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The 18th century marks the Golden Age of Scots law - or at least of Scots lawyers. Advocates enjoyed a social and
intellectual eminence achieved neither before nor since. Three great masters of English prose - James Boswell, Sir Walter Scott and Robert Louis Stevenson - all trained in the law, have made Scots lawyers and Edinburgh
society in this Golden Age familiar the world over. Many members of the talented and eccentric Court of Session bench of this time, such as Lords Auchinleck (Boswell's father- the title 'lord' derived from his
being a judge of the Court of Session), Kames and Monboddo, all live in Boswell's Journals; Paulus Pleydell plies the advocate's trade in Guy Mannering, and poor Peter Peebles in Redgauntlet; while that scourge of
criminals and Jacobins, Lord Braxfield, is immortalised in Stevenson's Weir of Hermiston. Lawyers were never far from the centre of the Scottish Enlightenment. Prominent among them was Lord Kames, who in the course of a
busy public career covering more than 60 years found time to write copiously on many matters, including law and legal history. Kames's greatest influence, however, may well have been exerted through the spoken rather
than the written word, in the coffee houses and drinking howfs of Edinburgh's Old Town much frequented by the literati. 'We must every one of us acknowledge Kames for our master,' said Adam Smith at the
height of his career. Less complimentary was David Hume's remark to Smith, reported by Boswell: 'When one says of another man he is the most arrogant Man in the world, it is only to say that he is very arrogant. But
when one says it of Lord Kames, it is an absolute truth.' Be that as it may, Kames is a figure of international, and not merely Scottish, standing. Just as Adam Smith furthered the science of economics, and David Hume
the study of philosophy, the ideas of Kames and his contemporaries led to a fuller understanding of the very nature of law, and its functioning in society. Their work complements the French 18th-century philosopher
Montesquieu's Esprit des Lois, and underlies the modern disciplines of sociology, criminology and anthropology. Despite the brilliance of the contributions made to legal theory, the 18th century saw little active law
reform. Central government was not much concerned with the reform of private law, even in England. Fewer reforming statutes were passed than in either the preceding or the following century. A great deal of archaic
legal nonsense survived. The main alteration to the legal system, apart from the Union of 1707, lay in the abolition of the 'heritable jurisdictions' - the right of noble landowners to try certain cases - in 1747, after
the '45. All men would now look to the king's justice in the Sheriff Court. However, although there was little reform, there was much notable consolidation. The private law of Scotland had been
magisterially set forth by Viscount Stair, the greatest of our regal writers, in his Institutions of the Law of Scotland, first published in 1681. Stair's work was consolidated by Lord Bankton (Institute 1751-3),
Erskine of Carnock (Institute 1773), and George Joseph Bell (Commentaries 1800). The major writer on criminal law was David Hume, nephew and namesake of the philosopher. His Commentaries on the Law of Scotland
respecting Crimes (1797) is to criminal law what Stair's Institutions is to civil law. These authors set out Scots law logically and systematically, classifying it and deducing it from principle; a major achievement,
accomplished well in advance of comparable writing in England. There were, however, parallels on the Continent, where the systematic exposition of a legal system often culminated in the promulgation of a code as, for
example, in Prussia in 1794, or, more notably, in France with the Code Civile of Napoleon in 1804. By the end of the 18th century Scots law was ripe for codification. That it never was can be explained, in part, by the
English connection. The common law of England had been an important factor in the forging of a Scots common law in the 12th and 13th centuries. After the Union the influence of English law was bound to
increase once again; the power to make the country's laws now rested with a parliament in London, and the supreme court of appeal in civil cases was now the House of Lords. In the 18th century, however, direct English
influence was muted, although Scots writers introduced a strong comparative element into their books on law. The Union also opened up the possibility of a career in English law to the ambitious Scot. One of the greatest
of all English common law judges, Lord Mansfield (lord chief justice from 1756 to 1788), was a Scot, and the model for Dr Johnson's famous remark that much might be made of a Scotsman if only he be caught young enough.
Many others have followed in Mansfield's tracks: for example, the great Whig lawyer and politician, Henry Brougham (lord chancellor 1830-4), in the 19th century, and David Maxwell Fyfe, Lord Kilmuir (lord chancellor
1954-62), in the 20th. Until the appointment of Lord Mackay of Clashfern as lord chancellor in 1987, however, it seemed to many inconceivable that a Scot who was not also a member of the English Bar should attain the
highest legal office in the United Kingdom.  |
