Why the English May Feel Free to Usurp Scottish Law

[Treaty of Union Articles Contents]


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:- 


   ‘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 in 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.

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