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The Scot Abroad
Chapter 5 - Influence of Manners - Part 1

Relics of the League in Scots Habits and Practices— The Law—The Bonnet Vert and the Dyvour’s Habit—The States-General and the Three Estates—The Huguenots and the Covenanters—Religious Architecture—The Chateau and the Castle—The Eguimené and the Hogmanay—The Fêtes des Foux and the Daft Days French Education and Manners.

THE long and close connection with France could not fail to leave some specialties in the constitution and social condition of Scotland. A glance at these may prove curious, and may also be instructive as showing how far a political alliance with a nation essentially differing in character will go, in changing the fundamental nature of a people.

However much the infusion of Scots blood into her veins may have affected the inner life of France, in externals the great central territory, the inheritor of Roman civilisation, was naturally the teacher—the rude northern land the pupil. France thus infused into Scotland her own institutions, which, being those of the Roman Empire, as practised throughout the Christian nations of the Continent, made Scotsmen free of those elements of social communion— of that comitas gentium—from which England excluded herself in sulky pride. This is visible, or rather audible, at the present day, in the Greek and Latin of the Scotsmen of the old school, who can make themselves understood all over the world; while the English pronunciation, differing from that of the nations which have preserved the chief deposits of the classic languages in their own, must as assuredly differ from the way in which these were originally spoken.

The Englishman disdained the universal Justinian jurisprudence, and would be a law unto himself, which he called, with an affectation of humility, "The Common Law." It is full, no doubt, of patches taken out of the ‘Corpus Juris,’ but, far from their source being acknowledged, the civilians are never spoken of by the common lawyers but to be railed at and denounced; and when great draughts on the Roman system were found absolutely necessary to keep the machine of justice in motion, these were entirely elbowed out of the way by common law, and had to form themselves into a separate machinery of their own, called Equity.

Scotland, on the other hand, received implicitly from her leader in civilisation the great body of the civil law, as collected and arranged by the most laborious of all labouring editors, Denis Godefroi. There came over also an exact facsimile of the French system of public prosecution for crime, from the great state officer at the head of the system to the Procureurs du Roi. It is still in full practice, and eminently useful; but it is an arrangement that, to be entirely beneficial, needs to be surrounded by constitutional safeguards; and though there has been much pressure of late to establish it in England, one cannot be surprised that it was looked askance at while the great struggles for fixing the constitution were in progress.

Saying that Scotland took from France the civil law entire, supersedes all particulars as to the similarity of the forms of the administration of justice in the two countries, unless one were writing an extensive work dedicated to the comparative anatomy of the civil law as exemplified in both. In such a pursuit the closest parallel might be found in books without any resemblance whatever in practice. It was long an almost necessary qualification for the bar in Scotland, that one had studied the civil law abroad. There are, perhaps, lawyers old enough to remember when the saying of some Continental civilian of the sixteenth or seventeenth century, Viglius Zuichemus, Rittershusius, Puffendorf, Noodt, Voet, and the like, might be cited just as aptly as a decision a few years old, in some case about a breach of warranty in the insurance of a vessel, or the import of a contract for the sale of goods in a bonded warehouse.

Such things are typical of the sort of law that the French alliance brought to Scotland. It was all words and scholarship—not reality. Of the Code and the Pandects, and of the hundred and fifty thousand volumes calculated to be about the sum total of the commentaries on them, all the intricacies and wanderings were more or less law in Scotland; but, at the same time, with so tremendous a mass of written law, there was very little real and practical law. The Roman law, in fact, from its exceeding symmetry and minute logical organisation, has proved extremely ductile and accommodating. Whether or not it be because it grew in a republic and was perfected in a despotism, it has been practically found that it suits admirably for either. It has just three grades: an emperor over all; the free citizens; and the slaves, who are disposed of as property. In a country like Scotland, where there was neither an absolute emperor nor slavery in the old Roman sense, and where feudal institutions broke in upon the symmetry of the analytical adjustments of the civilians, there was room for a great deal of freedom; and the fact is, that the Scots, being fond of it and unruly, got rather more freedom under the law of the despotic Roman Empire than the English achieved by that laborious structure, their Common Law.

In other respects it is curious to observe with what nicety, when they were about it, our lawyers would adopt some small specialty of practice from France. Before leaving the department of jurisprudence, let me mention just one little example of this. Long before England had an insolvency statute there existed in Scotland the "cessio," or cession to his creditors of all his worldly means by a prosecuted and persecuted debtor, who in return obtained a protection from further personal pursuit by an old regulation, put into shape in an Act of Sederunt, or rule of court, in the year 1606, dyvours or debitors, when they obtained this protection, had "to caus mak and buy ane hatt or bonnet of yellow coloure," to be worn "in all tyme thairefter, swa lang as they remane and abide dyvoris; with speciall provision and ordinance, if at ony tyme or place efter the publication of the said dyvoris at the said mercat-croce, ony person or personis declarit dyvoris beis fundin wantand the foresaid hatt or bonnet of yellow colour, toties it sall be lawful to the baillies of Edinburgh, or ony of his creditoris, to tak and apprehend the said dyvor," &c. This cap was called the dyvour’s habit, and may be traced in use after the middle of last century.

In France there was the "cession"—a pretty exact parallel to the Scots cessio. There, too, a special head-covering was worn by the privileged debtor to distinguish him from those who either were not in debt, or, being so, had no special protection from the inifictions of their creditors. There was, however a difference, as if to rebut the charge of slavish imitation: in Scotland, as we have seen, it was a yellow cap; in France, whence the example was taken, the cap was green.

Since the Union, legislation for Scotland has been adapted to the old practice of the English Parliament; anything derived by the old Scots Parliament from French practice cannot, therefore, be spoken of as an existing influence of France, yet this is the place in which a word or two may be most appropriately said about it.

The Parliament of Scotland, when it came to an end at the Union, differed in constitution from that of England, having three estates —the nobles, the county members, and the representatives of the municipal corporations—all sitting together in one house. This came from the old practice of the States-General of France; but so little could the shape thus given to the institution affect the condition of the community, that had the shape of the English Parliament been substituted for that of the French States-General, the country could not have been freer than it was. In fact, there arose this mighty difference between the French institution and its Scots offspring, that the parent died, while its progeny lived.

The practice of the long-forgotten States-General of France was an object of rather anxious inquiry at the reassembling of that body in 1789, after they had been some four centuries and a half in a state of adjournment or dissolution. The investigations thus occasioned brought out many peculiarities which were in practical observance in Scotland down to the Union. All the world has read of that awful crisis arising out of the question whether the Estates should vote collectively or separately. Had the question remained within the bounds of reason and regulation, instead of being virtually at the issue of the sword, much instructive precedent would have been obtained for its settlement by an examination of the proceedings of that Parliament of Scotland which adjusted the Union—an exciting matter also, yet, to the credit of our country, discussed with perfect order, and obedience to rules of practice which, derived from the custom of the old States-General of France, were rendered pliant and adaptable by such a long series of practical adaptations as the country of their nativity was not permitted to witness.

There was a very distinct adaptation of another French institution of later origin, when the Court of Session was established in 1533. Before that year, the king’s justices administered the law somewhat as in England, but there was an appeal to Parliament; and as that body did its judicial work by committees, these became virtually the supreme courts of the realm. Their proceedings, under the title of ‘The Acts of the Lords Auditors of Causes and Complaints,’ may be purchased from the Government, with the other volumes issued by the Record Commission. The Court of Session, established to supersede this kind of tribunal, was exactly a French parliament —a body exercising appellate judicial functions, along with a few others of a legislative character. These were few in this country, but in France they became sufficiently extensive to render the assembling of the proper Parliament of the land—the States-General—unnecessary for all regal purposes.

Let us turn now to the Universities. It was undoubtedly the influence of France that stamped on those of Scotland the form and character of their Continental parentage, so accurately that to this day they supply the best living specimens from which we may study the structure of the medieval university. The University of King’s College in Aberdeen was constructed on the model of that of Paris, the metropolitan of the universities of the world, whose usages were the authority in all questions of form and practice. There the founder of King’s College, Bishop Elphinston, had taught for many years; so had the first principal, Hector Boece, of whom hereafter. The transition from the Paris to the Aberdeen of that day must have been a descent not to be estimated by the present relative condition of the two places; and one cannot be surprised to find Hector saying that he was seduced northwards by gifts and promises. Yet it is probable that we would find fewer actual living remnants of the old institution in Paris itself than in this northern offspring and its brother universities in Scotland.

In these the forms, the nomenclature, and the usages of the middle ages are still preserved, though some of them have naturally changed their character with the shifting of the times. Each of them has still its chancellor, and sometimes a high state dignitary accepts of the office. It was of old a very significant one, for it was the link which allied the semi-republican institutions of the universities to the hierarchy of St Peter. The bishop was almost invariably the chancellor, unless the university were subordinated to some great monastic institution, the head of which became the chancellor—so in Paris the Prior of St Genevieve held this high office. In the Scottish universities the usual Continental arrangement seems to have been adopted prior to the Reformation—as a matter of course, the bishop was the chancellor.

But while the institution was thus connected through a high dignitary with the Romish hierarchy, it possessed, as a great literary community with peculiar privileges, its own great officer electively chosen for the preservation of those privileges. It had its Rector, who, like the chief magistrate of a municipal corporation, but infinitely above him in the more illustrious character of the functions for which his constituents were incorporated, stood forth as the head of his republic, and its protector from the invasions either of the subtle churchmen or the grasping barons. The rector, indeed, was the concentration of that peculiar commonwealth which the constitution of the ancient university prescribed. Sir William Hamilton has shown pretty clearly that, in its original acceptation, the word Universitas was applied, not to the comprehensiveness of the studies, but to that of the local and personal expansion of the institution. The university despised the bounds of provinces, and even nations, and was a place where ardent minds from all parts of the world met to study together, and impart to each other the influence of collective intellect working in combination and competition. The constitution of the Rectorship was calculated to provide for the protections of this universality, for the election was managed by the Procurators or Proctors of the Nations, or geographical clusters into which the students were divided, generally for the purpose of neutralising the naturally superior influence of the home students, and keeping up the cosmopolitan character imparted to the system by its enlightened founders. Hence in Paris the nations were France, Picardy, and England, afterwards changed to Germany, in which Scotland was included. Glasgow is still divided into four nations: the Natio Glottiana, or Clydesdale, taken from the name given to the Clyde by Tacitus. In the Natio Laudoniana were originally included the rest of Scotland, but it was found expedient to place the English and the colonists within it; while Albania, intended to include Britain south of the Forth, has been made rather inaptly the nation of the foreigners. Rothesay, the fourth nation, includes the extreme west of Scotland, and Ireland. In Aberdeen there is a like division into Marenses, or inhabitants of Mar, the central or metropolitan district; Angusiani, or men of Angus, which, however, includes the whole world south of the Grampians; while the northern districts are partitioned into Buchanenses and Moravienses, the people of Buchan and Moray.

The Procurators of the Nations were, in the University of Paris, those high authorities to whom, as far separated from all sublunary influences, King Henry of England proposed, in the twelfth century, to refer his disputes with the Papal power. In England they are represented at the present day by the formidable Proctor, who is a terror to evil-doers without being any praise or protection to them that do well. But it may safely be said that the ingenious youths who in Glasgow and Aberdeen go through the annual ceremony, as procuratores nationum, of tendering the votes of the nations in the election of a rector, more legitimately represent those procurators of the thirteenth and fourteenth century, who maintained the rights of their respective nations in the great intellectual republic called a Universitas. The discovery, indeed, of this latent power, long hidden, like some paheozoic fossil, under the pedagogical innovations of modern days—which tended to make the self-governing institution a school ruled by masters — created astonishment in all quarters, even in those who found themselves in possession of the privilege. In Aberdeen especially, when some mischievous antiquary maintained that, by the charter of the younger college, the election of a lord rector lay with the students themselves, the announcement was received with derision by a discerning public, and with a severe frown, as a sort of seditious libel, enticing the youth to rebellion, by the indignant professors. But it turned out to be absolutely true, however astounding it might be to those who are unacquainted with the early history of universities, and think that everything ancient must have been tyrannical and hierarchical. The students made a sort of saturnalia of their fugitive power, while the professors looked on as one may see a solemn mastiff contemplate the gambols of a litter of privileged spaniel pups.

Those who are logically the very worst distributors of patronage or honours sometimes turn out to be the best, because, distrusting their own capacity to judge correctly, they fix their choice so high up in the hierarchy of merit as to be beyond cavil. Hence the catalogue of Lord Rectors soars far above respectability and appropriateness: it is brilliant. From Burke to Bulwer Lytton and Macaulay, they have, with a few exceptions, been men of the first intellectual rank. What is a still more remarkable result than that they should often have been men of genius, there is scarcely an instance of a lord rector having been a clamorous quack or a canting fanatic.

In Edinburgh there was no such relic of the ancient university commonwealth, and the students had instinctively supplied the want by affiliating their voluntary societies, and choosing a distinguished man to be the president of the aggregate group. The constitution of the College of Edinburgh, indeed, was not matured until after the old constitution of the universities had suffered a reaction, and, far from any new ones being constructed on the old model, the earlier universities with difficulty preserved their own constitutions. it is a tribute to the worth of these, that their example has been followed in the late readjustments in Edinburgh.

That principle of internal self-action and independence of the contemporary constituted powers, of which the rectorship and some other relics remain to us at this day, is one of the most remarkable, and in many respects admirable, features in the history of the middle ages. It is involved in mysteries and contradictions which one would be glad to see unravelled by skilful and full inquiry. Adapted to the service of pure knowledge, and investing her with absolute prerogatives, the system was yet one of the creatures of that Romish hierarchy, which at the same time thought by other efforts to circumscribe human inquiry, and make it the servant of her own ambitious efforts.

It may help us in some measure to the solution of the phenomenon to remember that, however dim the light of the Church may have shone, it was yet the representative of the intellectual power, and was in that capacity carrying on a war with brute force. Catholicism was the great rival and controller of the feudal strength and tyranny of the age. As intellect and knowledge were the weapons with which the blind colossus was to be attacked, it was believed that the intellectual arsenals could not be too extensive or complete—that intellect could not be too richly cultivated. Like many combatants, the churchmen perhaps forgot future results in the desire of immediate victory, and were for the moment blind to the effect so nervously apprehended by their successors, that the light thus brought in by them would illuminate the dark corners of their own ecclesiastical system, and lead the way to its fall. Perhaps such hardy intellects as Abelard or Aquinas may have anticipated such a result from the stimulus given by them to intellectual inquiry, and may not have deeply inmented the prospect.

But however it came about—whether in the blindness of all, or the far-sightedness of some—the Church, from the thirteenth to pretty far on in the fifteenth century, encouraged learning with a noble reliance and a zealous energy which it would ill become the present age to despise or forget. And even if it should all have proceeded from a blind confidence that the Church placed on a rock was unassailable, and that mere human wisdom, even trained to the utmost of its powers, was, after all, to be nothing but her handmaiden, let us respect this unconscious simplicity which enabled the educational institutions to be placed in so high and trusted a position.

The Church supplied something then, indeed, which we search after in vain in the present day, and which we shall only achieve by some great strides in academic organisation, capable of supplying from within what was then supplied from without. What was thus supplied was no less than that cosmopolitan nature, which made the university not merely parochial, or merely national, but universal, as its name denoted. The temporal prince might endow the academy with lands and riches, and might confer upon its members honourable and lucrative privileges; but it was to the head of the one indivisible Church that the power belonged of franking it all over Christendom, and establishing throughout the civilised world a freemasonry of intellect, which made all the universities, as it were, one great corporation of the learned men of the world.

It must be admitted that we have here one of those practical difficulties which form the necessary price of the freedom of Protestantism. When a great portion of Europe was no longer attached to Rome, the peculiar centralisation of the educational systems was broken up. The old universities, indeed, retained their ancient privileges in a traditional, if not a practically legal shape, carrying through Lutheranism and Calvinism the characteristics of the abjured Romanism, yet carrying them unscathed, since they were protected from injury and insult by the enlightened object for which they were established and endowed. When, however, in Protestant countries, the old universities became poor, or when a change of condition demanded the foundation of a new university, it was difficult to restore anything so simple and grand as that old community of privileges which made the member of one university a citizen of all others, according to his rank, whether he were laureated in Paris or Bologna, Upsala or St Andrews.

The English universities, by their great wealth and political influence, were able to stand alone, neither giving nor taking. Their Scottish contemporaries, unable to fight a like battle, have had reason to complain of their ungenerous isolation; and as children of the same parentage, and differing only from their southern neighbours in not having so much worldly prosperity, it is natural that they should look back with a sigh, which even orthodox Presbyterianism cannot suppress, to the time when the universal mental sway of Rome, however offensive it might be in its own insolent supremacy, yet exercised that high privilege of supereminent greatness to level secondary inequalities, and place those whom it favoured beyond the reach of conventional humiliations.

Besides that great officer the rector, we have in Scotland a Censor too; but for all the grandeur of his etymological ancestry in Roman history, he is but a small officer—in stature sometimes, as well as dignity. He calls over the catalogue or roll of names, marking those absent—a duty quite in keeping with that enumerating function of the Roman office; which has left to us the word census as a numbering of the people.

So lately as the eighteenth century, when the monastic or collegiate system which has now so totally disappeared from the Scottish universities yet lingered about them, the censor was a more important, or at least more laborious officer, and, oddly enough, he corresponded in some measure with the character into which, in England, the proctor had so strangely deviated. In a regulation adopted in Glasgow in 1725, it is provided "that all students be obliged, after the bells ring, immediately to repair to their classes, and to keep within them, and a censor be appointed to every class, to attend from the ringing of the bells till the several masters come to their classes, and observe any, either of his own class or of any other, who shall be found walking in the courts during the above time, or standing on the stairs, or looking out at the windows, or making noise." This has something of the mere schoolroom characteristic of our modern university discipline; but this other paragraph, from the same set of regulations, is indicative both of more mature vices among the precocious youth of Glasgow, and a more inquisitorial corrective organisation :—

"That for keeping order without the College, a censor be appointed to observe any who shall be in the streets before the bells ring, and to go now and then to the billiard-tables, and to the other gaming-places, to observe if any be playing at the times when they ought to be in their chambers; and that this censor be taken from the poor scholars of the several classes alternately, as they shall be thought most fit for that office, and that some reward be thought of for their pains." In the fierce street conflicts to which we may have occasion to refer, the poor censors had a more perilous service.

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