Concerning the Communication of the Laws of England unto the Kingdom of Scotland Because this Inquiry will be of Use, not only in itself, but also as a Parallel Discovery of the Transmission of the English Laws into Scotland, as before is shewn they were into Normandy; Ishall in this Chapter pursue and solve their several Queries, viz.
1st, What Laws of Scotland hold a Congruity and Suitableness with those of England.
2dly, Whether these be a sufficient Ground for us to suppose, that that Similitude or Congruity began with a Conformation of their Laws to those of England. And, 3dly, What might be reasonably judged to be the Means or Reason of the Conformation of their Laws unto the Laws of England.
As to the First of these Inquiries; It is plain, beyond all Contradiction, that many of the Laws of Scotland hold a Congruity and Similitude, and many of them a perfect Identity with the Laws of England, at least as the English Laws stood in the Times of Hen. 2. Richard I. King John, Henry 3. and Edw. I. And altho, in Scotland, Use hath always been made of the Civil Law, in point of Direction or Guidance, where their Municipal Laws, either Customary or Parliamentary failed; yet as to their particular Municipal Laws, we shall find a Resemblance, Parity and Identity, in their Laws with the Laws of England, anciently in Use; and we need go no further for Evidence hereof, than the Regiam Majestatem, a Book published by Mr Skeen in Scotland. It would be too long to Instance in all the Points that might be produced;and therefore I shall single out some few, remitting the Reader for his further Satisfaction to the Book itself.
Dower of the Wife to be the Third Part of her Husband's Lands of Inheritance; the Writ to recover the same; the Means of forfeiting thereof by Treason or Felony of the Husband or Adultery of the Wife; are in great Measure conformable to the Laws of England. Vide Regiam Majestatem, Lib. 2. cap. 16, 17. and Quoniam Attachiamento, cap. 85.
The Exclusion of the Descent to the elder Brother by his receiving Homage, which tho' now antiquated in England, was anciently received here for Law, as appears by Glanville, Lib. 7. cap. I. and Vide Regiam Majestatem, Lib. 2. cap. 22.
The Exclusion of Daughters from Inheritances by a Son: The Descent to all the Daughters in Coparcenary for want of Sons; the chief House allotted to the eldest Daughter upon this Partition;the Descent to the Collateral Heirs, for want of Lineal, &c.
Ibid. cap. 24, 25, 26, 27, 28, 33, 34. But this is now altered in some Things Per Stat. Rob. cap. 3.
The full Ages of Males 21, of Females 14, to be out of Ward in Socage 16. Ibid. cap. 42.
That the Custody of Idiots belonged to the King, Ibid. cap.
46.
The Custody of Heirs in Socage belong to the next of Kin, to whom the Inheritance can't descend. Vide Regiam Majest. cap. 47.
The Son born before Marriage, or Bastard eigne, not to be legitimate by the Marriage after, nor was he hereditable by the ancient Laws of Scotland, though afterward altered in Use, as it seems, Regiam Majest. cap. 51.
The Confiscation of Bona Usurariorum, after their Death, conform to the old Law here used. Ibid. cap. 54. tho' now antiquated.
The Laws of Escheats, for want of Heirs, or upon Attainder.
Ibid. cap. 55.
The Acquittal of Lands given in Frank-Marriage, till the fourth Degree be past, Ibid. cap. 57. Homage, the Manner of ****** it with the Persons, by, or to whom, as in England, Ibid. cap. 61, 62, 63, &c.
The Relief of an Heir in Knights Service, of full Age, Regiam Majestatem, cap. 17.
The Preference of the Sister of the whole Blood, before the Sister of the half Blood. Quoniam Attachiamento, cap. 89.
The single Value of the Marriage, and Forfeiture of the double Value, precisely agree with the Statute of Marlbridge.
Ibid. cap. 91.
The Forfeiture of the Lord's disparaging his Ward in Marriage, agrees with Magna Charta, and the Statute of Marlbridge. Quoniam Attachiamento, cap. 92.
The Preference of the Lord by Priority to the Custody of the Ward. Ibid. cap. 95.
The Punishment of the Ravisher of a Ward, by two Years Imprisonment, &c. as here. Ibid. cap. 90.
The Jurisdiction of the Lord in Infangtheof. Ibid. cap. 100.
Goods confiscate, and Deodands, as here, Liber De Modo tenendi Cur. Baron. cap. 62, 63, 64.
And the like of Waifs. Ibid. cap. 65.
Widows, not to marry without Consent of the Lord, Statute Mesei. 2. cap. 23.
Wreck of the Sea, defined precisely as in the Statute Westm.
2. Vide Ibid. cap. 25.
The Division of the Deceased's Goods, one Third to the Wife, another Third to the Children, and another to the Executor, &c. conformable to the ancient Law of England, and the Custom of the North to this Day. Lib. 2. cap. 37.
Also the Proceedings to recover Possessions, by Mortdancester, Juris Utrum, Assise de Novel disseisin, &c. The Writs and Process are much the same with those in England, and are directed according to Glanville, and the old Statutes in the Time of Edw. I. and Hen. 3. Vide Regiam Majestat. Lib. 3. cap. 27to 36.
Many more Instances might be given of many of the Municipal Laws of Scotland, either precisely the same with those in England, or very near, and like to them: Tho' it is true, they have some particular Laws that hold not that Conformity to ours, which were introduced either by particular or common Customs, or by Acts of their Parliaments. But, by what has been said and instanced in, it appears, That like as hetween the Laws of England and Normandy, so also between the Laws of England and Scotland, there was anciently a great Similitude and Likeness.
I come therefore to the Second Thing I proposed to enquire into, viz. what Evidence there is, That those Laws of Scotland were either desumed from the English Laws, or from England, transmitted thither in such a Manner, as that the Laws here in England were as it were the Original or prime Exemplar, out of which those parallel or similar Laws of Scotland were copied or transcribed into the Body of their Laws: And this appears evident on the following Reasons, viz.
