SKENE, SIR JOHN

SKENE, SIR JOHN, a Scottish lawyer, was the second son of James Skene of Ramore, and of Janet the second daughter of Alexander Burnet of Leys. He thus derived his lineage from the ancient family of Skene of Skene. We may place his birth about the year 1540. He is said to have been partly educated at King's College, Aberdeen; but he is known to have been incorporated at St. Andrews in the year 1556; and in this university he took the degree of A.M. In 1564 and 1565 he taught as one of the regents of St. Mary's College. According to Dempster, he spent a

great part of his youth in Norway, Denmark, and Poland, and had thus an opportunity of acquiring a familiar acquaintance with modern languages, as well as of extending his knowledge of men and manners.¹ Skene has incidentally mentioned that he was in Switzerland in 1568, and that he was at Cracow in Poland during the following year.² He has likewise stated that he returned home after a peregrination of seven years, and that he returned from the famous university of Wittemberg, honoured with an annual pension from the elector of Saxony, and imbued with some knowledge of the civil law. He appears to have begun his travels in 1567, and to have returned in 1574.³ On revisiting his native country, he finally made choice of the legal profession, and was admitted as an advocate on the 19th of March 1575. He speedily acquired some degree of distinction as a lawyer.

The earl of Morton, then regent of the kingdom, had formed a plan for reducing the laws into a more easy form and method. The execution of the plan was committed to Skene and to Sir James Balfour, president of the court of session. Among other ostensible coadjutors, we find Lord Glamis, chancellor, Lord Ruthven, and William Baillie of Provand, who likewise attained to the dignity of president. The only result of this commission is supposed to have been the compilation of a book which passes under the title of Sir James Balfour's Practicks. "If I might be allowed to indulge in conjecture," says Mr. Thomson, "I should be inclined to suppose, that the conception or project of this digest of the laws may have originated with Balfour; that his own exile afterwards precluded him from continuing to take any part in its execution; that the active drudgery of the proposed investigation was devolved upon younger men; and that the unfinished result of their labours is perhaps no other than the volume of Practicks to which the name of Sir James Balfour has been traditionally annexed."⁴ It is at least evident that the work must have been interpolated; for, as Lord Hailes has remarked, it mentions certain acts of parliament, and the names of certain peers, that did not exist till after the death of Balfour. Of this compilation, which was not printed till 1754, the value has never been highly estimated. The labours of Skene, whatever may have been their nature or extent, were, on the 10th of June 1577, rewarded by the grant of an annual pension of "ten chalders of meal," payable out of the revenues of the abbey of Aberbrothock.

In the year 1589 he was employed in another capacity. Sir James Melville was selected by the king as his ambassador to the court of Denmark, for the purpose of negotiating a marriage with a Danish princess; and he required the advice and assistance of a lawyer, with a special reference to the Danish claims on Orkney. "When I schew his maieste," says Melville, "that I wald tak with me, for man of law, Mester Jhon Skein, his maieste thocht then that ther wer many better lawyers. I said that he was best acquainted with the conditions of the Germanes, and culd mak them lang harangues in Latin, and was a gud trew stout man, lyk a Dutche man. Then his maieste was content that he suld ga ther with me."⁵ Melville was however supplanted, and the Earl Marischal having been placed at the head of the embassy, Skene accompanied him to Denmark. Dr. Craig, physician to the king, addressed a letter to Tycho Brahe, recommending to his friendly attentions Skene, Swinton, Nicolson, and Fowler, who were all attached to this mission.

In the course of the same year, Skene was conjoined

with David Makgill for executing the office of his majesty's advocate; and in 1590 he was associated with Colonel Stewart in an embassy to some of the princes of Germany.¹ During the same year he was employed on an embassy to the States-General.² In 1592 an act of parliament authorized the chancellor, assisted by other commissioners, of whom Skene was one, to institute a general examination of the municipal laws, to consider what laws and acts should be known to the king's subjects, and to take the necessary steps for printing them.³ The most laborious part of this undertaking devolved upon Skene; and after an interval of five years, he published "The Lawes and Actes of Parliament maid be King Iames the First and his Successors, Kinges of Scotland: visied, collected, and extracted furth of the Register." Edinb. 15 Martii A.D. 1597, fol. According to our present mode of reckoning, the book was published in the year 1598. With a separate title, it includes a treatise "De Verborum Significatione. The Exposition of the Termes and difficill Wordes, conteined in the foyre bviues of Regiam Majestatem, and vthers, in the Actes of Parliament, Infestments, and vsed in practice of this Realm, with diuerse rules and common places, or principales of the Lawes: collected and expone by M. John Skene, Clerke of our Sovereigne Lordis Register, Council, and Rolles."

In September 1594 he had been appointed to the office of Clerk Register, in the room of Alexander Hay of Easter Kennet, whom he also succeeded as one of the Judges of the Court of Session. He was admitted on the 30th of November. For his preferment he is said to have been indebted to the influence of Walter Stewart, prior of Blantyre, who had married a sister of Skene's wife, Helen the daughter of Sir James Somerville of Cambusnethan. In 1596 he was nominated one of the commissioners of the exchequer, commonly described as the Octavians; but being viewed by the people as a dangerous juncto, they relinquished their office in the course of the following year. In 1604 he was associated with other commissioners for discussing the terms of a union between the two kingdoms.

About the beginning of the year 1607 he had prepared another work for the press; and "the meanness of his estate and fortune not answerand to his witt, ingyne, and literature," the privy council, after having examined it, addressed a letter to the king, requesting him to provide the means for its publication.⁴ His manuscript was afterwards presented to parliament, and having been highly approved, was ordered to be printed. With the view of defraying the expense, and procuring some remuneration to the editor, a sum of money was ordered to be paid by the sheriffs, bailies, stewards, and other judges, and likewise by the prelates, earls, lords, and boroughs of the kingdom. A commission was appointed for the purpose of fixing the rate of the different contributions. James Carmichael, minister of Haddington, was selected as the fittest person for correcting the press; and on the 13th of October 1608, the privy council requested the presbytery to grant him leave of absence for the period of about two months.⁵ This period must however have been too short for correcting one half of the work. It was at length published, under the title of "Regiam Majestatem. Scotiæ veteres Leges et Constitutiones, ex Archivis publicis et antiquis libris manuscriptis collectæ, recognitæ, et notis juris civilis, canonici, Nort-

mannici auctoritate confirmatis illustratæ," &c. Edinb. 1609, fol. A Scottish translation speedily followed: "Regiam Majestatem. The avld Lawes and Constitutions of Scotland, &c, translated out of Latine in Scottish language, to the vse and knowledge of all the subjects within this Realm, with ane large table of the contents therof, be Sir John Skene of Curriehill, Clerk of our Sovereigne Lordis Register, Counsell, and Rollis. Qvherevnto are adjoined twa Treatises, the ane anent the Order of Proces observed before the Lords of Counsell and Session; the other of Crimes, and Judges in Criminal Causes." Edinb. 1609, fol.

The labours of Sir John Skene were highly valued by his contemporaries, who must have found them useful at a period when so little had been effected for illustrating either the principles or the history of our law. It is not however to be concealed that his publications are deficient in critical accuracy, and even in editorial fidelity. It is well known that the treatise "De Legibus et Consuetudinibus Regni Angliæ," commonly ascribed to Glanville, was at an early period adopted in Scotland, with a few changes and modifications; and that, under this new form, it bears the title of Regiam Majestatem, from the initial words of the prologue. Ranulph Glanville was chief justice of England during the reign of Henry the Second, and he still retained his office when Richard succeeded to the throne.⁶ Sir Mathew Hale has remarked that although it perhaps was not written by him, yet it seems to have been wholly written at that time.⁷ According to the title of the book, it was composed in the time of Henry the Second, "justiciæ gubernacula tenente illustri viro Ranulpho de Glanvilla;" an inscription which by no means describes the chief justice as the author. From these words, says Lord Lyttelton, I infer that the book was not written by Glanville himself, "but by some clergyman, under his direction and care; I say clergyman, because it is written in Latin, which could hardly be done but by a clergyman of that age."⁸ Sir Thomas Craig easily discerned that the original work was not Scottish but English.⁹ Skene was however anxious to exhibit Regiam Majestatem as the original, and to represent it as having been composed and divulged by the authority of David the First, who closed his reign in the year 1153. From what manuscripts he derived his text, he has not thought proper to specify; but several are to be found which contain a reference to Glanville by name. Henry, under whom he acted as chief justice, did not begin his reign till the year 1154. Lord Cromarty's MS. contains references to the gloss on the Decretals of Gregory IX. and to the Decretals of Boniface VIII.¹⁰ The pontificate of Gregory extended from 1227 to 1241; that of Boniface from 1294 to 1303. It is sufficiently evident that a writer in the reign of David could not quote such authorities. Of this circumstance Skene was sufficiently aware; and the passages which refer to Glanville and the canon law are silently excluded from his edition. This is not merely a defect in literary accuracy; it is a want of that ordinary fidelity which every editor is bound to exercise. If he had excluded such passages from the text, and stated in the notes his reasons for rejecting them as spurious, his conduct would not have been liable to censure.

Having reached an advanced age, he became anxious to secure for his eldest son James the office of Clerk Re-

gister; but his attempt was defeated by the dexterity of Sir Thomas Hamilton, afterwards successively earl of Melrose and of Haddington. "Thinking to get his son provided to his office," says Spotswood, he "had sent him to court with a dimission of the place, but with a charge not to use it, unless he found the king willing to admit him: yet he, abused by some politick wits, made a resignation of the office, accepting an ordinary place among the Lords of Session. The office upon his resignation was presently disposed to the advocate; which grieved the father beyond all measure. And the case indeed was pitiful, and much regretted by all honest men; for he had been a man much employed, and honoured with divers legations, which he discharged with good credit, and now in age to be circumvented in this sort by the simplicity or folly of his son, 'twas held lamentable. The king being informed of the abuse by the old mans complaint, was very careful to satisfy him, and to have the son reconciled to his father, which after some travel was brought to pass: yet so exceeding was the old man's discontent, as within a few days he deceased."¹ Grief however is seldom so rapidly fatal. Skene resigned his office in the year 1612, and he survived till the 16th of March 1617.

At that period the legal profession not unfrequently opened the road to emoluments and wealth comparatively great. He acquired the demesnes of Curriehill and Redhall in the county of Edinburgh, and Edinganoch in the county of Aberdeen. His title on the bench was Lord Curriehill. His son Sir James Skene succeeded him on the 12th of June 1612, and became president of the Court of Session on the 14th of February 1626. On the 15th of October 1633, he died in his own house near the grammar school. The second son, named John, was appointed one of the principal clerks of Session in 1614. He purchased the estate of Hallyards. About twenty years ago, his last descendant, Elizabeth Skene, bequeathed to the Advocates Library a collection of family papers, together with a very curious collection of ancient music, which appears to have belonged to this ancestor. The Skene Papers have been carefully bound in a folio volume; and the music has very recently been published by Mr. Dauney, who has added a copious and elaborate introduction, together with notes and illustrations.² Alexander, the third son of Sir John Skene, was clerk of the registration of hornings. Beside these three sons, he had four daughters. The eldest daughter became the wife of Alexander Hay of Fosterseat, a judge and privy councillor. The second daughter was married to Sir William Scott of Ardross; the third to Robert Lermont, advocate, brother to Lermont of Balcomy; and the fourth to Sir Robert Richardson of Pencaitland.³

The clerk register had a brother named Alexander, who was likewise an advocate and an author. For some time at least, he must have adhered to the popish church; for we find that in 1561 he was committed to prison by the magistrates of Edinburgh for attending mass, but was released at the intercession of William Skene.⁴ This was apparently his brother, who was commissary of St. Andrews, and professor of law in that university. Of his method of teaching, we find an account in the very curious Diary of a pupil, who relinquished the study of law for that of divinity. "In the thrid and fourt yeirs of my course, at the direction of my father. I hard the commissar, Mr. Wilyeam

Skene, teatche Cicero de Legibus, and diuers partes of the Institutiones of Justinian. I was burdet in the houss of a man of law, a verie guid honest man, Andro Greine be nam, wha louit me exceeding weill, whase wyff also was an of my mothers [freinds]: I am sure sche haid nocht sone nor bern sche loued better. This lawier tuk me to the consistorie with him, whar the commissar wald tak pleasour to schaw ws the practise in judgment of that quhilk he teached in the scholles. He was a man of skill and guid conscience in his calling, lernit and diligent in his profession, and tuk delyt in na thing mair nor to repeat ower and ower again to anie schollar that wald ask him the things he haid bein teaching."⁵ (x.)