relation to the subjects of50 Professor Gow, most brilliant of Scottish critical writers in

this field, has given chapter and verse. See Scots Law Timesand Juridical Review, 1960-1961, passim.

51 Principles, § 636.

S.1I.L.-13


property, has thus arisen in Scotland, as in mostEuropean nations—the one regulating land and itsaccessories according to the spirit and arrangementsof the feudal system; the other regulating the rightsto Moveables according to the principles of Romanjurisprudence which prevailed before the establishmentof feus."

In short the land law of Scotland remains perhapsthe most feudal in the world. Since Quia Emptores,1290, subinfeudation has been forbidden in England,but is quite competent in Scotland today. Frenchfeudal law, which had great influence in Scotland, inits fall brought down feudalism on the Continent ofEurope. A vast amount of ingenuity and eruditionhas been devoted to the development of feudal law inScotland over the centuries. The basic theory is thatall land is held for a " service " due from vassal to asuperior, who in his turn holds of a higher subjectsuperior, and so on, until at the top of the feudalpyramid one finds the Crown as ultimate superior ofall feudal land. No longer, of course, does " service "take the form of soldiering for so many days in thearmy, or taking the tractor over a superior's plough-land, or dumping a wagon load of turnips at his door.The unromantic cheque has in most cases ousted thetrappings of chivalry. Our feudal system now existsin the main to secure annual payments of money, andto maintain a complex of continuing rights and dutiesaffecting land. For centuries a system of registrationof writs affecting land has maintained public confi-dence in the titles of property owners. This systemof land law served Scotland well. Practical and


equitable solutions were worked out—as in the conceptof " common interest "—to deal with situations whereseparate owners, as in flatted buildings, were boundby mutual responsibilities as neighbours. Wherefeudalism was swept away by the flood of the Frenchrevolution, and the doctrine of absolute ownershipwas asserted rigidly, there was a tendency to forgetthat flexibility is required to give effect to the manyinterests which may merit recognition in respect ofone piece of land.52 It must, however, be concededthat much in the theory and practice of Scottishfeudal conveyancing is ripe for reform in the twentiethcentury. In particular, cadastral methods of regis-tration of title to land, which simplify and facilitatetransfer, have been introduced successfully into mostmodern legal systems. At present a Committee pre-sided over by Lord Reid is considering whether we inScotland should adopt " registration of title." If thisreform is to come, as well it may, I hope that thepreliminary step will be taken of abolishing anachron-isms of the feudal system generally, and introducingallodial land ownership. If this is not done, anysystem of registered title will preserve anachronismslike mastodons caught by the Ice Age. I must notforget to mention, however, that in the Orkneys andShetlands udal landownership has survived. This isbased on occupation and not on feudal grant. Therecent discovery in Shetland of the Saint Ninian

52 Vera Bolgdr (1953) 2 Am.J.C.L. 204; XXth Century Com-parative and Conflicts Law, p. 453.


Treasure—which is held in trust by Aberdeen Univer-sity in berserker defiance53 of feudal claims—hasprovided a timely reminder of the Norse tradition inScottish affairs.

Moveable PropertyThe law of Scotland regarding moveable property

conforms very much to a pattern encountered in othercivilian systems, and derives most of its basic rulesfrom Roman jurisprudence. An original title may beacquired by " occupation " of things which have neverhad an owner before, or by creating a new thing evenout of another's materials, though in this case thatother has a claim against the manufacturer for thevalue of the property he has lost. If the new speciescannot be restored to its original state and has beendisposed of, say, by a thief to an innocent third partyfor value, difficult questions can arise. In Scots lawa good title to stolen goods cannot be transferred asin the English doctrine of " market overt " or theFrench doctrine possession vaut titre. If, however,that which was stolen has been changed into some-thing altogether new, the old ownership is destroyed;and the thief, though he can be sued for damages,will usually be a man of straw. The " cannibalisa-tion " of parts of stolen motor-vehicles has recentlydrawn attention to this branch of the law. In onerecent decision,54 which was concerned with the join-ing together of halves of two different vehicles, Lord53 By Principal Sir T. M. Taylor; see Glasgow Herald and

Scotsman, June 17, 1961.s* McDonald v. Provan, 1960 S.L.T. 231; Henderson, 1961 Jur.

Rev. 61.


Clyde in effect applied the judgment of Solomon. Itis suggested, with respect, that it is not helpful toinquire whether the specificator acted in good faith orin bad faith, and that in either case he should be ableto pass good title. Perhaps if Solomon had beenconfronted by five women claiming the baby, or if theLord President had been concerned with the problemof a vehicle built from parts of five others, both wouldhave delivered different judgments.

To transfer an effective right over moveables, assign-ation in writing is appropriate where the property isnot corporeal—such as rights under an insurancepolicy; but, generally speaking, delivery is necessaryin the case of corporeal goods, such as furniture. Inthe case of assignation, the assignee may be met bydefences, such as fraud, which could have been raisedagainst the assignor or cedent; but where there hasactually been delivery of goods, a person taking ingood faith may retain his right even though thetransferor acquired them in pursuance of a contractwhich could have been set aside because of his fraud.If there is the intention to pass ownership, this shouldbe effective even though it was motivated by a con-tract which could be impugned. If the transfereedisposes (say) to a sub-purchaser, he passes anindefeasible title. Sale, as we have seen, is an excep-tion to the general rule that a " real right " (a rightin the thing itself) passes only by delivery, since nowby statute property may pass by agreement.

Scots law does not recognise the validity of arrange-ments whereby a man raises money on the security,say, of his furniture, but, without delivering it to his


creditor, continues in possession. Because of theuncertainties of title and opportunities for fraudinvolved, the tradition of Civil law systems in post-Roman times has been generally opposed to sucharrangements, though Roman law itself recognisedmany hypothecs without possession, and moderncommercial practice has compelled the courts or legis-latures of most countries to accept modifications ofthe law regarding credit. Now, it is practicable tosecure registration of charges over the assets andstock-in-trade of mercantile enterprises, and the Scot-tish Law Reform Committee has proposed5S thatfloating charges should be permitted over companyassets. The solutions of several systems had beenstudied comparatively, and particular attention hadbeen paid to English methods. So far as thesedepended on distinctions between legal and equitableownership, of course, they could not be copied. Itwas not recommended that individuals should beenabled to finance themselves by loans secured overmoveables in their possession—though the present pre-valence of hire purchase has largely ousted the formerpresumption that the person in possession of domesticmoveables is their reputed owner. He who trusts inthe credit of a man of great possessions, in the end ofthe day is quite likely to go sorrowful away with hisaccount unpaid.

TrustsEvery mature legal system has to evolve machinery

to deal with cases where ownership, enjoyment and55 Cmnd. 1017/1960.


control of property may be separated. This may bedone either by conferring exclusive managerial powerson a person who is not owner or by requiring anowner to exercise his powers of control for the benefitof others. The manager of property of another, whois superseded in control either because of incapacityor at his own request, is in a position of trust. Ifownership is transferred to persons by will, trust deedor settlement (upon terms that the property is to beused in whole or in part for the benefit of publicpurposes or of specified private individuals, or of somecommercial enterprise), clearly they receive the pro-perty in trust. " Trust " is the only word in theEnglish language which covers conveniently the manysituations where ownership, enjoyment and control ofproperty may be separated, and " trusts " had beenknown in Scotland long before contact with Englishlawyers revealed the idiosyncrasies of the Englishtrust concept.

The English trust is based upon the dichotomy oflaw and equity, so that the " trustee " has " legalownership," which he must exercise for the benefit ofthe cestui que trust, who has " equitable ownership."The fraudulent trustee can pass good title, as on saleof trust property, to a purchaser in good faith withoutnotice of the trust; but the property can be" traced " and recovered if he puts the proceeds inhis own bank account or buys mink for his mistresses.A high standard of diligence and single-minded con-cern for the benefit of the beneficiaries is expectedof trustees. Through the doctrines of " tracing " andof constructive and resulting trust, moreover, English


law provides for many situations which a civiliansystem can handle through the doctrine of restitution;while by use of trust machinery English law can over-come some of the inconveniences which arise from itsdoctrine of privity of contract. (Parenthetically, Imay add, the stipulatio alteri—the contract in favourof a third party—is referred to as a trust in SouthAfrican law, though no one doubts the contractualnature of the arrangement.)

I have digressed on the English trust because somuch of a mystique has been built up concerning itthat one might be misled into believing that the ideawas as essentially English as the plays of Shakespeare,and that wherever the trust is found, it was plantedby pioneers of Anglo-American jurisprudence. Thebasic ideas are, however, much more general. Thatwhich is specifically and characteristically English isthe differentiation between legal and equitable pro-perty, which the civilian cannot readily understand.Moreover, so far as family settlements are concerned,the system of fideicommissary substitution of a seriesof heirs, formerly much used in Europe, was elimi-nated in codifications based on the Napoleonic model•—and thus a further basis for comparative under-standing has been removed.

Various explanations of the origin of trusts inScotland have been offered. In my personal opiniona number of independent sources contributed to theevolution of our modern law. The fideicommissum ofRoman law had its main effect in Europe in the formof fideicommissary substitution whereby property wasleft to descend to a series of heirs in such a way that,


if the heir in possession tried to exploit his positionby alienating the property, his interest was immedi-ately forfeited, and the next substitute succeeded.In Scotland the terms " trust " and " fideicommiss "were often used as synonyms, but the main influenceof fideicommissary substitution, largely mediatedthrough French doctrine, was on the law of tailziesor entails rather than on what we should nowterm trusts. Again, from the early fifteenth centurywe have records of " mortifications," gifts made adpios usus for public or charitable purposes which weregiven effect to in the ecclesiastical courts. Likewisethese courts superintended distribution of defuncts'estates for the benefit of their close relatives. Expresstrusts between living persons were so frequent in theseventeenth century that in 1696 statute had to regu-late proof. Such trusts have often been described ascombinations of the contracts of mandate and deposit,with the specialty that ownership passed to thedepositary. So far as fiduciary duties were concerned,judicial factors and guardians appointed to incapablepersons to manage their property have long beenunder the control and supervision of the courts. Bystatute such persons are " trustees" and theirappointment creates a " trust," though they onlyexercise managerial powers over the property ofothers. Where there is a trust deed in favour ofcreditors, the owner is only divested of his propertyso far as necessary to fulfil the trust purposes, andhe retains a " radical right " in the surplus remainingwhen the creditors have been paid.

Whatever the antecedents of Scottish trusts,


however, contact with English law from the end ofthe eighteenth century has had very considerableinfluence on the development of Scottish principles,and decisions of the English Chancery court havefrequently pointed the way to solutions of doubtfulquestions.56 The scope of fiduciary duty has beenelaborated very much as in England, and trust pro-perty can be " traced " to a similar extent thoughnot necessarily upon the same theoretical basis. Thedoctrines of " resulting " and " constructive " trustshave been received in the Scottish law of privatetrusts, while that of cy pres (approximation) has beenintroduced to enable public trusts to function, eventhough the immediate object of their creation can nolonger be carried out. Certain substantial distinctionsdo, however, exist between Scottish and English lawas far as trusts are concerned. Thus, for example,the existence of a trust may be noted on a Scottishcompany register, and there is no need in Scotland toinvoke the concept of trust to cover situations whichare already dealt with adequately through contract orquasi-contract. In particular, however, there is nodichotomy between " legal " and " equitable " pro-perty, though a beneficiary in Scotland has more thana mere personal claim against the trustee, and canclaim restitution of the trust property, wherever andin whatever form it can be traced, except from apurchaser in good faith. In modern times the trustin Scotland fulfils a wide variety of purposes, and itsuse for mercantile and financial ends has grown

" See refs. Walker. "Equity in Scots Law" (1954) 66 Jur.Eev. 103.


greatly in importance. Meanwhile the traditional tes-tamentary and marriage contract trust has retreatedbefore the remorseless depredations of the Revenue.

SUCCESSIONLegal Rights

Whenever British rule has been extended to aterritory with an established legal system, that systemhas been maintained, with certain modifications toeliminate doctrines shocking to English ways ofthought. Thus subject peoples have been liberatedfrom such practices as the burning of widows, and inother jurisdictions from the necessity of providing forthem. The concept of freedom of testation wasspread with missionary zeal. A man must be left freeto cut off wife and children with or without a shilling,and to benefit in lieu the local Hunt or the fair butfrail comforter of his declining years. Thus it wasthat in Ceylon, Quebec and South Africa the estab-lished rules which secured to close relatives legalrights in the estate of a deceased were abolished.Paradoxically, by the Inheritance (Family Provi-sion) Act, 1938, and by the Intestates' Estates Act,1952, English law has now permitted certain closerelatives to petition the courts for reasonable provi-sion. Perhaps Scottish practice has made a contri-bution to British justice by its constant repudiationof the doctrine of complete freedom of testation, andby its recognition of the legal rights of survivingspouse and children in the estate of the deceased.

These legal rights are not strictly speaking rights insuccession—as well appears from the fact that, if a


wife died before her husband, her representatives,until 1855, were entitled to claim from the " goods incommunion." Thus the rights of the surviving spouseand children are in the nature of a debt owed byestate of the deceased, though their claims are post-poned to those of other creditors. A widow is entitledto her terce—the liferent benefit of one-third of herdeceased husband's " heritable" estate (roughlyequivalent to land); while the widower may have theright to " courtesy," the liferent of his deceased wife'sheritage. More important, however, are legal rightsover moveables. If the deceased left a survivingspouse and children, one-third of the moveable estateis due to the surviving spouse, as jus relictae (relicti),and another third is divided among the children aslegitim. If there are children, but no survivingspouse, or a surviving spouse but no children, legalrights are due over half the moveable estate. Thedead's part may be disposed of freely by will. More-over the testator's family, or some of them, maychoose to accept a provision made under a will,dealing with the whole estate, rather than claim legalrights.

Testate SuccessionLegacies not exceeding £100 Scots (£8 6s. 8d.) may

be bequeathed verbally. Otherwise a will mustcomply with certain basic requirements. It may beformally executed before two witnesses; or be writtenand signed by the testator; or, if typed or written bysomeone else, must be " adopted as holograph " andsigned by the testator. Whether wills are prepared


professionally or by the amateur after dinner, theireventual construction provides scope for much legaltheorising and ingenuity—too much for discussion inthe present context. Ascertaining the intentions oftestators takes up a good deal of judicial time and oftestators' money.

Intestate SuccessionThe law of intestate succession is not satisfactory in

Scotland. Though recognition of claims to legal rightsalleviates the situation, and now a surviving spouse,where there is no issue, has an additional claim up to£5,000, the present rules regarding intestate successionachieve results which no responsible person woulddesire. At the root of the matter is the distinctionmade between heritable and movable property inquestions of succession. The medieval rules applythat, in succession to land, males are preferred tofemales, and that among males of the same degree ofkinship the eldest is heir. There are circumstanceswhen it is desirable that a farm (say) should not haveto be sold up at the owner's death, to distribute theproceeds among his descendants. On the other hand,there is little justification for a situation whereby onthe death of a citizen, who has just paid up the lastinstalment to the building society, the family homeshould pass to the small son, excluding widow anddaughters. There are many more anomalies, and foryears persistent but unavailing efforts have beenmade to secure legislative reform along the lines of—but not identical with—the Birkenhead legislation inEngland. Detailed proposals regarding the law of


succession generally were set forth in the Report ofthe Mackintosh Committee in 1949.57

ExecutorsThough at present heritage descends on intestacy to

heirs, the Mackintosh Committee has recommendedthat heritage and movables alike should pass to anexecutor dative for administrative purposes. In casesof testate succession executors nominate are usuallyalso appointed trustees. The system of " confirm-ing " executors, and charging them with the ingather-ing and distribution of deceaseds' moveable estates,was well established in medieval Scotland, through theinfluence of the ecclesiastical courts.58 Neither theReformation nor the increase of Roman law influence(which favoured administration by heirs) disturbedthis system; and thus both Scottish and English lawhave independently chosen generally similar methodsfor distributing the estates of deceased persons.

CONCLUSION

In concluding this short appreciation of the patrimonyof Scots private law, I shall venture to claim that itrecords a substantial contribution to British Justiceand a considerable impact on English law. No claimsto perfection are made, and, indeed, I have stressedthe urgent need for several reforms—even in themost characteristically Scottish aspects of our juris-prudence. We have also noted instances where Scots

" Cmd. 8144, reprinted 1958.si See in particular Anton, (1954) 66 Jur.Bev. 129.


law has benefited, or could benefit, from the experi-ence of other systems—in particular in those chaptersof the law where only the great personality of Birken-head succeeded in breaking down the opposition oflegal conservatism in his own country. I cannotconceal from you, however, my regret that, at aperiod when English law was relatively under-developed in the various aspects of obligations, itexerted so strong an influence on the Scottish system.After considering the experience of different countrieswhich play the game, a committee of golfers mightagree to improve certain laws of golf. If, however, acommittee, comprising only or mainly players ofcricket, were put in a position to arbitrate on thegame of golf, they would be unlikely to improve it.In cricket the team which scores most runs wins; ingolf the player who takes fewest strokes. The Englishlaw of obligations, like cricket, achieved results byplaying many strokes; the Scottish law, like golf,triumphed through using skilfully a few rationalprinciples. Mixing the techniques did not prove satis-factory, and deflected Scots law to some extent fromthe proper course of development. Latterly progres-sive English lawyers have become partial converts tothe Scottish approach. Indeed, the final irony wouldbe if, after American coaching, they drove through uswhile we were still searching in the rough.

CHAPTER 5

CONSTITUTIONAL QUESTIONS

The Basic FreedomsMuch constitutional law in Britain though common

to Scotland and England is of English origin. Myconcern is with Scotland's contribution to Britishjustice, and I therefore feel justified in mentioningonly selected topics of particular relevance for a Scotslawyer. Personal freedom rests on the common law.There is a popular superstition that in Sommersett'scase * the English courts vindicated personal libertyand condemned slavery generally. This was not thecase. Lord Mansfield held that contracts for slaveswere quite valid in England, but that a slave who wasactually in England could not be sent back to acolony for punishment. In Scotland, however, as earlyas 1757 the Court of Session had ordered full argu-ment on the question whether the law would counte-nance the institution of absolute slavery of negroes,but, unfortunately, the slave died during the hearingby the Whole Court.2 Thus it was not until Knightv. Wedderburn 3 in 1778 that a judicial pronounce-ment was made on this matter. The Scottish courtswent much further than Lord Mansfield. They held" that the dominion assumed over this Negro, under

1 (1772) 20 St.Tr. 1.2 Sheddon v. Negro (1757) Mor. 14545.3 (1778) 33 Mor. 14545.

196

Constitutional Questions 197

the law of Jamaica, being unjust, could not besupported in this country to any extent." Further,they expressly approved the Sheriff's interlocutor" that the state of slavery is not recognised by thelaws of this kingdom, and is inconsistent with theprinciples thereof." I regret to add, however, that atthis time, by the doctrine of " necessary service,"those who entered employment as colliers and saltersin Scotland were thereby bound in perpetuity. Thelast vestiges of this status were not abolished until1799—the necessary legislation being introduced at theinstance of coal owners, who found that the virtualmonopoly of the miners in servitude enabled them toearn higher wages than would free labour. InScotland the general remedy against arbitrary orunjustifiable detention is not, as in England, byinvoking habeas corpus. Apart from cases where anaccused has been committed for trial (where safe-guards against undue delay in trial are provided bystatute), the appropriate procedure to secure releaseis by presenting a petition for liberation to the HighCourt of Justiciary, exercising the nobile officium orspecial equitable jurisdiction.4

Rights to free expression of opinion and also ofpublic meeting rest upon the ordinary law, and arerecognised so long as they do not infringe otherinterests protected by law. As we have already seen,Scots law is particularly strict in forbidding publica-tion of matter which might affect fair and impartialtrial of suspected persons. The expression of opinion

* (]960) 108 U. of Penn.L.E. 305; McNeill, 1960 S.L.T.(News.)46.

S.H.L.-14


by obstruction is not, of course, lawful—a propositionamply vouched for by proceedings taken againstdemonstrators, mainly from England, at the AmericanPolaris submarine base in the Holy Loch.

Rights to Sue the CrownTraditionally English law was reluctant to grant

ordinary redress to a subject for wrongs inflicted bythe Crown or Crown Servants—holding that " theKing can do no wrong " and that he cannot be suedin his own courts. This was not the view of Scotslaw. We have the record of an action brought againstthe Crown as early as 1261, while in 1542 an Act ofSederunt was passed by the Senators of the Collegeof Justice providing for the summoning of the King'sComptroller or the Lord Advocate to answer in actionsbrought against the Crown. This, it was tactfullypointed out, was for the welfare of the King's soul.Nevertheless, at the very end of the nineteenth cen-tury the English rule that the King can do no wrongwas applied in a Scottish reparation action.5 Thisretrograde step is now, however, only of historicalinterest to the student of pseudo-comparative law,since the Crown Proceedings Act, 1947,6 has extendedto both England and Scotland practically all thebenefits of earlier Scottish practice. This Act can,indeed, be regarded as one of Scotland's contributionsto British justice. Scottish practice is still morefavourable to the subject in several respects. Inparticular, the Scottish courts, unlike those of

s Smith v. L. A. (1897) 25 E. 112.6 10 & 11 Geo. 6. c. 44.


England, decline to accept as conclusive an objectiontaken on behalf of the Crown that the production ofevidence would be contrary to the public interest.7

Moreover, in controlling quasi-judicial and adminis-trative acts, the Scottish courts have tended toproceed—not, as in England against a background ofprerogative writs—but on principles of natural justiceunrestricted by form. As Kames observed 8 : " Nodefect in the constitution of a State deserves greaterreproach than the giving licence to wrongs withoutaffording redress . . . it is the province . . . of thesovereign and supreme court to redress wrongs ofevery kind where a peculiar remedy is not provided."

Church and StateBy the Union Agreement of 1707, the fundamental

law of the Kingdom, the Presbyterian system ofchurch government was established in Scotland, andEpiscopacy was established in England. Within itsown jurisdiction, the Church of Scotland is free tolegislate and adjudicate on legal matters withoutsecular sanction or interference, and indeed the inde-pendence of the Church in matters of doctrine, worshipand Church Government are further expressly recog-nised in the Articles Declaratory included in theChurch of Scotland Act, 1921. Other Churches inScotland are regarded as voluntary and lawfulsocieties, but are not established by law. As anelder of the Established Church I may, however, bepermitted to add that, while I value its heritage, I

7 See p. 87, supra.s Historical Law Tracts, p 228; Mitchell, 1958 Jur.Eev. 19.


rejoice at the growth of an oecumenical spirit inScotland. But for Charles I's efforts to force thepattern of the Church of England upon his northernkingdom, and but for the Patronage Act, 1711 (nowrepealed), whereby, shortly after the Union, theEnglish majority in Parliament forced " lay patron-age " on Scotland (i.e., the right of local landownersto appoint clergy to churches), we might long sincehave given a more united witness. It is, moreover,with shame that I recall past legal persecution ofRoman Catholics in Scotland. The country has owedmuch to this section of the community, and the veryfoundations of the Scottish courts were largely laid inpre-Reformation times by enlightened prelates of theRoman Church. A Scotsman may record with somepride that Lord Normand's contemporary, CardinalHeard, was recently appointed Dean of the SacredRota, the highest ecclesiastical judge for the wholeRoman Catholic Church. Courts of the Church ofScotland at all levels include lay elders as well asordained ministers, and it is perhaps significant thatin the General Assembly, which legislates on manymatters concerning the nation as a whole, so manyof the elders should be lawyers. Yet that veryelement is virtually excluded by circumstancesfrom contributing to the work of Parliament atWestminster.

One word on a topic, which would not need mentionat all had not national newspapers of the status ofthe Observer disclosed widespread misconceptions.Though the Queen is Head of the Church of England,she is not Head of the Church of Scotland—which,


indeed, has no Head except Christ, and has no ecclesi-astical hierarchy. There is, of course, a hierarchy ofcourts from Kirk Session to General Assembly. QueenVictoria regarded herself as a communicant memberof the Church of Scotland, and her royal successorsworship in the Established Church while in Scotland.On accession, one of the Sovereign's first duties is toswear an oath to maintain the privileges and presby-terian form of government of the Church of Scotland.The Queen in person or her Lord High Commissioneris loyally welcomed at each General Assembly, butneither Sovereign nor Minister of the Crown has anyofficial voice in the affairs of the Church. I may addthat in the Episcopal Church of Scotland (which isnot " established ") there is no equivalent to theconge d'elire in England, whereby the Dean andChapter of a cathedral are instructed by letter missiveto elect to a vacant archbishopric or bishopric theindividual pre-selected by the Crown.

The Fundamental Constitution and Judicial ReviewPerhaps, however, the most notable of Scotland's

contributions to British justice has been her indispen-sable participation in the creation of the state ofGreat Britain, which came into being on May 1, 1707.We have had over quarter a millennium to reflect onthis, yet controversy continues regarding the implica-tions and consequences of the Union Agreement. Theconstitutions of all members past and present of theBritish Commonwealth of Nations have inherited someof the consequences, and have avoided some of thedefects.

20'2 British Justice : Scottish Contribution

The Common People of the United Kingdom towhom I am bound to address myself, do not in generalseem to be at all clear as to the steps by which thetwo former kingdoms of Scotland and England ceasedto exist, and, in dying, gave painful birth to a newkingdom—that of Great Britain which, in its cradle,seemed sickly and unviable. It does not seem to bevery widely realised that the basic constitution of thisnew kingdom was the prototype of written constitu-tions which expressly limit the powers of organs ofgovernment in relation to each other—in particularwhich, by restricting the powers of the legislaturewhich makes laws for the whole country, protect theinterests of a permanent minority from the dangerof their interests being overridden by a permanentmajority. British justice, like charity, should surelybegin at home; and the legal foundations of GreatBritain should be as well known to all of us as arethe terms of the Declaration of Independence to ourAmerican cousins. Yet, it is the very UncommonMan indeed (or so it seems to me) particularly inSouth Britain—who can speak with reasonable infor-mation or intelligence about the Union of 1707. It israre to encounter an educated Scotsman who is un-aware of the general terms of Union, but few have asound understanding of its contemporary implications.

During the period of Personal Union (1603-1707)though neither Scotsmen nor Englishmen were aliensin each other's countries, the countries themselveswere separate independent States, and indeed shortlybefore the Union, the English Parliament made pro-visional statutory provision to treat all Scots as aliens.


After May 1, 1707, however, Scotland and Englandwere no longer separate countries—linked only by thefact that they shared the same King or Queen. Fromthe viewpoint of public international law, a new inter-national state, that of Great Britain superseded thetwo former states; yet, by the constituent agreementunder which they are governed, these two formerstates remained quasi-foreign, so far as the admin-istration of justice and ecclesiastical matters wereconcerned. The Union of 1707 did not create " Britishlaw " except perhaps in that very field where prac-tically all English lawyers and many Scottish lawyershave most clearly failed to perceive it—at the veryheart of the Constitution itself.

Of the Union, Lord Normand has said 9 : " Scotlandmade for the sake of the better future of our islandas a whole, a complete sacrifice of her nationalsovereignty to the new-formed Kingdom of GreatBritain. England, no doubt, necessarily made thesame sacrifice, though English historians are curiouslyreluctant to claim that honour." Though I could notaccept all Lord Cooper's reasoning in MacCormick v.Lord Advocate 10 (The EIIR Case), he was clearlyright in stressing that the Union created a new Parlia-ment of Great Britain; the situation was not that" all that happened in 1707 was that Scottish represen-tatives were admitted to the Parliament of England."Great misunderstanding has resulted from two equallymisleading interpretations of the Union agreement—one fathered by Scotsmen, and the other by most

9 Eeport 46th Conference International Law Association (1954),p. 10. 10 1953 S.C. 396.


English constitutional lawyers. The Scottish fallacyis to argue as though the Treaty of Union were stillin force as an executory treaty, and to rely on theTreaty as a safeguard against infringement of theUnion Agreement today. (Even Lord Cooper was ledby the argument to think in terms of treaty obliga-tions.) On the other hand, the English fallacy is toassert that the Union was based on the legislative Actof a sovereign Parliament; that Parliament cannotbind its successors; that, therefore, the so-called" Act of Union " can lawfully be repealed or amended.In other words, they approach the constitutionalposition as if Great Britain had been brought intobeing by an Act of Parliament—much as the UnitedKingdom Parliament during the nineteenth centuryestablished the Dominion of Canada. The supportersof the Scottish " treaty fallacy " are right when theyconclude that the Union Agreement is more thanordinary legislation; but they are on hopeless groundwhen they seek, as in MacCormick's case, to defendthe entrenched clauses by reliance on an internationaltreaty which has been " executed " since May, 1707.The very parties to the Treaty ceased to exist at thattime. Like bronze, or whisky polluted with soda,previous separate elements had been superseded by anew species altogether.

The English " Parliamentary Sovereignty " fallacyflows from the assumption that an ordinary legislativeAct of the pre-Union English Parliament—or evenordinary legislation passed independently by the twoParliaments of Scotland and England—could bring


into being a new international state; a new Parlia-ment (limited as to its powers in certain respects);and also provide for certain basic constitutionalfactors which transcended the jurisdictions for whichthe pre-Union Parliaments were entitled to legislate,such as provisions regarding membership of the newBritish Parliament. (I may note in parenthesis thatthe English " Act of Union " as legislation has nolegal status in Scotland; nor would the equivalentScottish measures be accepted as legislation bindingon an English court.)

As I have discussed in detail on another occasion,the complex of documents exchanged by the Par-liaments of Scotland and England have, in mysubmission, a threefold significance.11 First, theyconstituted a treaty jure gentium—concluded, not bythe two Parliaments, but by Anne, Queen of Scotland,with Anne, Queen of England; secondly, the Acts ofthe respective pre-Union Parliaments operated asordinary legislation, binding the subjects within theirrespective jurisdictions; thirdly, the Union Agreementtook effect as a skeletal, but nonetheless funda-mental, written constitution for the new Kingdom ofGreat Britain when it came into being.

If this submission is justified, as I believe it is, youhave before you a unique political experiment—theimplications of which are still being worked out.England's interest in the Union was to secure perma-nently that, after Anne's death (when the personalUnion might dissolve), Scotland should never pass into11 See T. B. Smith, " The Union of 1707 as Fundamental Law "

[1957] Public Law 99.


the control of rulers disposed to favour French ratherthan English interests. For this security England wasprepared to pay a price, and to negotiate withincertain limits. She could, moreover, use powerfularguments in the economic field; and, in the lastresort and at great inconvenience, military interven-tion would have been preferable to total failure innegotiating Union. Scotland was concerned to securein perpetuity certain vital concerns of a permanentminority; and in particular to safeguard her funda-mentally different legal system, the Presbyterian formof Church government, and certain other matters. Itis of some interest that the original Scottish proposalssuggested that her interests could best be protectedwithin the framework of a federation or confederation—solutions which have been subsequently relied onfrequently to secure the protection of racial, provincialand other interests of minorities in modern constitu-tions. When the time came to write the Constitutionof the United States a high proportion of the delegatesentrusted with this task were Scotsmen. These, nodoubt, had clearer ideas than their forbears inScotland as to what federation and confederationimplied. The negotiators of 1706 had in mind theexample of the United Netherlands—the internationaland constitutional situation of which has generatedalmost as much controversy as has the nature of theBritish Union of 1707. The English negotiators were,however, adamant in their insistence that the newstate of Great Britain should be a unitary state withone Parliament and one government—yet they agreedto separate national legal systems and separate


national Churches and certain other safeguards forScotland. In both Houses of the new Parliament ofGreat Britain, Scottish representation was to be scaleddown to approximately a population ratio. No body,like the United States Senate, or other safeguards inthe legislative machinery itself, secured the interestsof the permanent regional minority. How then werethey to be secured? The full answer has yet to begiven; and the Mother of Parliaments may yet receiveinstruction from her progeny as to how eggs shouldbe sucked.

In the first place, however, let me stress certainrelevant considerations. Scotland surrendered hersovereignty—not to England, but to the new Kingdomof Great Britain—in reliance on a fundamental writtenconstitution. Had the Lords and Commissioners ofthe pre-Union Scottish Parliament considered that theUnion Agreement rested merely on ordinary legisla-tion, capable of repeal in the first session of the Par-liament of Great Britain by the overwhelming Englishmajority, the Scots would never have perilled thefuture of their country on such security. The Scottishnegotiators were not romantics but realists—who,whatever their shortcomings, probably drove thehardest bargain possible in the circumstances; butthey were entitled, and on the whole history hasjustified their belief, in forbearing to regard theEnglish negotiators as hypocritical swindlers. Thecontrary, however, is in effect what many Englishconstitutional lawyers would have us believe. ThusMr. J. W. Gough, for example, while acknowledgingthat both parties to the Union intended certain


conditions to be essential and permanent, concludes 12

that " such phraseology, however well intended at thetime, or even necessary to satisfy jealous interests,was legally only a pious fraud." Mr. Gough,however, seems to assume that the basis of the Unionwas an Act of the now long-deceased English Parlia-ment. He does not venture to suggest how such abody could have acquired capacity to regulate matterstranscending the jurisdiction of the English courts,as, for example, representation of Scottish constitu-encies in the new Parliament of Great Britain, or theadministration of justice in Scotland—far less how anEnglish Act could bring into being the new Kingdomof Great Britain. His conclusion that the presentParliament at Westminster could never bind itselfregarding the future ignores the fact that, whateverthe powers of the former Parliament of England, thenew Parliament of 1707 had within limits a writtenconstitution. Whether the former English Parlia-ment was " sovereign " by Dicey's definition is notreally relevant—nor is it very helpful to inquirewhether the former Scottish Parliament was " sover-eign " in this sense. Stair indeed states explicitlythat the pre-Union Scottish Parliament within itsjurisdiction could not bind itself not to repeal legis-lation. But both these organs were superseded onMay 1, 1707. In procedural matters, and in itsbicameral and party organisation, the new Parliamentfollowed earlier English practice, but had a differentconstitutional foundation. If (per impossibile) the newParliament had sat (say) at Berwick or occasionally12 Fundamental Law in English History, pp. 179-180.


in Edinburgh instead of constantly at Westminster,many constitutional lawyers and historians—ay andpoliticians—would have been spared the error ofassuming that the new British Parliament of 1707 wasthe old English Parliament writ large.

So far as the written Constitution of 1707 wasconcerned, no express provision was made for amend-ment of the Constitution. Those who drafted it wereonly too familiar with changes made in the constitu-tional order by revolution. They could not expect alltheir arrangements to last until Doomsday; and pre-sumably left to revolution—preferably bloodless—the achievement of necessary constitutional reform.Moreover, if Scotland were to opt to surrender even-tually even a fundamental provision expressed in herfavour, this need not necessarily be regarded as" revolution," in the legal sense. Essentially Englishinterests were assured by sheer weight of numbers,resources and political influence and were not of anature which required protection through judicialscrutiny. The converse was true of Scotland.

The Constitution did not expressly provide for thecontingency that Parliament itself might exceed theconstitutional powers conferred. It is possible, asLord Cooper seems to have implied in MacCormick'scase and as Centlivres C.J. envisaged in the SouthAfrican Coloured Voters case 13 that legislation may beillegal and unconstitutional without necessarily beingsubjected to scrutiny and restraint by the judiciary.

" Harris v. Min. of Interior, 1952 (2) S.A.(A.D.) 428; 1956,Butterworths S.A.L.Eev. 3.


Where judicial scrutiny of legislation is incompetentthe forms of law may be used to achieve ends whichare unlawful according to the Constitution.

But is it not as justifiable to contend that inBritain, as in the United States, the courts should beregarded as guardians of the Constitution? Such anotion might receive little encouragement in Englandfor historical and practical reasons. The ultimatecourt in England for civil and criminal causes is theHouse of Lords, as was the corresponding body inthe pre-Union English Parliament, and Parliamentwas the Grand Inquest of the Nation. Until quitemodern times, it would have been difficult for anEnglish lawyer to regard the House of Lords as quali-fied to act judicially as guardian of constitutionallegality, since the judicial and political functions ofthe House had not been separated. Again, the his-torical tradition accepted by most Englishmen viewedParliament as the champion of liberty against thetyranny of the King and the Executive. (This wasalso the first reaction of European countries whentheir legislatures were emancipated from an over-powerful executive tyranny; but they have had secondthoughts.) Even in England today, however, it mayhave been realised—from a study of party polities—that the dictatorship of a legislative majority couldestablish a tyranny of the legislature or of the execu-tive. A legislature as such is not beyond reach of thecorrupting effects of power. An all-powerful legisla-ture may be most exposed to that danger. Libertyinvolves, not only freedom under the law, but also


in some matters freedom from the laivmaker. A dis-tinguished American has observed,14 viewing the worldscene: " In our time, individual freedom withoutjudicial review seems unthinkable."

What of Scotland? After the Union the supremecourts assumed additional jurisdiction when the PrivyCouncil was abolished; since, as Kames observed, itwould be a defect in the Constitution if there werewrongs without remedies.15 The same argumentwould be relevant to judicial review of legislationcontravening the Constitution. As yet the Scottishcourts have not expressly accepted or declined to actas guardians of the Constitution, and, in the few caseswhere fundamental law has been pleaded, actualdecision on the competency of reviewing legislationhas not been necessary. The answer may be that ofChief Justice Marshall of the United States SupremeCourt, when as late as 1803, though no express powerto review legislation had been conferred on theSupreme Court, he took the decisive step of declaringan Act of Congress void because of its incompatibilitywith the Constitution. The Judiciary, as the weakestof the organs of government, is unlikely to usurpexcessive power in a country, and is therefore thesafest to exercise ultimate control. It is only in-directly that in Britain today general fundamentalrights and liberties, such as freedom of speech, areunderwritten by the Constitution. Certain specifically

!* Dietze, " Decline and Emergence of Judicial Review " (1958)44 Virginia L.R. 1233; (1959) 76 S.A.L.J. 399.

15 Note 8. supra. Appeal to Parliament from the Scottish courtswas not contemplated at the Union, and is incompetent, sofar as the High Court of Justiciary's proceedings are concerned.


Scottish interests are, however, expressly guaranteed,though it is seldom that a private citizen can havetitle to sue to enforce them.16 So far no Scottishcourt has ever ruled that a statute made by theParliament at Westminster is invalid. The precedentsare neutral, but if the Scottish Judiciary assume thisjurisdiction they could fortify themselves with therealisation that, throughout the civilised world, thetrend today is to accept judicial review of legislation;and indeed within the United Kingdom scrutiny ofthe legislation of the Parliament at Stormont isalready familiar. Even more important is the factthat the judges, on installation, swore to administerthe laws of this country; and, if there be laws of thiscountry superior to ordinary legislation (as I believe,though few, there are), the judges may accept thehazards of safeguarding them.

Lord Russell in MacCormick's case did not reallyprovide any solution to the problem of the entrenchedprovisions regarding the " private rights " of Scots-men. These by Article XVIII of the Union Agree-ment may only be varied for the " evident utility ofthe subjects within Scotland." The will of the peopleas expressed by the ballot box does not provide, asLord Russell suggested, a solution. In the firstplace, one of the presumably unforeseen effects of theReform Act of 1832 is to enable every Scottish Con-stituency to be represented by a Member with no stakein the country at all—carpet-baggers, in Americanterminology. Secondly, as in the present Parliamen-tary situation, the majority party in Britain represents16 Hence the decision in the BIIE case—note 10, supra.


the minority of Scotsmen. I have no party axe togrind—but if political parties do really represent theinterests of their constituents—then the " evidentutility of the subjects within Scotland " is presumablybetter assessed by the Opposition in Parliament thanby the Government. Judicial scrutiny would be a lessGilbertian check on legislation alleged to violate theConstitution. If the Supreme Courts in Scotlandaccept this role, one would hope that they would con-strue the Constitution with that flexibility which thisfunction requires. As I have already said, the UnionAgreement is more than Treaty, and more than legis-lation. It is a constitutional document; and, as such,to be interpreted by liberal rather than literal canonsof construction.

EPILOGUE : THE DESTINY OF SCOTS LAW

A Scots lawyer can justifiably express pride in hislegal system, viewed in its historical context andcompared with the jurisprudence of other countries.It was cosmopolitan and in its most rational chaptersCivilian; it shared in the two great legal traditionsof the West; it was philosophical and rich in prin-ciple; and flourished by constant use of comparativetechniques, expounded by legal scholars of exceptionalquality and invoked by a Bench and Bar educated inwhat Stair called " the common law of the world."During the past century and a half Scots law has beenbrought into close contact with English law, and someauthors, such as the Swiss Professor Schnitzer, havegone so far as to treat Scots law as he did in hisclassic work in the chapter " Anglo-Amerikaniscb.es

S.H.L.-15


Recht." It is therefore very relevant to considerwhat the destiny of Scots law is to be, perhaps at theend of this century. No latter-day Tarquinius Priscushas bid high for my prophecies, nor do I claim theprescience of the Sibyl. Nevertheless, I shall ventureto forecast the future, on the assumption that thepotentialities of our jurisprudence are given properscope.

In my opening lecture I mentioned the importanceof Scots law for the student of comparative jurispru-dence and the suggestion, made by Levy-Ulmann in1924, that Scots law, combining elements of the Civi-lian and Anglo-American legal traditions, presented apicture of what the legal systems of the world mightbe by the end of the present century. Though thisis certainly a flattering exaggeration, there may wellbe a considerable measure of prophetic truth in thatstatement, and I prefer its implications to those of analternative prescription. More recently, Lord Denninghas suggested 17 that it would be for the good ofScottish and English law that intermingling of ideasshould go forward " so that we no longer have twoseparate systems of law but have the best of themboth. Let the English law contribute to the Scottishlaw, just as the Scottish law has contributed to theEnglish until they become one." Moreover, fromtime to time various well-meaning persons write to thePress suggesting amalgamation forthwith of the Scot-tish and English legal systems. A third view, whichhas never lacked supporters in the South, is that Scotslaw is an irritating anomaly, and should be superseded17 Glasgow Herald, Scotsman, The Times, May 6, 1961.


by English law. Lord Maugham, a Lord of Appealin Ordinary until 1946, during a visit to Ottawa,spoke for not a few English lawyers when hereferred 18 to " those interesting relics of barbarism,tempered by a few importations from Rome, knownto the world as Scots Law."

The destiny or fate of Scots law then seems to beeither to develop again into a more cosmopolitansystem, to fuse into a system of British law, or tosink its identity in English law retaining a few localcustomary rules. My own belief is that ultimately,whatever the intermediate stages for Scotland andEngland—short of some cataclysmic event shatteringthe whole legal and political order as we know it—theworld, and in the first place, the Western world, isbound to move towards substantial unification of legalsolutions in many fields. The trend is away fromlegal parochialism — what Emeritus-Dean RoseoePound of Harvard 19 has called " Mainstreetism," histranslation of Beseler's term Kleinstaatismus. Inour own time Europe is being reforged, and evenwider unities may emerge. When in Washington asguest of the American Bar Association in 1960, I wasimpressed by the passionate interest of practicalAmerican lawyers—not the academics alone (in thiscountry I should have said " just the academics ")—in problems of foreign and comparative law as liveissues. When we ask today as Lord Atkin did in thesnail in the bottle case the lawyer's question " whois my neighbour? "—the person who may be harmed

« Git. Evershed (1948) 1 J.S.P.T.L. 171.19 XXth Century Comparative and Conflicts Law, p. 3.


by my careless acts or omissions—we must concludethat he is not necessarily the man across the street.A defective tool made in a Scottish engineering worksmay blind a worker in an Italian factory; if (whichHeaven forfend) care is not taken, Scottish Tweedmay transmit dermatitis to the fashionable ladies ofParis, or noxious whisky may poison an Americansenator. Migration of skilled workers and professionalmen—the harsh annual tribute which Scotland paysto the Minotaur of modern economic pressures—andemigration of the Scottish maidens who lose theirhearts to Latin lovers or Saxon squires, leave behindin their homeland problems of family law and succes-sion. The wines we drink have trapped perhaps thesunshine of Bordeaux or the Rhineland—but, if theyhave trapped also something less salubrious, it is norespecter of frontiers—nor do possible defects in thesilks of Lyons or Milan. As international transportand communications develop, the world grows small-er; and commercial men do not care to change theirlaws at each airport or dock. These factors do not,however, necessarily imply that a general world law isin prospect, any more than that our grandchildrenwill be monolingual. In every legal system, certainchapters such as criminal law, family law and succes-sion, tend to reflect particularly a national ethos,while a " common core " of legal principle may wellbe found in such fields as Obligations.

Scots law has had particular importance, apart fromtechnical considerations, because in a certain sensethe nation has survived through a legal system. Onthe other hand, the essential tradition of Scots law


has been cosmopolitan and comparative, and if thattradition fails, as Lord Cooper has discerned, thesystem will surely die. There are aspects of our lawwhich we have perfected for our own use, and shouldnot readily change; there are other aspects which wecould improve if we looked forward and lookedaround us.

How far, however, should we look around us?Lord Denning's suggestion as quoted—and let mestress that I have not seen the full text of his lecture—seems to imply that between them Scots law andEnglish law comprise all the best solutions, whichwe could fit together eclectically into a perfect pat-tern. Even were that theoretically true, it would becontrary to the whole experience of " mixed systems "that this result would be achieved, and that the bestsolutions would necessarily be adopted. Too oftenthe English rather than the more rational view hasprevailed. Lord Denning is, of course, much morerealistic than the advocates of amalgamation by codi-fication. He contemplates, if I understand him aright,that statutory law reform might introduce into onecountry a particular doctrine or device which hadworked well in the other; or that the House of Lords,as the ultimate appellate court, might apply both toScottish or English law a particular solution pre-viously worked out by the courts of one country.This process already operates. So far as judicialassimilation is concerned, however, the theory is thatthe rules of both countries always have been thesame, though for centuries judges may have proceededon the basis that they were not. Indeed there would


be a considerable outcry, if (as happened in Scottishappeals of the last century) the House of Lords statedexpressly that they were changing the law of onesystem to make it conform to the other. Similarlywith regard to legislative change: there is a certainsensitivity which can still be aggravated by linkinglaw reform expressly to assimilation of Scottish andEnglish law.

As a matter of dispassionate observation I have tostate that in general the English lawyer of positionhas such a tremendous pride in his native jurispru-dence that, though he may even recognise the possi-bility of its improvement, his attitude to reform ishostile to foreign patterns—especially if they areScottish. On this delicate matter I shall confinemyself to English sources. Paterson, a barrister ofthe Middle Temple, who published his Compendium ofEnglish and Scotch Law in 1865, wrote in his pre-face 20: " The law of the one country is still a sealedbook to the other. England rather glories in herignorance; and Scotland confidently rebukes thisinsular pride by counting over the adaptations fromher own code which have now and then been paradedby her neighbour under new names as original reforms.English lawyers do not profess to know anything ofthe law of Scotland." The next attempt at such acomparative study was the Comparative Principles ofBrodie Innes of Lincoln's Inn, published in 1903. Heobserved ruefully in his preface,21 " I would fain hopethat this work may be of some service to those

20 pp. vii-viii.21 p. xi.


concerned with amending and improving the lawand the practice thereof in both countries. Thenumber of instances of reforms first introduced inScotland, and afterwards adopted without acknow-ledgment in England, where, strange to say, lawyerssomewhat pride themselves on their ignorance of anysystem except their own, has been more than oncecommented on from the Bench. . . . It is clear,however, that whoever would intelligently attempt tosuggest, or carry out, any reform in any branch ofeither system, would do well to have as good anacquaintance as possible with the other, thoughexperience suggests that in recommending any changeto his brethren he should carefully conceal its source."

And what do our contemporaries say? Has theclimate changed? The Vinerian Professor of EnglishLaw, Professor Hanbury, wrote only last year22:" Those English lawyers who would undertake asystematic study of Scots law could be counted on thefingers of one hand." This year Professor Wade,Downing Professor of the Laws of England, noted 23 :" It has long been the common experience of lawreformers in England that authority pays little or noattention to the law of other countries." Thus ineffect when, on another occasion, Lord Denning urgedvarious reforms with the cry: " Are we for ever to bebehind Scotland? " 24 he may have been scupperinghis ship before she was launched.

How childish and parochial all this seems, but it22 (1960) 76 L.Q.E. 316.23 (1961) 24 M.L .R . 8.2* " T h e W a y of an I conoc l a s t " (1959) 5 J .S.P.T.L.frf .s . ) 77

at p . 83.


does not encourage the Scots lawyer to deliver him-self bound into the hands of the Philistines. I havealready given one item of personal testimony on thismatter 25—mention in Parliament of my suggestionthat, in codifying offences, defences and trial proce-dure in the Army Act, the best solutions of Scots lawas well as of English law should be considered at eachstage; and the better, or indeed an improvement onboth, should be incorporated. Implicit in this sugges-tion were such radical proposals as that the accidentalkilling of a policeman by tripping him up should notbe murder; that diminished responsibility and provo-cation generally should count in mitigation; that thoserepresenting the accused should give notice of anyspecial defence such as alibi; and that counsel for thedefence should have the right to address the courtafter the prosecution. At the very mention of Scotslaw, Honourable Members of both parties immediatelyjoined in a discreditable exhibition of scorn andintolerance.

This brings me to a further reflection on Parliamentas a medium for codifying or amalgamating consider-able sections of Scottish and English law, which maybe technical in character—" lawyers' law." Nosystem of national jurisprudence has less adequaterepresentation than Scotland, so far as legislation,particularly on " lawyers' law," is concerned. Allthe other " mixed systems " have their own legisla-tures, and the Parliaments of most countries have ahigh proportion—some might think too high a propor-tion—of professional lawyers among the lawmakers.25 pp. 31, 32, supra.


There is one Scottish advocate—the Lord Advocate—in the House of Commons; and the present system isunlikely to enable any, or many, more to serve theircountry as legislators. This is all the more regrettablesince in the Legislature of the Church of Scotland, thecontributions of professional lawyers have beennotable. It is a paradox that in the Parliament ofNorthern Ireland over one-fifth of the membership ofSenate and House of Commons are legally qualified.At Westminster, in the House of Lords, Scots law ispotentially better represented by Lords of Appeal inOrdinary, in office or retired, but these are primarilyoccupied with judicial duties. The Earl of Selkirk,one of the Scottish peers, is an advocate, but is atpresent High Commissioner in South East Asia.Perhaps when reform of the House of Lords is underreview, attention should be given to the importanceof securing adequate representation of Scottish legalwisdom in Parliament, through creation of life peersto sit as legislators when matters of law reform areunder consideration. They could, but need not neces-sarily, also exercise judicial functions. At Westminsterat present there is a galaxy of English legal talent;and the contrast in quality between debates on Scot-tish and English legal questions is regrettably obvious.

I am not, however, concerned to propound solu-tions, but to note facts; and among these certainlyare that Parliament, as at present organised, is notwell equipped for handling Scottish affairs, and thatthe Scottish Standing Committee has not proved inpractice an adequate forum for debate or decision.So far as I am aware, the only other political unit in


the world so handicapped in legislative matters is theDistrict of Columbia, where Washington, Capital ofthe United States, is situated. It has no Statelegislature, and therefore depends on the FederalLegislature to enact measures for its domestic concerns—much as Scotland depends on the imperial Parlia-ment at Westminster. When Congress or Parliamentis pressed with great issues of national or supra-national importance, it is not surprising that localinterests get low priority. If parish pump mattersare discussed in a busy assembly of wide competence,this is the inevitable consequence of the presentorganisation of business. The inhabitants of the Dis-trict of Columbia have an advantage over us, however,in that they can bring direct pressure to bear on thelegislators within their range. For too many yearsthe Scots have lacked opportunity to " peeble " theirlegislators—who, moreover, since 1832, have no longerbeen required to have a stake in the country.Formerly Scottish parliamentary candidates wererestricted to those entitled to vote in theirconstituencies.

From what I have said already it will be reasonablyclear that, though Scots law and English law willcontinue within limits to coalesce through judicialdecision and legislation, especially on common eco-nomic or social problems, I neither foresee nor desirea solution such as Lord Denning has propounded.Still less would I support the sky-blue idealists whohave propounded the solution of codifying British lawas an amalgamation now of Scots and English law.They are, alas, not aware of the facts of life. From


the time of James VI there have been such advocatesof a policy of immolation—for that would be theinevitable result. Though legislation would be neces-sary to promulgate such a code, the preparatory workwould have to be done by a small committee directedby a master mind; and that committee should com-prise men deeply learned and widely experienced inboth legal systems. Moreover, they would have to bewithdrawn from their present important functions fora period of many years. Sufficient such men just donot exist. I think perhaps I could name the five justEnglishmen contemplated by Professor Hanbury, whowould be prepared to undertake a systematic study ofScots law. They would not necessarily be among thecodifiers. Any purported codifying commission forBritish law (if per impossibile such were appointed)would be heavily overweighted by formidable Englishlegal talent, naturally predisposed in favour of solu-tions with which they were familiar. Scots law maycontend with English law any day on the basis ofrespective merits—but it is relevant to inquire whoare to expound them, and who are to judge.

If I discard the solution of immediate unificationof British law it is not because I advocate legalparochialism. Such an attitude would be quite outof keeping with the cosmopolitan and comparativeoutlook of Scotland's leading jurists over the centu-ries. Nor am I a lover of the archaic, who wouldnecessarily assess the value of a legal doctrine accord-ing to its antiquity. If one were to seek the spiritualhome of jurisprudential isolationism and archaism, itwould not be North of Tweed.


We are, I believe, embarking on a new phase inthe world's legal history. Each nation has certainvalued legal principles, doctrines and institutionswhich it must preserve. There are others which canbe modified and shared. How rash and unprofitableit would be for Scotland and for British justice, ifat the very time when through practical necessityEurope, and even wider political constellations, werereaching for " a common law of the world," recon-ciling Romanistic and Anglo-American doctrines—Scots law should sink her identity in English law.Scotland's contribution may yet be to mediate, on ahumbler scale than Levy-Ulmann predicted, betweenthe two great juristic empires.

When searching for the " common core " of legalsystems, as Professor Schlesinger of Cornell hasacutely discerned,26 it is not necessarily the wisestchoice to select for comparative analysis the most" influential " systems. The code of a relatively smalland not very " influential " nation may offer particu-larly interesting and constructive solutions, for thevery reason that its draftsmen have been " influ-enced " by several others and have ecleetieally woventhe strands of several " influential " ideas into a newand original pattern. Scots law is certainly worthconsideration in this connection. Again, JusticeKisch of the Hoge Raad der Nederlanden recentlyexplained 27 why the Netherlands Supreme Courts haddecided to award what we should call solatium forpain and suffering in a personal injury case. One of

2 6 XXth Century Comparative and Conflicts Law, p . 67.2 7 Ibid., pp . '262 et seq.


the factors which decided the judges in construing inthis way the relevant section of the Civil Code was" that, in accordance . . . with what is nowadaysaccepted in neighbouring countries " under statutorylaw or judicial decision. By " neighbouring " coun-tries (five were considered) geographical proximitywas not necessarily implied; and the " harmonisingconstruction " was adopted because, as appeared fromcomparative study, it was consistent with modernideas of justice. The learned judge stressed that thismethod of construction—which has also been used inthe United States—is only justifiable where the refer-ence is to a plurality of legal systems, representing aninternational majority or those having particularlyclose contacts with the national system in which theproblem for decision has emerged. It is apparent thatthere is all the world of difference between that tech-nique—which was formerly used frequently in Scotland—and the pseudo-comparative approach so often usedin modern times in this country of using the otherBritish system alone for purposes of comparison,irrespective of whether the basic principles are thesame. Scots law, I again contend, has particularrelevance for the "harmonising technique " either injudicial decision or codification, because the systemsof Anglo-American and Civilian inspiration are alike" neighbours."

I can mention only these two examples to illustratemy contention that, by maintaining the Civilian tra-dition, Scots law may, as Professor Friedmann hasdiscerned, be of considerable value to British justice,as the nations of the world are impelled to reach for


common solutions for common problems. Meanwhile,significantly, the American Law Institute and manyresearch centres in the United States, manned byscholars often of European origin, have developedEnglish law in America into a much more cosmopoli-tan system than is the indigenous product. Americanlaw has gone further to meet the civil and the Scotslawyer half-way, and in international legal discussionsthis is important. What is in my mind, of course,when I suggest caution against precipitate assimilationof Scottish and English law, are problems such as onewould find in the civil code, say, of France. WithinBritain itself a measure of greater uniformity is cer-tainly desirable in many legal matters which affect thecountry as a whole. A vast amount of law is alreadycommon to Scotland and England—as a glance atCurrent Law will illustrate. Scottish criminal lawprocedure can, however, best further British justiceby providing a pattern for consideration by Englishlawyers, but without merger. I would stress in par-ticular that we must not surrender key principles ofprivate law—especially when, though relevant toBritain today, they may be relevant to Europe tomor-row. Moreover, when particular reforms in the lawof Scotland—or England, or both—are deemed neces-sary for domestic ends, surely it is highly desirableto consider the contributions of other systems ofjurisprudence in the world. To proceed merely onBritish experience seems both a smug and short-sighted policy.

Clearly, of course, Scots law has already been livingtoo much on the credit of past achievement; and,


lacking adequate modern literature, some Scottishpractitioners and authors have resorted too much torash and uncritical borrowing from English reportsand treatises. There has been surprising neglectrecently of Civilian sources—Roman-Dutch and SouthAfrican law in particular—which provide especiallyvaluable material for such topics as obligations andmoveable property. The main subverters of Scots lawin modern times have been the Scots. Uncertaintyhas resulted from this phase of " Whoring afterStrange Gods," which I have discussed on an earlieroccasion.28 The time for reappraisal has come. TheScottish Universities Law Institute came into beinglast year, and received generous financial encourage-ment from the Carnegie Trust to further its publishingpolicy. Within ten years we may hope to see themain divisions of Scots law restated in up to twentycomprehensive treatises, faithful to the traditions ofthe past, but written for the modern world. I believethat the comparative researches of the authors willcompensate in part for the reluctance of contemporarypractitioners to turn to works in a foreign languagewhich may be more relevant than English texts.29

When this task is achieved, we should be betterequipped to further the cause of British justice athome and abroad. Meanwhile I trust University LawFaculties will give due emphasis to the study of

28 1959 Jur .Eev . 119.29 The Engl ish language as a medium of Engl ish law is a subject

for research in itself. Not even codification in Louisianaprovided adequate protection against pseudo-comparative in-fluences. The present situation in Israel gives warning ofproblems soon to be faced by Ceylon and Ind ia , if Engl ishceases to be language of the courts.


European Organisations and of Comparative Jurispru-dence—so dear to Miss Hamlyn's heart.

To the wooing of Lord Denning on behalf of Englishlaw, therefore, for Scots law I should answer cour-teously : " You honour me, my Lord, but I cannotmarry you; and will be mistress in my own house.Let us remain good friends and share our thoughts,for we have much in common—but less, perhaps, thanyou sometimes realise. Though I know you are shywith foreigners, still I want you to get to know myrelatives on the Continent and overseas."

In the summer of this year, the British Governmentannounced its intention of seeking entry to the Euro-pean Economic Community.30 In 1707 Scotland cameout of Europe to go into Britain—sacrificing hersovereignty (as did England) to the new Kingdom—but she still preserves much of her European legaltradition. If Britain is " t o go into Europe "—forScotland this would mean "returning to Europe";and at this moment of time Scots law and Scotslawyers could make an invaluable contribution to arapprochement between Continental and Anglo-Ameri-can law. Any eventual unification and codificationof certain aspects of law should be considered in thecontext of a wider unity than Britain alone, whereinScots law would not represent the views of a nationalminority but those of an interpreter and reconcileramong nations. Scots law, indeed, in the twentiethcentury may yet make its greatest contribution everto the achievements of British justice.30 See correspondence, The Times, July 31 and August 7, 1961;

article " Scots Law and the Common Market," GlasgowHerald, August 17, 1961.

INDEX

Aberdeen University, 10, 184abuse of rights (aemulatio

vicini), 166-168accession in crime, 109-110accused person, evidence of,

127-135actio injuriarum, 158-160, 165-

166Admiralty Court, 23, 57, 62, 71,

72adopted children, 143Advocates Depute, 116Advocates, Faculty of (Scottish

Bar), 17, 56, 59, 78, 79, 82,88

Advocates' Library, 14, 17African legal systems, 39-40.

See also South Africa,age of criminal responsibility,

102Aikman Smith, J., 81Aitchison, Lord Justice-Clerk,

98aliment (maintenance), 147,

153-154, 156Alison, Archibald, 115Allen, Sir Carleton K., 1, 2America. See United States of

America.American law, 34-35, 37-39, 42,

163, 171, 195, 215, 222, 226American Law Institute, 226Ancel, Marc, 13Anglo-American common law,

5, 45, 188, 214, 224. Seealso American law; Englishlaw.

animals, liability for, 161-162animus iniuriandi. See actio

injuriarum.; insult.Anton, A. E., 34, 35, 149, 194

Appeal, Scottish Lords of, 50-51, 221

appeals,civil, 70. See also to House

of Lords, infra.criminal, 21, 91, 95to House of Lords, 18, 21,

25, 33, 50-51, 66, 68, 75-76, 83-89

Aquilia, actio ex lege. Seeculpa (fault).

arrest, 74, 120. See also deten-tion.

arrestment for debt, 153Artificial Insemination, Fever-

sham Committee on Hu-man, 143, 144

Ashton-Cross, D. I. C , 149,172

assignation (assignment), 185assythment, 159Atkin, Lord, 215

bail, 120-121Balfour, Sir James, 11, 23Bankton, Lord (McDouall), 14,

15Baudouin, L., 162Bell, G. J., 15, 16, 18, 43, 181Birkenhead, Earl of (F. E.

Smith), 47, 58, 193, 195Bisset, Habakkuk, 23Blackstone, Sir W., 34, 37, 38Bolgar, Vera, 183bona fides, 177-178Braxfield, Lord, 107Brodie-Innes, J. "W., 218Burchell, E. M., 113

Cameron, Lord (former Dean ofFaculty), 72

229S.H.L.—16

230 Index

Campbell, Lord, 47, 49, 73Canada, 4, 36, 41, 191, 215canon law, 20, 96, 142, 147-

148, 155, 159, 194, 200capacity, legal, 145-147capital punishment, 21, 22,

107-108, 113, 114Carnegie Trust for Universities

of Scotland, 227Centlivres, Chief Justice A. van

de S., 209Ceylon, 4, 37, 156, 191, 227Cheshire, G. C, 33children, 102, 142-147Church,

Episcopal, 199-200of Scotland (established), 29,

62, 80-81, 199-201, 206Roman Catholic, 199-200

civil imprisonment, 153-154civil (Roman) law, 7, 12-13, 18,

20, 40, 54, 67, 76, 90, 95,111, 112, 126, 155-159, 162,169, 175-180, 182, 184, 186,188, 194, 224

Clyde, Lord President,(first), 98(second), 133, 185

Cockburn, Lord, 65, 86Colonial (now Overseas) Legal

Service, 45Columbia, District of, 222Commissary Courts, 57, 71, 164common interest, 183confessions, 133-135conspiracy, 109, 167-168contract, 155, 157, 172, 173,

174-181, 190contrat d'adhesion, 176-177Cooper, Lord, of Culross, 4, 18,

58, 65, 79, 96, 141, 157,176, 177, 203, 204, 209, 217

corroboration, 122, 126Court of Session (College of

Justice), 11, 54-59, 62, 63,66, 69-73, 82-86

Craig, Sir Thomas, 11crimes,

categories of, 97-101,110-115declaratory powers of judges,

97-101, 109, 112Criminal Courts. See Justici-

ary, High Court of; SheriffCourts.

criminal law, 21, 95 et seq.criminal libel (injuria), 111Crown, proceedings against,

198-199Crown Office, 89, 96, 100, 115

120, 122culpa (fault), 52, 158-166culpable homicide, 112-117curator. See guardian.cy-pres (approximation), 190

dangerous driving, causingdeath by, 115

Darien, 38David, Rene, 5Davies, D. J. Llewelfryn, 35Dawson, J. P., 172Deas, Lord, 107defamation, 158-160, 163-166delict, 156-168Denning of Whitchurch, Lord,

39, 40, 43, 46, 67, 156, 163,214, 217, 219, 222, 228

desertion, 149^150detention, unlawful, 121, 197Dias, R. W. M., 162Dicey, A. V., 208Dietze, G., 211diminished responsibility, 90,

104-108, 117diplomatic privilege, 27Dirleton, Lord, 11divorce, 149-152dole. See mens tea.Domat, J., 15Donoghue v. Stevenson, 51, 52,

78, 160drunkenness, 104-105Dunedin, Lord, 14, 50, 87, 167Durie, Lord, 11

Index 281

Edwards, J. LI. J., 107Eldon, Lord, 71, 73Elliott, W. A., 99Elphinstone, Bishop, 10English law,

migration of, 35-43passim. See also appeals,

House of Lords,equity, 7, 15, 20, 34, 42, 68,

190error, 102, 179Erskine, J., 14, 15, 18, 43, 46,

47Erskine, Lord Chancellor, 68European Economic Community

(Common Market), 27, 29,228

Eyershed, Lord, 79, 215evidence and procedure,

civil, 75-77criminal, 122-135

Exchequer Court, 62-63, 71, 72executors, 194

fault, Aquilian. See culpa(fault).

feudal law, 10-12, 20, 182-183fideicommissum, 188-189Fifoot, C. H. S., 48Finlay, Lord, 49, 50France, 9, 10, 13, 14, 16, 25-

26, 36, 55, 182-183, 188,189, 206

Francescakis, P., 25, 149fraud, 177-179Friedmann, W., 4, 225frustration of contract, 169-172fugitive offenders, 27

Gibb, A. Dewar, 68, 84good faith. See bona fides.Goodhart, A. L., 1, 2, 35Gough, J. W., 207-208Gow, J. J., 178, 181Grotius, H., 12, 15, 23, 24, 173guardian, 145-147

Haldane, Lord, 46, 47Hamson, C. J., 1, 37Hanbury, H. G., 219, 223Hanover, Prince Ernest Augus-

tus of, 25-26Heard, Cardinal, 200Henderson, H. McN., 184heritable jurisdictions, 60Hiemstra, Mr. Justice, 165hire-purchase, 176, 186Holdsworth, Sir W., 47, 73holograph, 192Homicide Act, 1957...32, 103,

107, 112, 114Hope, Sir T., 11, 16House of Lords, 8, 18, 19, 21,

42, 50, 59, 65-71, 73, 75,83-89, 93, 95, 171, 210,217-218, 221. See alsoParliament.

Huber, U., 34Hume, Baron, 15, 20, 95, 97-

99, 110, 165husband and wife, 148-155

India, 42, 227" innocent " misrepresentation,

178-179insanity, defence of, 105-106institutional writers, 12-16, 20,

97, 167, 170, 180insult, 158-160, 165-166international law,

private, 33-35public, 22-24

intestate succession, 193Israel, 227

Jacobite Eisings, 16, 60, 64, 65judicial examination, pre-trial,

128, 130-134judicial separation, 152-154jury, 73, 74, 126Justiciary, High Court of, 57,

59, 62-65, 68, 72, 89-92,96, 101, 118, 121, 211

Justices of the Peace, 60-61, 92juvenile courts, 92

232 Index

Kames, Lord, 14, 15, 17, 34,42, 43, 63, 165, 199, 211

Keith of Avonholm, Lord, 107,108

Kent, J., 43Kilmuir, Viscount, 35, 46, 47King, A., 23Kisch, I., 224

Land Court, 80landownership, 181-184. See

also feudal law.Law Institute, Scottish Uni-

versities', 227Law Society of Scotland, 56, 88lawful defence, 102Lawson, F. H., 1, 3, 175Lee, E. W., 157, 165legal education, 17-18. See

also universities, Scottish.legal profession, Scottish, 10,

12, 56, 78-79legal rights in succession, 191-

192Levy-Ulmann, 4, 214, 224liberties, basic, 196-198Lord Advocate, 116-120, 221Lord Justice-Clerk, 59, 70Lord Justice General, 59Lord President, Court of Ses-

sion, 70Lords Ordinary, 70Loughborough, Lord, 46, 47Louisiana, 4, 227Lyon Court, 80

MacCormick v. Lord Advocate(E. I I E. Case), 203-204,209, 212

Macdonald, Sir J. H. A. (LordKingsburgh), 98

Mackenzie, Sir George, 9, 13,14, 20, 38, 95, 107

Mackintosh Committee, 193-194Maclaurin, J., 110Macmillan, Lord, 50, 171McNair, Lord, 22, 24

McNaughten Eules, 32, 105,107

maintenance. See aliment(maintenance).

Maintenance Orders Act, 1958...154

Mancroft, Lord, 164Mansfield, Lord, 7, 14, 16, 20,

33-35, 37, 46-49, 68, 170,175, 196

marriage, 147-149, 152Marshall, Chief Justice, 211Maugham, Lord, 215Members of Parliament, Scot-

tish, 212, 221-222mens rea, 97, 101-108mercantile law, 8, 16, 20military law, 30-33minor. See children.Mitchell, J. D. B., 199" mixed " systems, 4, 30, 217,

220murder, 112-115, 117Murray, C. de B., 93

Nadelmann, K. H., 34, 35, 42Nairn, Katherine, 68-69natural law school, 12, 17, 155naturalisation, 24-27negligence. See culpa (fault).

contributory, 162negotiorum gestio, 169Netherlands, 12-14, 17, 18, 36,

37, 206Newbattle, Lord, 58nobile officium, 90, 197Normand of Aberdour, Lord,

23, 58, 200, 203, 224Northern Ireland, 221" not proven " verdict, 126Nova Scotia, 38

Oyer and Terminer, Commis-sioners of, 64-^5

obligations,obediential, 156-172, 195voluntary, 172-181, 195

Index 288

occupiers' liability, 86-87, 161offer, 173-174Orkneys, l8Sownership, 185-186

Parliament, 18, 32, 44, 64, 66,202-213, 226

Parliament House, 79Parliament Scottish, 205, 207-

208" particular duty," 162Paterson, J., 218patria potestas, 144patronage, lay, 200penalties and liquidate dam-

ages, 180Plucknett, T., 53, 83Porter, Lord, 171Pothier, M., 15, 16, 173Pound, Eoscoe, 215Powell, E., 178precedent, 84-87, 91pre-trial procedure, 120-125Price, T. W., 162, 165private prosecution, 117-120privity of contract, 188Privy Council,

British, 8, 39-42, 180Scottish, 62, 63, 211

prize jurisdiction, 72procedure. See evidence and

procedure.Procurators Fiscal, 116, 119,

122, 128promise (yollicitatio), 157, 172-

174property, 181-191provocation, 102-103, 108pseudo-comparative law, 19,

162, 198, 225, 227psychopathic personality, 107publicity, pre-trial, 122-125pupil. See children.

quasi-contract, 156, 168-172,190

quasi-delict, 157, 168Quebec, 4, 42, 156, 191

recompense, 168-171Kedesdale, Lord, 26Eeformation, 147, 194registration

of title, 182-183of writs, 182-183

reparation. See delict,restitution, 168-171Eobertson, Lord, 86, 166Eoman law. See civil (Eoman)

law.Eoman-Dutch law, 12, 37, 165-

166, 227runaway marriages, 28-29, 147-

148Eussell, Lord, 212Rylands v. Fletcher, 161

sale of goods, 178-179Schlesinger, E. B., 224Schnitzer, A. F., 213Scottish Affairs, Eoyal Commis-

sion on, 72, 88Scottish courts—mediaeval, 53-

54Seavey, W. A., 172Secretary of State for Scotland,

117Seton, Lord President, 58Shaw of Dunfermline, Lord,

171Sheriff, 53, 60, 71, 81-83, 91-

92, 120, 123, 130-134Sheriff Courts, 53, 61, 70, 79,

80, 81-83, 91-92, 116, 119,125

Shetlands, 183Signet, Society of Writers to

H.M., 56Simon of Wythenshawe, Vis-

count, 167-168slander, 163-166solicitors, 56South Africa, 4, 40, 156, 165,

180, 188, 191, 227Southern Ehodesia, 40specific implement, 179Spottiswoode, Sir E., 11

23* Index

Stair, Viscount, 6, 9, 12-15, 18,23, 38, 43, 58, 156, 173,175, 208, 213

Stein, Peter, 11, 55stipulatio alteri, 173, 188Stormont, Parliament at, 212Story, Joseph, 43succession, 190-194suicide, 110-111Supreme Court of U.S.A., 46,

134, 211

Taylor,_ Sir T. M., 24, 96, 184territorial waters, 24Thankerton, Lord, 50Thomson, L. J.-C, 150treason, law of, 64-65, 96, 110" trespass," 161, 164trusts, 186-191type contracts, 175-176

udal law, 183Union of 1707...14, 16, 23, 33,

37-38, 45, 61-69, 95, 119,200-213

United States of America, 36-37, 45-46, 206, 207, 210,222, 225, 226

universities, Scottish, 10, 54,93, 184, 227

unjustifiable enrichment, 156,168-172

Uthwatt, Lord, 166

verbal injury, 158, 163-1G0Voet, J. and P., 15

Wade, E. C. S., 219Walker, D. M., 17, 190Walker, Lord, 109, 152Watson, Lord, 166Welwood, W., 23, 24Westlake, J., 35Wheatley, Lord, 143, 154Williams, G-lanville L., 100,

107wills (testate succession), 192-

193Wilson, James, 42Winfield, Sir Percy, 162Wootton, Lady, 107

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