It is tempting to suggest that, in the disagreement between Kames and
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Dalrymple about entails, we see a disagreement as to whether, in Montesquieu’s terms, Britain was fundamentally a republic or a monarchy. In truth, though, and needless to say, Kames was no republican. His criticism of feudal legal forms was grounded, rather, in a sober pragmatism about what Scotland needed to do to have a chance of improving itself and competing with England on more or less equal commercial terms.
“I am afraid of Kames’ Law Tracts,” Hume wrote to Adam Smith in April 1759. “A man might as well think of making a fine sauce by a mixture of wormwood and aloes, as an agreeable composition by joining metaphysics and Scottish law.”28 Despite the book’s merits, Hume continued, few people would take the trouble to read it. Hume seems to have been wrong about that. Historical Law-Tracts went through four editions (new and corrected editions were issued in 1761, in 1776, and, posthumously, in 1792), and the tracts on criminal law and property were translated into French in 1766.29 William Robertson reviewed it in glowing terms in The Critical Review. Kames, according to Robertson, showed that it was possible to write on law in a more rational and instructive manner than had usually been managed hitherto. “[T]hough researches of this kind be, necessarily, intricate and profound,” Robertson added, “our author writes with remarkable perspicuity, and in a vigorous and manly stile. A subject seemingly dry and abstruse becomes, in his hands, not only instructive but amusing.”30 Historical Law-Tracts was well received also by The Monthly Review, where, like Robertson, the reviewer gave particular attention to the tract on the history of the criminal law, “a subject of general import, and of the highest concern to every member of a free state; as the preservation of Liberty depends chiefly on the perfection of the laws in criminal cases.” Despite the amount of technical discussion of Scottish law, the reviewer judges that
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in the book taken as a whole “the Author discovers a thorough knowledge of human nature, and a very intimate and extensive acquaintance with History and Jurisprudence.”31 Bentham’s approval of Kames’s jurisprudence has been noted above. On the basis of his achievement in the Law-Tracts, Kames was invited to become a member of a “Society of Citizens” to be based in Berne with the aim of improving moral science and the science of legislation.32 Historical Law-Tracts was also read with interest in revolutionary America.33 John Adams endorsed Kames’s critique of feudalism, and Thomas Jefferson ranked Kames with Blackstone as a legal authority. In the lectures he gave in the College of Philadelphia in the 1790s, James Wilson recommended his own program for the study of law in the following terms:
It comes to you supported with all the countenance of and authority of Bacon, Bolingbroke, Kaims—two of them [i.e., Bacon and Kames] consummate in the practice, as well as in the knowledge of the law—all of them eminent judges of men, of business, and of literature; and all distinguished by the accomplishment of an active, as well as those of a contemplative life.34
There is recognition here of Kames’s achievement in turning himself into a notably well-rounded man of law, expert not only in the law itself but also in much else pertinent to understanding law’s function in a free society.
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Text
This edition of Historical Law-Tracts is based on the edition published ten years after Kames’s death:
Historical Law-Tracts. The Fourth Edition. With Additions and Corrections. Edinburgh: Printed for T. Cadell, in the Strand, London; and Bell & Bradfute, and W. Creech, Edinburgh. 1792.
This edition incorporates Kames’s final alterations. It also incorporates the page numbers of the 1792 addition, inserted within angle brackets in the main body of the text.
Earlier editions are as follows:
Historical Law-Tracts. 2 vols. Edinburgh: Printed for A. Millar, at Buchanan’s Head in the Strand; and A. Kincaid, and J. Bell, Edinburgh. 1758.
Historical Law-Tracts. The Second Edition. Edinburgh: Printed by A. Kincaid, His Majesty’s Printer, for A. Millar in the Strand, London; and A. Kinkaid and J. Bell, Edinburgh. 1761.
Historical Law-Tracts. The Third Edition. With Additions and Corrections. Edinburgh: Printed for T. Cadell, in the Strand, London; and J. Bell and W. Creech, Edinburgh. 1776.
Major differences between the 1792 and earlier editions are indicated in footnotes to the text. The 1758 and 1761 editions are mostly identical, as are the 1776 and 1792 editions.
None of these four editions has the author’s name on its title page. The table of contents was added in 1776. In 1758 and 1761, the title of every tract apart from Tract XIV begins with “History of.…” Thus in these
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two editions, Tract I is “History of Criminal Law,” Tract II is “History of Promises and Covenants,” and so on.
Annotation
Full references to all works cited by Kames are provided in the bibliography. Most of Kames’s footnote references (shorter ones indicated by symbols: *, †, ‡, etc.; longer ones indicated by Arabic numerals within parentheses) are easy enough to make sense of. Where this is not the case, sufficient information (inserted within double square brackets) has been added to enable the reader to identify the passage that Kames refers to. A small number of footnotes (indicated by Arabic numerals) have been added to explain legal and historical matters likely not to be readily comprehensible to the nonspecialist.
Kames frequently cites Scottish and English, and British, statute law. He also regularly cites decisions of the Court of Session, and a variety of bodies of ancient British and continental European law. These citations can be pursued using the following reference works:
Statute Law of Scotland
For the period beginning with the accession of James I in 1406 Kames would have used:
Glendook, Sir Thomas Murray of. Laws and Acts of Parliament made by King James the First, […], King Charles the Second who now presently reigns, Kings and Queens of Scotland. Edinburgh, 1681.
The standard reference work is now:
The Acts of the Parliament of Scotland, A.D. MCXXIV–MDCCVII. Ed. Cosmo Innes and Thomas Thomson. 12 vols. London, 1814–52.
A complete list of acts of the Scottish Parliament to 1707, including a chronological table of statutes from 1424 to 1707, is provided by the database Records of the Parliaments of Scotland to 1707: http://www.rps.ac.uk
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Statute Law of England and Great Britain
Kames would have used one or other of the successive editions of Statutes at Large, a list of statutes ratified by the English Parliament beginning with Magna Carta. E.g.,
The Statutes at Large, from Magna Charta, to the Thirtieth Year of George the Second, Inclusive. Ed. John Cay. 6 vols. London, 1758.
Ancient
