and arranging the particular cases under the general provisions of the statute law, and under the general rules of the common law which the judgments of the tribunals have expounded and recognised.

CHAPTER XII.

MARITIME AND COMMERCIAL LAW OF SCOTLAND.

SECTION I.

Obstacles to Commercial Advancement, Permanent and Occasional.

ALTHOUGH possessing the local advantages of a maritime situation, it was long before the Scottish nation devoted themselves, in any considerable degree, to the pursuits of trade and navigation. According to the earliest authentic accounts, we find the population of Scotland, as among most rude nations, consisting of a number of separate and almost independent tribes, and the territory divided among a number of great chiefs, the military leaders and, at the same time, the civil magistrates of the population of their respective districts. In tracing the history of the Scottish people from this rude state, so far as can be collected from authentic documents, we observe the origin, progress, and decline of the feudal government and institutions, similar to what took place in the other kingdoms of modern Europe, only varied by certain peculiar circumstances and events. The formal feudal subordination. of the great military proprietors to the King, appears to have been completed in the reign of Malcolm III., in

the course of the eleventh century. But various peculiar causes contributed, in Scotland, to continue, to a comparatively late period, the power, or, at least, the turbulence of the feudal aristocracy, to prevent the successful union of the crown with the commons against the nobles, and to retard the rise of the commons to wealth and power, and the consequent establishment of a more regular government.

Of these causes, some appear to have been permanent, others of an occasional and temporary nature. Of the former class, the most obvious is the physical construction of the country, as intersected by chains of mountains, and thereby divided into separate districts; and the operation of this cause is thus perspicuously explained by the late able and ingenious Professor Millar :

"The nature of the country, rugged mountains, and, in many parts, hardly passable, produced a number of separate districts, in which particular barons were enabled to establish and maintain an independent authority. Within these natural barriers, which divided one territory from another, a great lord easily reduced all the small proprietors into subjection; at the same time, residing in the midst of his retainers and followers, he was, in a good measure, secured from any foreign invasion. Landed property was thus quickly accumulated by a few great nobles, whose power over their inferiors, and whose influence in the government, became proportionally extensive. While they lived at home in rustic state and magnificence, they had little temptation to court the favour of the crown, and still less to purchase it by a surrender of their privileges; nor did the sovereign often find it advisable, however they might incur his displeasure, to run the hazard of marching against them, in their fortresses, and of endeavouring by force to subdue them. In this situation, they continued for many centuries to suffer little degradation,

either from the immediate power of the most warlike, or from the secret intrigues of the most artful and politic princes."*

But while the effects of the mountainous nature of the country on the progress of society in Scotland must be acknowledged, it ought, at the same time, to be kept in view, that the operation of this cause consisted not so much in giving the Scottish nobles any pre-eminent political power beyond what the nobles of the other European kingdoms possessed, while acting in concert either against the crown or the lower classes of the community, according to what seems to have been the opinion of some of our historians,† as in continuing to a later period the insubordination of the military chiefs, and thereby retarding the establishment of an efficient civil government throughout the nation. In the absence of such an efficient government, individuals behoved to protect themselves, and entered into leagues and bands, or associations, for the purposes of defence or attack.‡ Men of power and station engaged in such associations in order to increase the number of their dependents, and to sustain and promote their influence; inferior men, in order to obtain countenance and support in return for their individual services.§ Tribes, clans, and even families, carried on hostilities against each other, and the prerogative of private war continued to deform society down to the reigns of the Stuarts.||

Another obvious permanent cause of the slow progress of trade and manufactures in Scotland, is the nature of the soil and climate; and its effects are thus

* Historical View of the English Government, vol. iii., p. 32. + Dr Robertson's History of Scotland, vol. i., p. 19, 20, &c. Statute 1444, cap. 30.

§ Craig Jus Feud, lib. ii. dieg. xi.

|| Statutes 1424, c. 2; 1429, c. 129; 1449, c. 12; 1557, c. 21. Gilbert Stuart, Public Law of Scotland.

1476, c. 70; Notes 14, 15.

illustrated by the same philosophic author :-" In Scotland, the barrenness of the soil and coldness of the climate obstructed the progress of agriculture, and, of course, chilled the growth of manufactures. The necessaries of life must be had in plenty before there can be a general demand for its conveniences. Accordingly, though villages and towns, employed in some branches of traffic, arose in different parts of the country, and though these, in conformity to the practice of other European kingdoms, were incorporated by the King, and endowed with various exclusive privileges, yet, in spite of every encouragement, they continued poor, and were for a long time unable, as political auxiliaries of the crown, to perform any important service."*

It has been maintained, indeed, by an ingenious historian, that, in the history of the different feudal kingdoms of Europe, the original condition of the inhabitants of towns was a state of political freedom and importance that, during the decline and consequent confusions of the feudal system, the towns were subjected to various oppressions exercised by the Sovereign and the nobles; and that, by the charters of community subsequently granted by the Sovereign to the towns, the liberties of the latter were merely revived. Nay, the same eloquent author maintains an ingenious argument to shew that the burghs of Scotland were represented in Parliament at a very early period. But, for the adoption of such an opinion, the historic documents extant do not appear to afford any sufficient grounds; and, in afterwards noticing the slow progress and limited political influence of the towns of Scotland, we shall be led to an opposite conclusion.

* Historical View of English Government, by Professor Millar, vol. iii.,

34.

+ Gilbert Stuart, Public Law of Scotland. Notes 27, 28.

Along with the leading and permanent causes just alluded to, various occasional events concurred to retard the advancement of the Scottish nation in arts and commerce. From the accession of Malcolm III., about the middle of the eleventh century, when the authentic annals of Scotland may be said to commence, to the termination of the reign of Alexander III., towards the close of the thirteenth century, a considerable intercourse appears to have taken place between the English and Scottish nations, as well as their respective princes. In particular, during the reigns of Alexander II. and Alexander III., the two British nations appear to have been on a very friendly footing. At this early period, too, the public institutions and customs of the two kingdoms appear to have borne a strong resemblance to each other; and the general similarity of laws, originating in similarity of circumstances and situation, in long amicable intercourse, and in the natural adoption, by the less advanced, of the views and usages of the more cultivated people, may be found in the more ancient English statutes, and in the treatise ascribed to Chief Justice de Glanville, compared with the compilations in the Scotch collection by Skene, which passes under the title of Regiam Majestatem. But this early amicable intercourse did not last long. By the death of Alexander III., and of his grandaughter, the Maiden of Norway, towards the close of the thirteenth century, the nation was exposed to all the evils of a disputed succession to the crown, internal discord, and foreign invasion. After Wallace had gloriously withstood, and Robert Bruce had successfully repelled, the invader, and maintained the integrity and independence of the kingdom, the great defect of the government, the insubordination and turbulence of the nobles, still continued unabated. Of this defect the successive monarchs appear to have been aware, but were unable to apply any