Legal Study in Utrecht in the late 1740s: The Education of Sir David Dalrymple, Lord Hailes

This chapter considers the experience of one Scottish student in the Netherlands, specifically the education of Sir David Dalrymple, third Baronet of Hailes (1726–1792). Unusually for a Scots lawyer of his era, he was educated at Eton and was admitted to the Middle Temple on August 8, 1744. In 1745 he moved to study at the University of Utrecht, remaining there until 1747. After public defence of his theses on February 20, 1748, he was admitted to the Faculty of Advocates in Edinburgh on February 24. He was elevated to the Bench of the Court of Session in 1766, taking the judicial title of Lord Hailes. In 1776 he was also appointed one of the Commissioners of the Justiciary Court. Hailes is best remembered, however, for his work as an historian, particularly of the Middle Ages in Scotland.

Advocates’ Hats, Roman Law, and Admission to the Scots Bar, 1580–1812

This chapter presents a detailed study of actual admissions and of modes of admission as an advocate, almost from the foundation of the College of Justice to the Regency era, focusing on development of a set of examinations in Civil (Roman) law that came to replicate the exercises for examination in a university for the degree of Doctor of Laws. It was the focus on these examinations for admission that reinforced and perhaps even accelerated the tendency of Scots to acquire abroad the necessary knowledge and skills in Civil law that they needed to pass their ‘trials’. The symbolism of the trials reinforced the status of the advocates as learned gentlemen and linked their profession with that of advocates in other countries.

From Claves Curiae to Senators of the College of Justice: Changing Rituals and Symbols in Scottish Courts

This chapter discusses aspects of the ceremonies involved in constituting a court in Scotland in the Middle Ages, focusing on a sixteenth-century description of what were called the claves curiae, the ‘keys of the court’, necessary for its proper constitution. Analysis of this will then be followed by that of a later description of a ceremony of admission as a lawyer, a ceremony rich in ritual and symbolism. This description permits appreciation of the significant change in Scottish legal culture: a change that created a court dealing in the learned law of the ius commune, in the proceedings of which much was reduced to writing, deliberations were secret, and legal professionals were much more clearly in charge.

The Moveable Text of Mackenzie: Bibliographical Problems for the Scottish Concept of Institutional Writing

This chapter reflects on some technical issues raised by Early Modern books, and their potentially ‘moving’ texts within editions, as well as the significance of the development of texts through editions, as they are altered and often acquire a changing apparatus of notes. It sets out a reason to doubt the viability of the idea of an institutional writing or, indeed, that of an institutional writer, as a work, or author, of particular authority. It does so through an examination of the textual tradition of the Institutions of the Law of Scotland by Sir George Mackenzie first published in 1684. Mackenzie’s Institutions has been of immense importance in Scottish legal history. It is therefore important to locate the work within Mackenzie’s general oeuvre and intellectual concerns.

Eighteenth-Century Professorial Classification of English Common Law

This chapter assesses the work of Sir Robert Chambers by comparing it with that of other professors of English law. It focuses on the analytical structure Chambers gave to English law. The first part briefly discusses the early history of university lectures and, in particular, the adoption of the structure of Justinian’s Institutes. This is followed by an account of the problems encountered by professors of English law in setting forth their subject, and of the solutions they adopted. The third section provides a detailed analysis of the structure Chambers used for his lectures in comparison with that used by Blackstone. This is followed by some general conclusions and observations.

Alfenus Varus and the Faculty of Advocates: Roman Visions and the Manners that were Fit for Admission to the Bar in the Eighteenth Century

The Bar was a socially exclusive institution in most countries, even though it was in theory an open one. This chapter focuses on two curious episodes towards the end of the eighteenth century, when the Faculty unsuccessfully attempted to exclude two men — John Wright and Robert Forsyth — from membership. The debates among the Faculty arising from these episodes show the deployment of the language of manners, sentiment, and politeness, as well as argument about the traditional Roman models of what it was to be an advocate. To some extent, we can view these debates as helping redefine not only the advocates’ perception of themselves, whereby they moved away from identification with the Roman jurists, but also the role of Roman law in the training of the Bar. At the same time, the social composition of the Faculty was changing.

The Law, the Advocates, and the Universities in Late Sixteenth-Century Scotland

About seventy years ago, W. C. Dickinson drew attention to a document that, he argued, explained the failure of the project initiated on January 16, 1589 by the Lords of Council and Session to found a chair in Law in the University of Edinburgh. This unsuccessful attempt had been noticed in the standard histories of the university, but no satisfactory explanation of the failure had been offered. Based on the document, Dickinson argued that the the project failed because of the opposition of the Advocates, on whom the Lords of Session had relied for help with the necessary endowment. This chapter suggests there was more substance to the Advocates’ arguments against the proposal. Examination of the evidence shows that the Advocates had good reason for their views, and also throws valuable light both on the development of education in law in the Scottish universities and on the early educational aspirations for advocates.

Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State

The publication of Blackstone’s Commentaries in the 1760s initially gained a favourable reception. However, the criticisms made in 1776 by Bentham in the Fragment on Government did such serious damage to Blackstone’s reputation that, in the nineteenth century, among many scholars, his standing was low. This chapter argues that an important way of understanding Blackstone’s book is as an institutional work. This argument is developed in three parts: first, institutional writings as a genre will briefly be discussed; second, the recognition of this genre in England will be described; and third, Blackstone’s status as an institutional writer will be argued for, and the solution this provides to some of the problems related to his Commentaries will be demonstrated.

Three Unnoticed Scottish Editions of Pieter Burman’s Antiquitatum Romanarum brevis descriptio

This chapter examines the scholarly connections between Scotland and the Northern Netherlands through discussion of the publication of a Dutch textbook in Edinburgh to serve the needs of students at the university. The publication is scarcely a major episode in Scottish intellectual history. It is this that makes it particularly telling, for it demonstrates how much the Scots of the period operated in the scholarly world of the Netherlands and then propagated its values, not only in publications, but also in the classrooms of the Scottish universities. The impact of important individual works by noted scholars and intellectuals cannot be denied; the day-to-day influence of lesser works, however, was at least as important in propagating ideals, values and accepted knowledge. The textbook discussed here — Burman’s Antiquitatum Romanarum brevis descriptio — may not in itself be important, but its publication and use suggest significant new lines of inquiry in studying the Scottish Enlightenment.

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

This chapter traces the developments in Scots law from 1600 to 1830. The mindset of Scottish lawyers changed significantly over the course of the eighteenth century. In 1700, Scots law was best understood as representative of the usus modernus Pandectarum; there had developed in the seventeenth century, out of the older view of the ius proprium and the ius commune a Roman-Scots law, in which the ius civile was progressively integrated with Scottish material, all justified and rationalised by the ius naturale and the ius gentium. By 1800, however, the view that ‘the Civil Law was our Common Law’ seemed quite outdated. While well into the eighteenth century the term ‘common law’ had meant the Romano-Canonical ius commune, now it was used, rather in the fashion of England, in opposition to statute law: the lex non scripta as distinct from the lex scripta.