LECTURE S ON THE PRACTICE OF THE LAW OF SCOTLAND. Introductory Difcourfe. HE last Course of Lectures was employed in explaining those TH moveables, and the practice of Scotland with respect to them; and A undergone, till we arrive at the conftitution of the titles to land, and other real estates, as prefently established. Although, at firft view, the inquiry promifes no other than a dull entertainment, we hope it will not prove disagreeable. The want of objects grateful to fancy will be fupplied by neceffary information; and if ornamental flowers are not frequent upon the road, ufeful plants will every where be found. The very first approach to the art of conveyancing difcovered, that there was a capital defect in the method of studying it, disgustful to every person who wished to find in his profeffion employment for the mind, and to be attached to it upon the principles of fcience. The first book we are taught to look up to for inftruction, is that large collection of forms, laboriously put together by Mr Dallas of St Martin in the laft century. We are defired to view this vaft opake body almoft without the aid of light. Mr Dallas himself thought he did a great deal, and his brethren are no doubt very much indebted to him, for having put together fuch a large and varied collection under certain general heads: But, if we want to know from whence thefe forms originated; whether they arofe from our own laws and ufages, or were borrowed from our neighbours; at what period, or from what emergency of circumftances these writs became neceffary; what were the firft and primitive forms in which they appeared; or at what period of our law, or advancement in our manners, they came to be lengthened out to the fhape they are found in; what -parts of them, of confequence, are effential, and what are of lesser moment, or of mere form, the refearch from the work itself would be vain. Mr Dallas does not feem to think that these explanations were in any degree required of him. Let no man,' says he, so 'far deceive himself, as to conclude that fpeculative knowledge, or theory, without the practical, will ever make a complete penman: But by the method taken, a man, by education, may attain to more knowledge in two, than formerly in feven years.' Now, what is the method our author here alludes to? It is no other than a drudgery drudgery more tedious and difgufting than is to be found in the acquifition of the loweft art in which mankind are employed. In every one of thefe, a degree of ingenuity is at leaft requifite; but here no exertion is required, except that puerile one of copying a part of one style into another, mutatis mutandis. The mind revolts at condescending to fuch low and fterile application; and the young Writer is thus forced to depend upon the fure, but tardy miftress, experience, for that limited portion of knowledge which is juft neceffary to carry him decently through his bufinefs. Suppofing a perfon to fummon up fufficient courage and patience to look thefe forms in the face, to feparate the useful from the ufelefs, the old from the new, and obtain a mastery over them, and the language in which they are compofed, the firft difficulty he meets with is a number of claufes, of forms, and of technical terms, which have no vifible relation to any law, cuftom, or usage, discoverable either in our law books or our practice. It is with aftonishment he finds, that our fyftematic lawyers, the only fources of knowledge to which we are taught to apply, afford little or no inftruction relative to the hif tory, the progrefs, or the import, of the common writs and forms. belonging to the jurifprudence they profefs; yet certain it is, that thefe ftyles have been, and ftill ought to be, the foundation, and the moft affured records of the common law of the kingdom. If we go a ftep farther back, to the more ancient deeds of a century or two preceding, we find ourselves altogether in a frange country. The flyles, the ceremonies, the manners, and the laws, to which these deeds have related, are fo extremely different from what we are now acquainted with, that we should never have fufpected the one to have been ever produced from, or fucceeded by, the other. Nay, it requires the moft intenfe application to be able to difcover thofe hidden relations and analogies which give evidence of their having belonged to the fame country, or the fame people. Although our hiftory acknowledges no revolution in the kingdom; although no Dane or Norman ever trampled upon the conflitution of this little country, or commanded its laws to give place to a foreign jurifprudence, yet, without conqueft, and without force, a revolution, almoft total, has certainly taken place in the laws and cuftoms of Scotland; a revolution which has been attended with effects equally fubverfive of the common law and ufages of our ancestors, as the Norman conqueft proved of those of the Anglo-Saxons. To this revolution, though not a fudden one, are to be imputed the capital differences which now exist between the laws of England and Scotland, which, both in principles and in practice, were originally the fame. The fame revolution is to be charged with that remarkable difference in the mode of treating the science, in the works of the lawyers of England, and in those of Scotland. The former carefully build every part of their fuperftructure, either upon the common or ftatute law of their country. The common or municipal law confifted of thofe confuetudes which had regulated their ancestors for ages, and which were, and continue to be, the glory of their nation. But where did their great lawyers feek for the certainty of these confuetudes? Every one of them concurs in declaring that he fought it in the words and forms of ancient deeds; in the ceremonies which existed relative to thofe deeds; in the public records; and in that best of guides, the Regiftrum Brevium; the collection of brieves which had, beyond all other record, iffued in virtue of the common law, and of confequence afforded the fureft evidence of its import. Ranulphus de Glanville, Chief Juftice of England under Henry II. who is allowed to be the first who published a fyftematic treatise upon the laws of that kingdom, is careful, fo often as he treats of a particular plea, or ground of law upon which an action can be founded, to give and to explain a copy of the brieve which was to be taken out from Chancery upon that occafion; fo that every book has a fuit of brieves and forms of writs relative to itfelf; and, indeed, of thefe common law writs, with the procefs upon them, the work itfelf principally confifts. What is the famous treatife of Judge Littleton upon tenures, the corner-ftone of the common law of England, but |