The History of the Common Law of England [65]
Parliaments. But, by what has been said and instanced in, it appears, That like as hetween the Laws of England and Normandy, so also between the Laws of England and Scotland, there was anciently a great Similitude and Likeness. I come therefore to the Second Thing I proposed to enquire into, viz. what Evidence there is, That those Laws of Scotland were either desumed from the English Laws, or from England, transmitted thither in such a Manner, as that the Laws here in England were as it were the Original or prime Exemplar, out of which those parallel or similar Laws of Scotland were copied or transcribed into the Body of their Laws: And this appears evident on the following Reasons, viz. First, For that Glanville (which, as has been observed, is the ancientest Collection we have of English Laws) seem to be even transcribed in many entire Capita of the Laws above-mentioned, and in some others where Glanville doubts, that Book doubts; and where Glanville follows the Practice of the Laws then in Use, tho' altered in succeeding Times, at least after the Reign of Edw. I. there the Regiam Majestatem does accordingly; for Instance, viz. Glanville, Lib. 7. cap. I. determines, That a Man can't give away part of the Lands which he held by Hereditary Descent unto his Bastard, without the Consent of his Heir, and that he may not give all his Purchases from his eldest Son; and this is also declared to be the Law of Scotland accordingly, Regiam Majestatem, Lib. 2. cap. 19, 20. Tho' since Glanville's Time, the Law has been altered in England. Also Glanville, Lib. 7. cap. I. makes a great Doubt, Whether the second Son, being enfeoffed by the Father, and dies without Issue; whether the Land shall return to the Father, or descend to his eldest, or to his youngest Brother; and at last gives such a Decision as we find almost in the same Terms and Words recited in the Question and Decisions laid down in Regiam. Majest. Lib. 2. cap. 22. Again, Glanville, Lib. 7. cap. I. makes it a difficult Question in his Time, Whether the eldest Son dying in the Life-time of his Father, having Issue, the Nephew or the youngest Son shall inherit; and gives the Arguments Pro & contra: And Regiam Majestatem, cap. 33. seems to be even a Transcript thereof out of Glanville. And further, the Tract concerning Assizes, and the Time of Limitation, the very Form of the Writs, and the Method of the Process, and the Directions touching their Proceedings are but Transcripts of Glanville, as appears by comparing Regiam Majestatem, Lib. 3. cap. 36. with Glanville, Lib. 13. cap. 32. and the Collector of those Laws of Scotland in all the before-mentioned Places, and divers others, quotes Glanville as the Pattern at least of those Laws. But Secondly, A second Evidence is, because many of the Laws which are mentioned in the Regiam Majestatem quoniam Archiamento, and other Collections of the Scotish Laws, are in Truth very Translations of several Statutes made in England in the Times of King Hen. 3. and King Edw. I. For Instance; the Statute of their King Robert 2. cap. I. touching Alienations to Religious Men, is nothing else but an Enacting of the Statute of Mortmain, 13 E. 1. cap. 13. The Law above-mentioned, touching the Disparagement of Wards, is desumed out of Magna Charta, cap. 6. and the Statute of Merton, cap. 6. So the Law abovesaid, against Ravishers of Wards, is taken out of Westm. 2. cap. 35. So the said Law of the double Value of Marriage, is taken out of Westm. 1. cap. 22. The Law concerning Wreck of the Sea, is but a Transcript out of Westm. 1. cap. 4. and divers other Instances of like Nature might be given, whereby it may appear, that very many of those Laws in Scotland which are a part of their Corpus Juris, bear a Similitude to the Laws of England, and were taken as it were out of those Common or Statute Laws here, that obtain'd in the Time of Edw. I and before, but especially such as were in Use or Enacted in the Time of Edw. I and the Laws of England, relative