St Lucius, pope and martyr, 253. St Adrian, bishop of St Andrews, martyr in Scotland, 874. St Casimir, Prince of Poland, 1482.
Born. – Don Pedro, of Portugal, 1394.
Died. – Saladin, 1193, Damascus; Matthias Hoe, 1645, Dresden; J. Vanderlinden, 1664, Leyden; Charles Leopold von Buch, German geologist, 1853.
On this Day in Other Sources.
Eustace de Vesci confirms to the Abbey all the lands in his fee of Wittum, which it held on the year after Alexander Prince of Scotland rendered homage to King John of England, on the morrow of the invention of the Holy Cross (4th May). This homage was not known to our historians. It may be conjectured to have taken place on the occasion of the Prince receiving knighthood at the hands of John in 1212; but if this be the case, the date generally assigned to that event must be erroneous.1
– Sketches, pp.91-121.
1 The chronicle of Melrose gives 8 idus Martii as the date of Alexander’s knighthood, but destroys its authority by adding ad letare Jerusalem, which Sunday happened on the 4th, not the 8th March of that year.
This year, 1238, died Joan, Queen of Scotland, at London, in England, 4th of March, [childless.] Henry, King of England, and Richard, [Earl] of Cornwall, her brothers, closed her eyes; she was interred in the [Cistercian] Nunnery Church, in Tarrant [Dorset.]
– Historical Works, pp.38-57.
Mar. 4 [1568.] – The Regent granted a license to Cornelius de Vois, a Dutchman, for nineteen years, to search for gold and silver in any part of Scotland, ‘break the ground, mak sinks and pots therein, and to put labourers thereto,’ as he might think expedient, ,with assurance of full protection from the government, paying in requital for every hundred ounces of gold or silver which could be purified by washing, eight ounces, and for every hundred of the same which required the more expensive process of a purification by fire, four ounces. – P. C. R.
– Domestic Annals, pp.35-44.
Montrose, thereupon, held a council of war, at which it was determined to cross the Spey, and march into the shires of Banff and Aberdeen, and, by the aid of Lord Gordon, to raise the friends and retainers of the marquis of Huntly, and from thence to proceed into the Mearns, where another accession of forces was expected. Accordingly, Montrose left Elgin on the fourth of March , with the main body of his army, towards the Bog of Gicht, accompanied by the earl of Seaforth, Sir Robert Gordon, the lairds of Grant, Pluscarden, Findrassie, and several other gentlemen who “had come in to him” at Elgin. To punish the earl of Finlater, who had refused to join him, Montrose sent the Farquharsons of Braemar before him across the Spey, who plundered, without mercy, the town of Cullen, belonging to the earl.
– History of the Highlands, pp.365-393.
2205. Catalogue of the valuable Library of the Reverend Mr. Alexander Campbell,… To be sold by auction at R. and A. Foulis’s Auction-Room in the Old Coffee-House, on Monday the 4th of March, 1765, at 7 o’clock at Night. 1765.
The Messrs. Foulis had weekly auctions of books, presided over by Andrew Foulis, and this is one of their Sale Catalogues. The library belonged to Alexander Campbell, minister of Inverary, and shows that he was a man of learning and culture.
– Memorial Catalogue, Gallery 1.
“THE APPELLATE JURISDICTION.
SIR, – I request leave to state the grounds on which the Judicature Bill, now pending in the House of Lords, which proposes to extinguish the jurisdiction of that House in appeals, is objected to by those members of the profession with whom I agree. At the outset, I think I am safe in saying that five hands would not be held up in all Scotland in support of the bill as it is at present; and, although we had recently a division in the Faculty of Advocates, both the motions concurred in stating that the House of Lords was a better tribunal than that which is proposed in its room.
This bill is the second audacious attempt to break the Treaty of Union – the first being that when the Parliament of Harley and Bolingbroke imposed upon Scotland the yoke of Patronage, which has had so disastrous a history. But that was not so clearly a violation of a solemn treaty as the present attempt of a Government which, if it does not inherit all the principles of the Administration of Bolingbroke, seems to inherit its traditions. The history of the appellate jurisdiction in Scotland and the way in which it was settled by the Treaty of Union, is important in the present discussion, and possesses somewhat of dramatic interest.
The right of appeal to Parliament from the judgments of the Court of Session was asserted by the Scottish Bar in the year 1674, and for so doing the whole members of the Faculty of Advocates were banished from Edinburgh by the authority of the Crown – Charles II. being then King. The people of Scotland would not submit to this, and accordingly, in the Claim of Right presented to King William and Queen Mary in 1689, this constituted one of the articles – ‘That it is the right and privilege of the subjects to protest for remeed of law to the King and Parliament against sentences pronounced by the Lords of Session.’ That Claim of Right was accepted as the condition upon which these sovereigns were to be recognised as King and Queen of Scotland.
So stood the matter until the Treaty of Union; and in the discussion of that treaty no subject occupied a more prominent place than the legal institutions that were to be left there for the administration of justice. We can trace clearly how every line of the 19th article of the treaty, which deals with this subject, was discussed, because the minutes of the Commissions of both countries have been preserved and printed. Several portions of the article are declared to be alterable by the Parliament of Great Britain. The rest of the article is not to be so alterable, and the important provision which bears upon the subject now under discussion is one of the latter. It is in the following terms – ‘That no causes in Scotland be cognosible by the Courts of Chancery, Queen’s Bench, Common Pleas, or any other Court in Westminster Hall, and that the said Courts, or any other of the like nature after the Union, shall have no power to cognosce, review, or alter the acts or sentences of the Judicature within Scotland, or stop the execution of the same.’ No power is here given to the Parliament of Great Britain, as is given by other provisions in the same article, to make any alteration or change upon this agreement. the Scottish Parliament upon this point were firm, although in regard to other provisions in the same article they yielded (after argument with the English Commissioners) to the granting of a power of alteration to the Parliament of Great Britain. Thus, in dealing with the Court of Session, the article declares that the Judges shall have certain qualification, and be capable of being appointed only from certain bodies, who are specified. As originally proposed, the clause was absolute, and contemplated no alteration by the Imperial Parliament. But on the 3d January 1707, at a meeting of the Scottish Parliament, this motion was made – ‘But before voting, it was moved that the qualifications made – or to be made, for capacitating persons to be named Ordinary Lords of Session shall be alterable by the Parliament of Great Britain, and after debate it was out to the cote, alterable or not, and it was carried alterable” (Acts of the Parliament of Scotland, vol. II, p.381); and accordingly the article finally agreed to contained this clause following the declaration as to what should be the qualifications of the Judges – ‘Yet so as the qualification made or to be made for capacitating persons to be named Ordinary Lords of Session may be altered by the Parliament of Great Britain.’
… It will thus be seen that there were matters upon which it was contemplated alterations might be necessary, and in such cases the Treaty of Union expressly conferred the power – a power demanded with pertinacity by the English Commissioners, and conceded with reluctance by the Scotch. No power, however, was given to annul what constituted the cardinal provision of the article, that the English Courts of Law and Equity, as then constituted, or any other Court of a like nature, created by a Parliament in which there was an overwhelming majority of English members, should have no right to sit in judgment upon any cause coming from Scotland. That remains unalterable, if the sole authority for alteration be the Parliament of Great Britain. Clearly it never was in the contemplation of the parties to the Treaty of Union that those clauses which were not declared to be alterable might be annulled on the following week by a vote of the Imperial Parliament, against whose action to this effect so many anxious safeguards were taken, and whose power of alteration was jealously defined.
It is quite true that the present Parliament may pass an Act, as that of Harley and Bolingbroke did, abolishing an article of the Treaty; and as Scotland is not Ireland, it is probable enough that this will evoke no seditious speeches or give rise to tumultuary meetings. But Parliament have just as much power to annul the whole treaty from beginning to end as they have to annul the 19th article. The history of the violation of the treaty in 1712 gives little encouragement to a repetition of the experiment. We may not have the same riots, heartburnings, secessions, and disruptions which were the consequence of that famous measure, but we will have constant discontent with the administration of justice by a Court entirely ignorant of our laws.
It is in vain to say that in extinguishing the jurisdiction of the House of Lords, and compelling the people of Scotland to go to this new Court at Lincoln’s Inn, faith is still kept with them because the new Court is called an Imperial Court of Appeal. It is an Imperial Court only in name. It is to be composed almost entirely of English lawyers, the majority of whom have never known anything of Scottish law and Scottish procedure, and have never opened a book on Scottish law, except immediately to shut it, It is a Court of the ‘like nature‘ as the Court specially denounced in the treaty… – I am, &c.
– Scotsman, Thursday 4th March, 1875.
– Treaty of Union Articles, 1875-1900.
“ENGLISH IDEAS OF INTERNATIONAL LAW.
Edinburgh, March 1, 1884.
SIR, – You have written much of late upon the Orr Ewing case, and you have pointed out, I think justly, that the legal mind in England has a certain insular character which makes it slow to think clearly and justly upon questions of international law. This is probably due to many causes, but one of them seems to be false teaching. I have just been looking at the most recent edition of a book which has been used for many years with the best results by men preparing for the law examinations in London. It is written by a Mr Indermaur, who was first prizeman, Michaelmas term, 1872, and who since then has carried on a successful business as a ‘coach.’ He probably knows both the weak points and the strong points of the examiners. Now, the Incorporated Law Society examine upon Stephen’s Commentaries, a very respectable modern work, modelled upon Blackstone. Mr Indermaur, therefore, puts down a number of notes upon Stephen, which the careful young man, anxious to pass, is supposed to commit to memory. At p. 11 occurs the following passage:-
‘EXTENT OF THE MUNICIPAL LAW OF ENGLAND.
‘By the common law the jurisdiction was confined to England strictly.
‘Wales became fully subject to the laws of England by certain statutes in the reign of Henry VIII.
‘Jurisdiction over Scotland acquired by the Articles of Union with Scotland, ratified and confirmed by statute in the reign of James I.
‘Berwick-upon-Tweed only thoroughly subject to English laws in the reign of James I.
‘Jurisdiction over Ireland fully acquired by the Articles of Union, with Ireland in the reign of George III., 1801.
‘Isles adjacent to England – the Isle of Man, Jersey, Sark, Guernsey, and Aldernay – are governed by their own laws.’
This, then, is the doctrine which, if you do not believe, without doubt you shall be spun at the intermediate or final examination.
First. – Apart from the documents aftermentioned, the municipal law of England was, strange to say, confined to its operation to England; and this strictly – i.e., the English were perhaps a little more particular about this than other people.
Second. – Wales having been conquered by force of arms in the 13th century, became subject to English law by virtue of a statute of the English Parliament in the 16th century. So far good; but the coach forgets to mention a little clause in the statute 27 Hen. VIII., c. 26, which provides ‘that the laws of England, and no other, shall be used in Wales.’
Third. – Scotland, not having been conquered by force of arms, became subject to English law by a treaty which, it seems, received its binding effect from a statute of the English Parliament. It is surprising that, if the common law of England is so modest as the first position asserts, a purely English statute should have this extraordinary effect upon the provisions of a treaty with an independent State. But the coach forgets to mention the 19th article of the Treaty of Union, which provides exactly the opposite, and preserves for Scotland both her native laws and the jurisdiction of her Courts. And, accordingly, the learned Mr Justice Blackstone says:- ‘The municipal or common laws of England are, generally speaking, of no force or validity in Scotland.’ In the note appended to this passage by Mr Hargrave, in his edition of Blackstone in 1844, will be found this observation:- ‘By 2 and 3 Will. IV., c. 33, amended by 4 and 5 Will. IV., c, 82, the service of process issuing from the High Court of Chancery is extended to every part of the United Kingdom.’ Here is the germ of all the nonsense about service beyond the jurisdiction, and jurisdiction in personam, against which Lord Westbury frequently but vainly protested, and which is decisively condemned by Lord Campbell in the case of Stuart v. Moore.
Fourth. – Berwick-on-Tweed, which was ceded by Edward Balliol to England in the 14th century, became subject to English law by an English statute of the 17th century; presumably 2 Jac. I., c. 28. One would have thought that the act of cession had something to do with the liability to the law of England.
Fifth. – Ireland became subject to English law by a treaty in 1801. But the coach forgets to mention the 8th article of that treaty, which provides (in language sufficiently strong, though not so carefully chosen as in the Scottish Treaty) that the laws and Courts of Ireland shall remain as by law established. this provision is echoed by the statute 39 and 40 Geo. III., c. 67. sec. 8.
Sixth. – The Isle of Man, which was bought by the Crown in 1765, and the Channel Islands, which belonged to the Norman Kings of England as parts of the Duchy of Normandy, are now the only places which enjoy a glorious independence! How unlike the doctrine of Lord Mansfield in Rex v. Cowle, where he says:- ‘We cannot send a habeas corpus to Scotland; but to Ireland, the Isle of Man, the plantations, and to Guernsey and Jersey we may.’ And in explaining that the prerogative writs of the Queen’s Bench run to Berwick, he adds:- ‘The chance of war refuted the claim as to the rest of Scotland.’
I am far from suggesting that this strange jumble of ideas would be accepted generally by English lawyers. They have a great and wise system of jurisprudence, which is practised and administered by men of learning and acuteness. When the issues involved in the Orr Ewing case are fairly placed before the English mind, I do not doubt that the fairness and common sense of Englishmen will yield a hearty acquiescence to the clear and simple principles of international law which have been stated by the Scottish Judges. But in the meantime it is obvious there is some misunderstanding even in very high quarters; and this becomes more intelligible when we consider that every articled clerk kin England has to swallow the absurdities of which Mr Indermaur has just published a third edition. As the coach says in his introduction:- ‘I have no hesitation in saying that a student can now want nothing for his intermediate beyond the Text-Book and this Guide.’ Nothing like leather. – I am, &c.
– The Scotsman, Tuesday 4th March, 1884.
– Treaty of Union Articles, Why the English May Feel Free to Usurp Scottish Law.
ROYAL SOCIETY OF EDINBURGH (4th March ). – At the request of the council, Dr. Robert Munro gave an address on Lake Dwelling Research. He said that the comparative security afforded to birds by island retreats could not fail to have attracted the attention of man from the very dawn of his reasoning faculties, and it was probable that as soon as he acquired sufficient skill in the art of navigation to be able to cross a creek or a river he would occasionally resort to such means of protection in times of danger. From the natural to the artificial island was but a stage of transition, which in the course of time would be readily bridged over by his progressive mechanical skill. To some such sequence in the phenomena of human civilisation must be assigned the origin of these strange habitations known as lake dwellings. As a means of defence an island fort or village, rudely constructed of timbers, and situated on the shallow margin of a lake, would offer but little resistance to an attack conducted on the principles of modern warfare. It would, however, be very different when the assailants were limited to the appliances in use in prehistoric times.
– Scots Lore, pp.173-180.
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