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This chapter presents a vision of republican constitutionalism that emanates from the political conflicts of 17th-century England. It explores the tension between the values of republican constitutionalism and those of commercial society by revisiting the work of those who were among the first to identify this tension as a problem for the modern world: namely, the thinkers of the Scottish Enlightenment. An exploration of the relationship between law, the constitution, government, and commerce was a core concern of the Scots of the Enlightenment. The chapter focuses on the work of John Millar, who wrote about these themes from the perspective of a lawyer: Millar was Regius Professor of Law in the University of Glasgow for forty years (1761-1801) and, among his many legal interests, was an abiding fascination with constitutional law. It is argued that his work and that of his Scottish contemporaries, is deeply revealing both of the complexities and of the pressing vitality of seeking to accommodate republican law and constitutionalism within the fabric of a society that privileges wealth, property, and commerce over the values associated with the participation in public life that self-government apparently requires.

This chapter focuses on John Millar's lectures on Scots criminal law as Regius Chair of Civil Law in the University of Glasgow from 1761 to 1801, along with his legal philosophy and approach to Scots criminal law. It first explains how Millar's Smithian analysis of law led him to argue that punishment was based on the need to right wrongs done. It then examines how others, including earlier law professors, had classified Scots criminal law. It shows that Millar's particular approach to Scots criminal law meant that some crimes could be considered simply as crimes against society and punished purely on the grounds of police or utility, not on that of justice. The chapter concludes with an epilogue that takes into account Millar's influence on his pupil, David Hume, and through Hume, potentially on modern Scots criminal law.

This chapter examines legal education in the University of Glasgow during the period 1761–1801, focusing on John Millar's tenure as chair of Civil Law. Millar succeded Robert Davidson, who failed to attract students in part due to the location of the University. Millar turned Glasgow from a minor law school with very few students to a major centre of legal education. A pupil of Adam Smith, Millar taught Smith's jurisprudence in all his courses at some level or another. He used Smith's theory of rights to understand and to structure his courses in Civil Law. The reasons for Millar's success were complex, but they seem to lie in his expansion of the Glasgow law curriculum, in the content of his courses and in his abilities as a teacher, as well as in the weakness of legal education in contemporary Edinburgh during crucial periods of his tenure.

This chapter examines the influence of John Millar on two young Russian students, Semyon Efmovich Desnitsky and Ivan Andreyevich Tret'yakov, who arrived to study in Glasgow University in 1761, the year Millar was appointed Regius Professor of Civil Law. Millar attracted pupils from all over Great Britain and Ireland. He even had Russian pupils on whom he exerted demonstrable influence. As a teacher, Millar moved classes in law from a still traditional focus inherited from the Dutch law schools to instruction informed by the approach and learning of the Scottish Enlightenment. The chapter considers what Desnitsky and Tret'yakov learned from Millar. On their return to Moscow, both Desnitsky and Tret'yakov were in favour of the change to lecturing in Russian rather than in Latin in the University of Moscow — a move that could be attributed to their experience of legal education in the University of Glasgow and, in particular, of Millar's lectures.

This chapter focuses on the decline of the Glasgow Law School during the period 1801–1830. When John Millar died in 1801, he was succeeded by Robert Davidson, who lacked his predecessor's broad, philosophical approach. While, with Millar, the masters at the University of Glasgow had been keen to use the patronage system to gain an active and successful professor who would attract students and promote the values of Enlightened education, Davidson was appointed because he was the principal's son. He failed to maintain viable classes in Civil Law, and appears to have ceased to teach it after 1819. He did have students for Scots law, seemingly in reasonable numbers. The chapter considers how legal education in Glasgow changed, away from the values of Adam Smith and Millar, and towards a supposedly ‘practical’ rather than theoretical focus, during Davidson's tenure.

This chapter examines the place of law in Russian Enlightenment thought by focusing on the views of Ivan Andreevich Tret’iakov (1735–1776) and Semen Efimovich Desnitskii. Outside of the government and the Church, the most important institutional venue for the propagation of Enlightenment ideas in Russia was probably Moscow University, where Tret’iakov and Desnitskii taught courses on Roman law, Russian law, and comparative jurisprudence. Tret’iakov and Desnitskii studied at Glasgow University from 1761 to 1767, listening to lectures from leading figures of the Scottish intellectual scene, including Adam Smith. This chapter considers the influence of William Blackstone, John Millar, and Adam Smith on Desnitskii. In particular, it discusses the ways that Smith’s The Theory of Moral Sentiments, especially its exploration of moral philosophy and social psychology, impressed Desnitskii. It also looks at Desnitskii’s “Proposal on the Establishment of Legislative, Judicial, and Executive Authority in the Russian Empire” and “A Lecture on a Direct and Most Sensible Method of Studying Jurisprudence.”

French Enlightenment writing about savagery, centered on America and Oceania, was centrally concerned with the relationship between property and inequality, while writing about despotism in Asia revolved around political centralization. The two literatures did not tend to intersect until they were synthesized by British, and especially Scottish, thinkers. Adam Ferguson, following the lead of Adam Smith, identified the division of labor as the motor of an ambivalent progress, expanding the horizons of the few while limiting those of the majority, imperiling democratic institutions and personal liberties. John Millar, his younger contemporary, developed his arguments even more systematically if somewhat more optimistically. In England, Gibbon’s Decline and Fall of the Roman Empire pitted Roman civilization as delicately poised between the savagery of the Germans and the Oriental despotism of the Persians, liberty without order as opposed to order without liberty. His account was in many ways a metaphor for the predicament of modern Europe as he understood it.

This chapter examines prosecutions for hamesucken between 1672 and 1770, the first date being that of the establishment of the refounded Court of Justiciary. One of John Millar's last surviving letters is to John Wilde, the Professor of Civil Law in Edinburgh, discussing a recent conviction for the crime, expressing his view that hamesucken had fallen into disuse. The chapter considers how arguments were developed in framing the major premiss in the libel from the law of nature and nations, a practice which also allowed influence from English criminal law. It begins with a discussion of procedure in criminal trials during the period, followed by an analysis of the law of hamesucken as found in treatises and the practice of the Justiciary Court. It also looks at the 1752 trial of James Macgregor before concluding with some remarks on marital rape.