SCOTS LAW. At the union of the parliaments of England and Scotland, in 1707, the legal systems of the two countries were as disparate as was reasonably possible in two civilizations ap proximately equal. Scotland, mainly in the preceding century, had adopted Roman law, as developed, and in some respects altered, by the jurists of Holland and France, as her main guide; English lawyers had forgotten, or refused to acknowledge, the debt owed to Rome both by common law and equity. The law of Scotland, again, had recently been set forth in the Institutions of Lord Stair, a masterpiece of lucidity and orderly arrange ment ; in England the student or practitioner had little to guide him through a maze of precedents and forms of pleading beyond the difficult pages of Coke. And the Scots lawyer might have pointed, with pardonable pride, to the fact that in the court of session there was no separation of law and equity.
The legal history of the succeed ing centuries has been one of gradual assimilation, almost exclu sively by the penetration of English rules into the law of Scotland. The process of assimilation is by no means complete, but the apparent disparities are to a certain extent due to the difference in legal terminology. Thus there is little real distinction between the English "estoppel" and the Scotch "personal bar"; between "set-off" and "compensation"; between "merger" and confusio; between the doctrine of "advancement" and collatio inter liberos. Causes of Assimilation.—Various causes have contributed to the gradual assimilation of English and Scots law. One main cause is that much of the existing law depends on statutes appli cable to both countries. The House of Lords until 1876 al most exclusively English lawyers acting as the supreme court of appeal from Scotland, had a tendency to apply English law to Scotch appeals, and in some cases seems to have forgotten the distinction between its legislative and its judicial functions. Thus in (affray v. Allan (179o) 3 Paton 191, the House decided that the law of stoppage in transitu was applicable to Scotland, with out any evidence that it had ever been suggested in Scots law. The citation of English cases in Scotland, now of daily occur rence in practice, was very rare in the 18th century, and may be traced to Prof. Bell. Judicial remonstrances against the cita tion of English authorities, which the judges professed themselves unable to understand, persisted for the next 3o years. The reforms
in English procedure, between 183o and 186o, did much to make English authorities more intelligible in Scotland. Much remained to be done; the separation of law and equity was a constant stumbling-block; but at least the Scotch lawyer was no longer perplexed by the question of what John Doe and Richard Roe had to do with the case. The result has been, with some aid from legislation, that in many leading branches of commercial law, such as the law of bills of exchange and negotiable instruments, suretyship or cautionary, agency, insurance, carriers by land and sea, the difference between English and Scots laws is now negli gible.
In attempting to indicate the main points on which English and Scots law still differ it would be hopeless to deal, within the limits of an article, with courts and procedure. In these respects any resemblance is accidental.
In the law of tenure of land there is no reason to suppose (though the early history of tenure in Scotland is very obscure) that any material difference existed in Norman times. But there are no statutes in Scotland equivalent to Quia Emp tores, and while subinfeudation remained lawful and usual, the right of the vassal to alienate his feu without the superior's con sent was not recognized by the legislature until 1747, although conveyancing expedients to enable him to do so had been devised at a much earlier date. The consequence has been that the rights of subject superiors has bulked much more largely in Scotland than in England. A series of statutes, culminating in the Feudal Casualties Act 1914, have abolished all prestations except feu duty, and it may now be said that a "f eu"—the normal tenure in Scotland—is equivalent to an English "freehold," subject, in cases where there is a feu-duty, to a perpetual rent charge. There is, however, a very important distinction in the system of registra tion of title, only partially and imperfectly developed in England. In Scotland, since the establishment of the registers of sasines, in 1617, all deeds relating to land may be recorded in that register, and it has for long been established that a purchaser, or a lender on heritable security, is entitled to trust to the registers, and is not affected by any conveyance or burden which is not there recorded.