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VOLUME XIII.

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PART III.
The LAW Of SCOTLAND.

GENEIAL OBSERVATIONS.

r. ' 1 'HE Municipal Law of Scotland, as of X most other countries, consists partly of statnt'jry or written hw, which has the express authority of the legislative power; partly of customary or unwritten law, which derives force from iu presumed or tacit consent.

a. Under our statutory or written law is comprehended, i. Our acts of parliament: not only those which were made in the reign of James I. •f Scotland, and from thence down to our union with England in 1107, but such of the British statue, enacted since the union as concerned this fir*, of the united kingdom.

V A collection of law books under the title of Re-;iasmajestatem was published by Sir John Skcoe, it the commencement of the 16th century. It coniilfed of the Rrgiam Majrstatttn now generally deemed to be a mere transcript from a work of Glanville, an English lawyer, called Regiam Pottjlattm, interlarded with a sew of the law3 and r-irricuiar customs of this country, the Borough Laws, the laws of K. Malcolm, &c. Though we ire inclined to think these books unworthy to be rtnked as part of the statute law of this country, set as their authenticity was much agitated by the leal antiquarians of the last century, we may, cader the article Regiam Majestatem, give a short abstract of the dispute.

4. Oar written law also comprehends, 1. The acts of ssderunt, which are ordinances for regulating the forms of proceeding before the court of s-ffion in the administration of justice, made by taejodge*, who have a delegated power frpm the leriflatnre for that purpose.

$. The civil, or Roman and canon laws, though they ire not perhaps to be dee-ned proper parts us oar written law, have undoubtedly had the protest influence in Scotland. The Roman still contmue* to hive great authority in all cafes where it is not derogated from by any statute or custom, and where the genius of our law suffers us to apply it.

6. Our unwritten, or customary law, is that Vol. XIII. Pa*t I.

which, without being expressly enacted by statute, derives its force from the tacit consent of king and people; which consent is presumed from the ancient custom of the community. Custom, as it is equally founded in the will of the lawgiver with written law, has therefore the fame effects: hence, as one statute may be explained or repealed by anotlier, so a statute may be explained by the unifotm practice of the community, and even go intu disuse by a posterior contrary custom.

7. An uniform tract of the judgments or decisions of the court cf session is commonly considered as part of our customary law, because such utiiformity establishes what is the custom in each particular cafe.

8. The Sc6ts Acts of parliament were, by our most ancient Custom, proclaimed in all the ililferent shires, boroughs, and baron courts, of the kingdom. But alter our statutes came to he printed, that custom was gradually neglected; and at last, the publication of our laws, at the marketcross of Edinburgh, was declared sufficient; and they became obligatory 40 days thereafter. British statutes are deemed sufficiently notified, without formal promulgation; though, for the information of the lieges in general, copies of every public statute are now forwarded to each district of every county throughout the kingdom, at the public exRg)|ce. After a law is publistied, no pretence of ignorance can excuse the breach of it.

9. As laws are given for the rule of our conduct, they can regulate future cafes only; for past-actions being cut of our power, can admit of 110 rule. New laws can therefore have no retrospect.

10. By the rules of interpreting statute law received in Scotland, an argument may be used from the title to the act itself, a rubro ad'nigrum; at least, where the rubric has been either originally framed, or afterwards1 adopted by the legislature.

ir. But the rules for the interpretation of laws, in Scotland, being in general, nearly the fame with these observed for the interpretation and construction of the statute laws in England, it is unnecessary to repeat them here. See Part II, Sect. V.

12. The objects of the laws of Scotland, according to Mr Erlkine, are, Persons, Things, and Actions.

A CHAP.

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