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Оглавление[print edition page xxvii]
A NOTE ON LEGAL SOURCES AND CITATIONS
Kames’s Principles of Equity is replete with a large range of technical terms from Scots, Roman, and English law. To assist the reader, I have appended my own glossary to the text of terms used (p. 543), to serve as an addition to Kames’s brief “Explanation of Some Scotch Law Terms Used in This Work” (p. 15). Some of the language of Scots law uses terms which might at first glance appear to bear no specific meaning, but which in fact have a particular legal connotation. The glossary and notes seek to explain them as simply as possible. Latin tags and phrases are in general translated in the body of the text, but the glossary also contains terms used repeatedly.
The work also makes extensive reference to Scottish and English statutes and case law and to Roman law. What follows is a brief introduction to the citation of this material.
Scottish Legislation
At the time when Kames was writing, the standard printed collection of statutes was that produced by Sir Thomas Murray of Glendook, the lord clerk register from 1677 to 1681.1 It was produced in a folio edition in 1681 and a two-volume duodecimo edition in 1682 (taking the statutes to 1681), and was subsequently supplemented by another volume taking the collection to 1707. The duodecimo edition was the one most commonly cited in courts. In Kames’s day, the method used to refer to statutes was
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by reference to the year and chapter number given in Glendook’s edition (and not by name).2 It is this method which Kames uses in his text and footnotes.
In the nineteenth century, a new definitive printed edition of the statutes was compiled by Thomas Thomson and Cosmo Innes. Their edition of The Acts of the Parliament of Scotland was published between 1814 and 1875 in Edinburgh in twelve folio volumes and became the standard point of reference for historians. This edition is also flawed, and a new digital, on-line edition of the Scottish parliamentary material, entitled The Records of the Parliament of Scotland to 1707 has been produced by the Scottish Parliament Project at the University of St. Andrews. The database of statutes can be accessed via: http://www.rps.ac.uk/. Readers wishing to follow up the references are recommended to consult the database, where translations are given into modern English.
In the footnotes, I have used both these forms of citation, giving the Glendook reference in the notes (where Kames omits to do so in the text), followed by the citation and title given in the Acts of the Parliament of Scotland. Scottish statutes were only given short titles as a result of legislation passed in 1892, 1896, and 1964, which assigned short titles to unrepealed public acts of the Scottish parliament passed between 1424 and 1707. Where such a short title exists, I have also given it.
Scottish Case Law
In Kames’s time, a number of manuscript collections of law reports existed, which were kept in the Faculty of Advocates’ Library in Edinburgh and used by practitioners in the court. In addition, a number of these had been published by the time Kames composed the Principles of Equity. Kames himself published a number of collections of law reports, the most important of which was his Dictionary (first published in 1741 in two volumes), which, when supplemented later by Alexander Fraser Tytler, Lord Woodhouselee, was referred to as the Folio Collection.
The majority of these reports were subsequently collated and published
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in the forty-two-volume collection edited by William Maxwell Morison, The Decisions of the Court of Session from its institution until the separation of the Court into two divisions in the year 1808, digested under proper heads in the form of a dictionary (Edinburgh: Archibald Constable & Co., 1811). This became the standard reference work for earlier cases for Scottish lawyers.
Most of the cases cited by Kames were included in Morison’s Dictionary of Decisions: and I have therefore given the reference to Morison in the footnotes. Morison’s Dictionary is continuously paginated, and so a reference such as M 9505 indicates that the case cited is in Morison’s collection, p. 9505.
Where Kames himself reported a case referred to (either digesting an earlier report or reporting it for the first time himself), a reference is given to Kames’s report. Cases discussed by Kames without any citation (beyond a date) are unpublished cases.
Kames’s own footnotes frequently name the reporters whose work he is referring to: for example, Fountainhall, July 29, 1708, Rag contra Brown. The following is a list of the published collections which are cited by Kames; many are now available in electronic form on databases of seventeenth- and eighteenth-century literature.
| Bruce | Alexander Bruce, The Decisions of the Lords of Council and Session, in most cases of importance, for the months of November and December 1714, and January, February, June and July 1715 (Edinburgh: James McEuen, 1720). |
| Dalrymple | Decisions of the Court of Session from 1698 to 1718, collected by the Right Honourable Sir Hew Dalrymple (Edinburgh: G. Hamilton and J. Balfour, 1758). |
| Dirleton | Some Doubts and Questions in the Law, especially of Scotland. As also, some decisions of the Lords of Council and Session: collected and observ’d by Sir John Nisbet of Dirleton (Edinburgh: G. Mosman, 1698). |
| Durie | Sir Alexander Gibson of Durie, The Decisions of the Lords of Council and Session . . . from July 1621 to July 1642 (Edinburgh: George Mosman, 1690). |
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| Falconer | David Falconer, The Decisions of the Court of Session. From the Month of November 1744, 2 vols. (Edinburgh: W. & T. Ruddimans). |
| Forbes | William Forbes, A Journal of the Session. Containing the Decisions of the Lords of Council and Session . . . from February 1705 till November 1713 (Edinburgh: for the author, 1713). |
| Fountainhall | The Decisions of the Lords of Council and Session from June 6th 1678 to July 12th 1712. Collected by Sir John Lauder of Fountainhall, 2 vols. (Edinburgh: G. Hamilton and J. Balfour, 1759–61). |
| Gilmour | A Collection of Decisions of the Lords of Council and Session in two parts. The first contains decisions from July 1661 to July 1666. Observ’d by Sir John Gilmour of Craigmiller (Edinburgh: John Vallange, 1701). |
| Harcase | Decisions of the Court of Session, collected by Sir Roger Hog of Harcase . . . from 1681 to 1691 (Edinburgh: G. Hamilton and J. Gilmour, 1757). |
| Home | Henry Home, Lord Kames, Remarkable Decisions of the Court of Session from 1716 to 1728 (Edinburgh: T. Ruddiman, 1728). |
| Kilkerran | Decisions of the Court of Session, from the year 1738 to the year 1752. Collected and digested into the form of a dictionary. By Sir James Fergusson of Kilkerran (Edinburgh: J. Bell and W. Creech, 1775). |
| Stair | Sir James Dalrymple of Stair, The Decisions of the Lords of Council & Session in the most Important Cases debate before them, with the Acts of Sederunt . . . from June 1661 to July 1681 (Edinburgh: Andrew Anderson, 1683). |
England
Kames also refers to cases reported in manuscript by the following authors, whose works were digested by both Morison and Kames in their printed collections:
| Haddington | Thomas Hamilton, Earl of Haddington |
| Hope | Sir Thomas Hope of Kerse |
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| Gosford | Sir Peter Wedderburn of Gosford |
| Nicolson | Sir Thomas Nicolson of Carnock |
| Spottiswoode | Sir Robert Spottiswoode of Pentland |
Statutes passed by the English Parliament, and by the British Parliament after 1707, are generally cited by Kames according to the regnal year, chapter, and section number (for example, 29 Car. II, c. 3, s. 1); I have added the date and title (for example, An Act for Prevention of Frauds and Perjuries, 1677).
At the time Kames was writing, reports of English cases were published under the name of the reporter who compiled them, and Kames refers to these “nominate” law reports (for example, “Salkeld,” “Vernon”). Full references for these reports are given in the list of abbreviations (p. xxxiii). The reports he cites were subsequently reprinted in The English Reports, 176 vols. (London: Stevens & Sons, 1900–1930). Where Kames refers to an English case, I have given both the original reference and the reference to where it can be found in The English Reports reprint.
Roman Law
In Principles of Equity, Kames makes frequent reference to the Roman Corpus Iuris Civilis (Body of Civil Law) compiled on the orders of Emperor Justinian between the years 530 and 534. Three principal works made up this body of law: the Institutes, the Code, and the Digest. Where Kames quotes or cites from these sources, I have given the modern form of citation, which is as follows:
| Inst | Institutes. References are given to the book, title (that is, chapter) and lex (that is, section). Thus, Inst. 2.23.1 refers to Justinian’s Institutes, book 2, title 23, lex 1. |
| C | Code. References are given to the book, title, and lex. Thus, C 8.34.3 refers to Justinian’s Code, book 8, title 34, lex 3. |
| D | Digest. References are given to the book, title, lex, and subsection of the lex. Thus D 9.2.29.3 refers to Justinian’s Digest, book 9, title 2, lex 29, and section 3. |
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| pr. | prooemium (preface). Many of the titles and leges have an introductory preface. Thus, D 9.2.2.pr. refers to the introductory preface to book 9, title 2, lex 2 of the Digest of Justinian. |
For quotations from the Digest of Justinian, I have relied on the translation in The Digest of Justinian, ed. Theodor Mommsen and Paul Krueger, ed. and trans. Alan Watson, 4 vols. (Philadelphia: University of Pennsylvania Press, 1985), and referred the reader to volume and page numbers in that edition, as well as giving the standard citation for the source. For translations of quotations from the Institutes, I have relied on the edition of Peter Birks and Grant McLeod: Justinian’s Institutes (London: Duckworth, 1987), and similarly given page references and standard citations. Other translations are my own.
