Ethics and the Science of Legislation: Legislators, Philosophers, and Courts in Eighteenth-Century Scotland

This chapter examines how the jurisprudence of the Scottish Enlightenment influenced the reform of the Court of Session and its procedure. It first provides an overview of legislation and courts in eighteenth-century Scotland before discussing the idea of the ‘legislator’, with particular emphasis on some of the attitudes taken to it and the ambiguities of the term. It then considers the development of ethical theory in Scotland during the period, along with Adam Smith's legal philosophy. It also analyses Smith's science of legislation and its implications in the context of Scottish legal history. It concludes by showing how Scottish rejection of ethical rationalism and Smith's science of legislation provided what can be described as a sustained critique of the contemporary structure of the Court of Session and of its operation.

John Millar’s Lectures on Scots Criminal Law

This chapter focuses on John Millar's lectures on Scots criminal law as Regius Chair of Civil Law in the University of Glasgow from 1761 to 1801, along with his legal philosophy and approach to Scots criminal law. It first explains how Millar's Smithian analysis of law led him to argue that punishment was based on the need to right wrongs done. It then examines how others, including earlier law professors, had classified Scots criminal law. It shows that Millar's particular approach to Scots criminal law meant that some crimes could be considered simply as crimes against society and punished purely on the grounds of police or utility, not on that of justice. The chapter concludes with an epilogue that takes into account Millar's influence on his pupil, David Hume, and through Hume, potentially on modern Scots criminal law.

The First Edinburgh Chair in Law: Grotius and the Scottish Enlightenment

This chapter examines the development of teaching from the chair of Public Law and the Law of Nature and Nations at the University of Edinburgh during the Scottish Enlightenment, with particular emphasis on the intellectual content of the classes and the politics of professorial appointments. For the first half-century, law teaching from the chair was intermittent. However, this does not mean that the holder was incapable or unlearned. When the holder of the chair did teach, the class was based on Hugo Grotius' De iure belli ac pacis libri tres. The chapter first provides an overview of legal education in Scottish universities before profiling the law professors who were appointed to the new chair between 1707 and 1831, including Charles Areskine, William Kirkpatrick, George Abercromby, Robert Bruce, James Balfour, Allan Maconochie, and Robert Hamilton. Robert Bruce was the last holder of the chair to teach Grotius' natural law.

The Noose Hidden Under Flowers: Marriage and Law in Saint Ronan’s Well

This chapter explores issues of the law on marriage in novels by Sir Walter Scott, focusing on Saint Ronan's Well. In a number of ways, Scott's novels can be viewed as offering a commentary on Scots law and society. Legal themes that emerge from them can indicate more general contemporary legal concerns. This general point has been demonstrated in Bruce Beiderwell's argument that the Waverley novels made an important contribution to general discourse about crime and punishment at a crucial period in the development of new penal strategies and of reform in the criminal law. The chapter argues that the theme of marriage is central to Saint Ronan's Well and shows that the novel offers a harsh critique of aspects of the Scots law on the constitution of marriage and, at another level, of that other union — the political one of Scotland with England.

Stoicism, Slavery, and Law: Grotian Jurisprudence and its Reception

This chapter examines the Scottish legal system's engagement with slavery in the eighteenth century as well as Hugo Grotius' thinking on Stoicism and law and its impact on later jurisprudence. Extensive involvement of Scots with the Empire in British North America, the Caribbean and India led to the presence at home of enslaved men and women of African and Indian descent. This created a number of difficulties and challenges for Scots law. The chapter first provides an overview of the problem of slavery in Scotland, along with Stoicism and Neostoicism, before discussing Grotius' account of natural law. It then considers slavery in Grotius' De iure belli ac pacis libri tres before discussing how arguments from the ius naturale and ius gentium as set out by Grotius could be used to justify slavery. It also analyses four civil cases concerning slavery in eighteenth-century Scotland.

The Origins of the Glasgow Law School: The Professors of Civil Law, 1714–1761

This chapter examines the establishment of legal education in the University of Glasgow in 1714 and its development over the next five decades. The University of Glasgow established a chair in Civil Law in 1713, gaining funding through an allocation by the Crown from ‘King William's Gift’. Although the University was allowed to appoint the first professor, the chair was thus a Regius Chair, with appointments thereafter made by the Crown. This was to cause problems for the law professors when they tried to ensure the appointment of candidates whom they favoured. The chapter considers why the University of Glasgow founded a chair in Law; how the first professor, William Forbes, came to be appointed and why he desired the position; his tenure of the chair; and the appointment and tenure of his two immediate successors, William Crosse and Hercules Lindesay.

A Note on The Bride of Lammermoor: Why Scott did not Mention the Dalrymple Legend until 1830

This chapter examines issues of the Scots law on marriage in Sir Walter Scott's novel, The Bride of Lammermoor. As first published in 1819, The Bride of Lammermoor opened with Peter Pattieson's account of the life of Dick Tinto, a painter, and of their discussions on the respective merits of narrative in the novel and in the pictorial arts. Neither Tinto nor Pattieson — nor, for that matter, Jedediah Cleishbotham as editor — referred to the story of the unfortunate Janet Dalrymple. The chapter argues that what restrained Scott in 1819 from mentioning the legend of the marriage of Janet Dalrymple were the severe and well-publicised marital problems of John William Henry Dalrymple, who was to succeed in 1821 as seventh Earl of Stair. It also considers a court case which illustrated the problems Scott perceived and also affected his discussion of The Bride of Lammermoor.

“Famous as a School for Law, as Edinburgh … for Medicine”: Legal Education in Glasgow, 1761–1801

This chapter examines legal education in the University of Glasgow during the period 1761–1801, focusing on John Millar's tenure as chair of Civil Law. Millar succeded Robert Davidson, who failed to attract students in part due to the location of the University. Millar turned Glasgow from a minor law school with very few students to a major centre of legal education. A pupil of Adam Smith, Millar taught Smith's jurisprudence in all his courses at some level or another. He used Smith's theory of rights to understand and to structure his courses in Civil Law. The reasons for Millar's success were complex, but they seem to lie in his expansion of the Glasgow law curriculum, in the content of his courses and in his abilities as a teacher, as well as in the weakness of legal education in contemporary Edinburgh during crucial periods of his tenure.

Lawyers, Law Professors, and Localities: The Universities of Aberdeen, 1680–1750

This chapter examines the development of law teaching and professional education in the universities and town of Aberdeen during the period 1680–1750. Aberdeen is particularly interesting in this context. It had two universities: King's College and University (founded 1495) and Marischal College and University (founded 1593). As in Edinburgh, the largest professional group in Aberdeen was that of the lawyers. The basic problem for the two Aberdeen universities was locality. The Faculty of Advocates wanted law to be taught close to Edinburgh, preferably in Edinburgh itself. The Advocates wanted classes to prepare students for the Advocates' examinations; they wanted them taught by law professors whom they knew and whose appointments and tenure they could influence. Aberdeen was simply too distant and too subject to local pressures. The chapter considers why the location of Aberdeen doomed it to failure as a potential site of a law school during the period.

Hamesucken and the Major Premiss in the Libel, 1672–1770: Criminal Law in the Age of Enlightenment

This chapter examines prosecutions for hamesucken between 1672 and 1770, the first date being that of the establishment of the refounded Court of Justiciary. One of John Millar's last surviving letters is to John Wilde, the Professor of Civil Law in Edinburgh, discussing a recent conviction for the crime, expressing his view that hamesucken had fallen into disuse. The chapter considers how arguments were developed in framing the major premiss in the libel from the law of nature and nations, a practice which also allowed influence from English criminal law. It begins with a discussion of procedure in criminal trials during the period, followed by an analysis of the law of hamesucken as found in treatises and the practice of the Justiciary Court. It also looks at the 1752 trial of James Macgregor before concluding with some remarks on marital rape.