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Continuity, Influences and Integration in Scottish Legal History: Select Essays of David Sellar, edited by Hector L MacQueen (Edinburgh Studies in Law, Edinburgh University Press, 2022)

By Hector MacQueen, Emeritus Professor of Private Law, University of Edinburgh

David Sellar (1941-2019) was a pioneering historian of Scots law who convincingly and conclusively rejected previous interpretations of the subject as a series of false starts and rejected experiments. He emphasised instead the continuity of legal development in Scotland, with change a process of integration of external influences with indigenous customs from very early times on. Thus down to the present Scots law embraces Celtic and other customary elements reaching far back into its past, while also having been open to innovation from the developing Canon, Civil, Feudal and English Common law since the middle ages. This too has left deep marks upon the law’s character as a “mixed legal system”.

David’s approach, articulated mainly through essays published in diverse places over four decades, has had significant influence upon general understanding of legal history in Scotland as well as leading to appreciation elsewhere of its comparative significance. Gathering his major essays together in this single collection demonstrates the scope and reach of David’s overall contribution; it is perhaps an approximation to the monograph that he was not spared to write. What distinguishes the contribution from others in the field is the perspective that David himself brought to bear, which was one no other writer in the field could achieve, especially in relation to Celtic and Canon law.

The book’s first Chapter is David’s most general treatment of Scottish legal development from the period before 1100 down to the near present. Although this essay was jointly published by the Saltire and Stair Societies in 1991, and he did much subsequent further research, it remains the best introduction to the ways in which David saw his contribution as differing from those who had gone before him, as well as providing an overview against which the subsequent chapters may be set. It originally formed part of the matter with which a Saltire Society pamphlet on the Scottish Legal System, written in 1949 by Lord President Cooper (1892-1955), was updated. Cooper’s writings in the 1940s had established the prevailing orthodoxy on the general development of Scots law from the middle ages on when David began his own researches at the end of the 1960s.

Cooper’s reiterated view was that the story of Scots law was one of “false starts and rejected experiments”, ending only with the 1681 publication of the seminal Institutions of James Dalrymple, Viscount Stair (1619-1695). The book came in the nick of time to save at least Scots private law from the fate of absorption into English law after the Anglo-Scottish Union of 1707. Borrowing from England had been the false start and the rejected experiment of the “Scoto-Norman” period before 1300; there had then followed a “Dark Age” for the system. From this it began to be rescued by the development of a central court (the Court of Session) in the sixteenth century, the emergence of a legal profession around that court, and (resulting in part from the education of many members of that profession in the law schools of continental Europe) a reception of the learned Roman law as taught in the universities. The end result, systematised by Stair in particular, was something quite distinct from English law, and it was expressly preserved by the Treaty and Acts of Union in 1707, along with a separate legal system within the newly united kingdom of Great Britain.

Like Cooper before him, David was most interested by the medieval period of Scots law. In part this sprang from his other central research interest, Highland and islands history and genealogy, and that clearly informed the fresh contribution that he was able to make to Scottish legal history. Where Cooper had (despite his own maternal ancestry) simply passed over any Highland and islands dimension to legal development, David dug deep, not only into the Celtic law of the Highlands and the western isles, but also the Udal law of Orkney and Shetland. He was able to show that in at least some aspects these continued to form part of current Scots law and must therefore have had a continuous history despite sitting alongside the other strands of influence identified by Cooper (Chapters 1-3). A key example of an institution reaching far back into the Celtic past, dealt with in what was a posthumously published paper, was Lord Lyon King of Arms, which office David himself held with distinction from 2008 to 2014 (Chapter 4). Another example, although one that had apparently disappeared in the course of the nineteenth century, was the birlaw, where Norse influence, probably mediated through the English Danelaw rather than the northern isles, was crucial in the development of a long-lasting customary form of local dispute settlement (Chapter 5).

David agreed with Cooper in seeing the twelfth- and thirteenth-century expansion of Scottish royal justice as heavily influenced by the contemporary growth of English royal justice to become the enduring institution of the Common Law. But, helped by studies of specific topics by Harding, Barrow and others written in the decade and a half following Cooper’s death, David saw royal justice as much more significant in its own right than Cooper had allowed, and he differed from Cooper in seeing that English influence not being cut off by the Wars of Independence between 1296 and the mid-fourteenth century (see Chapters 7 and 8). The institutions of the Scottish common law such as the itinerant justiciar and the locally based sheriff established over the previous 200 years continued to operate along with the feudal structure of land law (including succession to land) which also took shape in Scotland the century after the Norman conquest of England in 1066. There was of course further development as well as continuity in these aspects of the system, with the justiciar becoming the modern Lord Justice General at the head of the High Court of Justiciary in the seventeenth century and the law’s feudal aspects being continuously adjusted and reformed until brought to an end by the Abolition of Feudal Tenure etc (Scotland) Act 2000.

David contended in 1981 that this continuing English influence could also be detected in Stair’s Institutions, in particular in the “ancient and immemorial customs” of the law of succession to land, which were derived from the Common law of Anglo-Norman England (Chapter 6). Stair had further pointed out that Scotland, like England, regarded ancient custom as its common law, “anterior to any statute and not comprehended in any, as being more solemn and sure than those are.” Also similar to English practice was Stair’s use of court decisions as recent custom and a source of law.  “In a sense,” David wrote in a later contribution not included in the collection, “the story of custom as a source is the story of the common law of Scotland itself” (W D H Sellar, “Custom as a source of law”, Stair Memorial Encyclopaedia vol 22 (1987) para 355).

The theme of English influence and the customary basis of Scots law was developed even more strongly in a paper (not included in the present collection because most of its ideas were developed in greater depth in subsequent publications which have been included, notably Chapters 7, 8, 11-13: W D H Sellar, “The common law of Scotland and the common law of England”, in R R Davies (ed), The British Isles 1100–1500: Comparisons, Contrasts and Connections (1988) 82).  Only in the sixteenth century had the two systems begun to move significantly apart, with the establishment of the Court of Session as a College of Justice in 1532 being a critical event in that process.  David saw this as a deliberate breach in continuity with the medieval court structure, with the Session acquiring a jurisdiction in land questions it had previously lacked and in the process ensuring that, unlike England, law and equity were administered together in a powerful central court.

Another starting point on which David made common ground with Cooper was the importance for Scotland of the development of the law of the western Church – Canon law – from the twelfth century on. But while Cooper left unclear how he saw the Canon law influence after the thirteenth century, David developed a series of powerful studies which demonstrated not only continued significance in the later middle ages but also continuing effect despite the statutory abolition of papal jurisdiction at the Scottish Reformation in 1560. Before then, and from the twelfth century on, there were separate jurisdictions operating in parallel in secular and ecclesiastical matters which, however, touched upon each other’s sphere at many crucial points. Thus what had originally been Canon law administered in the Church courts became entwined with and in effect part of the Scots common law administered in the secular courts, notably the law of marriage and moveable succession (Chapters 9, 10, 12 and 13). Moreover, even before the Reformation, Canon law had influenced the secular criminal law into recognition of different degrees of culpability for homicide, based on the blameworthiness of the accused’s conduct; and that continued into the eighteenth century when, perhaps, the language more than the substance of the law changed in response to increasingly anglicised modes of speech and writing (Chapter 11).

Cooper wrote that during his “Dark Age” period “the French alliance and the steady pressure of Continental influences bore fruit in the gradual incorporation into Scots Law of a great mass of the Roman law as taught by the French and Dutch civilians” (The Scottish Legal Tradition (1991), at 68). David was notably less sweeping in his assessment of the influence of Roman or Civilian law upon the development of Scots law. He drew particular attention to the views of sixteenth- and seventeenth-century writers such as Thomas Craig (1538-1608) and Stair, for whom in the hierarchy of legal sources of their time Roman law ranked after Canon law, with native written and customary law ranking above both. Roman law was not a direct source but rather a point of comparison, accepted not by reason of any innate authority, but for the good sense and equity of its solutions as evidence of the requirements of natural law (see especially Chapters 1, 7 and 8). It could also influence the terminology of the law, as for example in converting the vernacular “widow’s and bairns’ parts” of moveable succession to jus relictae and legitim, or inaptly applying the Roman pollicitatio to the concept of unilateral promise. This process could further be used to disguise what was really Canon law influence, as in the law of persons, or “the pressing of feudal wine into Roman bottles”, as in the case of servitudes (quotation from C D’O Farran, The Principles of Scots and English Land Law (1958), 89). The reception of Roman law was thus far from covering the whole of Scots law.

David was however equally far from denying Civilian influence altogether. He saw its importance in providing the law with overall structure and intellectual coherence (Chapter 8). He accepted that the law of moveable property had been strongly influenced by Roman law, as also the use of the conditiones sine liberis and the concept of donatio mortis causa in moveable succession (Chapters 8, 12 and 13). The unique Scots law on the general enforceability of unilateral promises stemmed from Stair’s engagement with the Civilian legal thinking of his time (Chapter 15). The chapter on the law of presumptions is another illustration of the persistence of Civilian influence almost down to the present (Chapter 16). But these examples also show, in David’s view, that acceptance of the specifics of Roman law was far from total or complete, even in the most affected areas. Instead, Roman law, in particular as it had come to be interpreted and applied in the European jus commune from the middle ages on, provided a platform upon which the Scottish common law could continue to build through native juristic writings and court decisions. In three joint papers which David and I contributed to the Gerda Hinkel Stiftung’s series, Comparative Studies in Continental and Anglo-American Legal History, but which are not included in the collection, we showed this process ongoing down at least to the nineteenth century in the development of the Scots law on unjust enrichment (as David preferred to call it), liability for negligence, and jus quaesitum tertio (third party rights in contract) (“Unjust enrichment in Scots law”, in E J H Schrage (ed), Unjust Enrichment: The Comparative Legal History of the Law of Restitution (1995) 289; “History of negligence in Scots law”, in E J H Schrage (ed), Negligence: The Comparative Legal History of the Law of Torts (2001) 273; “Scots law: ius quaesitum tertio, promise and irrevocability”, in E J H Schrage (ed), Ius Quaesitum Tertio (2008) 357). I think that in the light of that work, and also the contributions of John Cairns in particular, he might have wished to reconsider the statement made in the Saltire/Stair Societies overview in 1991, that “The achievements of the Enlightenment belong more to the history of ideas than to the history of Scots law” (Chapter 1, at 45-6).

All these publications nonetheless presented a challenge, not only to Lord Cooper’s false starts and rejected experiments, but also to the view (widely held when David began his academic career in 1969) that by 1707 Scots law was essentially a Civilian system of law which began to be overlaid with English law only as a result of the Anglo-Scottish Union in 1707.  All the chapters in the present collection bring out the way in which Scots law before and after 1707 was (and is) actually the product of a variety of influences ranging from the indigenous and customary to the international and intellectually sophisticated Canon and Civilian systems, with much ranged in between.  The law’s history is one of continuity, with change being the product of open-ness to new, mostly external influences which were then integrated with and developed within an existing institutional and (increasingly) intellectual structure.

Understandably, given the thesis David was trying to establish, he did not much explore what laid law in Scotland open to these external influences in the middle ages. Some of it was political, in particular the inevitably close links with England down to 1707 and beyond, whether relations between the two kingdoms were peaceful or hostile. Insofar as it was not also political, the position of the Church and its law stemmed from the spiritual authority that would remain largely unchallenged until overthrown by the Reformation in 1560. The Church also explained the initial influence of the Roman Civil law, which however gained further momentum from the sixteenth-century establishment of a secular central court to meet the demands of litigants dis-satisfied with the de-centralised medieval system.  The court’s bench was staffed substantially by ecclesiastics and a lay profession grew around it, many university-educated in the learned laws.  The Reformation removed papal jurisdiction but did not deprive either the Canon or the Civil law of influence in the continuing development of the law; indeed, with the latter, rather the reverse. The brilliant juristic work of Craig and Stair consolidated the law while at the same time further shaping and elaborating its form and substance.

Each of the chapters after the first is an in-depth study of its topic which at the same time, and in David’s characteristically fluent and readable style, brings out well its relationship with the more general picture set out in the opening chapter. What is omitted is what David himself did not cover in his writings. There are hints, however, of topics that David would have wished to take further: perhaps most notably the franchise (i.e. non-royal) jurisdictions of barony and regality which Cooper had suggested were principal contributors to what he perceived as the failure to achieve a common law in the later middle ages. David, on the other hand, noted that they had survived until statutory abolition following upon the Jacobite rising of 1745 and that their holders generally did so by virtue of hereditary royal grants. He would thus have agreed with the recent arguments of Alice Taylor (The Shape of the State in Medieval Scotland 1124-1290 (2016)) that a distinctive characteristic of the medieval Scottish common law (in particular, in contrast with the English common law) lay in its combining royal and aristocratic jurisdiction rather than the first overpowering the latter by the end of the thirteenth century. But he also speculated that the aristocratic jurisdictions had roots lying further back in the Celtic past (see Chapter 2). In support of this argument he offered their procedure of “repledging” with its persistent Gaelic term of cúlráith for the security a lord had to leave with the court from which he recovered his man or vassal accused of crime, in order to perform justice upon him in his own court. Further there was also the possibility of repledging members of a whole clan or kindred, as in the laws of “Kynmaccaroun” and “Clan MacDuff” vouched for by later medieval sources.

This possible reconfiguring of earlier lordly jurisdictions probably began in the twelfth century and David would certainly have associated that with the Anglo-Norman feudalisation which had been identified as a central feature of the period by one of his scholarly heroes, Geoffrey Barrow (1924- 2013). David also suggested that this process was facilitated by pre-existing structures of landholding such that even before the Scottish kings began granting lands in feudal form Scottish society in the eleventh century, like contemporary Irish society, was moving in the direction of feudalism” (Chapter 2, at 61). Since Barrow’s death, there has been a reaction against his model of Anglo-Norman feudalisation in the twelfth century; but for David as a lawyer feudalism was still in his own time a living legal phenomenon in Scottish landholding, with forms of documentation in which continuity with twelfth-century royal grants was readily recognisable.  For a historian of law, feudalism lent critical support to the basic continuity thesis, reinforced, therefore, rather than reinvented in the centrally important work of Craig on the subject at the turn of the sixteenth and seventeenth centuries.

Re-reading half a century of scholarly work reminded me not only of David’s considerable intellectual powers, but also of his ability to write with ease and fluency on the most rebarbative of subjects, including a gift for adding into the mix telling stories from his many encounters in the field from his time in the Scottish Land Court (1967-1969). His technique as a legal historian was not based upon archival research (medieval Scots law has left almost nothing in the way of archives) or upon close examination of the manuscripts lying behind printed sources such as the Acts of the pre-1707 Scottish Parliament or the editions of Regiam Majestatem and other medieval works. Instead he worked with these available sources and with the later expositions of their content by Sir John Skene (c1543-1617), Craig and Stair, tying that in with supporting evidence from other medieval sources.  Bearing in mind the background of the law which he studied and trained for in the early 1960s, David used Maitland’s approach – “the retrogressive method ‘from the known to the unknown’ … A result is given to us: the problem is to find cause and process” (F W Maitland, Domesday Book and Beyond (1897), preface ).  The sub-title of his 1985 O’Donnell lecture on “Celtic law – Survival and Integration” (Chapter 2) – is indicative: the survival of Celtic elements in the law meant that there must be a pre-history to be deduced from these remains as well as a process by which they were integrated in the mainstream of legal development.

David also drew extensively on comparative evidence to help make sense of the Scottish material.  This was most obviously true of his work on Celtic law, where Ireland and to a lesser extent Wales provided rich comparisons with which the much thinner and more scattered Scottish evidence could be persuasively pulled together.  But English law was also an obvious point of reference, given David’s argument about its primary influence on the development of the Scottish common law from the twelfth century on.  The general European context for the Canon and the Civil law was too an important tool with which to interpret and understand the Scottish sources.  The comparative material also raised important questions about the gaps in those Scottish sources: why no surviving treatises on Celtic law to compare with the many to be found in Ireland and Wales, for example, or why so little in the way of archives in which to trace the actualities of practice in the courts before 1500?

Although David liked to joke that he had begun his professional life in a court for crofters and was finishing it in a court for chiefs, appointment as Lord Lyon in 2008 did not quite bring his scholarly career to an end. He developed previously half-formed thoughts into the powerful study of Lyon’s origins included, as already mentioned, as Chapter 4 in the present collection. Issues also arose in the Lyon Court which brought his legal-historical scholarship into play.  For example, in 2010 Lyon Sellar refused the petition of Willi Ernst Sturzenegger of Arran to be recognized as “Feudal Earl of Arran” (given that there is already an Earl of Arran, one of the subsidiary titles of the Duke of Hamilton). The Lyon’s Note in explanation of his decision discusses the history of the Scottish peerage styles and the meaning of “baron” and “barony” in Scots law, to draw the conclusion that pre-fixing those or any other title of dignity with words like “feudal” or “territorial” is legally meaningless (Sturzenegger Petitioner (No 2) 2015 SLT (Lyon Ct) 2).

While it is much to be regretted that David was not given the time in which to draw together the threads and themes of his research in a single monograph (as he had hoped), the collection allows his work to be seen as a substantial and substantive whole, constituting a truly significant contribution to the history and understanding of the unique legal system that is Scots law.

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