How the Scots Invented the Modern World (14 page)

The Scots, on the other hand, who had learned to cast wider for their fundamental legal principles, turned to the ancient Roman civil law. They studied the medieval legal scholars, the great “civilians,” who were busy reviving that Roman legacy on the Continent. This meant that by John Knox’s time Scottish law looked more like that of France or Italy than Scotland’s neighbor to the immediate south. In fact, many Scottish lawyers in the seventeenth century still went to France to complete their law training rather than to England, since English legal principles made little or no sense to the Scottish mind.

To an American, the two systems might look the same. To bring a case to court, a person hires a solicitor (or in Scotland, a writer), who in turn finds a barrister (in Scotland, an advocate) to plead the case for his client before the judge. There, however, the similarity ends. The relationship between plaintiff and defendant is more than simply adversarial. The prosecution makes no opening statement; the evidence against a defendant must speak for itself. Judge and jury (and in Kame’s time, there were no juries in civil trials) carry an awesome responsibility. Unlike his English and American counterpart, the Scottish magistrate does not just ask what the evidence proves. He dares to pose the crucial question:
What really happened?

A Scottish judge’s decision in a civil or criminal case looks beyond the facts to the underlying principles of fairness and equity that the case involves. His guide is not precedent but reason—hence the importance of Roman law, which later commentators even referred to as “written reason.” Since the Middle Ages, in fact, Scottish legal minds had come to rely on Roman law to fill in the gaps in their own law. The judges of the Court of Session were even designated senators, as if they were the successors to the ancient Roman body.

The first professor of Scots law at the University of Edinburgh, Alexander Bayne, explained, “We consider the Roman laws which are not disconform to our own fixed Laws and Customs, to be our own Law.” Later, as a distinguished judge, Lord Kames would agree. “Our law is grafted on that of Old Rome,” he would write. “The Roman law is illustrious for its equitable rules, affording great scope for acute reasoning.” It taught a judge above all to think independently, and not to worry too much about what other judges had said in the past. It also taught another invaluable lesson, firmly established in Scottish jurisprudence: that no person, not even a monarch, stood above the law.

The one Scottish institution left untouched by the Act of Union in 1707, besides its Kirk and its universities, was its legal system. Parliament House, once the home of self-government, now became the home of the law courts. When the teenaged Henry Home visited for the first time, he would have seen judges striding back and forth to court in their magnificent maroon silk robes (patterned after the red robes of the sovereign courts of France), the bustle of attorneys and bailiffs summoning clients to court, and he would have heard the cries of shopkeepers peddling their wares from their booths in the nearby streets and alleys. It became the center of his world. For the rest of his life, he never lived more than a few blocks from Parliament House.

Apprenticing with a writer of the Signet (so called from the royal signet ring used to authorize legal documents) was a typical way to start one’s training in the law. Working with Dickson immersed Home in the complicated legal issues arising from the sale and alienation of land, and establishing hereditary title. He would have spent hours mastering the arcane rules and vocabulary of Scottish feudal landholding, a mixture of Norman French, Middle English, and Scots.

First came the various kinds of tenure, such as
ward, feu, blench, bur-gages,
and
mortification.
Then the obligations owed to landlords:
bonds,
contracts, tacks
(a type of lease),
wadsets
(or mortgages),
venditions,
and “bills of bottomry.” He would have learned how the landholding of feudal Scotland, in both Highlands and Lowlands, had been created out of military necessity. This archaic system of land ownership had survived in Scotland much as it had elsewhere in eighteenth-century Europe, although the Scots had organized and systematized it better than most. But since then, new forms of property holding—buying, selling, and leasing of land and movables—had arisen, which both overlapped and challenged the old patterns. Who was more in the right, the old land-holders or the new? It was the kind of question that would occupy Home later on, and he could not have begun to address it without his earlier training in Dickson’s chambers.

Home’s interest in the law took a sharply different turn when he met Sir Hew Dalrymple, Lord President of the Court of Session. Dalrymple was the brother of John Dalrymple, Viscount Stair, who had died while pressing the Act of Union on a reluctant Parliament. Their father, the first Viscount Stair, was the distinguished organizer and systematizer of Scottish law, whose
Institutions
were published in 1681. The supposed “Dalrymple curse” left no mark on the elegant and convivial Sir Hew. Just the opposite. Home himself described the first time as a struggling young law clerk he met Dalrymple, and how it changed his life:

I was kept waiting in an outer room. I heard delightful Musick upon a harpsichord in the next room, and I meditated on the hardship of there being such distinctions amongst Mankind. “Why are the people in that room enjoying such happiness, and I kept in a mean, drudging way? Were I but fortunate enough to be on the other side of that Wall.”

There was only one way. This was to switch from the straightforward but less lucrative profession of writer or solicitor to the more glamorous but also more competitive world of the advocate or barrister, who represented clients in court and commanded high fees for doing so. It was also from their ranks that future judges for the Court of Session and the Court of Justiciary, Scotland’s highest criminal court, were chosen.

Home quickly made up his mind. He became close friends of the Dalrymple family. The son became his roommate, and the music of the family harpsichord become a familiar sound to young Harry Home. He also threw himself into the studies necessary for admission to the Faculty of Advocates.

Scottish advocates had been practicing before the bar since the thirteenth century, and had formed their own guild, the Faculty of Advocates, in the sixteenth. The rules for admission had become increasingly strict, even scholarly. The Faculty required from its members a full course of study of philosophy and law at a university for at least two years, in lieu of formal experience for seven.

The contrast with England was striking. The English barrister received no formal academic training at all. Instead, he learned his trade at the Inns of Court in London entirely in the old medieval style of hands-on apprenticeship. Like his solicitor counterparts, the young English barrister learned to play follow-the-leader, and to obey the dictates of precedent, because there was no practical alternative.

But his Scottish counterpart was as much the product of rigorous scholarly erudition as of practical skills. Two years of overseas study, at universities in Holland or even in France, gave the Scottish bar a cosmopolitan air the English never achieved.

It also immersed the aspiring advocate even deeper in the theory of Roman and civil law. Justinian’s
Codex
sat on Home’s desk side by side with Stair’s
Institutions
as he prepared for his final examination. Since 1664 the Faculty had required a private and public exam on the civil law administered by senior advocates, and a public speech on a civil law text chosen by the Dean of the Faculty. Home presented his on January 17, 1723, on a subject familiar from his days studying to be a writer to the Signet: the revocation and transference of legacies. He was now a full-fledged advocate and a member of the Scottish bar. He was twenty-seven years old.

Harry Home proved to be a rising star. His “tall, stooping figure,” as his friend Allan Ramsay described him, and his “keen, sarcastic face” became familiar sights around Parliament House and in the neighboring taverns and oyster houses. Men and women alike found him captivating. The poet William Hamilton described him this way:

While crowned with radiant charms divine,
Unnumbered beauties round thee shine. . . .

As he admitted to James Boswell years later, “I got into pretty riotous and expensive society.” When he found himself swamped with bills and over three hundred pounds in debt, he put the brakes on his social life and concentrated on the work.

His time in Dickson’s office had given him a firm grasp of the intricacies of the law regarding land tenure, inheritance, and estates in Scotland. Combined with his immersion in civil jurisprudence, he now had the best of all possible intellectual backgrounds: a mind broadened by rigorous understanding of theory, but also steeped in the nuances of actual practice. He also turned out to be a brilliant advocate in court, summarizing cases without fanfare but with the full force of reasoned persuasion. He soon rose to become a senior examiner for the Faculty of Advocates, and then stepped in to act as curator of the Advocates’ Library in 1737.

With the help of the library’s keeper, Thomas Ruddiman, over the next half-decade Home turned it into a major repository for books not only on law but also on philosophy, history, geography, and foreign travel. It soon became one of the premier collections in Great Britain, and the seedbed of the Edinburgh Enlightenment. Its future keepers would include David Hume, who used the library to write his
History of
England,
and Adam Ferguson, who used it for his
Essay on the History of
Civil Society.
Anthropology, sociology, ethnography: almost all our modern social sciences got their start from the volumes assembled on the shelves at the Advocates’ Library in Edinburgh. And it was Home who made it possible.

In this, as in so much else, his tireless energy reflected a key characteristic of the Scottish enlightened mind, its passion for organizing and systematizing knowledge. His first published book was a collection of past judicial decisions by the Court of Session, in order to help attorneys and judges to understand the future direction of Scottish law. He pored through the manuscripts of its old president Lord Fountainhall, the same judge who had met Thomas Aikenhead in Tollbooth Prison and spoken to the Privy Council on his behalf. The Advocates’ Library contained his private papers, and Home was able to sift through Fountainhall’s personal account of daily business in the Privy Council. It gave him invaluable insights into the interplay between politics and the law, and how issues arising from the one impinge upon and shape the judgments made in the other.

Increasingly, Home concluded that this was a normal, not an extraordinary, state of affairs. The law, he realized, was a living thing, “being founded on experience and common life,” he would write later. “Our law thus comes to be enriched with new thoughts, new discoveries, new arguments, struck out by the invention of our lawyers.” It is not a lifeless chain of tradition and precedent, but a flexible instrument, a means for attaining order and justice, and it must change as society changes, and human beings with it. The law is a means to an end—and what that end is depends on human desires and needs.

But somewhere, some basic principles have to stick. Somewhere there has to be a firm base on which everything else can rest; otherwise, the law becomes the plaything of power, not its master.

One such principle was reason, our rational faculty for grasping knowledge of the world and drawing conclusions from it. Another was nature: like Hutcheson, Home looked to philosophers such as Pufendorf as a guide for seeing how all human societies reflect the same underlying laws of nature dictated by God. Yet nature’s laws, too, were not fixed and immutable. “The law of nature,” he concluded in 1751, “which is the law of
our
nature, cannot be stationary. It must vary with the nature of man, and consequently refine gradually as human nature refines.”

So what does remain stationary? What can we rely on as fundamentally true if everything else, including those qualities that define us as human beings, constantly shifts and changes? Those were the questions Home was determined to pursue.

The problem was that his research had to be squeezed into a highly successful but demanding legal career. In January 1752 he was appointed Lord Ordinary of the Court of Session, which enabled him to take the title of Lord Kames. His day regularly began sometime between 5:00 and 6:00 A.M., when he began reading and preparing for his day at court. Shortly before noon he would go to Parliament House to hear cases with his colleagues, including James Boswell’s father. When the court rose at about three o’clock in the afternoon, Kames would skip dinner in order to spend time with books and manuscripts, including the Code of Justinian, Anglo-Saxon and Frankish law, and legal theorists ranging from the Hebraic and Islamic world to English commentators such as Sir Edward Coke and Sir William Blackstone.

Any actual writing usually had to wait until he could get away to the country between court sessions. Even there it had to be sandwiched in between supervising work on the farm and entertaining guests. Ramsay remembered Kames dressing for dinner, while “his clerk read over what he had written in the morning, marking his emendations and subsequent hints” for further research.

Evenings in the city were given over to social gatherings, which both he and his wife intensely enjoyed. They would invite friends to attend a concert or the theater (although in the 1740s theatrical performances were still technically illegal in Edinburgh), then return home to enjoy supper with intimates. Kames rarely got to bed until after midnight.