The Application of Laws in England and Scotland before 1707
The principles of Roman Law, a system of ‘rights’ and ‘obligations’ prevalent in European countries was used to develop Scots law over many hundreds of years before 1707.
Whilst, in England, lawmaking evolved by writing “Common Law” into statute, using the decisions of judges as precedence. The two systems are not entirely compatible.
The Treaty of Union (1707)
Article 19 of the 1707 Treaty of Union with England stated that the laws of Scotland would remain in place and the authority of the Scottish College of Justice, Court of Session and Court of Justiciary would be retained by Scotland.
But the merging of the two parliaments brought with it (in direct contravention of Article 19 of the Treaty) the move to England of Scottish politicians and lords and with them the removal of legislative power to Westminster which was finalised by the transfer of the “right of appeal” from the Scottish judiciary to the House of Lords.
Essential reading: The Union and the law. – David M Walker former Regius Professor of Law in the University of Glasgow (1958-1990.) http://www.journalonline.co.uk/Magazine/52-6/1004238.aspx
Illegal replacement of Scots law with English law.
Despite assurances to the contrary from Westminster and a legal commitment in the 1707 treaty, there have been many reforms to the Scottish judicial system and legal procedures over the years so that it conforms with English practice.
The Home Secretary in the 1820s, Robert Peel sought to justify changes on the grounds that the Scottish system was “totally different from English practice and repugnant to English feelings”.
In the mid Nineteenth century the industrial revolution brought with it new areas of public policy such as public health, working conditions and many other practices and these were legislated for by Westminster, without consultation with the Scottish judiciary, further challenging the uniqueness of the Scottish system.
And in the later part of the nineteenth century, commercial law was assimilated and Scottish law replaced by English-based measures such as the Partnership Act 1890 and the Sale of Goods Act 1893.
The weakening of Scots Law by the Westminster political establishment became so overtly routine that Lord Rosebery, in 1882, speaking in the House of Lords voiced Scottish fears of the creeping Anglicanisation of Scottish law stating that legislation was framed on the principle that “every part of the United Kingdom must be English, because it is part of the United Kingdom”.
Acts of the Westmnister parliament imposed on Scotland
The Treason Act – 1708 – This harmonised the treason laws of England and Scotland, effective from July 1709.
The English offences of high treason and misprision of treason were extended to Scotland, and the treasonable offences then existing in Scotland were abolished.
When the Scottish Parliament was set up in 1998, treason and treason felony were among the “reserved matters” it was prohibited from legislating about, ensuring that the law of treason remained uniform throughout the United Kingdom.
Disbandment of the Privy Council – 1708 – The Privy Council, and the great offices of state, including the chancellor, secretary and treasurer, were abolished after the Acts of Union 1707, with rule direct being implemented from London.
The Scottish Runrig System of land ownership
Up to mid eighteenth century land tenure in Scotland was maintained using the “runrig system.”
Agricultural land was divided into towns or townships, comprising an area of cultivable “in-bye” land and a larger area of pasture and rough grazing. The “in-bye” was divided into “rigs” which were periodically reassigned among the tenants of the township so that no individual had continuous use of the best land.
Tenants would have a few rigs under their tenure, and it would be their job to fertilise the earth using dung from their own animals. Ploughing, planting and reaping, the farmer cultivated and cared for the land producing crops to feed the family, and hopefully have some left over to barter with.
The “rig” was a strip of ploughed and cultivated land usually 20 feet wide, and high. Only the crown of the rig was ploughed and half the width between them was taken up by huge “baulks” or open spaces filled with briars, nettles, stones and water separated from the next Rig by a “run”, which was left uncultivated.
The high rigs served as a method of water drainage for the crop, given the prevalence of rain in Scotland.
The “baulks” provided shelter from the buffeting winds and a rich habitat for beneficial insects and birds that, in the absence of chemical pesticides, did a good job of eating many of the pests that would damage a crop.
The Scottish Society of Improvers
The Society of Scottish Improvers was founded in 1723 and included in its 300 members the Dukes, Earls, Lairds and Landlords of Scotland.
Exports to England increased from 1707 and the Society members were determined to increase agriculture output improving their profit margins.
Haymaking was introduced along with the English plough and foreign grasses, the sowing of rye grass, clover, turnips and cabbages was introduced.
lime was put down, roads built and woods planted.
Drilling and sowing and crop rotation was introduced and the introduction of the potato to Scotland in 1739 greatly improved the diet of the peasantry.
The Lothians became a major centre of grain, Ayrshire of cattle breading and the borders of sheep.
The Enclosure Acts – 1707-1860
The Enclosure Acts were a series of Westminster Acts of Parliament displacing rigs, free pasture and common land in Scotland, creating legal property rights to land.
Between 1707 and 1914, thousands of individual Enclosure Acts were legislated encompassing millions of acres of Scotland.
The joined land was divided into crofts and initially given over to tenants under fixed tenancy based on the amount of land that they owned before the act.
But often the land was uncultivated and useless and owners, who were required to to fence the land in order to live on it, couldn’t afford to do this forcing them to sell or give up the land and move into urban areas.
Authorities also forcibly implemented the enclosure acts through the eviction of crofters that did not own land.
They also evicted people who said they owned land, but who could not prove it.
This resulted in tens of thousands of displaced and homeless people who were forced to leave Scotland to take up their lives in the new colonies of Canada and the Americas.
Many thousands of Scots died due to the appalling conditions on board inadequate overloaded shipping and the Westminster parliament and Lords will be forever dammed by their actions
So, after stealing the land from village farmers, the landed aristocracy forced poor labourers off the “village commons” land and enclosed it as their own property.
The increase in their landholdings enabled them to cultivate ever larger fields.
The entitlement to land enjoyed by landowners in present day Scotland was built on the imposition by Westminster of a a brutal feudal system.
Over half of Scotland is owned by less than 500 people which equates to the most concentrated pattern of land ownership in the developed world.
Further reading: https://www.theguardian.com/uk-news/2013/aug/10/scotland-land-rights
The Disarming Act – 1716:
After the inconclusive Battle of Sheriffmuir the 1715 Jackobite rebellion withered and the clansmen drifted back to the glens.
English reprisals were swift and brutal. Many estates were forfeited and thousands of Clansmen were imprisoned and or sent as slaves to the plantations in the English colonies.
The purpose of the 1716 Disarming Act was to remove all weapons from Scotland.
It failed in its purpose as the bulk of weapons handed in were old, rusty and useless the Scots preferred to hide their weapons away to be used another day.
Disarming Act – 1725
There was a further unsuccessful Jacobite uprising in 1719 in which the Earl of Seaforth and other Jacobite chiefs, supported by a body of Spanish soldiers, were defeated by General Wightman and the Royal Navy.
This affair led to more determined legislation: “An Act for more effectual disarming of the Highlands in that part of Great Britain called Scotland, and for better securing the peace and quiet of that part of the Kingdom by which the men of the clans are required to surrender their – “…broad swords, targets, poynards, whingers or durks, side pistols, guns or any other warlike weapons.”
The man given the job of enforcing the measure was Major General George Wade, Commander in Chief of his Majesty’s Forces in North Britain.
Wade (an Irishman) estimated that there were, at that time, some 20,000 clansmen capable of bearing arms in the Highlands.
Half of that number, he advised, were potential Jacobites… but only around 2,500 weapons were surrendered.
Letters of an English Gentleman in the North of Scotland – 1730
There is an account of the attitude of English outsiders towards the Highland people and their culture in the writings of Captain Edmund Burt, a government engineer, who wrote his “Letters from a Gentleman in the North of Scotland” in the 1730s.
Recording first-hand experiences of his time with Wade in the Highlands he had this to say:
“Various reasons are given both for and against the Highland dress. Against it is that it distinguishes the natives as a body of people distinct and separate from the rest of the subjects of Great Britain, and thereby is one cause of their narrow adherence among themselves, to the exclusion of all the rest of the kingdom…”
He continued “…but the part of the habit chiefly objected to is the plaid, which is calculated for the encouragement of an idle life in lying about upon the heath, in the daytime, instead of following some lawful employment and that it serves to cover them in the night when they lie in wait among the mountains, to commit their robberies and depredations and is composed of such colours as altogether, in the mass, so nearly resemble the heath on which they lie, that it is hardly to be distinguished from it until one is so near them as to be within their power, if they have evil intention…”
The implications of Burt’s writings are that, south of the Highland Line, among folk who were properly dressed, there was an absence of idleness and criminality.
His words also expose the political dimension and racial prejudice against the highlanders, of English thinking “…that it renders them ready at a moment’s warning, to join in any rebellion, as they always carry their tents with them.”
Burt provides further evidence of the prejudice in another of his letters “…there are some among the English who are so prejudiced, that they will not allow there is anything good on this side of the Tweed.”
Burt’s observations, sixteen years before the introduction of the 1746 dress act is a harbinger of the racial and cultural intolerance of England against Scots, expressed in the years that followed by the legislation against highland clothing.
The Dress Act – 1746:
On the 2nd of August 1745, Prince Charles Edward Stuart, eldest son of James (VIII & III – the “Old Pretender”), landed on the isle of Eriskay with seven companions.
When the standard of Royal House of Stuart was raised at Glenfinnan, Highland clans rallied to the cause.
The subsequent course of the ‘Forty-Five Rebellion has been so oft recorded, and is so well known, that suffice it to say, the army of “Bonnie Prince Charlie” looked for a time set to victory, with the Jacobites reaching Derby by December.
There was panic in the House of Hanover, with King George II preparing to flee to the Continent.
But when the promised french force, crucial to the success of the rebellion failed to materialise, Lord George Murray, counselled a Jacobite retreat and on the 16th of April 1746, the army of Charles Edward was defeated by that of the Duke of Cumberland on Culloden Moor, outside Inverness.
There followed a bitter excess of reprisals –
As Commander-in-Chief, Cumberland was responsibile for the many atrocities committed in the aftermath of the rising, for he instigated them, actively assisted by his Generals – Hawley in particular – and junior officers, whose brutish behaviour, especially when, as they frequently were, drunk, is well documented.
This was an era when murder, rape, pillage and burning were common to the losing side in any fight but, even so, the reprisals against the ordinary highland people were, to any normal mind, excessive and left an evil memory” (The Highland People – James D. Scarlett)
This was the mood against which the Dress Act of 1746 was drafted and passed by Lord Chancellor Hardwicke:
The purpose of it was to eradicate the military threat, to the Westminster government, of the Jacobite Highland clans, and to eliminate the culturally separate identity of the Highland people.
“From and after the first day of August, 1747, no man or boy, within that part of Great Britain called Scotland, other than such as shall be employed as officers and soldiers in his Majesty’s Forces, shall, on any pretence whatsoever wear or put on the clothes commonly called highland clothes (that is to say) the plaid, philabeg, or little kilt, trowse, shoulder belts, or any part whatsoever of what peculiarly belongs to the highland garb and that no tartan, or party-coloured plaid or stuff shall be used for great coats, or for upper coats. and if any such person shall presume after the first day of August, to wear or put on the aforesaid garments, or any part of them, every such person so offending, being convicted thereof by the oath of one or more credible witness or witnesses before any Court of Justiciary shall suffer imprisonment, without bail, for six months, and on being convicted for a second offence, shall be liable to be transported to any of his Majesty’s plantations overseas and to remain there for seven years.”
The Westminster parliament in London, with breathtaking arrogance, laid down the law dictating how Scots might clothe themselves in their own land.
As might be expected, in each instance the law was treated, in large part, with the contempt it deserved and in 1782, thanks largely to the efforts of the Duke of Montrose, the hated 18th century Dress Act was repealed.
Acts against Roman Catholics
The failed Jackobite rising of 1715 brought with it an Act appointing commissioners to inquire into the estates of popish recusants with a view to confiscating two-thirds of each estate.
The scope of “An Act to oblige papists to register their names and real estates” added an additional expense of all transactions in land, the more galling as Catholics were doubly taxed under the annual land-tax acts.
In 1722 an act was passed was passed “Granting an aid to his Majesty through the levy of a tax upon Papists” by which the sum of one hundred thousand pounds was wrung from the impoverished Catholics.
These punitive acts and other legislation against catholics remained in place throughout the reigns of, George II and his successor, George III.
Repealing the acts was a long, slow, gradual, and complicated process, the chief measures of relief being;
The First Catholic Relief Act of 1778, which enabled Catholics to inherit and purchase land repealing the Act of William III, rewarding the conviction of priests.
The second Relief Act of 1791, which relieved all Catholics who took the oath therein prescribed from the operation of the Penal Code.
The Catholic Emancipation Act of 1829 which removed punitive anti-catholic legislation.
Disqualifications against Catholics still in force are those which prohibit the sovereign from being or marrying a Catholic, or any Catholic from holding the offices of Prime Minister or Lord Chancellor.
The Scotland Act – (1998)
The Westminster parliament passed a law (the Scotland Act 1998) which stated that Scotland could set up and run its own parliament and in 1999, a Scottish Parliament was convened for the first time in nearly 300 years.
This was a major development for Scottish politics and Scots law since it returned some powers to make their own laws on certain topics to the new Scottish Parliament.
It is of note therefore that the Scottish Parliament only exists because of a recent law passed by the UK parliament which means that Westminster retains ultimate control of the Scottish Parliament, including the power to dismantle it at will.
An important rider highlights that Acts passed by the Scottish Parliament can be challenged.
Sections 28 and 29 of the Scotland Act 1998 set out the competencies of Holyrood and state that legislation will be ultra vires if it relates to matters reserved to the UK Parliament or would be incompatible with EU law or the European Convention of Human Rights.
Questions over the legitimacy of Acts of the Scottish Parliament are known as ‘devolution issues’.
These can arise in any court but the ultimate court for determining these issues is the Judicial Committee of the Privy Council in London.
This highlights the importance of Scots retaining an awareness that Scotland is not separate from the rest of the UK, only some legislative powers been devolved and the UK parliament still makes the bulk of laws affecting Scotland contrary to Article 19 of the 1707 Treaty of Union.
Credit to wikipedia
caltonjock 