Book I.

Private acts not proper laws.

Acts of sederunt likewise a part of the written law.

Their authori

ty.

39. Private acts were nothing but grants by the parliament, or parliamentary ratifications of grants made by the crown, in favour of particular persons or corporate bodies. But none of those were proper laws. For, 1st, They required no publication. 2aly, Ratifications, by their nature, carry no new right: They barely confirm that which was formerly granted, without adding any new strength to it by their interposition. 3dly, As by the forms of parliament, no person was called as a party to the passing of an act, however deeply he might have been interested in it, private acts were carried through periculo petentium, and could not hurt third parties, who were not heard on their interests, according to the rule, Res inter alios acta aliis non nocet. They were therefore open to reduction by the court of session, 1567, C. 18. NO. 1.; and in almost all the Scottish parliaments holden since 1606, the last act of the sessions, intituled, Act salvo jure cujuslibet, appears to have been enacted for the single purpose of securing third parties against the effect of private acts and ratifications.

40. The written law of Scotland consists, 2dly, Of the acts of sederunt, which are ordinances made by the court of session, for regulating the forms of proceeding to be observed in all actions or matters which may be brought before them. These are not indeed laws in the strict sense of the word, because they are not enacted by the supreme power; but their obligatory force is as strong as if they had the express sanction of parliament; for the court of session have a delegated power from the parliament, to make such statutes as they think proper for the ordering of process and the expediting of justice, 1540, C. 93. The powers committed by this statute to our supreme court are precisely limited to the forms of proceeding, which may be the reason why the parliament hath in several instances ratified acts of sederunt, where it might seem that the court had exceeded their powers, 1579, C. 75.; 1584, C. 138, 139.; 1621, C. 18., &c. But it must be acknowledged, that many acts of sederunt have been made on matters of right, which, without any aid from the authority of parliament, the nation hath acquiesced in universally. Such acts import no more than a public notification of what the judges apprehend to be the law of Scotland, which therefore they are to observe for the future as a rule of judgment. When an act of sederunt is confirmed by an inveterate custom and acquiescence of the community, such custom constitutes law of itself in the most proper acceptation of the words; vid. infr. § 43. Under the same class with the acts of sederunt, may be ranked the regulations made in the year 1695 and 1696, concerning the forms of procedure in the court of session, which are subjoined to the first volume of the printed acts of sederunt*. These were the ordinances of a commission specially authorised by 1693, C. 34. to make regulations, to be obligatory, after they should be approved by the King, as these were.

41. Sir George Mackenzie, § 7. h. t., considers the Roman law as

8

the

* An accurate and complete collection of the Acts of Sederunt of the Lords of Council and Session, from 15th January 1553 to 11th July 1790, was published under authority of the Court in 1790, by William Tait, Esq. advocate ; and by an act on 8th March 1799, the Collectors of Decisions, appointed by the Faculty of Advocates, were allowed and authorised to publish the Acts of Sederunt subsequent to the publication in 1790, and in future.

• The regulations 1695 and 1696, referred to in the text, will be found p. 209. et seq. of this collection.

the written law of Scotland; Lord Stair, on the other hand, rejects its authority, B. 1. Tit. 1. § 12. and 16.; also Craig, De Feudis, Lib. 1. Dieg. 2. NO. 14. Without offering any precise opinion upon this point, an observation or two drawn from our statutes may not be improper. First, The powers exercised, both by our sovereigns and judges, have been justified by parliament, on this single ground, That they were conformable to the Roman law. Thus, the revocations, by our kings, of deeds granted during their nonage, are expressly founded on the right competent to minors by the Roman law, 1493, C. 51.; 1540, Č. 70.; 1587, C. 31. vers. 9. Thus also the trying of treason after the death of the traitor was approved by parliament on account of its conformity to the Common law, though there was no special law, act, nor provision of the realm made thereupon, 1540, C. 69. 2dly, A special statute was judged necessary, soon after the Reformation, for abrogating such of the laws, either Civil or Canon, as were repugnant to the protestant doctrines, 1567, C. 31.; and the abrogation of a law is generally understood to import, that the law abrogated had formerly been in force. These observations prove at least, that great weight is to be laid on the Roman law in all cases not fixed by statute or custom, and in which the genius of our law will suffer us to apply it; and as we have few statutes in the matter of contracts, transactions, restitutions, servitudes, tutories and obligations, the knowledge of it must be singularly useful in determining controversies arising from those heads of the law. Yet where any rule of the Roman law appears to have been founded on a subtilty peculiar to their system, it were absurd to pay the smallest regard to it *.

42. The Canon law must have been at least of as great authority in Scotland as the Roman before the Reformation. That law had originally no proper authority, in instances regarding civil property, unless where the Pope was temporal sovereign. Therefore all other nations, even those who acknowledged the see of Rome, were at liberty either to reject it entirely, or to receive it with such limitations as they judged expedient. In the course of time, however, it became the law of Scotland in most articles of private right, civil as well as ecclesiastical. This proceeded from the extensive jurisdiction of the clergy; who, to make their court the more effectually to the Roman Pontiff, used that law as the rule of their judgment. The statute last cited, 1567, abundantly proves the regard that had been paid to it in times of popery; but since the Reformation it has declined fast in its authority, so that it is now little respected, except in questions of tithes, patronages, and a few articles more of ecclesiastical right, where the canons are consistent with Protestant principles.

43. Unwritten law is that which, without any express enactment by the supreme power, derives force from its tacit consent; which consent is presumed from the inveterate or immemorial usage of

E

the

See some very excellent observations on the authority of the Roman law in Scotland, in Professor Hume's work on the Description and Punishment of Crimes. Introd. p. 57. et. seq. (2d edit. vol. 1. p. 15. et. seq.)

Sir George Mackenzie, in loc. cit. only says, that the Roman law "has great in"fluence in Scotland, except where our own express laws or customs have receded "from it,”—a position which does not seem substantially to differ from what is also laid down, both by Stair and Craig, and our Author himself. Instead of ranking it, again, as part of our "written law," this last seems to be expressly confined by him, ($9. h. t.) 1st, to "our statutory law;" 2d, "the Acts of Sederunt;" and 3d, the books of " Regiam Majestatem," &c.

BOOK I.

Consuetudinary law sometimes requires evi

dence to prove the custom.

Custom may interpret and even repeal statutes; but non-usage

tute custom.

the community. If the community be in the form of a republic, it can make no difference, whether the will of the people be declared by formal enactment, or by acts of approbation, L. 32. § 1. De legib. ; and even in absolute monarchies, the sovereign is presumed to acquiesce in what has been long practised in his dominions, if he do not, by some positive declaration, testify his dislike, or put a stop to it. The authority therefore of customary law is not grounded on any presumption, that what has been long observed must be just, as some lawyers choose to speak; for that presumption is alike applicable to written and unwritten law: but both one and the other derive their coercive force from this, that they are the ordinances, either express or implied, of the supreme power.

44. The most essential articles of our customary law are so interwoven with our constitution, that they are notorious, and so require no evidence to prove them; as, the laws of primogeniture and deathbed, the order of legal succession, the legitim of children, the husband's courtesy, and the widow's terce: But where any later usage, which has been gradually gathering strength, is pleaded upon as law, the antiquity and universality of that usage must be proved to the judge, as any other matter of fact; for all customary law is founded on long usage, which is fact. No precise time or number of facts is requisite for constituting custom; because some things require in their nature longer time, and a greater frequency of acts to establish them, than others. Neither is it necessary for this purpose, as some writers have affirmed, that the custom be declared by the previous sentence of a judge: For no court of justice can constitute law; and therefore any sentence, declaring the customary law, is of itself a clear proof that the law was constituted before.

45. Custom, as it is equally founded in the will of the lawgiver with written law, hath the same effects. Hence, as one statute may be explained by another, it may be also explained by the uniform practice of the community; for which reason custom is said, L. 37. does not consti- De legib. to be the surest interpreter of law. Hence also, as a posterior statute may repeal or derogate from a prior, so a posterior custom may repeal or derogate from a prior statute, even though that prior statute should contain a clause forbidding all usages that might tend to weaken it: For the contrary immemorial custom sufficiently presumes the will of the community to alter the law in all its clauses, and particularly in that which was intended to secure it against alteration; and this presumed will of the people operates as strongly as their express declaration. No statute can however be repealed by mere non-usage or neglect of the law, though for the greatest length of time; for non-usage is but a negative, which cannot constitute custom: There must be some positive act that may discover the intention of the community to repeal it. Where the usage contrary to a statute hath not yet acquired strength enough to abrogate it, the King and council may by proclamation prohibit the farther observance of such usage, and thereby restore the statute to its first vigour. This power in custom to derogate from prior statutes, has been confined by most writers to those concerning private right; and it hath been adjudged once and again, that laws which regard the public policy cannot fall into disuse by the longest contrary usage ' Jan. 27. 1681, Jack, (DICT. p. 1838), Feb. 1729, Smollet, (not report

ed.

10 The statute 1592, c. 156, which enacts, that "in time coming there sall be na "exercise of craftes in the sub-urbes adjacent to burrowes," found to be in desuetude. Paterson, 6th December 1810, Fac. Coll.

ed.) But the last of these decisions, by which the election of a provost had been set aside, because he did not reside in the borough, according to the direction of our old statutes, was reversed upon appeal, Feb. 19. 1730*: And it now appears to be the opinion of our supreme court, that public laws concerning the elections of magistrates and counsellors of boroughs, may fall into disuse; and that the sets of the several boroughs, established and confirmed by the general convention of boroughs, ought to be the rule in determining such questions, unless where the sets are altered by a contrary immemorial custom. See Fac. Coll. ii. 7. (Dunbar against Macleod, DICT. p. 18552.)

46. Our customary law is either universal, which obtains over the whole kingdom, or local, which prevails only in particular counties or boroughs. There is hardly an instance of a local custom in any county, but in the udal right proper to the stewartry of Orkney and Zetland, of which afterwards, B. 2. Tit. 3. § 18. Certain usages are practised in particular boroughs, relating to the entry of heirs, resignations, warnings, &c. which make part of the customary law of those boroughs, but have no authority elsewhere 13.

47. An

The particulars taken from the appeal cases, will be found in the Dictionary of Decisions, App. II. voce DESUETUDE 11.

11 It is believed Mr Morison, when preparing the last edition of this work, intended to publish some such Appendix to his Dictionary as is here referred to. That intention has never been carried into effect: but a short notice of the case of Smollet, as founded on in the several reports of the subsequent case of Wick, is given, Dicr.

From a mistake as to the date of the judgment in the House of Lords, (which is there stated to have been in 1735, instead of 1730,) Mr Morison had "not been "able to find this case, either in the Journals of the House of Lords, or in the appealed "cases sent to the Advocates' Library." It is, however, under the proper date, to be found in both.

The point decided in Smollet's case is now perfectly fixed, Anderson and other burgesses of Wick v. the Magistrates, 17th February 1749, (DICT. p. 1842); Trades of Burntisland v. the Magistrates, 5th December 1752, (ELCHIES, No. 37. Burgh Royal);-Bell's Election Law, p. 483.

12 There can be no doubt, both that the "public laws" concerning burgh elections may fall into disuse, and that the "sets of the several boroughs" may be altered by a contrary immemorial custom. But there would seem to be a very material distinction between the two cases. The set of a burgh may be controlled and altered by a sufficient continuance of contrary usage within that burgh alone. But the public laws, enacted with reference to the whole burghs of Scotland, can go into desuetude, only by a contrary usage co-extensive with the authority originally inherent in the public laws themselves. A public statute cannot be in desuetude in one burgh, and in active operation in another, at one and the same time. It must exist and be in full force all over the kingdom, or it cannot exist as a statute at all. The case of Smollet affords an illustration of this; for the decision there, as to the non-residence of the provost, appears, from the appeal cases, to have proceeded, not on the peculiar practice of the individual burgh of Dumbarton, but on the broader ground of a general disuse,-that the "statutes are fallen into desuetude, and a contrary custom has prevailed in this “and most other burghs in Scotland,” (Appeal Case for Appellant.) Accordingly, in the case of Wick, and in all the other subsequent cases, it has been held as general law for all the burghs, that the provost need not reside; and this without any inquiry into the particular practice of these burghs.

It is presumed, that so far as public laws are not cut down by a desuetude of this general and comprehensive character, they cannot be affected by the practice, whatever it may be, of only one or two individual burghs. For example, could it be held, that the practice in one individual burgh to elect non-resident persons for its Bailies, would be sufficient, in the face of the statutes, and of an universal usage to the contrary, founded upon these statutes, in all the other burghs, to sanction such irregularity even in the burgh where the illegal practice had been introduced?

11 Among other decisions, more or less connected with the subject of consuetudinary law, discussed in the text, the following may be noticed.

A court possessed of jurisdiction over two neighbouring, but independent territories, may, in respect of immemorial consuetude, while sitting in the one territory, exercise jurisdiction over an inhabitant of the other, notwithstanding a declinature; Ďowie, 30th May 1817, Fac. Coll.

Book L.

47. An uniform series of decisions of the court of session, i. e. of Decisions, what their judgments on particular points, either of right or of form, is their force and brought before them by litigants, and anciently called Practics, is by authority. Mackenzie, § 10. h. t., accounted part of our customary law. Thus far may be admitted, 1st, That their more ancient decisions, from which it appears that any particular usage had then acquired the force of law, may be properly brought in proof of that custom, if it have not afterwards lost its authority, by an immemorial and universal usage to the contrary; and, 2dly, That great weight is to be laid on their later decisions, where they continue for a reasonable time uniform, upon points that appear doubtful, L. 38. De legib. But they have no proper authority in similar cases; because the tacit consent, on which unwritten law is founded, cannot be inferred from the judicial proceedings of any court of law, however distinguished by dignity or character; and judgments ought not to be pronounced by examples or precedents, L. 13. C. De sent. et int. Decisions, therefore, though they bind the parties litigating, create no obligation on the judges to follow in the same tract, if it shall appear to them contrary to law. It is however certain, that they are frequently the occasion of establishing usages, which, after they have gathered force by a sufficient length of time, must, from the tacit consent of the state, make part of our unwritten law. What has been said of decisions of the Court of Session, is also applicable to the judgments pronounced upon appeal by the House of Lords: For in these that august court acts in the character of judges, not of lawgivers; and consequently their judgments, though they are final as to the parties in the appeal, cannot introduce any general rule which shall be binding either on themselves or inferior courts. Nevertheless, where a similar judgment is repeated in this court of the last resort, it ought to have the strongest influence on the determinations of inferior courts.

48. To conclude this account of the municipal law of Scotland, it must be observed, that notwithstanding the treaty of union in 1707, by which the kingdoms of England and Scotland were made one nation,

The clerk of a borough of regality cannot acquire a right by custom to act as notary, in taking the infeftments of the vassals of the borough; Magistrates of Edinburgh, 2d Feb. 1814, Fac. Coll.

Magistrates and council are not entitled to elect their chamberlain ad vitam aut culpam, contrary to former practice; Turnbull, 24th January 1812, Fac. Coll.

The Court will not review or alter an immemorially established mode of assessment of a town-tax, on an allegation, that, as a general rule of taxation, it is unequal and unjust in its operations, while the party complaining admits, that the rule of assessment has been applied to him in the same manner as to the other inhabitants; Gibsons, Thomson and Craig, 13th Nov. 1810, Fac. Coll.

Magistrates are entitled to levy customs according to long usage, though higher than were allowed by a statute, in 1593, introducing the right to levy; but additional duties laid on by the magistrates de recenti were set aside; Wauchope, 28th Jan. 1800, Fac. Coll.

Customs cannot be increased or extended by magistrates without an act of Par-liament; Raitt, &c. v. Magistrates of Aberdeen, 21st November 1804; Reid v. Magistrates of Edinburgh, 6th Dec. 1810, Fac. Coll.

In a meeting of heritors and elders, the preses is not entitled both to a deliberative and casting vote; Campbell, 4th March 1813, Fac. Coll. Our law, on this point, appears to agree with the law of England, where it is held, that "a casting vote neither "exists in corporations nor elsewhere, unless it is expressly given by statute or char"ter, or, what is equivalent, exists by immemorial usage;" 1. Blackst. Commentaries, 181. in n. ;-6. T. R. 732.;-Tomlin's Law Dictionary, Parliament vii.

In general, where the management of a mortified fund is in the heritors, minister, and kirk-session of a parish, each member of the kirk-session is entitled to vote Earl; of Galloway, 22d February 1810, Fac. Coll. But otherwise, where there has been a Jong unvaried usage to the contrary; Alexander Leslie, &c. 9th June 1814, Fac. Coll.