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Scots Law in Post-Revolutionary and Nineteenth-Century America: The Neglected Jurisprudence

Published online by Cambridge University Press:  28 October 2011

C. Paul Rogers III
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Extract

Little scholarly attention has been paid to the role of Scots law in the development of the post-Revolutionary law and legal system of the United States. This neglect stems largely from the fact that Scots law has had little apparent permanent influence on American law. However, during the “formative era of American law” from the Revolution to the Civil War, a notable effort to introduce America to civil law concepts took place. Furthermore, the impact of the Scottish enlightenment on the fledgling United States in higher education, philosophy, and medicine is well documented. Scottish Enlightenment thought arguably had a significant impact on the Declaration of Independence, which was signed by at least two native-born Scots and an American who was a graduate of the University of Edinburgh.

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Articles
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Law and History Review , Volume 8 , Issue 2 , Fall 1990 , pp. 205 - 235
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Copyright © the American Society for Legal History, Inc. 1990

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References

1. Pound, R., The Formative Era of American Law (1938)Google Scholar. That period has also been called “the Golden Age of American Law,” see The Golden Age of American Law (Haar, C. ed. 1965)Google Scholar and “the Age of Discovery,” see Gilmore, G., The Ages of American Law 19–40 (1977)Google Scholar. See also Boorstin, D., The Americans: the National Experience 35 (1958Google Scholar) (nineteenth-century legal development in America one of the “creative outbursts of modern legal history”).

2. See Hoeflich, , Roman and Civil Law in American Legal Education and Research Prior to 1930: A Preliminary Survey, 1984 U. Ill. L. Rev. 719Google Scholar; Stein, , The Attraction of the Civil Law in Post-Revolutionary America, 52 Va. L. Rev. 403 (1966)CrossRefGoogle Scholar; Aumann, , The Influence of English and Civil Law Principles Upon the American Legal System During the Critical Post-Revolutionary Period, 12 U. Cin. L. Rev. 289 (1938)Google Scholar; Batiza, , Sources of the Field Civil Code: The Civil Law Influences on a Common Law Code, 60 Tulane L. Rev. 799 (1986)Google Scholar.

3. See, e.g., Turnbull, , Scotland and America, 1730–1790, in A Hotbed of Genius: The Scottish Enlightenment, 1730–1790 (Daiches, D., Jones, P. & Jones, J. eds. 1986)Google Scholar; Hook, A., Scotland and America: A Study of Cultural Relations 1750–1835 (1975)Google Scholar; Brock, W. R., Scotus Americanus: A Survey of the Sources for Links Between Scotland and America in the Eighteenth Century (1982)Google Scholar; Sloan, D., The Scottish Enlightenment and the American College Ideal (1981)Google Scholar; Scotland, Europe and the American Revolution (Edwards, O. D. & Shepperson, G. eds. 1976)Google Scholar; Lehmann, W. C., Scottish and Scotch-Irish Contributions to Early American Life and Culture (1978)Google Scholar; and Wills, G., Explaining America: The Federalist (1981)Google Scholar. On the Scottish Enlightenment generally, see A Hotbed of Genius, supra; Lenman, B., Integration, Enlightenment, and Industrialization; Scotland 1746–1832 (1981)Google Scholar; Smout, T. C., History of the Scottish People, 1560–1830 (1969)Google Scholar; Ferguson, W., Scotland: 1689 to the Present (1968)Google Scholar; Phillipson, N. T. & Mitchison, R., Scotland in the Age of Improvement (1970)Google Scholar; The Origins and Nature of the Scottish Enlightenment (Campbell, R. H. & Skinner, A. eds. 1982)Google Scholar.

4. Wills, G., Inventing America: Jefferson's Declaration of Independence (1978)Google Scholar. Wills argues that Jefferson was heavily influenced by eighteenth-century Scottish philosophy in drafting the Declaration of Independence. In a successor book, Wills argues that Madison and Hamilton were influenced by the Scottish Enlightenment, principally through Hume's political essays, in their work on the Constitution. G. Wills, supra note 3. See also Walker, , The Lawyers of the Scottish Enlightenment and their Influence on the American Constitution, 1988 Juridical Rev. 4Google Scholar.

5. They were John Witherspoon, the first president of Princeton University (then called the College of New Jersey) and James Wilson, later an associate justice of the Supreme Court. Benjamin Rush, an American physician trained at Edinburgh, was also a signatory. Witherspoon, along with other transplanted Scots such as William Small, Francis Alison, and William Smith, helped pattern American college curricula after those at Scottish universities and relied heavily upon the teachings of Scottish philosophers and other Scottish enlightenment figures to shape the content of the courses. See D. Sloan, supra note 3; W. R. Brock, supra note 3, at 92–93. Benjamin Rush was one of the founding members of the first medical school in America, in Philadelphia in the 1760s; Turnbull, supra note 3, at 141.

According to T. B. Smith, nine of the fifty-six signatories of the Declaration of Independence were Scots, as were twelve of the fifty-four delegates to the Constitutional Convention. Smith, T. B., British Justice: The Scottish Contribution 45 (1961)Google Scholar. Professor Smith also avowed that two of the original five Supreme Court Associate Justices, the second Chief Justice and two of Washington's original five member cabinet were of Scottish descent. Id. at 46. Of course, the Scottish descendency of some prominent statesmen does not necessarily suggest that their intellectual heritage was also Scottish.

6. See generally G. Wills, supra note 3; Turnbull, supra note 3, at 149.

7. Madison was himself educated largely by Donald Robertson, a Scot who had trained at the universities of Aberdeen and Edinburgh. 1 Brant, I., James Madison 60 (1941)Google Scholar.

8. See Seed, G., James Wilson 37 (1978)Google Scholar; Turnbull, supra note 3, at 149.

9. The lectures are contained in McCloskey, R., The Works of James Wilson (1967)Google Scholar. For biographic works see G. Seed, supra note 8; Smith, C. P., James Wilson: Founding Father, 1742–1798 (1956)Google Scholar; Leavelle, , James Wilson and the Relation of the Scottish Metaphysics to American Political Thought, 57 Pol. Sci. Q. 394 (1942)CrossRefGoogle Scholar.

10. See Stein, supra note 2, at 407. See also G. Gilmore, supra note 1, at 19–26.

11. C. P. Smith, supra note 9, at 312. As Professor Stein has pointed out, it was natural for Wilson, a Scot with no allegiance or even regard for English legal traditions, to urge an autonomous American legal system. Stein, supra note 2, at 407–8.

12. See Friedman, L., A History of American Law 97–98 (1973)Google Scholar citing Brown, E. G., British Statutes in American Law 82, 132 (1964)Google Scholar. Although the solutions differed, pre-Independence British statutes were typically ratified as part of the law of the state. L. Friedman, supra at 96–97.

13. See G. Gilmore, supra note 1, at 19–20.

14. See text accompanying notes 144–154, infra.

15. See, e.g., Sher, R. B., Church and Universities in the Scottish Enlightenment 274 (1985)Google Scholar quoting William Robertson, Principal of the University of Edinburgh (1762–93). See also Turnbull, supra note 3, at 145. There is some disagreement about Scottish public opinion of the American cause. Scottish disenchantment with the 1707 Union with England is argued to have been channeled into “the remarkably widespread sympathy” of the Scots for American independence. N. T. Phillipson, Public Opinion and the Union, in Scotland in the Age of Improvement, supra note 3, at 126. Compare Swinfen, The American Revolution in the Scottish Press, in Scotland, Europe and the American Revolution, supra note 3, at 73 (“majority opinion opposed to American claims, and would have wished for outright victory …”.

16. Turnbull, supra note 3, at 145–46.

17. See, e.g., Haws, The Scots in Colonial Virginia During the Revolutionary War, Scotland, Europe and the American Revolution, supra, note 3, at 99.

18. See text accompanying note 5, supra.

19. For example, Jefferson owned ten books of Kames as well as the works of nearly all of the authors of the Scottish Enlightenment. See G. Wills, supra note 4, at 201; Walker, supra note 4, at 23. See also Bryson, W. H., Census of Law Books in Colonial Virginia (1978)Google Scholar. (Bryson found three books of Kames and one “Laws of Scotland.” Id. at 8, 26, and 59.)

20. W. R. Brock, supra note 3, at 13–14.

21. Id. Germans apparently were more numerous overall, accounting for fully one-third of the population in Pennsylvania.

22. Dalrymple, J. (Viscount Stair), Institutions of the Law of Scotland (1681)Google Scholar and Mackenzie, G., The Institutions of the Law of Scotland (1684)Google Scholar. Stair's work was apparently substantially complete by 1664 although it was not published until 1681. See Hutton, , Stair's Aim in Writing the Institutions in Stair Tercentenary Studies 79 (Stair Society vol. 33, Walker, D. M. ed. 1981)Google Scholar.

23. See Cairns, , Institutional Writings in Scotland Reconsidered in New Perspectives in Scottish Legal History 98 (Kiralfy, A. & MacQueen, H. L. eds. 1984)Google Scholar. See also Walker, D. M., The Scottish Jurists (1985)Google Scholar; idem, Principles of Scottish Private Law vol. 1, at 25 (3d ed. 1982)Google Scholar; idem, The scottish Legal System 401–2 (5th ed. 1981)Google Scholar; Smith, T. B., Scotland: the Development of its Laws and Constitution 32 (1962)Google Scholar. Professors Walker and Smith consider institutional works to have the same authoritative value as the Inner House of the Court of Session (the appellate section of the court of general jurisdiction in Scotland). D. M. Walker, The Scottish Legal System, supra, at 402 and T. B. Smith, supra, at 32. However, there is evidence that eighteenth-century Scots lawyers did not consider the institutional works to be as authoritative as have succeeding generations of the Scots bar. See Cairns, supra at 98–99; Blackie, Stair's Later Reputation as a Jurist, in Stair Tercentenary Studies, supra note 22, at 207.

24. See Cairns, supra note 23, at 94. Bell's Principles of the Law of Scotland was published in 1829. His other institutional work was published in 1810 and was entitled Commentaries on the Law of Scotland and on the Principles of Mercantile Jurisprudence, Considered in Relation to Bankruptcy; Compositions of Creditors; and Imprisonment for Debt. This was actually the second edition of a two-volume work originally published in 1800–04 under the title, A Treatise on the Law of Bankruptcy in Scotland. Succeeding editions followed in 1816–19 and 1821.

25. See W. H. Bryson, supra note 19.

26. According to David Walker, an edition of George Bell's Inquiries Into the Contract of Sale of Goods was published in Philadelphia. Professor Walker gives no date or authority for this assertion. D. M. Walker, The Scottish Jurists, supra note 23, at 350. See, e.g., SirBlackstone, William, Commentaries on the Laws of England (Chase, G. ed. 1922; G. Sharswood ed. 1859; T. Cooley ed. 1899)Google Scholar; SirCoke, Edward, Institutes of the Laws of England (Day, T. ed. 1812; C. Butler ed. 1853)Google Scholar.

27. See, e.g., 3 Kent, J., Commentaries on American Law 94, 116, 120, 124, 133 (1828)Google Scholar. In the preface to his second (1832) edition, Kent remarks on the continuous improvements in each edition of Bell's works. 1 J. Kent, supra at xi (2d ed. 1832). Kent also referred to J. Fergusson, Reports of Decisions by The consistorial Court of Scotland in Actions of Divorce, Concluding for Dissolution of Marriages Celebrated Under the English Law. See, e.g., 2 J. Kent, Supra at 93 (1827). See generally Nadelmann, , Joseph Story and George Joseph Bell, 1959 Juridical Rev. 31, 32Google Scholar.

28. See, e.g., Story, J., Commentaries on the Law of Bailments, sec. 2, n.2 (1832)Google Scholar. For a thorough discussion of Story's knowledge of and use of civilian legal authorities see Hoeflich, , John Austin and Joseph Story: Two Nineteenth-Century Perspectives on the Utility of the Civil Law for the Common Lawyer, 29 Am. J. Legal Hist. 36 (1985)CrossRefGoogle Scholar. See also Pound, , The Place of Judge Story in the Making of American Law, 48 Am. L. Rev. 676, 685 (1914)Google Scholar.

29. See Nadelmann, supra note 27, at 36–39. Bell was visited in Edinburgh in August, 1838, by one of Story's favorite students, Charles Sumner. As a result of that visit, Bell wrote to Story and sent him copies of his Principles of the Law of Scotland and the three volumes, Illustrations of the Principles from Adjudicated Cases. Id. at 35–36. Bell's letter acknowledged the quality of Story's own work, stating that “it cannot fail to give us some little pain to see that you are, in great views and comprehensive learning, getting far before us.” Bell then asserted that such erudition “will only exite us to that generous strife and emulation out of which may come universal improvement.” Id. at 36.

30. Story's full sentence was as follows: “It was many years ago that my attention was first attracted to the highly cultivated state of jurisprudence in Scotland by the possession of a copy of Erskine's Institute, and the liberal use of your own excellent Commentaries on Commercial Law”.

31. Id. at 38.

32. Story elaborated on this point as follows: “And I cannot but persuade myself, that in all cases of the conflict of laws they will find, as I have found, the most extensive information and accurate researches in the doctrines and decisions of your country.” Id. at 39.

33. Strout v. Foster, 42 U.S. 89 (1843).

34. Benedict v. Schaettle, 12 Ohio St. 515 (1861); Palmer v. Dodge, 4 Ohio St. 21 (1854).

35. The Harrisburg, 119 U.S. 199, 202–03, 212 (1886) (two citations to Bell's Principles); The North Star, 106 U.S. 17, 20–21 (1882) (citation to Bell's Commentaries); Casey v. Cavaroc, 96 U.S. 467, 480–81 (1877) (citation to Bell's Commentaries); The Maggie Hammond, 76 U.S. 435, 452 (1969) (citation to Bell's Commentaries).

36. Keck v. United States, 172 U.S. 434, 461 (1899) (citation to Bell's Dictionary of Scottish Law and Lord Hume's Commentaries on the Laws of Scotland).

37. This occurs because of the early practice of reporting counsel's arguments and authorities relied upon before the Court. In all, ten citations to Bell in eight counsel arguments appear in the Supreme Court reporters. See The Max Morris, 137 U.S. 1, 5 (1890) (citation to the 5th edition of Bell's Commentaries); The Harrisburg, 119 U.S. 199, 202–03 (1886) (citation to Bell's Principles; referred to as Bell's “great work”); The Maggie Hammond, 76 U.S. 435, 441 (1869) (citation to Bell's Commentaries on Commercial Law, 1826 ed. and Erskine's Institutes); Harris v. Robinson, 45 U.S. 336, 341 (1846) (two citations to the 5th edition of Bell's Commentaries); Thomas Wilson and Co. v. Smith, 44 U.S. 763, 768 (1845); Rhett v. Poe, 43 U.S. 457, 477 (1844) (citation to Bell's Commentaries); Louisville, Cincinnati & Charleston R.R. Co. v. Letson, 43 U.S. 497, 515, 520 (1844) (citation to Bell's Commentaries); Strout v. Foster, 42 U.S. 89, 94 (1843) (citation to Bell's Commentaries).

38. Erskine, J., The Principles of the Law of Scotland: In the Order of Sir George Mackenzie's Institutions of that law, 2 vols. (1754)Google Scholar. Twenty-one editions of the work were eventually published, with the last in 1911. D. M. Walker, The Scottish Jurists, supra note 23, at 208.

39. Erskine, J., An Institute of The Law of Scotland … In the Order of Sir George Mackenzie's Institutions of that Law (1773)Google Scholar. Seven more editions appeared, with the last in 1871. D. M. Walker, The Scottish Jurists, supra note 23, at 209.

40. See, e.g., Kent, J., Commentaries on American Law 50, 102, 106 (7th ed. 1851)Google Scholar; Story, J., Commentaries on the Law of Parliament 29, 52, 269 (5th ed. 1851)Google Scholar; Story, J., Equity Jurisprudence 228, 234 (12th ed. 1877)Google Scholar; Story, J., Conflict of Laws 302, 401, 458 (2d ed. 1846)Google Scholar; Story, J., Commentaries on the Law of Agency 143, 620, 639 (3d ed. 1846)Google Scholar; Story, J., Commentaries on The Law of Partnership 17, 163, 403 (2d ed. 1846)Google Scholar. Story's letter to Bell suggests that he thought very highly of Erskine's Institutes. Nadelmann, supra note 27, at 38.

41. The Harrisburg, 119 U.S. 199, 212 (1886); Ennis v. Smith, 55 U.S. 400, 424–25 (1852); Townsend v. Jemison, 50 U.S. 407, 417 (1850); Welzell v. Bussard, 24 U.S. 309, 318 (1826); Stevenson's Heirs v. Sullivant, 18 U.S. 207, 268–69 (1820); United States v. Smith, 18 U.S. 153, 180 (1820); Lanusse v. Barker, 16 U.S. 101, 158 (1818); Thompson v. Gray, 14 U.S. 75, 84–85 (1816); Wilder v. Inter-Island Steam Navigation Co., Ltd., 211 U.S. 239, 246 (1908). See also Chinn v. Ohio, 47 Ohio St. 575; 26 N.E. 986, 987 (1890). All citations are to Erskine's Institutes except that in Green v. Biddle, which is to Erskine's Principles.

42. Peabody v. United States, 231 U.S. 530, 533 (1913); Wilder v. Inter-Island Steam Navigation Co., 211 U.S. 239, 240 (1908); The Maggie Hammond, 76 U.S. 435, 441 (1869); Edmondston v. Drake and Mitchell, 30 U.S. 624, 629 (1831); United States v. Bevans, 16 U.S. 336, 361 (1818) (all citations to Erskine's Institutes).

43. Groves v. Slaughter, 40 U.S. 449, at xxiv of Appendix (1841) (two citations to Erskine and two to Kames; Erskine and Kames referred to as “those two great jurists”); Green v. Biddle, 21 U.S. 1, at 5 of Appendix (1823).

44. All four appeared in the actual judicial opinions of the cases reported. Ennis v. Smith, 55 U.S. 400, 424–25 (1852); Townsend v. Jemison 50 U.S. 407, 415 (1850); Green v. Biddle, 21 U.S. 1, at 5 of Appendix (1823); Clinton v. State, 33 Ohio St. 27, 32 (1877).

45. Hume, D., Commentaries on the Law of Scotland, Respecting the Description and Punishment of Crimes, 2 vols. (1797)Google Scholar. Successive editions were published in 1819, 1829, and 1844. D. M. Walker, The Scottish Jurists, supra note 23, at 330. Hume served as professor of Scots Law at the University of Edinburgh from 1786 until 1822, where he preceded George Bell. Id. at 317–19.

The three cases citing Hume include, surprisingly, a 1974 Supreme Court decision, Keck v. U.S., 419 U.S. 256, 261 n.3 (1974). See also Schick v. Reed, 172 U.S. 434, 461 (1899) (dissenting opinion); People of New York v. Wilson, 141 N.Y. 185, 36 N.E. 230 (1894) (counsel).

46. Alison, A., Principles of the Criminal Law of Scotland (1832)Google Scholar. See also idem, Practice of The Criminal Law of Scotland (1833)Google Scholar.

47. People of New York v. Wilson, 141 N.Y. 185, 36 N.E. 230, (1894) (counsel).

48. Home, H. (Lord Kames), Principles of Equity (1760)Google Scholar. Five editions of the work eventually appeared, with the last in 1825. D. M. Walker, The Scottish Jurists, supra note 23, at 232.

49. Story believed that such an approach would lead to unbridled jurisdiction and judicial activism. In contrast, Benjamin Franklin, who became a close friend of Kames during a trip to Edinburgh in 1759, wrote Kames (in May, 1760) that his Equity “will be of the greatest Advantage to the Judges in our colonies” and advised that he had sent a copy to a judge on the Supreme Court of Pennsylvania. Ross, I. S., Lord Kames and the Scotland of His Day 245 (1972)Google Scholar.

Lord Kames was one of the leading figures of the eighteenth-century Scottish Enlightenment and wrote, in addition to six books on the law, on a broad range of topics, including morality, natural religion, literary criticism, history, education, culture, and agricultural improvement. Kames is acknowledged to have had a major impact on the thinking of Thomas Jefferson and John Adams. On Kames, in addition to Ross, supra, see Lehmann, W. C., Henry Home, Lord Kames, and The scottish Enlightenment (1971)CrossRefGoogle Scholar.

50. See Anton, A. E., Private International Law 11–12 (1967)Google Scholar. See also Johnston, , The Scottish Tradition in International Law, 16 Can. Yearbook on Int'l L.3 (1978)Google Scholar.

51. See note 32, supra. Story frequently cited Kames's Principles of Equity in his own writings. See, e.g., J. Story, Commentaries on the Conflict of Laws, supra note 40, at 420, 421, 502, 503; J. Story, Equity Jurisprudence, supra note 40, at 9, 13, 618–19; Story, J., Commentaries on the Law of Promissory Notes 186, 195 (1845)Google Scholar.

52. Wisconsin v. Pelican Insurance Co., 127 U.S. 265, 291 (1888). (Equity passage quoted in opinion and referred to as having been “cited and approved by Mr. Justice Story in his Commentaries on the Conflict of Laws”); Aspden v. Nixon, 45 U.S. 467, 470, 487, 492 (1846) (counsel); Groves v. Slaughter, 40 U.S. 449, at xxiv of Appendix (1841); Barker v. State, 62 Ohio St. 2d 35, 39, 402 N.E. 2d 550, 553 (1980) (opinion quoting Kames and citing Story's Commentaries on the Conflict of Laws).

53. Home, H. (Lord Kames), Historical Law Tracts (1759)Google Scholar. Four more editions of work appeared in 1761, 1776, 1792 and 1817, respectively. A French translation was published in 1766. W. C. Lehmann, supra note 49, at 341.

54. See I. S. Ross, supra note 49, at 202–21.

55. Id. at 218–19; W. C. Lehmann, supra note 49, at 217–18. See also idem, supra note 3, at 159–60, 163, 165–66.

56. Mackenzie, G., The Laws and Customs of Scotland in Matters Criminal (1678)Google Scholar; idem, The Institutions of the Law of Scotland (1684)Google Scholar. A second edition of Mackenzie's Customs appeared in 1699 while eight editions of his Institutes were published through 1758, with an additional London edition appearing in 1694. See Cairns, supra note 23, at 91, 99, 101; D. M. Walker, The Scottish Jurists, supra note 23, at 162, 166. For a further example of Mackenzie's work see Mackenzie, G., Observations Upon the Laws and Customs of Nations as to Precedency: With the Science of Heraldry, Treated as a Part of the Civil Law and the Law of Nations (1680)Google Scholar.

57. Craig, T., Ius Feudale (1655)Google Scholar. The limited subject matter of the work also undoubtedly was a factor.

58. Forbes, W., The Institutes of The Law of Scotland, Volume First Comprehending the Private Law (1722)Google Scholar; idem, The Institutes of the Law of Scotland, Volume Second, Comprehending the Criminal Law (1730)Google Scholar.

59. Innes, J., Idea Juris Scotici; or, A Summary View of the Laws of Scotland (1733)Google Scholar.

60. Macdouall, A. (Lord Bankton), An Institute of the Laws of Scotland in Civil Rights: With Observations Upon the Agreement or Diversity Between Them and The Laws of England. In Four Books, After the General Method of The Viscount of Stair's Institutions 3 vols. (1751-1753)Google Scholar.

61. See, e.g., Rankine, J., The Law of Land Ownership in Scotland (1879) (four editions through 1909)Google Scholar; Gloag, W., The Law of Contract: A Treatise on the Principles of Contract in the Law of Scotland (1913) (2d ed. 1929)Google Scholar; Gloag, W. & Henderson, R., Introduction to the Law of Scotland (1927) (currently in the ninth edition)Google Scholar.

62. Blackstone, W., Commentaries on the Laws of England 4 vols. (1765-1769)Google Scholar. Among the extensive literature on Blackstone see especially Cairns, , Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State, 4 Oxford J. Legal Stud. 318 (1984)CrossRefGoogle Scholar; Doolittle, , Sir William Blackstone and his Commentaries on the Laws of England (1765–69): A Biographical Approach, 3 Oxford J. Legal Stud. 99 (1983)CrossRefGoogle Scholar; Hanbury, , Blackstone in Retrospect, 66 Law Q. Rev. 318 (1950)Google Scholar; Kennedy, , The Structure of Blackstone's Commentaries, 28 Buffalo L. Rev. 205 (1979)Google Scholar; Milsom, , The Nature of Blackstone's Achievement, 1 Oxford J. Legal Stud. 1 (1981)CrossRefGoogle Scholar; and McKnight, , Blackstone, Quasi-Jurisprudent, 13 Sw. L. J. 399 (1959)Google Scholar. On Blackstone's influence on American Law, see Nolan, , Sir William Blackstone and the New Republic: A Study of Intellectual Impact, 51 N.Y.U. L. Rev. 731 (1976Google Scholar) and Watson, A., Legal Transplants: An Approach to Comparative Law 93–94 (1974)Google Scholar.

63. See, e.g., Coke, E., The First Part of The Institutes of the Laws of England; or, A Commentary on Littleton: not The Name of the Author Only, But of the Law itself (1628)Google Scholar. The second, third, and fourth Institutes were published in 1642–44 after Lord Coke's death in 1628.

64. The opinions range from the recent to the early. See, e.g., Ford v. Wainright, 477 U.S. 399, 406–08 (1986); G. M. Mosley Contractors v. Phillips, 487 So. 2d 876, 878 (Ala. 1986) and Chisholm v. Georgia, 2 U.S. 419, 437 (1793); Calder v. Bull, 3 U.S. 386, 391 (1798).

65. See, e.g., U.S. v. Wong Kim Ark, 169 U.S. 649, 659 (1898); Hurtado v. California, 110 U.S. 516, 538 (1884); Davis v. Gray, 83 U.S. 203, 230 (1872); Croxall v. Shererd, 72 U.S. 268, 285 (1866); U.S. v. Wood, 39 U.S. 430, 437 (1840); Smith v. Bell, 31 U.S. 68, 75 (1832); U.S. v. Smith, 18 U.S. 153, 162 (1820); Marbury v. Madison, 5 U.S. 137, 168 (1803); Chisholm, Ex'r. v. Georgia, 2 U.S. 419, 437 (1793).

66. See, e.g., Fink v. O'Neil, 106 U.S. 272, 285 (1882); McVeigh v. United States, 78 U.S. 259, 265 (1870); Sheets v. Selden's Lessee, 69 U.S. 177, 182 (1864); Roberts v. Cooper, 61 U.S. 467, 471 (1857); Mitchell v. Harmony, 54 U.S. 115, 143–44 (1851).

67. See, e.g., United States v. Wong Kim Ark, 169 U.S. 649, 666 (1898); Meyer v. Richards, 163 U.S. 385, 401 (1896): Geer v. Connecticut, 161 U.S. 519, 524 (1896); Meechan v. Valentine, 145 U.S. 611, 620 (1892); New Orleans v. Gaines's Administrator, 138 U.S. 595, 608 (1891); Illinois Central R.R. Co. v. Bosworth, 133 U.S. 92, 101 (1890); Henderson v. Wadsworth, 115 U.S. 264, 280 (1885); Jackson v. Ludeling, 99 U.S. 513, 529 (1878); Burbank v. Conrad, 96 U.S. 291, 308 (1877) (dissent).

The number of references to Pothier is somewhat misleading due to a number of Fifth Circuit diversity cases applying Louisiana law and thus referring liberally to civilian authorities. See, e.g., Perkins v. F.I.E. Corp., 762 F.2d 1250, 1261 n.34 (5th Cir. 1985); Celestin v. Employers Mutual Liability Insurance Co. of Wisconsin, 387 F.2d 539, 541 (5th Cir. 1968); Williams v. Employers Liability Assurance Corp., 296 F.2d 569, 571 n.4 (5th Cir. 1961).

68. See, e.g., Keith v. Clark, 97 U.S. 454, 463 (1878); Hanger v. Abbott, 73 U.S. 532, 540 (187); Scott v. Sandford, 60 U.S. 393, 484 (1856); The New Jersey Steam Navigation Co. v. Merchants Bank of Boston, 47 U.S. 344, 415 (1848); United States v. Percheman, 32 U.S. 51, 68 (1833); Ogden v. Sanders, 25 U.S. 213, 222 (1827); The Schooner Exchange v. M'Faddon, 11 U.S. 116, 133 (1812)Google Scholar; Emory v. Grenough, 3 U.S. 369, 371 (1797); Hoare v. Allen, 2 U.S. 102, 109 (1789).

69. See, e.g., Pothier, R. J., A Treatise On Maritime Contracts of Letting to Hire (Cushing, C. trans. 1821)Google Scholar; idem, A Treatise on the Law of Obligations (Evans, W. trans., 3d Amer. ed. 1853)Google Scholar. See also Aumann, supra note 2, at 310–11.

70. Forum non conveniens concerns the discretionary power of a court to decline to exercise jurisdiction that it rightfully has “whenever it appears that the cause before it may be more appropriately tried elsewhere.” Blair, , The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Colum. L. Rev. 1 (1929)CrossRefGoogle Scholar. See also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947) (“The principle… is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute”).

71. See Braucher, , The Inconvenient Federal Forum, 60 Harv. L. Rev. 908, 909–11 (1947)CrossRefGoogle Scholar. One commentator acknowledged that the doctrine was long established in Scotland and England, but opined that its use was probably borrowed from some continental legal system. He could point to no evidence, however, that demonstrated another origin. Dainow, , The Inappropriate Forum, 29 Ill. L. Rev. 867, 881 & n.58 (1935)Google Scholar.

72. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 248 n.13 (1981). See also Baltimore & Ohio R. v. Kepner, 314 U.S. 44, 55–56 (1941) (Frankfurter J., dissenting) (forum non conveniens a “manifestation of a civilized judicial system … firmly imbedded in our law”).

73. See Longworth v. Hope, 3 Macph. 1049, 1053 (1865). See also Braucher, supra note 71, at 909, citing Brown's Trustee v. Palmer, 9 Sess. Cas. 224 (1830); MacMaster v. MacMaster, 11 Sess. Cas. 685 (1833).

74. Longworth v. Hope, 3 Macph. 1049, 1053 (1865).

75. See, e.g., Lynch v. Stewart, 9 Macph. 860, 862 (1871); Macadam v. Macadam, 11 Macph. 860, 861 (1873); Prescott v. Graham, 20 Scot. L. Rep. 573, 574 (1883); Sim v. Robinow, 19 Sess. Cas. (4th ser.) 665, 666 (1892). See also A. Anton, supra note 50, at 148–50.

76. Bagdon v. Phila. & R. C. & I. Co., 178 App. Div. 662, 165 N.Y. Supp. 910 (2d dept. 1917). See Blair, supra note 70, at 2 n.4.

77. Gardner v. Thomas, 14 Johns. 134 (N.Y. 1817). See Braucher, supra note 71, at 914 and Blair, supra note 70.

78. See Bickel, , The Doctrine of Forum Non Conveniens as Applied in the Federal Courts in Matters of Admiralty, 35 Cornell L.Q. 12 (1949)Google Scholar; Coffey, , Jurisdiction over Foreigners in Admiralty Courts, 13 Calif. L. Rev. 93 (1925)CrossRefGoogle Scholar.

79. 29 Colum. L. Rev. 1 (1929). See Barrett, , The Doctrine of Forum Non Conveniens, 35 Calif. L. Rev. 380, 388 (1947)CrossRefGoogle Scholar.

80. Williams v. Green Bay & W.R. Co., 326 U.S. 549, 551, 553, 554 (1946). See also Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) and Koster v. Lumberman's Mutual Co., 330 U.S. 518 (1947).

81. Langnes v. Green, 282 U.S. 531, 544 (1931).

82. Canada Malting Co. v. Paterson Steamships, Ltd., 285 U.S. 413, 423 (1932).

83. 326 U.S. 549, 555 n.4 (1946).

84. Société du Gaz de Paris v. Armateurs français, [1926] Sess. Cas. 13 (H.L.).

85. Gibb, A., International Law of Jurisdiction 212–13 (1926)Google Scholar.

86. While recognizing the general validity of the doctrine, the Williams Court held that the district court had applied it improperly on the facts before it. 326 U.S. at 559–60.

87. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 n.6 (1947).

88. Canada Malting Co., v. Paterson Steamships, Ltd., 285 U.S. 413, 423 n.6 (1932).

89. 330 U.S. 518 (1947).

90. Blair, supra note 70, at 2.

91. Braucher, supra note 71, at 909; Dainow, supra note 71, at 881; Barrett, supra note 79, at 386–87.

92. See Blair, supra note 70, at 29, 33. Blair seemingly apologizes for his look at Scottish law, stating “While an examination of Scotch decisions may seem irrelevant in an article dealing with Anglo-American law, yet the greater vogue of the plea of forum non conveniens in Scotland than in England… coupled with the natural facility of Scotch judges for terse generalizations, will, we trust, be accepted as justifications for the irrelevance.” Id. at 20 n.91. This suggests that he saw no real Scots law influence in American law as then developed. See also Braucher, supra note 71, at 932; Dainow, supra note 71, at 881–86.

93. See Blair, supra note 70, at 21–29; Braucher, supra note 71, at 914; Barrett, supra note 79, at 387.

94. The earliest American cases involved suits between aliens on disputes which arose abroad, see, e.g., Gardner v. Thomas, 14 Johns. 134, 7 Am. Dec. 445 (N.Y. 1817); Great Western Ry. v. Miller, 19 Mich. 305 (1869); Johnson v. Dalton, 1 Cow. 543, 13 Am. Dec. 564 (N.Y. 1823). A few nineteenth-century decisions recognized discretion to refuse jurisdiction where the plaintiff was resident of another state of the United States, see, e.g., Pierce v. Equitable Life Assurance Society, 145 Mass. 56, 12 N.E. 858 (1887); Molony v. Dows, 8 Abb. Pr. 316 (1859); Ferguson v. Neilson, 11 N.Y. Supp. 524 (1890); Morris v. Missouri Pacific Ry., 78 Tex. 17, 14 S.W. 228 (1890).

95. See Barrett, supra note 79, at 387. In Piper Aircraft Co. v. Reyno, 454 U.S. 246, 248 n.13 (1981) the Supreme Court stated that the doctrine of forum non conveniens “originated in Scotland… and became part of the common law of many states.” The statement appears to be inaccurate to the extent that it suggests Scots law was responsible for or influenced the state common law development.

96. See Coffey, supra note 78; Bickel, supra note 78; Comment, Admiralty Suits Involving Foreigners, 31 Texas L. Rev. 889 (1953)Google Scholar.

97. See, e.g., The Belgenland, 114 U.S. 355 (188); Panama R.R. v. Napier Shipping Co., 166 U.S. 280 (1897); One Hundred & Ninety-four Shawls, Fed. Cas. No. 10,521 (S.D.N.Y. 1848). See Bickel, supra note 78, at 19 (admiralty courts borrowed forum non conveniens concept from English cases); Coffey, supra note 78, at 94–95.

98. See notes 75–81, supra.

99. One commentator, writing in 1947, stated that only half a dozen states had then accepted the doctrine while fourteen states had rejected it. The remaining bulk of state jurisdictions had yet to consider its applicability. Barrett, supra note 79, at 388–89 & n. 40–41.

100. 28 U.S.C. Sec. 1404(a) (1976). The statute does not replace the doctrine of forum non conveniens but rather ameliorates its harshness by providing for a change of venue rather than dismissal of the cause of action where the preferred forum is another federal court. See Norwood v. Kirkpatrick, 349 U.S. 29 (1955). Dismissal of a cause of action by a federal court under the traditional doctrine is thus appropriate only when the preferred forum is a court in a foreign country or a state court. See Gross v. Owen, 221 F.2d 94, 96 (D.C. Cir. 1955) (no other federal court available) and Simon v. Silfen, 247 F. Supp. 762, 763 (S.D.N.Y. 1965) (parallel state action pending). See generally Friedenthal, J., Kane, M. & Miller, A., Civil Procedure 90–93 (1985)Google Scholar; Kitch, , Section 1404(a) of the Judicial Code: In the Interest of Justice or Injustice? 40 Ind. L.J. 99 (1965)Google Scholar; Note, Forum Non Conveniens and American Plaintiffs in the Federal Courts, 47 U. Chi. L. Rev. 373, 377 (1980)Google Scholar.

101. See, e.g., Silver v. Great American Ins. Co., 29 N.Y.2d 356, 328 N.Y.S.2d 398, 278 N.E.2d 619 (1972); Thomson v. Continental Ins. Co., 66 Cal. 2d 738, 59 Cal. Rptr. 101, 427 P.2d 765 (1967); Lonergan v. Crucible Steel Co. of America, 37 Ill. 2d 599, 229 N.E.2d 536 (1967). Compare Zurick v. Inman, 221 Tenn. 393, 426 S.W.2d 767 (1968) (“The origin of the doctrine is somewhat obscure and from our research it appears to have originated in Scotland.…”). See also Note, Developments in the Law–State-Court Jurisdiction, 73 Harv. L. Rev. 909, 1009 n.648 (1960)CrossRefGoogle Scholar (recognizing Scottish origins of doctrine).

102. 1 Bell's Commentaries on the Laws of Scotland 64 sec. 32 (6th ed. 1858)Google Scholar.

103. In Codrington v. Codrington, L.R. 7 H.L. 854, 861–62 (1875) Lord Cairns specifically recognized this commonality when he observed: “By the well-settled doctrine which is termed in the Scotch law the doctrine of ‘approbate’ and ‘reprobate,’ and in our Courts more commonly the doctrine of ‘election,’ where a deed or will professes to make a general disposition of property for the benefit of a person named in it, such person cannot accept a benefit under the instrument without at the same time conforming to all its provisions, and renouncing every right inconsistent with them.”

104. “The doctrine of election, like many other doctrines of equity jurisprudence, appears to have been derived from the civil law.” J. Story, supra note 40, at sec. 1078.

105. Justice Chitty, writing in In Re Chesham, 31 Ch.D. 466, 473 (1886), observed that ”[t]he principle on which the doctrine of election is based is that a man shall not be allowed to approbate and reprobate; that if he approbates he shall do all in his power to confirm the instrument which he approbates. The consequences of such a principle cannot be legitimately caried beyond the principle itself; if a man approbates, his obligation is confined to his adopting the instrument as a whole and abandoning every right inconsistent with it.”

106. Bigelow, M., A Treatise on the Law of Estoppel and its Application in Practice ch. 19 (4th ed. 1886)Google Scholar. Story recognized the civil law origins of election but did not specifically identify Scotland as a source. See note 104, supra.

107. M. Bigelow, supra note 106, at 673 (5th ed. 1890).

108. The most commonly quoted language was: “A party cannot either in the course of litigation or in dealings in pais, occupy inconsistent positions. Upon that rule election is founded: ‘a man shall not be allowed,’ in the language of the Scotch law, ‘to approbate and reprobate.’ And where a man has an election between several inconsistent courses of action, he will be confined to that which he first adopts; the election, if made with knowledge of the facts, is in itself binding….” M. Bigelow, supra note 106, at 733 (6th ed. 1913).

Cases citing the “Scotch law” reference in Bigelow's sixth edition include: Brooks & Co. v. North Carolina Pub. Serv., 37 F.2d 220, 224 (4th Cir. 1930); Stroh Brewery Co. v. Grand Trunk W. R.R., 513 F. Supp. 827, 834 (E.D. Mich. 1981); Metcalfe Bros, v. American Mut. Liab. Ins., 484 F. Supp. 826, 831 (W.D. Va. 1980); Griley v. Griley, 43 So. 2d 350, 352 (Fla. 1949); Jones v. Neibergall, 42 So. 2d 443, 444 (Fla. 1949); Arwood v. Hill's Adm'r, 117 S.E. 603, 606 (Ga. Ct. App. 1923); Riley v. Cumberland & Manchester R. Co., 29 S.W.2d 3, 4 (Ky. 1930); Jones v. Southern Natural Gas, 213 La. 1051, 36 So. 2d 34, 40 (1948); Petillo v. Stein, 42 A.2d 675, 678 (Md. 1945); Herring v. Citizens Bank & Trust, 21 Md. App. 517, 321 A.2d 182, 196 (1974); Mertz v. Mertz, 311 Mich. 46, 18 N.W.2d 271 (1945); Castle v. Tracy, 463 S.W.2d 777, 780 (Mo. 1971); State Ex. Rel. Hilleary & Partners v. Kelly, 448 S.W.2d 926, 931 (Mo. Ct. App. 1969); United States Nat'l. Bank of Red Lodge v. Chappell, 230 P. 1084, 1088 (Mont. 1924); Tremarco v. Tremarco 174 A. 898, 899 (N.J. 1934); Tate v. Estate of Dickens, 276 App. Div. 94, 93 N.Y.S. 504, 507 (1949); Pulaski Nat'l. Bank v. Harrell, 203 Va. 227, 123 S.E.2d 382, 387 (1962); Rohana v. Vazzana, 196 Va. 549, 84 S.E.2d 440, 442 (1954); Burch v. Grace St. Bldg. Corp., 191 S.E. 672, 677 (Va. 1937); Dickenson v. Boyd, 187 S.E. 479, 480 (Va. 1936); Hurley v. Bennett, 176 S.E. 171, 175 (Va. 1934); Nagle v. Syer, 143 S.E. 690, 692 (Va. 1928); Title Guarantee Trust & Savings Bank v. Clifton Forge Nat'l. Bank, 140 S.E. 272, 274 (Va. 1927).

109. Pulaski Nat'l Bank, 123 S.E.2d at 387; Rohanna, 84 S.E.2d at 442; Burch, 191 S.E.2d at 677; Dickenson, 187 S.E.2d at 480; Hurley, 176 S.E.2d at 175; Nagle, 143 S.E.2d at 692; Title Guarantee Trust & Savings Bank, 140 S.E.2d at 274.

110. See, e.g., United States National Bank of Red Lodge, 230 P. 1084, 1088 (Mont. 1924). “Now the plaintiff must either ratitfy this transaction in whole or reject it in whole. It must take the bad with the good; it will not be permitted to blow both hot and cold. As under the Scots law, [he] will not be permitted to approbate and reprobate.”

111. Noyes v. Noyes, 233 Mass. 55, 123 N.E. 395, 396 (1919); Jones v. Neibergall, 42 So. 2d 443 (1949).

112. Codrington v. Codrington, L.R. 7 H.L. 854 (1875). See note 103, supra.

113. Brooks & Co. v. North Carolina Public Service Co. 37 F.2d 220, 224 (1930); Stroh Brewery v. Grand Trunk Western R.R., 513 F. Supp. 827, 834 (1981); Riley v. Cumberland & Manchester R.R., 29 S.W.2d 3, 4 (1930).

114. M. Bigelow, supra note 108, at 732 n.3, citing In re Chesham, 31 Ch. D. 466, 473, Chitty, J; Steward v. Muirhead, 29 N.B. 273, Carter, J.

115. See note 103, supra and accompanying text.

116. The Fatal Accidents Act, 9 & 10 Vict. ch. 93 (1846) (more commonly known as Lord Campbell's Act).

117. See Malone, , The Genesis of Wrongful Death, 17 Stan L. Rev. 1043, 1044 (1965)CrossRefGoogle Scholar.

118. See Clarke v. Carfin Coal Co., (1891) A.C. 412, 418 (Scot) where Lord Watson noted that ”[a]s a matter of fact, it cannot be disputed that… for a century past, actions for solatium and damages have been sustained at the instance of husband, wife, or legitimate child, in respect of the death of a spouse, a child, or a parent… in the law of Scotland.”

119. See Denning, L., Borrowing from Scotland 27 (1963)Google Scholar.

120. A young Lord Campbell, sitting as a law reporter, was forced to report the controversial Baker v. Bolton decision [(1808) 1 Camp. 493], which ruled that the death of a human being could not be complained of as an injury and was, thus, not compensable. According to Lord Denning, Campbell thought the case wrongly decided and determined to change English law to conform to the Scottish as soon as the opportunity arose. L. Denning, supra note 119, at 28–29.

Baker v. Bolton has been roundly criticized by scholars since, among other things, it makes it more advantageous, from a tort perspective, for a defendant to kill rather than injure a person. According to Prosser, “Lord Ellenborough [the decision's author], whose forte was never common sense, held without citing any authority that a husband had no action for loss of his wife's services through her death….” Prosser, W., Torts 901 (4th ed. 1971)Google Scholar. See also Speiser, , Recovery for Wrongful Death 7 (1966)Google Scholar (“it is clear that the rule in Baker v. Bolton was not based on precedent or logic”).

121. See Morange v. State Marine Lines, 398 U.S. 375, n.13 [quoting in part from Admiralty Commissioners v. S.S. Amerika, (1917) A.C. 38, 52]. According to Justice Harlan, “[t]he decisional law of Scotland had long recognized [the] right to recover for wrongful death; thus, the mischief at which the statute [was] aimed could be cured without disturbing Scottish law. The Act ‘excluded Scotland from its operation because a sufficient remedy existed there when in England none [had] existed at all.’ ”

The Scottish position is succinctly stated in Eisten v. North British Ry., 8 Macph. 980, 984, 42 Scot. Jur. 575 (1870) (“It is true that, in the law of Scotland, differing in that respect from some other systems of jurisprudence, a claim of this kind is sustained at the instance of a wife for the death of a husband, a husband for the death of his wife, a parent for the death of his child, and a child for the death of his parent, where the death has been caused by delict or culpa.”).

122. See, e.g., the discussion of the North Carolina “Lord Campbell's Act” in Hume v. Long, 377 S.E.2d 99, 101 (S.C. Ct. App. 1988). See also Morange v. States Marine Lines, 398 U.S. 375, 390 (1969); Cant v. Bartlett, 440 A.2d 388, 393 (Md. 1982); Goheen v. General Motors Corp., 502 P.2d 223, 227 (Ore. 1972); In re Meng, 96 Misc. 126, 159 N.Y.S. 535, 538 (1916).

123. 23 Fed. Cas. 368 (D. Neb. 1874).

124. Id. at 369. Judge Dillon specifically rejected Baker v. Bolton: “Considering that it is not reasoned and cites no authorities, and the time it was made, and that the rule it declares is without any reason to support it, my opinion is that it ought not to be followed in a state where the subject is entirely open for settlement.” Id. at 371.

125. Professor Malone has noted that Baker v. Bolton “was consistently ignored in America until 1848 … and during this forty-year interval there was no instance of a denial of a civil action for wrongful death.” However, beginning with Carey v. Berkshire R.R., 55 Mass. (1 Cush.) 475, 48 Am. Dec. 616 (1848), the trend reversed and Baker v. Bolton was used to deny actions for wrongful death. Malone, supra note 117, at 1067.

In The Harrisburg v. Rickards, 119 U.S. 199, 205 (1886)Google Scholar, the Supreme Court held that “by common law, no civil action lies for an injury which results in death…. The only American cases in the common law courts against this rule, to which our attention has been called, are, Cross v. Guthery, 2 Root 90, 1 Am. Dec. 61 (1794); Ford v. Monroe, 20 Wend. 210 (1833); James v. Christy, 18 Mo. 162 (1853); Sullivan v. Union Pacific Ry., 3 Dillon 334 (1874).” The Court then noted that each of these decisions had been overturned. The Court appears to have missed some earlier precedent. See Malone, supra note 117, at 1066–67.

In Sullivan v. Union Pacific Ry., 23 Fed. Cas. 368, 371 (D. Neb. 1874) the court found “that all the cases, English and American, rest upon the nisi prius decision, in 1808, of Lord Ellenborough in Baker v. Bolton.” As described above, the court in rejecting that precedent as “not reasoned” was decidedly in the minority in the United States in the latter half of the nineteenth century.

126. 13 Scots L.T. 581 (1905). See Benjamin v. Nernberg, 102 Pa. Super. 471, 157 A. 10 (1931) where the court noted that “Although the game of golf has been played for many years by thousands of people, serious accidents to players resulting in litigation have been so few that there is little in the books to help the court.” Id. at 10–11.

127. 13 Scots L.T. at 581–82. See also, Legal Questions Relating to Golfing and Golf Courses, 31 Scot. L.R. 194 (1915)Google Scholar (approving of the holding in Andrew).

128. See, e.g., Benjamin v. Nernberg, 102 Pa. Super 471, 157 A. 10, 11 (1931) (“The only case in point we have been able to find is that of Andrew v. Stevenson We see no reason… why these principles should not apply to the instant case.”); Strand v. Conner, 24 Cal. 584, 586 (Cal. D. Ct. App. 1962); Walsh v. Machlin, 128 Conn. 412, 23 A.2d 156, 157 (1941); Hoffman v. Polsky, 368 S.W.2d 376, 379 (Mo. 1965); Rogers v. Allis-Chamber Mfg., 153 Ohio St. 513, 92 N.E.2d 677, 682 (1950). See also Williams v. Woods, 260 Mich. 387, 244 N.W. 490, 491 (1932) (citing Legal Questions Relating to Golfing and Golf Courses, supra note 127).

129. See, e.g., Buck v. Clauson's Inn at Coonamesset, 211 N.E. 2d 349 (Mass. 1965).

130. See Epstein, , Advance Notice of Alibi, 55 J. Crim. L., Criminology & Pol. Sci. 29 (1964)CrossRefGoogle Scholar.

131. See generally Everett, , Discovery in Criminal Cases–In Search of a Standard, 1964 Duke L.J. 477Google Scholar.

132. See Millar, , The Modernation of Criminal Procedure, 11 J. Crim. L. & Criminology 344, 350 (1920)Google Scholar (characterizing alibi defenses as “one of the main avenues of escape of the guilty”).

133. See Epstein, supra note 130, at 29. Scots law now requires a criminal defendant to specify the alibi “place” at the time in question and requires special notice of other defenses such as insanity.

134. See Millar, supra note 132, at 351. See also Millar, , The Statutory Notice of Alibi, 24 J. Crim. L. & Criminology 849 (1934)Google Scholar.

135. Epstein, supra note 130, at 30 n.16. Representative state rules are collected in 6 Wigmore, J., Evidence in Trials At Common Law sec. 1855(b) (rev. ed. Chadbourne 1976)Google Scholar.

136. See Advisory Committee note, Fed. R. Crim P. 12.1. Rule 12.1 states in pertinent part:

(a) Notice by Defendant. Upon written demand of the attorney for the government stating the time, date and place at which the alleged offense was committed, the defendant shall serve … upon the attorney for the government a written notice of the defendant's intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi.

137. Alicea v. Gagnon, 675 F.2d 913, 916 (7th Cir. 1982).

138. Cudahy Packing Co. v. Parramore, 263 U.S. 418, 425 (1923). The Court cited and quoted from George Anderson & Co. v. Adamson, 50 Scot. L.R. 855 (1905).

139. See Sebo v. Libby, McNeil & Libby, 216 Mich. 351, 185 N.W. 702, 703 (1921); Hinchuk v. Smith & Co., 149 Minn. 1, 182 N.W. 622, 623 (1921); Prouse v. Industrial Commission, 194 P. 625, 626–27 (Cal. 1920); Carleton v. Foundry & Machine Products Co., 199 Mich. 148, 165 N.W. 816, 817 (1917); In re Heitz, 218 N.Y. 148, 112 N.E. 750, 751 (1916); Spooner v. Detroit Saturday Night Co., 187 Mich. 125, 153 N.W. 657, 659 (1915). See also Reynolds v. Passaic Valley Sewage Com'rs, 20 N.J. Misc. 74, 24 A.2d 531, 534(1942).

140. See Stump v. Norfolk Shipbuilding & Dry Dock Corp., 187 Va. 932, 48 S.E.2d 209, 212 (1948); Kricinovich v. American Car & Foundry Co., 192 Mich. 687, 159 N.W. 362, 364 (1916); Jendrus v. Detroit Steel Products Co., 178 Mich. 265, 144 N.W. 563, 566 (1913).

141. Workmen's Compensation Act of 1897, 60 & 61 Vict. ch. 37 (1897).

142. See, e.g., Pease, , An English Workman's Remedies for Injuries Received in the Course of his Employment, at Common Law and By Statute, 15 Colum. L. Rev. 509 (1915)CrossRefGoogle Scholar.

143. There is some evidence that the holographic will in Virginia, authorized by a 1748 statute, was borrowed from Scots law. It may just as likely have come from English law, however. See McKnight, J., Legal Persistence and Change, 12–15 (unpublished manuscript)Google Scholar.

144. See Chitnis, A., The Scottish Enlightenment 78 (1976)Google Scholar; A. Watson, supra note 62, at 44. See generally Walker, D. M., A Legal History of Scotland, Vol. 1 (1988)Google Scholar.

145. The early Roman influence was mostly of a procedural nature. See Stein, P., Roman Law in Scotland in Ius Romanum Medii Aevi 107 (1968)Google Scholar; A. Watson, supra note 62, at 45–46.

146. Id. at 46; Stein, , The Influence of Roman Law on the Law of Scotland, 8 Juridical Rev. 205, 213–14 (1963)Google Scholar.

147. Id; Smith, T. B., A Short Commentary on the Law of Scotland 21 (1962)Google Scholar; Smith, B., Sources and Literature of Scots Law, Stair Soc, vol. 1, at 171Google Scholar.

148. See A. Watson, supra note 62, at 46–47 quoting T. Craig, supra note 57, at book I, tit. 2, sec. 8 (1655) (“But we in this kingdom are bound by the law of the Romans in so far as they are in harmony with the laws of nature and right reason. … Here there is an extreme scarcity of written laws and naturally we follow the Civil Law in most matters”) Although Ius Feudale was published in 1655, its author died in 1608. It is noteworthy that Ius Feudale was written in Latin. See also Hope, T., Major Practicks, book I, tit. 1, sec. 14 (1605–1633)Google Scholar (Stair Society vols. 3–4, 1937–38). See also Stein, supra note 146, at 218–19 on Craig's use of Roman law.

149. The use of the term “institutes” in Scotland as well as in continental Europe derives directly from the Roman Emperor Justinian's famous Institutes. A widely accepted definition of “institutes” is “a book containing the elements of the Roman law.” See Cairns, supra note 23, at 79–80.

150. Watson, supra note 62, at 48.

151. Specifically, Stair stated that Roman Law was “not acknowledged as a law binding for its authority, yet being, as a rule, followed by its equity.” He acknowledged that Roman law was “common law” in the sense that it was common to many nations, including Scotland. Stair, , Institutions of the Law of Scotland 87–88 (Walker, D. M. ed. 1981)Google Scholar. According to Stein “As far as possible Stair drew his law from the decisions of Scottish courts. Where such authority was lacking, he drew on the Roman law.” Stein, supra note 146, at 220–21.

152. See T. B. Smith, supra note 147, at 23; Stein, supra note 146, at 219–20.

153. See Smith, , Roman Law in The Sources and Literature of Scots Law 180–81 (Stair Society vol. 1 1936)Google Scholar; T. B. Smith, supra note 147, at 23.

154. According to Professor Stein, “Many rules of Roman law were incorporated into Scots law in the eighteenth century, but the process was more self-conscious and deliberate than it had been in the seventeenth.” Stein, supra note 146, at 221.

155. T. B. Smith, supra note 147, at 23.

156. See Stein, supra note 146, at 243. One should not overlook the converse; Scots law has had an impact on English law, from the eighteenth century to the present. Although the English have typically not borrowed Scottish precedent, since Scots law regards precedent in a somewhat different manner, they have liberally appropriated Scottish legal principles. See L. Denning, supra note 119, at 5. See also Gibb, A. D., Law From Over the Border (1950)Google Scholar.

157. The 1707 Union also produced a unified Parliament of Great Britain, empowered to make laws for all of the United Kingdom. The Parliament, both legislatively and judicially “was overwhelmingly English in composition and outlook.” Thus, the Union, structurally through the advent of the new Parliament, paved the way for English law to have ever increasing importance and authority in Scotland. See Smith, , English Influences on the Law of Scotland, in Studies Critical and Comparative 119 and generally at 116–36 (1962)Google Scholar.

158. T. B. Smith, supra note 147, at 23–24.

159. Stein, supra note 146, at 244.

160. See Smith, , Strange Gods: The Crisis of Scots Law as a Civilian System in Studies Critical and Comparative 74–81 (1962)Google Scholar. Roman law is a required course for admission to the Scottish Faculty of Advocates (the Scottish Bar).

161. For a helpful discussion on the sources of Scots law see T. B. Smith, supra note 147, at 25–46. Resistance to English law remains robust in some circles. Perhaps the leading Scottish legal historian, Sir Thomas (T. B.) Smith, lameted in 1958 “… alas, since 1758, we in Scotland have gone a-whoring after some very strange gods.” Smith, supra note 160, at 72. Compare Rodger, , Report of the Scottish Law Commission on Antenatal Injury, 1974 Juridical Rev. 83Google Scholar (favoring Roman law sources over English law) with Miller, , The Use of Roman Law in Scotland: A Reply, 1975 Juridical Rev. 64Google Scholar.

162. A. Watson, supra note 62, at 51.

163. It is apparently easy to overstate the English common law influence on the American colonies. The law in the various colonies varied greatly; there were literally thirteen different legal systems. Haskins, G., Law and Authority In Early Massachusetts 6 (1960)Google Scholar. English law and traditions were mixed with local law, custom and traditions in various combinations. See L. Friedman, note 12 supra, at 31. However, few colonies explicitly adopted the common law. Miller, P., The Life of the Mind in America: From the Revolution to the Civil War 107 (1965)Google Scholar.

164. T. B. Smith has called the period “the Dark Age of Scots Law.” T. B. Smith, supra note 147, at 16. See also A. Watson, supra note 62, at 51.

165. Prevailing pre-Revolutionary attitudes to the common law pointed to its acceptance as a body of principles to be liberally applied by the colonial courts. The colonial reception to British statutes was markedly more cautious and hostile. See Horowitz, M., The Transformation of American Law, 1780–1860, at 4–9 (1977)Google Scholar.

166. A. Watson, supra note 62, at 52.

167. P. Miller, supra note 163, at 109.

168. See notes 1 and 163, supra.

169. See, e.g., G. Gilmore, supra note 1, at 23; M. Horowitz, supra note 165, at 30 (“In 1820 the legal landscape in America bore only the faintest resemblance to what existed forty years earlier”); P. Miller, supra note 163, at 124; Kent and Story were already prominent figures, Kent as Chief Justice of New York and then Chancellor, and Story as a Supreme Court Justice. Kent particularly has reverence for the common law. Id. at 123–24. The pinpointing of 1820 as significant for common law entrenchment appears surprisingly early, considering that the War of 1812, during which anti-English ardor was at its zenith, occurred only eight years earlier. However, as Gilmore points out, by 1820 America had its own body of law and literature and its own court system. Cases were regularly reported and American law books were beginning to appear. G. Gilmore, supra note 1, at 23.

170. See notes 27–33 and accompanying text, supra.

171. See P. Miller, supra note 163, at 123–27.

172. See note 157, supra and accompanying text. See also note 156, supra.

173. There are exceptions to this general rule even in places like New Zealand whose law has remained very English. Legitimization through the later marriage of the parents became law in New Zealand prior to England and was directly influenced by existing Scottish law. For a discussion of English law's “transplant” to New Zealand, see A. Watson, supra note 62, at 71–74.

174. See text accompanying note 20 supra.

175. See, e.g., W. Brock, supra note 3, at 16.

176. Apparently, even the heroics of Scots such as Patrick Henry, John Paul Jones, and James Wilson failed to alter that perception. See, e.g., Meyers, D., The Highland Scots of North Carolina, 1732–1776, at 131–62 (1957)Google Scholar (describing the largely Loyalist actions of the North Carolina Highland Scots). See generally notes 16–17, supra, and accompanying text. While Scottish emigrants were largely Loyalist, the Scotch-Irish were generally “patriots.” The two groups opposed each other at the battle of King's Mountain in North Carolina. See Johnson, J., The Scots and Scotch-Irish In America 11 (1966)Google Scholar. See also Leyburn, J., The Scotch-Irish: A Social History 304–14 (1962)Google Scholar (concluding that, except for the Carolinas, “Scotch-Irish support for independence was generally ardent”).

177. See note 15 supra and accompanying text.

178. The fact that Scots law has no code, unlike the continental civil law systems, may have contributed to the lack of perceived distinction from the common law.

179. See, e.g., M. Horowitz, supra note 165, at 4–5.

180. See, e.g., Stein, supra note 2, at 407.