Scotland Magazine Issue 82
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The Law of the Land
James Irvine Robertson unravels the differences
between separate systems
The Act of Union of 1707 that created Great Britain left some Scots institutions intact. To keep the clergy on side, the independence of the Church of Scotland was guaranteed. Its ministers still had their doubts until William Carstares, Principal of Edinburgh University and four times Moderator of the General Assembly, pointed out that without a Union, Scotland would likely end up with a Stuart (a Roman Catholic), monarch on the throne on the death of Queen Anne. This argument won them over. The universities remained separate and the Scots legal system maintained its autonomy.
Both Scots law and English law originated in the 12th and 13th Centuries but they developed very differently. England built upon itself to form common law and this was exported to the colonies, including the US where it was used by the Federal Government and by all the States with the exception of Louisiana, thanks to its early French and Spanish influences. Scots law has a mixed system. It incorporates the ancient tribal laws of the Picts and Scots, feudal law, and civil law.
Poor relations between the two countries for so long meant that Scotland looked to continental Europe, especially the Netherlands, for ideas when the rules that bound society became more complex. Students had been going to the continent to study for centuries. In 1495, King's College, Aberdeen was founded to teach law as in the universities of Paris and Orléans. Where there was no native Scots legislation to settle a dispute, civil law, based on the Roman code of Justinian written in the 6th Century, was incorporated into Scots law.
The essence of the difference between the two systems is that under common law precedent is binding. This is not so in Scots law. The judge is allowed, and indeed must, look to reason and justice in deciding the case before him. In two famous cases concerning slavery the difference can be seen. In the case of Somerset v. Stewart in 1772, the Chief Justice of the King's Bench Lord Mansfield, himself a Scot, avoided the question of the legality of slavery itself, only answering the narrow question that he was asked. He decreed that a slave could not be forcibly removed for sale in another country, as he could not be described as a moveable chattel.
In 1777, in Knight v. Wedderburn, Lord Kames in Edinburgh stated that 'We sit here to enforce right not to enforce wrong' and ruled that ‘the dominion assumed over this negro, under the law of Jamaica, being unjust, could not be supported in this country to any extent.'
As society continued to develop, Scots law began looking across the border for comparisons, particularly in the subject of insurance and trade law where English courts had far greater experience that those of Scotland. The Act of Union put a higher court in London, the House of Lords, above the Court of Session. By convention two of its judges were Scots and this is also so with the Supreme Court, its modern successor. Since 1707, British law has been enacted from Westminster for the whole of the United Kingdom. Today, of course, European law applies, as well as law enacted by the Scottish Parliament.
When the political legislature moved to London after the Union, Parliament House in Edinburgh became the senior seat of the law in Scotland. There sit the 34 Senators of the Court of Justice who preside in the Court of Session for civil cases and the High Court of Justiciary for criminal. Most cases are tried by Sheriffs, judges within the six Sheriffdoms into which the country is split. Justices of the Peace can now decide minor offences. Most lawyers are solicitors, the old term for which was 'a writer.' The elite were known as Writers to the Signet. They used to supervise the use of the King's Seal. The initials WS after a lawyer's name means that he is a member of the Society, but this is now a private society and its function is to encourage excellence within the profession.
The equivalent of an English barrister is an advocate who presents cases before the senior courts. Senior advocates like senior barristers can be appointed Queen's Counsel and, because of the robes they wear, are said to 'take silk'. Historically an English barrister learned his trade on the job. On the other hand, an advocate would be highly educated, often on the continent. During the 18th Century, lawyers such as Lord Kames – a senior Scots judge takes the title of 'Lord' – Lord Monboddo, and James Boswell, were leading figures in the Scottish Enlightenment.
Of course, Scots law and English law have been moving closer for centuries but there are still significant differences. In Scots Criminal Law, each fact requires corroboration from an independent source before conviction. There are three possible verdicts – guilty, not guilty and not proven. This last means that the jury of 15 (not 12 as in England) knows very well that the defendant before them is a rogue, but the prosecution had not made the case.
Anyone aged more than 12 can make a will and sixteen year olds can marry without parental consent. South of the border, the age must be eighteen in both cases. In Scotland, children cannot be disinherited.
In Scottish divorces, all assets acquired from the date of marriage up to the date of separation (not divorce) are divided fairly which usually means equally. Maintenance is usually restricted to three years.
A clean break is the aim.