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Lawyers express opinions about the law but do not expect their opinions to form part of the law. It was not always so. This book explores the relationship between the opinions expressed by lawyers and the development of the law of Scotland in the century preceding the parliamentary union with England in , when it was decided that the private law of Scotland was sufficiently distinctive and coherent to be worthy of preservation.
Credit for this surprising decision, which has resulted in the survival of two separate legal systems in Britain, has often been given to the first Viscount Stair, whose Institutions of the Law of Scotland had appeared in a revised edition in The present book places Stair's treatise in historical context and asks whether it could have been his intention in writing to express the type of authoritative opinions that could have been used to consolidate the emerging law, and whether he could have been motivated in writing by a desire to clarify the relationship between the laws of Scotland and England.
In doing so the book provides a fresh account of the literature and practice of Scots law in its formative period and at the same time sheds light on the background to the union. It will be of interest to legal historians and Scots lawyers, but it should also be accessible to lay readers who wish to know more about the law and legal history of Scotland.
Oliver Cromwell: a Scottish perspective
However, it became increasingly evident that England would not support a Roman Catholic Stuart monarch. The Jacobite leadership had a crisis of confidence and they retreated to Scotland as two English armies closed in and Hanoverian troops began to return from the continent. After an unsuccessful attempt on Stirling, he retreated north towards Inverness.
He was pursued by the Duke of Cumberland and gave battle with an exhausted army at Culloden on 16 April , where the Jacobite cause was crushed. The Old Pretender died in and the Young Pretender, without legitimate issue, in When his brother, Henry, Cardinal of York , died in , the Jacobite cause was at an end. The defining factor in the geography of Scotland is the distinction between the Highlands and Islands in the north and west and the Lowlands in the south and east.
The highlands are further divided into the Northwest Highlands and the Grampian Mountains by the fault line of the Great Glen. The Lowlands are divided into the fertile belt of the Central Lowlands and the higher terrain of the Southern Uplands , which included the Cheviot hills , over which the border with England ran. The early modern period also saw the impact of the Little Ice Age , with seeing thirty-three days of continual frost, where rivers and lochs froze, leading to a series of subsistence crisis until the s.
Most roads in the Lowlands were maintained by justices from a monetary levy on landholders and work levy on tenants. The development of national grain prices indicates the network had improved considerably by the early eighteenth century. The exception, the debatable lands at the Western end of the border with England, were settled by a French led commission in and the Scots' Dike built to mark the boundary. At the beginning of the era, with difficult terrain, poor roads and methods of transport there was little trade between different areas of the country and most settlements depended on what was produced locally, often with very little in reserve in bad years.
Most farming was based on the lowland fermtoun or highland baile , settlements of a handful of families that jointly farmed an area notionally suitable for two or three plough teams, allocated in run rigs to tenant farmers. They usually ran downhill so that they included both wet and dry land, helping to offset the problems of extreme weather conditions.
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Most ploughing was done with a heavy wooden plough with an iron coulter , pulled by oxen, which were more effective and cheaper to feed than horses. Scots responded by selling larger quantities of traditional goods, increasing the output of salt, herring and coal.
Wages rose rapidly, by between four or five times between and the end of the century, but failed to keep pace with inflation. This situation was punctuated by frequent harvest failures, with almost half the years in the second half of the sixteenth century seeing local or national scarcity, necessitating the shipping of large quantities of grain from the Baltic. Distress was exacerbated by outbreaks of plague, with major epidemics in the periods —88 and — George Bruce used German techniques to solve the drainage problems of his coal mine at Culross.
In the Society of Brewers was established in Edinburgh and the importing of English hops allowed the brewing of Scottish beer. In the early seventeenth century famine was relatively common, with four periods of famine prices between and The invasions of the s had a profound impact on the Scottish economy, with the destruction of crops and the disruption of markets resulting in some of the most rapid price rises of the century. Economic conditions were generally favourable from to , as land owners promoted better tillage and cattle-raising. The English Navigation Acts limited the ability of the Scots to engage in what would have been lucrative trading with England's growing colonies, but these were often circumvented, with Glasgow becoming an increasingly important commercial centre, opening up trade with the American colonies: importing sugar from the West Indies and tobacco from Virginia and Maryland.
Exports across the Atlantic included linen, woollen goods, coal and grindstones. However, by the end of the century the drovers roads , stretching down from the Highlands through south-west Scotland to north-east England, had become firmly established. Attempts by the Privy Council to build up luxury industries in cloth mills, soap works, sugar boiling houses, gunpowder and paper works, proved largely unsuccessful.
The famines of the s were seen as particularly severe, partly because famine had become relatively rare in the second half of the seventeenth century, with only one year of dearth in and the shortages of the s would be the last of their kind. At the union of England had about five times the population of Scotland, and about 36 times as much wealth, however, Scotland began to experience the beginnings of economic expansion that would begin to allow it to close this gap. Haymaking was introduced along with the English plough and foreign grasses, the sowing of rye grass and clover. Turnips and cabbages were introduced, lands enclosed and marshes drained, lime was put down, roads built and woods planted.
Drilling and sowing and crop rotation were introduced. The introduction of the potato to Scotland in greatly improved the diet of the peasantry. Enclosures began to displace the runrig system and free pasture. The Society of Improvers was founded in , including in its members dukes, earls, lairds and landlords. The Lothians became a major centre of grain, Ayrshire of cattle breading and the borders of sheep.
However, although some estate holders improved the quality of life of their displaced workers, enclosures led to unemployment and forced migrations to the burghs or abroad. The major change in international trade was the rapid expansion of the Americas as a market.
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Initially relying on hired ships, by it had 67 of its own, a third of which were trading with the New World. Glasgow emerged as the focus of the tobacco trade, re-exporting particularly to France. The merchants dealing in this lucrative business became the wealthy tobacco lords , who dominated the city for most of the century. Other burghs also benefited. Greenock enlarged its port in and sent its first ship to the Americas in , but was soon playing a major part in importing sugar and rum.
Rough plaids were produced, but the most important areas of manufacturing was linen , particularly in the Lowlands, with some commentators suggesting that Scottish flax was superior to Dutch. Paisley adopted Dutch methods and became a major centre of production. Glasgow manufactured for the export trade, which doubled between and The move of the British Linen Company in into advancing cash credits also stimulated production.
The trade was soon being managed by "manufacturers" who supplied flax to spinners, bought back the yarn and then supplied to the weavers and then bought the cloth they produced and resold that. The Bank of Scotland , founded in was suspected of Jacobite sympathies and so a rival Royal Bank of Scotland was founded in Local banks began to be established in burghs like Glasgow and Ayr.
These would make capital available for business and the improvement of roads and trade. Below the king were a small number of dukes usually descended from very close relatives of the king and earls , who formed the senior nobility.
Under them were the barons, who in this period were beginning to merge with the local tenants-in-chief to become lairds  a group roughly equivalent to the English gentlemen. These included yeomen , sometimes called "bonnet lairds", often owning substantial land. The practice of fueing by which a tenant paid an entry sum and an annual feu duty, but could pass the land on to their heirs meant that the number of people holding heritable possession of lands, which had previously been controlled by the church or nobility expanded.
Unlike in England, where kinship was predominately cognatic derived through both males and females , in Scotland kinship was agnatic , with members of a group sharing a sometimes fictional common ancestor. Women retained their original surname at marriage and marriages were intended to create friendship between kin groups, rather than a new bond of kinship.
A shared surname has been seen as a "test of kinship", proving large bodies of kin who could call on each other's support. At the beginning of the period this could help intensify the idea of the feud, which was usually carried out as a form of revenge for a kinsman and for which a large bodies of kin could be counted on to support rival sides, although conflict between members of kin groups also occurred.
Scotland in the early modern period - Wikipedia
The combination of agnatic kinship and a feudal system of obligation has been seen as creating the Highland clan system. Most of the followers of the clan were tenants, who supplied labour to the clan heads and sometimes acted as soldiers. In the early modern period they usually took the clan name as their surname, turning it into a massive, if often fictive, kin group. All of this largely reducing clan leaders to the status of simple landholders within a generation.
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There are almost no reliable sources with which to track the population of Scotland before the late seventeenth century. Estimates based on English records suggest that by the end of the Middle Ages, the Black Death and subsequent recurring outbreaks of the plague , may have caused the population of Scotland to fall as low as half a million people. This level may have been seriously effected by the famines of the s.
The first reliable information available on national population is from the census conducted by the Reverend Alexander Webster in , which showed the inhabitants of Scotland as 1,, persons. Compared with the situation after the redistribution of population in the later clearances and the industrial revolution , these numbers would have been evenly spread over the kingdom, with roughly half living north of the Tay.
It has been suggested that they would have had a mean population of about 2,, but many would be much smaller than 1, and the largest, Edinburgh, probably had a population of over 10, at the beginning of the modern era  and by , with its suburbs it had reached 57, The only other towns above 10, by the end of the period were Glasgow with 32,, Aberdeen with around 16, and Dundee with 12, In late medieval Scotland there is evidence of occasional prosecutions of individuals for causing harm through witchcraft, but these may have been declining in the first half of the sixteenth century.
In the aftermath of the initial Reformation settlement, Parliament passed the Witchcraft Act , similar to that passed in England one year earlier, which made witchcraft a capital crime. Despite the fact that Scotland probably had about one quarter of the population of England, it would have three times the number of witchcraft prosecutions, at about 6, for the entire period.
Several people, most notably Agnes Sampson , were convicted of using witchcraft to send storms against James' ship. James became obsessed with the threat posed by witches and, inspired by his personal involvement, in wrote the Daemonologie , a tract that opposed the practice of witchcraft and which provided background material for Shakespeare's Tragedy of Macbeth.
In the seventeenth century, the pursuit of witchcraft was largely taken over by the kirk sessions and was often used to attach superstitious and Catholic practices in Scottish society. Most of the accused, 75 per cent, were women, with over 1, executed, and the witch hunt in Scotland has been seen as a means of controlling women. There may also have been a growing scepticism and with relative peace and stability the economic and social tensions that contributed to accusations may have reduced. There were occasional local outbreaks like that in East Lothian in and at Paisley.