THE HAMLYN LECTURES THIRTEENTH SERIES BRITISH JUSTICE: THE SCOTTISH CONTRIBUTION AUSTRALIA The Law Book Co. of Australasia Pty. Ltd. Sydney : Melbourne : Brisbane CANADA AND U.S.A. The Carswell Company Ltd. Toronto INDIA N. M. Tripathi Private Ltd. Bombay NEW ZEALAND Sweet & Maxwell (N.Z.) Ltd. Wellington PAKISTAN Pakistan Law House Karachi British Justice: The Scottish Contribution BY T. B. SMITH, Q.C, D.C.L., LL.D., F.B.A. Professor of Civil Law in the University of Edinburgh Published under the auspices of THE HAMLYN TRUST LONDON STEVENS & SONS LIMITED 1961 First published in 1961 by Stevens & Sons Limited of 11 New Fetter Lane in the City of London and printed in Great Britain by The Eastern Press Ltd. of London and Reading Stevens $ Sons, Limited, London 1961 PAHENTIBVS SCOTIS CONIVGI CARISSIMAE EX ANGLIA ORTAE VTRIVSQVE SANGVINIS LIBERIS CONTENTS The Hamlyn Trust ..... page xi 1. PERSPECTIVES: HISTORICAL AND COMPARATIVE 1 Prologue ....... 1 The Foundations ..... 6 Scots Law in Time ..... 6 Scots Law in Space ..... 22 International Law .... 22 Naturalisation ..... 24 Diplomatic Privilege .... 27 Fugitive Offenders and Runaway Mar- riages ...... 27 International Movement for Unifica- tion of Law ..... 29 Military Law ..... 30 Private International Law ... 33 Diaspora of the British Peoples and Migration of English Law . 35 Scottish Lawyers and the Anglo-American Law 43 2. MACHINERY OF JUSTICE .... 53 The Basic System 53 The Effect of Union with England . 61 The Union Agreement . .61 The Exchequer Court .... 62 The Privy Council 63 The Justiciary Court .... 63 Appeals to the House of Lords . 65 Reorganisation and Reform ... 69 Reorganisation of the Court of Session . 69 Consolidation of the Central Courts . 71 The Jury Court 73 vii viii Contents 2. MACHINERY OF JUSTICE—continued. Reorganisation and Reform—continued. Evidence and Procedure .... 75 Central Courts other than the Court of Session ...... 80 The Sheriff Court 81 House of Lords 83 High Court of Justiciary ... 89 Sheriff Court (Criminal) and Inferior Courts 91 Resume 92 3. PATTERNS OF CRIMINAL JUSTICE ... 95 Scottish Criminal Law .... 95 Breach of the Criminal Law and the Power to Declare New Crimes . 97 Dole and Guilty Mind (Mens red) . 101 Insanity and Diminished Responsibility . 105 Criminal Conduct ..... 108 The Administration of Criminal Justice . 115 Crown Office and Public Prosecution . 115 Arrest to Trial 120 Pre-trial Procedure and Publicity . 121 Trial 125 Evidence from the Accused at First and Second Hand 127 4. THE PATRIMONY OF PRIVATE LAW . 141 Persons and Family Law .... 141 Children 142 Status 142 Capacity ...... 145 Husband and Wife . .148 Marriage ...... 148 Divorce and Judicial Separation . 149 Legal Proceedings between Spouses • 154 Obligations 155 Delict 157 Contents IX 4. THE PATRIMONY OF PRIVATE LAW--continued. Obligations—continued. Quasi-Delict (Strict Liability) . 168 Quasi-Contract . 168 Voluntary Obligations . 172 Promise . 172 Contracts . 174 Proof of Obligations . 180 Property . 181 Land Ownership . 181 Moveable Property . 184 Trusts . 186 Succession . 191 Legal Rights . 191 Testate Succession . 192 Intestate Succession . 193 Executors . 194 Conclusion . 194 5. CONSTITUTIONAL QUESTIONS . .196 The Basic Freedoms 196 Rights to Sue the Crown .... 198 Church and State 199 The Fundamental Constitution and Judicial Review 201 Epilogue: The Destiny of Scots Law . 213 HAMLYN LECTURERS 1949 The Right Hon. Lord Denning 1950 Richard O'Sullivan, Q.c. 1951 F. H. Lawson, D.C.L. 1952 A. L. Goodhart, K.B.E., Q.C, F.B.A 1953 Sir Carleton Kemp Allen, Q.C, F.B.A. 1954 C. J. Hamson, M.A., LL.M. 1955 Glanville Williams, LL.D. 1956 The Hon. Sir Patrick Devlin 1957 The Right Hon. Lord MacDermott 1958 Sir David Hughes Parry, Q.C, M.A., LL.D., D.C.L. 1959 C. H. S. Fifoot, M.A., F.B.A. 1960 M. C. Setalvad, Padma Vibhufhan 1961 T. B. Smith, Q.C, D.C.L., LL.D., F.B.A. THE HAMLYN TRUST THE Hamlyn Trust came into existence under the will of the late Miss Emma Warburton Hamlyn, of Torquay, who died in 1941, aged eighty. She came of an old and well-known Devon family. Her father, William Bussell Hamlyn, practised in Torquay as a solicitor for many years. She was a woman of dominant character, intelligent and cultured, well versed in literature, music and art, and a lover of her country. She inherited a taste for law, and studied the subject. She travelled frequently on the Continent and about the Mediterranean and gathered impressions of comparative jurisprudence and ethnology. Miss Hamlyn bequeathed the residue of her estate in terms which were thought vague. The matter was taken to the Chancery Division of the High Court, which on November 29, 1948, approved a scheme for the administration of the Trust. Paragraph 3 of the Scheme is as follows: " The object of this charity is the furtherance by lectures or otherwise among the Common People of the United Kingdom of Great Britain and Northern Ireland of the knowledge of the Comparative Jurisprudence and the Ethnology of the chief European countries, including the United Kingdom, and the circumstances of the growth of such jurisprudence to the intent that the Com- mon People of the United Kingdom may realise the privileges which in law and custom they enjoy xi xii The Hamlyn Trust in comparison with other European Peoples and realising and appreciating such privileges may recognise the responsibilities and obligations attaching to them." The Trustees under the Scheme number eight, viz.: (a) Mr. S. K. COLERIDGE (executor of Miss Hamlyn's Will) (b) Representatives of the Universities of London, Wales, Leeds, Glasgow and Belfast, viz.: Professor G. W. KEETON Professor D. J. LI. DAVIES Professor P. S. JAMES Professor D. M. WALKER Professor J. L. MONTROSE (c) The Vice-chancellor of the University of Exeter, ex officio (Dr. J. W. COOK). (d) Dr. JOHN MURRAY (co-opted). The Trustees decided to organise courses of lectures of high interest and quality by persons of eminence under the auspices of co-operating Universities or other bodies with a view to the lectures being made available in book form to a wide public. The thirteenth series of Hamlyn Lectures was delivered in October 1961 by Professor T. B. Smith of Edinburgh University. JOHN MURRAY, Chairman of the Trustees. October, 1961. CHAPTER 1 PERSPECTIVES: HISTORICAL AND COMPARATIVE PROLOGUE THIS particular series of Hamlyn Lectures—the thirteenth—must contend with more than superstition. The previous twelve series have been delivered by judges of exceptional eminence—such as Lord Denn- ing, Lord MacDermott and Lord Justice Devlin; by scholars of world-wide reputation—including The Master of University College, Oxford, Professor Sir Carleton Allen, and the Professors of Comparative Law at Oxford and Cambridge. Most recently the Attorney-General of India, who is largely responsible for guiding in legal matters the 500 millions of that vast Republic in its first generation of independence has made a memorable contribution. My predecessors have been American, Australian, Indian, Irish, Welsh or English—yet the theme of each has been, mainly, the contribution of English law. The principles of the Anglo-American common law are applied in many lands throughout the world, and, indeed, govern—a point to which I shall return later—the daily lives of millions of men and women whose ethnic roots do not reach down into Anglo-Saxon soil. Now, after various aspects of this system have been expounded by my twelve distinguished predecessors, for the first time the Scottish contribution to British justice, nourished in a 1 2 British Justice: Scottish Contribution very different legal tradition, is to be discussed—in fulfilment of the object of the Hamlyn Trust to further " the knowledge of the Comparative Jurisprudence and the Ethnology of the chief European countries, including the United Kingdom, and the circumstances of the growth of such jurisprudence to the intent that the Common People of the United Kingdom may realise the privileges which in law and custom they enjoy in comparison with other European peoples." The law of the sister kingdom of England has in earlier series of Hamlyn Lectures had its full measure of praise already; and the tributes paid to that original product of English genius were well merited. Let me at the outset make one thing very clear. Though my great purpose in life has been to serve the law of Scotland in Aberdeen and Edinburgh, I have also had the privilege of studying the English law at Oxford under great teachers such as Goodhart and C. K. Allen; and I have shared in the corporate life of that Inn of Court which the present Lord Chancellor and his predecessor, the Earl of Birken- head, F. E.—the greatest of all legal Smiths—have adorned. These English legal influences I remember with gratitude; and I should be both ungrateful and unscholarly were I to compare Scottish and English law in any spirit of chauvinism or national intolerance. Such behaviour may in the past have been in order— as we shall see—for certain legislators at Westminster or for certain judges in the House of Lords when adjudicating on Scottish appeals. It would be unfit- ting for a Scotsman of integrity nurtured in the cosmopolitan Civilian traditions of Scots Law. Much Perspectives: Historical and Comparative 3 in English culture and English law I admire, but like my forebears, I cannot brook with patience those periodic manifestations of arrogance or ignorance whereby—in the supreme confidence that they know what is best for us—certain southern mandarins have sought to subvert valued and valuable Scottish insti- tutions. Nor do I find the reflection comfortable that Scotsmen and Scots lawyers, who should have known better, so often proved willing accomplices. More- over, even though comparisons may certainly be invidious, I must sometimes make them.