LEGISLATION AND COURTS IN SCOTLAND

In 1686, Sir George Mackenzie of Rosehaugh, the able apologist for Stewart absolutism, wrote that “our Statutes … be the chief Pillars of our Law”. While seventeenth-century attitudes to the sources of Scots law are complex and ambiguous and most certainly do not quadrate with our own, an emphasis on the centrality of statutes, going beyond a simple view of them as having primacy in a hierarchy of sources, was common. In part, this was because some members of the bench were regarded as corrupt and ignorant. Moreover, believers in absolutism, such as Mackenzie, could claim that the statutes were made by the king alone, Parliament only consenting, so that focusing on statutes emphasised the direct link between the monarchy and the law. This approach also had the benefit of avoiding any awkward potential claims arising from the traditional argument that custom was valid through the tacit consent of the people.

One aspect of such a focus on statutes undoubtedly derived from a general Scottish view that the “native” sources of law were unsatisfactory. From the fifteenth century onwards, as well as promoting a reception of Roman law partly because of the perceived advantages of its written nature, this attitude had led to variety of attempts to reduce aspects or all of Scots law to statutory form. Thus, in September 1681, a commission was granted in Parliament “for revising the Laws”. The preamble noted “the many prejudices which arise from the great number of useles indistinct and undigested Laws” and the advantages that would accrue from having laws “not only just in themselves, but consonant to one another, purg'd from what is superfluous or intricat, and reduced into a free and plaine method, therby to establish constant and clear Rules”. Having studied all printed and unprinted statutes and all other sources such as customs and court decisions, the commissioners were “To collect and digest the Laws and Acts of Parliament, Customs, decisions, and formes of Process, into such order and methods as shall seem most fit and expedient to them”. They were “also to determine the true Sense meaning and Interpretation of all such Laws Acts and practicks, as are unclear or doubtfull in themselves, Or have or may receive divers senses or interpretations”.