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THE STORY OF THE CHAIR OF PUBLIC LAW IN THE UNIVERSITY OF EDINBURGH 1.

EVERY

VERY civilised man is a born story-teller. The present is a mere point of time, and in itself is not even a luminous point. Before we have well apprehended it, it has become the past, and it is by the light which the past sheds on it alone that we apprehend it consciously, and that it projects its light on the future. It is to the conscious recognition of this light from the past, and of the way by which it has led us hitherto, that we apply the epithet of civilisation. By means of it alone rational activity becomes possible. The man who lives in the present is a barbarian, whatever be the other conditions of his existence. To him his own life is unintelligible: a mere time-flake on the ocean of eternity; it brings him no inheritance and leaves him nothing to transmit. His activity is a succession of leaps in the dark. The stage of civilisation, moreover, stands almost always in a very close relation to the measure of historical knowledge; and it is marvellous with what rapidity families and nations and races that have ceased to be historical slip back into barbarism. When the footprints of preceding generations are obliterated, each new generation has to begin the work of ages afresh, and it is not surprising that it should often prove unequal to the task. When this task has been long neglected its performance becomes impossible to those on whose ancestors it was incumbent, and it is for this reason that the East must now look to the West for its own forgotten story.

As regards the individual, the sphere within which the duty suggested by these considerations is imposed is determined by his character and the circumstances of his life. The function of the historian, in any wide or general sense, does not lie at the door of the majority even of civilised men. Their duty is, by availing themselves of such gifts and opportunities as may be bestowed on them, to contribute material for a history that shall be creditable to their generation. But within certain limits, every father of a family is bound to be its historian. I do not say that it is his duty to become a genealogist and to trace all the ramifications by which he and his kindred are intertwined with other families, or to determine the extent to which their fortunes were affected by distant events. If his race was illustrious, that will be done for him by others; if it was obscure, he may be pardoned if he allows its earlier history and less immediate fortunes to be forgotten. But with the recent history of the family, its 1 Professor Lorimer's introductory lecture, Session 1887-8.

history for the last three or four generations, we shall say, the case is different. That is, or ought to be, known to him as it can be known to no one else; and if he fails to transmit it he squanders the birthright of his posterity.

Now it appears to me that the holder of a public office stands to the public, to his patrons, and above all to his successors, very much in the position of the father of a family in this respect. If it is an ancient office he may leave its early history to the general historian. But its recent history, that history by which its present utility must be judged and its adaptation to the exigencies of the immediate future must be determined, is, or ought to be, known to him as it can be known to no other man. He may be prejudiced, it is true; but he cannot well be ignorant, and when he is entering on his twenty-sixth session, as is my case to-day, and on his seventieth year, as will be my case three days hence, it is scarcely likely that his vision should be greatly distorted by self-interest. On these grounds it appears desirable that I should now tell you the somewhat curious story of this chair, and give you some indication of my own experience as its occupant.

A Faculty of Law was included in the original scheme of each of the three older Universities of Scotland, and both at St. Andrews and Glasgow Canon and Civil Law were occasionally taught. Bishop Elphinston, by whom King's College in Aberdeen was founded in 1494, had himself been a professor of Canon Law at Paris, and of Civil Law at Orleans; and in his Statutes he enacted that the Canonista at Aberdeen should teach after the manner of Paris, and the Legista after the manner of Orleans. To him, too, is ascribed the suggestion of the enlightened statute of King James IV, 5. c. 54 (1494), which enacted that barons and freeholders should send their sons and heirs to the grammar schools, till they be competentlie founded and have perfite Latine, and thereafter to remain three years at the schules of art and jure, swa that they shall have knowledge and understanding of the laws.' In 1501 Elphinston further obtained an indulgence from the Pope, with the object of encouraging the study of civil law amongst ecclesiastics of all classes, with the curious exception of the Mendicant Friars.

The Reformers' scheme for remodelling the University of St. Andrews assigned to St. Salvador's College the privilege of granting degrees in law after one year's course in Ethics, Economics and Politics, and a four years' course under two readers in Municipal and Roman Law.

In Edinburgh the first serious effort to introduce the scientific teaching of jurisprudence appears to have been made by Reid, Bishop of Orkney, who, amongst his many offices and preferments,

was President of the Court of Session. Reid left a bequest for the endowment of a School of Arts and Jure, the object of which appears to have been to carry out the provisions of the statute just referred to. But, as in the case of another Reid-bequest 1' that we know of, the founder's will was treated with scant respect. After tracing this discreditable transaction through its various stages, Sir Alexander Grant concludes his narrative thus: And so it came to pass that the only memorial of Bishop Reid's munificent purpose to endow a college "of Arts and Jure" in Edinburgh existed for some time (though it has long since passed away) in the name given to "fourteen little chambers" which formed part of the original College buildings, and which were called "the old Reid chambers 2."

Another miscarriage took place when, in 1500, a professorship of laws was actually founded by the Lords of Session, the Town Council, the Advocates and the Writers to the Signet. Two professors were successively appointed to it, but for some mysterious reason they taught nothing but classical literature.

Subsequent to the foundation of the Court of Session it is probable that, in addition to the instruction by apprenticeship which must always have existed, instruction of a more scientific character, both in civil and municipal law, was given privately by members of the Bar. This however was less with a view to the completion of a legal education in Scotland than by way of preparation for the foreign study which long after the foundation of the University in 1582, and even after the Union in 1707-down indeed to the French Revolution-was considered indispensable for admission to the Bar. But slight and elementary as it no doubt was, I think we may assume with some confidence that the teaching of jurisprudence in Scotland even at this early period was not destitute of a scientific character. In addition to the care with which the connection between classical and legal studies was maintained, and the special provisions which we find for a philosophical and historical groundwork being laid in ethics, economics and politics, this assumption seems to be warranted by the preponderance of the ecclesiastical over the lay element on the Bench. It was by the canonists rather than the civilians that the study of the jus naturale, as a substantive branch of science, was carried on, and it was by them, as I shall show you hereafter, that its importance as the basis of the jus inter gentes was pointed out. Scotland was so entirely separated from the Roman Catholic world by the reformation as scarcely to have felt the influence of the Spanish School of Jurisprudence, which culminated in Suarez of Grenada, and to which the Protestant

1 For the Music Chair.

2 Grant, vol. i. p. 169.

writers who followed them owed more than they were willing to acknowledge. It is possible that the teaching of Alberico Gentile at Oxford may not have been wholly unheeded in Scotland; but though Gentile was a protestant he was not much of a philosopher, and it was to Grotius and his followers, unquestionably, and to the intimate relations which then subsisted between the intellectual life of Scotland and of Holland, that we were indebted for our introduction to the study both of scientific jurisprudence in general, or natural law as it was called, and of the law of nations. It was from this source that Lord Stair drew the inspiration which enabled him to bring science to bear on our municipal system with a definiteness of conception and clearness of expression which has never since been equalled by our text-writers; and it has always seemed to me probable that it may have been at Stair's suggestion that this particular chair, if not the Faculty of Law itself, was founded. Stair's great work was published in 1681 and he died in 1695, twelve years before the foundation of the Public Law chair; and there consequently can be little doubt as to the correctness of Sir Alexander Grant's conjecture that it was to the great Carstairs— 'Cardinal Carstairs' as he was called-who was Principal of the University from 1704 to 1715, that we owe it more directly. Still it is worthy of remark that Stair went to Holland in 1682, and Carstairs returned to Holland after his secret mission to Scotland in 1685, and that they both remained in Holland till 1688 when they returned with the Prince of Orange. From 1685 to 1688 these two remarkable men were together, and in constant personal intercourse, in Holland. Both were philosophers, theologians, and politicians, and Stair could scarcely have failed to point out to Carstairs the relation between these subjects of common interest and his own specialty as a jurist; whilst Carstairs, who had studied at Utrecht, would be able to explain to Stair the arrangements by which this relation was recognised in the Dutch Universities. There was another Scottish exile of distinction in Holland at this time, who also formed one of the party that landed at Torbay, viz. Robert Dundas the second Lord Arniston; and it is interesting to reflect that during the long and stormy passage the three Scotsmen may have talked over the prospects of Scottish jurisprudence in the intervals between the political and ecclesiastical discussion which no doubt mainly occupied them. Dundas was not a man of the same intellectual calibre as Stair or Carstairs, but he was a man of cultivated and scholarly tastes; and as he lived till 1729, his Dutch experiences may have enabled him to aid Carstairs with his counsels..

But from whatever direction the influences may have come which led

to the formation of the Faculty of Law, we are not left to conjecture as to the School of Jurisprudence of which this particular chair was an offshoot. One of the students in this class found in an old bookstall, and kindly brought to me, the curious little book which Sir Alexander Grant has described in a note1. It is a compendium of Grotius's De Jure Belli et Pacis, by William Scott, who was one of the regents at the time. It is dedicated to the Lord Provost and Town Council, and on the copy in the library is written ex dono Authoris, 4to Aprilis, 1707. In a Latin preface Scott tells us that the book had been printed for the use of a private class, to whom he had previously dictated its contents as a preparation for wider studies, and he gives in full his opening address delivered in his private class-room (in auditorio privato) on the study of Grotius. This shows,' Sir Alexander continues,' that there was some little demand among the students of the college for lectures on the Law of Nature and Nations. It is possible that Carstairs may have suggested the delivery of these lectures, as a first step towards the foundation of a chair. But under the circumstances it is remarkable that the chair when founded should have been given to Areskine and not to Scott.' The coincidence between the date of the publication of Scott's book and the foundation of the chair, 1707, may be taken, I think, as indicating that Scott was a candidate for it. Its dedication to the Town Council seems to show that it was on their influence that he relied; and their leaning in his favour may have had something to do with the bitterness with which they resented what they regarded as the high-handed action of the Crown in placing Areskine in the University without their consent.

From all these circumstances, I think, you will not doubt that when this chair was ultimately founded in 1707 its object, as Sir Alexander Grant has said, was to provide a scientific and philosophical basis for a future Faculty of Laws, in imitation perhaps of the Dutch Universities 2.' The School of Grotius was that which was then uppermost in the minds of Scotsmen, and the Faculty of Law from the first was manifestly intended to cover the whole field of Jurisprudence and to embrace legislation as well as jurisdiction.

1. Its first occupant was CHARLES ARESKINE, or Erskine, of Tinwald, 1707-1734. He came of a race, or rather I ought to say of races, which had been distinguished in the law long before him and continued to be so long after him. His grandfather, the Honourable Sir Charles Erskine of Alva, fourth son of John Earl of Mar and of Lady Marie Stewart, daughter of the Duke of Lennox, married Mary Hope, second daughter of Lord Advocate Sir Thomas

1 Vol. i. p. 233.

2 Ibid.