Note E, pp.133-143.

[How Scotland Lost her Parliament Contents]

The following extracts from an article by Sir Archibald Alison the well-known historian will show what kind of Parliament Scotland lost, and whether we have good cause to lament the want of power to manage our own affairs. 

   ‘A proper settlement of the Tithe question, and a distribution of the property of the church, in a fair proportion, among those who discharge ecclesiastical duties, is the great object of the democratic party at this moment, both in England and Ireland; and, doubtless, the arrangement of their conflicting interests, on a just and durable footing, is one of the greatest objects of a statesman’s ambition that can be conceived. The abusers of Scottish institutions, however, will be surprised to learn, that these great and intricate questions were entirely and satisfactorily resolved by the Scottish Parliament, and by the decrees-arbitral of Charles I, two hundred years ago; an adequate provision secured for the clergy, and the valuation and sale of tithes settled on so equitable a footing, that since that time their weight has been wholly unfelt by the Scottish cultivators. 

   ‘It is the boast, and the deserved boast, of the present Administration, that they alone have had the courage to face the enormous abuses of the English Poor Laws; and that, whether the recent act do or do not provide improvement in practice, they have first ventured to approach the subject, and collect a mass of information from which its evils may in future be rectified. granting them, as we are anxious to do, every credit for the attempts they have made on this subject, we must at the same time remark, that they are only following (sed heu quanto intervallo!) the footsteps of the Scottish Legislature; and that, two hundred and fifty years ago, the whole of that great subject was settled by them on a footing to which subsequent wisdom has been able to add nothing in the way of improvement, while subsequent experience has taught nothing in the way of rectification. the Scottish Poor Laws have now stood the test, not only of ages in point of time, but of every possible change in point of society; they have been found equally efficacious in the relief of real suffering, and equally effective in checking the growth of fictitious pauperism, in the Highlands of Perthshire as in the plains of the Lothians, among the weavers of Lanarkshire and the shepherds of Selkirk. 

   ‘Illegal or arbitrary imprisonment has in every age been the greatest and most formidable engine of despotic power, and the one against which all the efforts of the friends of freedom should, in an especial manner, be directed. The French democrats have never yet attained to this, the very first step in the advance of real freedom; and it is the glory of England that the Habeas Corpus Act, passed in the reign of Charles II, first established an effectual barrier against the evils of arbitrary imprisonment in the southern part of the island. Admirable, however, as the provisions of that justly celebrated statute are, they must yield the palm to the Scottish act which, a hundred and thirty years ago, provided an absolute security against the continuance of imprisonment, by any possible contrivance, beyond 140 days; whereas, the English act only give the prisoner a right to insist that his trial shall be brought on at the next assizes, an event which may often be five or six months from the period of committal, and even then allows the prisoners to be remanded to the next assizes, if the prosecutors’ witnesses are not ready to attend. 

   ‘The instruction of the poor is the grand object of the patriots of the present day, and Lord Chancellor Brougham has repeatedly declared, that he desired no other epitaph on his monument than that he was the founder of Universal English Education. Serious doubts may be entertained whether the instruction which it was his object to promote, apart from moral discipline or religious knowledge, would be really a blessing or a curse; but whatever opinion may be formed on that point, upon which the greatest and wisest men are at variance, and which the greatest and wisest men are at variance, and which experience had not enabled us to decide with certainty, one thing is perfectly clear, that the difficulty was solved one hundred and forty years ago by the prophetic wisdom of the Scottish Parliament, which established a system of parochial instruction universal in its operation, perfect in its kind, and so admirably connected with the religious institutions of the nation, that while the partisans of freedom have ascribed to it all the subsequent prosperity of the nation, the friends of religion and morality, have been equally loud in its commendation. And experience has traced to it none of those unhappy consequences which the warmest supporters of universal knowledge admit have too often attended, at least in great cities, the mere concession to the people of the means of information in these times. 

   ‘It is the glory of the present age, that more humane ideas have come to prevail generally on the administration of criminal law; and the names of Romilly, Mackintosh, and Peel, have been made illustrious by their efforts in this benevolent career, not less than by their ability and eloquence in the general field of politics. The great work, however, is yet unfinished; the Augean stable is but imperfectly cleared out; many hundred capital crimes still disfigure the English statute-book; and the returns of the very last year showed, that out of 1400 persons condemned to death, only forty-nine were deemed worthy of execution. When this deplorable inequality may be corrected, or the letter of the law be brought to a level with the humane spirit of the age, it is impossible to foresee; but this much is certain, that this enormous evil never was experienced in Scottish legislation, which never recognised more than forty capital crimes – nearly one-half of which are of English introduction since the Union – and has been familiar from the earliest period with a mitigating power in the hands of the public prosecutor, which has always kept the practice of the criminal courts on a level with the feelings of the times, and has now practically reduced even this comparatively inconsiderable array of capital crimes to five or six. 

   ‘Judge Blackstone states it with reason as the boast of the English law, that in cases of treason the accused can be convicted only on the concurring testimony of two witnesses, and that he is entitled to receive, fifteen days before his trial, a copy of his indictment, with the names, residence, and professions of the witnesses who are to be adduced, and the assizers who are to serve against him. Every one acquainted with the practice of criminal law must admire the wisdom and humanity of these regulations, and the more so that they are established in those cases where the Crown appears in good earnest as a prosecutor, and there was the greatest reason to dread an undue preponderance against the prisoner. But, in our admiration of the English law in this particular, we must not overlook the humane and independent spirit of the Scottish Legislature, which, a hundred and sixty-two years ago, conferred these important privileges upon all criminals in all cases, and fixed them so indelibly in the practice of that country, that they have ever since that time formed the deep foundations, non tangenda non movenda, of the Scottish criminal jurisprudence.’ 

•               •               •               •               •               •               •

   ‘The oppression of the poor, by the litigous efforts of the rich, has in every age been the favourite subject of fervent, and too often just, declamation by the friends of freedom. Much has been done, and still more attempted, in England, to obviate this evil; but nothing more effectual than has for two centuries been established in every court in Scotland, where the poorest suitors, by being placed on what is called the poor’s-roll, are enabled to maintain even a protracted suit with the most powerful and wealthy opponent. As matters at present stand the only doubt is, whether this favour to the poor is not carried too far, and whether those who appear in courts in forma pauperum, having nothing to lose, do not possess an undue, and often oppressive advantage, in a question with those who are not exempted from that liability. 

   ‘The Scotch system of banking, the security of which was completely proved in the great commercial panic of 1825, and the important effects of which are apparent in the unexampled strides which North Britain has made in wealth and prosperity during the last century, has now become the general object of interest and attention in the southern part of the island; and various attempts have been made to establish joint-stock companies, on similar principles, for the wider extension of the benefits of banking among the vast commercial classes of England. It was by an act of the Scottish Parliament that the foundation of this admirable system was laid; and it was before the Union that two of the most opulent and prosperous of our banking establishments, the Bank of Scotland and the firm now called Sir William Forbes and Company, were set on foot; while it is by the steady adherence of the Scottish courts to the principle of their common law that the private funds of the partners, including their landed estates, are liable universally for the debts of the firm, that the whole stability and security of that important but perilous branch of national commerce has been established.’ 

•               •               •               •               •               •               •

   ‘The introduction of the retrospective period in bankruptcy, which England owes to the enlightened experience of Sir Samuel Romilly, is justly regarded as one of the greatest improvements in her bankrupt law, and has done more to check the frauds of insolvent traders than any other enactment since the first introduction of that system. But the provision of his act are nothing but a copy of the act passed by the Scottish Parliament above a century before; which, with a prophetic wisdom most remarkable, adopted, in 1696, those very provisions against the fraudulent alienations of property on the eve of bankruptcy, which the wider commerce and more extensive commercial experience of England only suggested for adoption a century afterwards.’ 

•               •               •               •               •               •               •

   ‘The agricultural industry of Ireland, till within these few years, has been perpetually blighted by the ruinous privilege which the landlords of that country enjoyed of distraining any of the numerous subtenants on their land, not merely for the rent due by that subtenant to the superior from whom he held, but for the arrears of rent, how great soever, interposed between them and the owner of the soil. This right, in its application to a country where subtenants were universal, and four or five hands were frequently interposed between the landlord and the cultivator of the soil, was obviously utterly destructive of agricultural capital, and a complete bar to its growth; and it may be doubted whether the legislation of late years has provided an adequate remedy for this enormous evil. But that which the British Parliament, in the nineteenth century, has hardly been able to accomplish, was completely effected in the sixteenth, in regard to feu-holdings, or rights of property, by the Scottish Legislature, by a statute which enacted that, when the vassal has paid his dues to his immediate superior, he shall be free of all claim at the instance of the overlord; an enactment which speedily led to a similar rule being adopted by the courts of law, in the case of subtenants brought on the land with the consent of the landlord; and has completely freed Scotland from all the evils arising from the distraining of a subtenant for the arrears of rent due by a tenant-in-chief, which have so long and so justly been complained of in the sister island.’ 

•               •               •               •               •               •               •

   ‘It is a questio vexata in England, whether the registration acts recently brought forward in Parliament by Government are, or are not, calculated to benefit the country; but no one entertains a doubt that, if a proper system of registering titles and deeds in local courts could be devised, without the great evils of centralising everything in London, which Lord Brougham’s bills were obviously calculated to produce, it would be a very great public benefit. This problem, the difficulty of which has occasioned the stoppage of the measure at present in Parliament, was completely solved two hundred and twenty years ago by the enactments of the Scottish Legislature, which established a system of registration, partly in the Sheriff and Burgh Courts in the provinces, partly in the records of the Supreme Court at Edinburgh, which has so happily combined the great object of security and publicity to the titles and burdens of estates, with a due regard to local interests, and the convenience of persons having a right in the deeds to  be registered, that for the two centuries it has been in operation no complaint whatever has been heard, either against its efficiency and utility as a system of registration, or its undue tendency to monopolise in the capital the business of the provinces. 

   ‘A commission has long been sitting in England to introduce a thorough simplification and amendment in their law of real property – a department of jurisprudence which, with them, has grown into so complicated a form that it has become the herculean labour of a separate branch of the profession to master it; and more than one Lord Chancellor of England has declared that it is next to impossible to frame a title to an estate to which an astute attorney will not be able to state a valid objection. In Scotland, a variety of statutory enactments, too numerous to be quoted, have introduced, between two and three hundred years ago, a system of conveyancing which, without being perfect, is yet so comparatively simple and secure that no similar complaints have in the lapse of time been brought against it; and vast sums are daily transmitted from London for the sake of the safer investment which the Scottish heritable bonds and titles afford to the English mortgages or conveyances to landed property. 

   ‘It was the boast of Alfred that he had brought justice to every man’s door, by the establishment of a circuit perambulating the kingdom, and holding courts in every county which it contains. The progress of time, however, and the immense accumulation of business in the principal counties, have contributed to render abortive the benevolent designs of that immortal sovereign; and bills have repeatedly been introduced into Parliament by the present Government with a view to obviate the evil, and afford, by the aid of local courts, that practical facility to the trying of questions of man and man, which in England has long existed only in the eloquent periods of Blackstone and Delolme. That which England, however, has not yet attained, Scotland, under the institution of its old Parliament, has enjoyed for four centuries. Its Sheriff-courts have, from the earliest period, afforded a practical proof of the possibility of bringing justice expeditiously and cheaply to every man’s door; and of the economical and yet effective manner in which this duty has been discharged by those valuable local courts, which exercise jurisdiction in all cases of personal contract, or disputes about movable funds or debts to any amount, no better proof can be desired than was furnished by the late Parliamentary returns, which showed that twenty thousand causes were annually determined in these inferior tribunals, at an average cost to the suitors of ten or twelve pounds each in litigated cases, and two or three in those which are undefended; while such was the confidence in the judgments given, that one only out of one hundred and thirteen is carried by appeal to a superior tribunal. 

   ‘Since the attention of the English has been strongly turned to the amendment of their criminal jurisprudence, the importance of a public officer to conduct prosecutions for crimes, at the national expense, has been strongly felt; and it is understood that Sir Robert Peel, among other salutary practical improvements which he had in view in the Home Office, was preparing a plan for the gradual transference of the right of prosecution from individuals to a public officer, who might at once relive injured parties of that vexatious and often oppressive burden, and introduce greater certainty and equity into this important branch of government than it could possibly attain while still subject to the passions or the caprice of private individuals. That great and really useful reform, however, is still unaccomplished, and England as yet labours under the uncertainty and the expense of private prosecutions. Whereas Scotland, from the very infancy of her jurisprudence, has been familiar with the institution of a public prosecutor, under the name of Lord Advocate, who, without legally excluding private prosecutions, if the injured party prefers proceeding at his own instance, has practically superseded them, from the superior skill and success with which the proceedings are conducted at the public expense, than they possibly could in the hands and with the funds of private individuals. Of the good effect of this great institution, decisive evidence is preserved in the facts which the Parliamentary returns of 1832 have brought to light, that, while the convictions are to the acquittals, by the grand or petit jury, on an average of all England, as two to one, they are in Scotland as eight to one.’ 

•               •               •               •               •               •               •

   ‘We could easily extend this enumeration to double its present length, without exhausting the evidence which the Scottish Parliaments have left, in their legislative measures, of the admirable political wisdom and truly independent spirit by which they were actuated. Enough – and, perhaps, our Southern readers may think more than enough – has already been done to establish their just claim to the character of free, just, and upright legislators. We shall only therefore add, what is perhaps the most surprising matter of all, and what the English lawyers, accustomed to the multorum camelorum onus of their statutory law, will fully appreciate, that such was the laudable brevity of those ancient times, that the whole Scottish Acts of Parliament, down to the Union, are contained in three duodecimo volumes. And yet, in these little volumes, we hesitate not to say, is to be found more of the spirit of real freedom, more wise resolution and practically beneficial legislation, better provisions for the liberty of the subject, and a more equitable settlement of all the objects of the popular party at this time, than is to be found in the whole thirty quarto volumes of the statutes at large, and all the efforts of English freedom, from Magna Charta to the Reform Bill. 

   ‘From the preceding enumeration, imperfect as it will appear to all persons acquainted with Scottish jurisprudence, it is evident that the wisdom and public spirit of the Scottish Parliament, anterior to the Union, had not only procured for the people of Scotland all the elements of real freedom, but had effected a settlement on the most secure and equitable basis of all the great questions which it is the professed object of the Liberal party to resolve in a satisfactory manner at this time. It appears that, above two hundred years ago, the Scottish Parliament had not only effected a settlement, on the most equitable footing, of the difficult and complicated tithe question, so as to relieve entirely the cultivators of that burden, but established an admirable system of poor laws, the efficacy and security of which have been proved by the experience of two centuries, till they were obliterated by the decisions of the Court of Session; provided an effectual remedy against the evils of arbitrary or illegal imprisonment; established a complete and universal system of public instruction; introduced a humane but effective system of criminal law; given to the meanest prisoner, charged with an ordinary offence, the same privileges which the English law concedes only to State offenders accused of high treason; awarded to all prisoners the right of being defended by counsel, and heard by them upon the evidence; provided for the protection of the poor in litigation against the rich; laid the foundations of an admirable system of banking, the security and benefits of which subsequent experience has abundantly verified; afforded a humane relief to insolvent debtors, so as to check completely the evils of prolonged imprisonment; extended their care even to the aliment of poor prisoners in jail unable to provide for themselves; established that retrospective period in bankruptcy which English wisdom did not adopt for a century afterwards; given absolute security to the cultivators of the soil in the enjoyment of their leasehold rights; effectually prevented the oppression of the husbandman by the exactions of middlemen, or the distraining for more than their own rents by the owner of the soil; never admitted the hideous injustice arising from the corruption of the blood in cases of high treason, but limited the punishment to the person and movable estate of the transgressor; established an admirable and universal system of registration for all titles and mortgages relating to real property; introduced a lucid and intelligible system for the conveyance of landed estates, and the burdens created thereon; brought cheap justice home to every man’s door by an unexceptionable system of local courts; provided for the just and effectual prosecution of crimes by the establishment of a public officer intrusted with the discharge of that important function; given a comparatively ready access to creditors against the real estates of their debtors, and allowed execution to proceed at once against the person and estate of the debtor. Whether there were important objects to have been gained, great and glorious attempts have been made by the Parliament of a remote, inconsiderable, and distracted kingdom, during the fifteenth, sixteenth, and seventeenth centuries, we leave it to our readers to judge; but this we will affirm, that if they were not, then is the whole Liberal party of Great Britain at fault, and wandering in the dark at the present time; for almost the whole objects, for the acquisition of which they profess such anxiety in England in the middle of the nineteenth century, were secured for Scotland by her native legislature before the end of the seventeenth. If the English legislators shall continue a course of wise and practical legal improvement, they will perhaps obtain, by the year 1900, most of those advantages which the old Scottish Parliament had secured for their country two centuries before. 

   ‘And it is people who have done SUCH THINGS for the cause of national independence and civil liberty who are styled, by the modern legislators of Scotland, as having been ‘destitute in every age of the spirit of Freedom!’ It is a constitution which has produced a legislature that has done SO MUCH for the cause of real freedom, that it is the boast of our modern reformers ‘to have torn to threads and patches; not to have left a rag or a vestige remaining!’ We have only to hope that the reformed legislature of Scotland may do one-tenth as much for the cause of real liberty as the unreformed one has done; and that our descendants, a hundred years hereafter, may find themselves in possession of all the rights and privileges, and as secure in their enjoyment, as we were when the mighty change was effected. 

   ‘And let not our Southern readers be carried away by the sophism, so frequently employed by persons ignorant or desirous to conceal the truth on the subject, that Scotland has thriven, not from any efforts of its native legislature, but from the influence of British freedom. We wish to be just; we acknowledge with gratitude the great benefits which Scotland has derived from the Union; we are thankful for the cessation of internal British war, and feel the full advantages which have resulted from the opening of the English market, the stimulating influence of British capital, and the generous gift of British treasures. We are proud of our connection with the great and glorious realm of England, and trust we have not disgraced it either in the field of battle or the walks of literature. But when we turn to the Statute-book, and examine what improvement the laws of Scotland have received from the Union, we are constrained to admit that Scotland hardly received any legislative amelioration during the whole of the eighteenth century, with the exception of the act abolishing ward holdings and heritable jurisdictions, in 1746; and that was not conferred by the benevolence of English wisdom, but extorted by the terrors of the Highland broadsword. The vast improvements in our criminal practice which have taken place within the last twenty years, were not owing to any admixture of English legislation, but to the admirable wisdom and experienced sagacity of Sir William Rae, the Scotch Lord Advocate, who followed out solely and exclusively the principles of Scotch jurisprudence. Four great changes only of late years, we admit, are of English origin. The Reform Bill, the Burgh Reform, the Introduction of Trial by Jury in civil cases – for it had existed from the earliest period in this country in criminal – and the immense change in legal forms introduced by the Judicature Act. Whether they are improvements or not, time alone can show, and a half century will not enable the nation to determine with accuracy. But so far as experience has hitherto gone, we believe there are few Scotchmen, even of the Reform party, capable of judging on the subjects, who do not already secretly regret our ancient institutions, and the hands in which political influence was placed by our original constitution. 

   ‘And if Scotland has prospered solely in consequence of the external influence of England, and in spite of the tyranny and selfishness of its native legislature, how, we would ask, has the same influence proved so destructive to Ireland? When we turn to that country, we hear nothing from the Liberal party but vituperation and abuse of the cruelty, injustice, and tyranny of England; the whole wretchedness, crimes, and suffering of its unhappy people are, without hesitation, ascribed by the whole Whigs and Radicals to the blasting influence of English ascendency; but yet that same ascendency, we are told by the same party, was the sole cause of the prosperity of Scotland, and, despite the tyranny of its native rulers, overspread the land with plenteousness. Will they be so good as to tell us how the same foreign ascendency, which to Ireland was the simoom of the desert, has proved to Scotland only the zephyr of spring? Will they explain how it happened that the English statesmen lavished their wisdom on Scotland, during the seventeenth century, to the exclusion of their native country: and that no traces in the English Statute-book were to be found of those admirable principles of legislation which for two centuries have been established in Scotland, till the days of Sir Samuel Romilly and Mr Brougham? Will the numerous foreign and domestic vituperators of the old Scottish institutions be kind enough to point out the English model from which any of the admirable ancient Scottish statutes we have mentioned were taken, or specify the name of the English monarch, minister, or legislator, whose influence or authority procured the enacting in its native Parliaments of any one of these truly wonderful laws? They cannot – we defy them to point out the slightest trace of English influence or example in any of these monuments of native wisdom; and, in fact, before the union of the crowns, the Scottish Parliament were so thoroughly exasperated against their southern neighbours, that it would have been sufficient to insure the rejection of any measure, that it had been supposed to have emanated from English influence; and after that event, till the union of the kingdoms, the inhabitants of South Britain were too much occupied by their intestine quarrels to have any time to bestow a thought on their savage neighbours to the north of the Tweed, except as to sowing the seeds of dissension or corruption among their nobles – a mode of government in which they were for long but too successful. 

   ‘In truth, the early precocity of Scotland in legislative wisdom, and the extraordinary provisions made by its native Parliaments in remote periods, not only for the wellbeing of the people, but the coercion alike of regal tyranny and aristocratic oppression, and the instruction, relief, and security of the poorer classes, is one of the most remarkable facts in the whole history of modern Europe, and one well deserving of the special attention of historians and statesmen, both in that and the neighbouring country. When we recollect what was the state of that remote and sterile kingdom in the four centuries preceding the union, during which these extraordinary monuments of legislative wisdom were erected; when we remember that for the first two centuries of that period it was lacerated by an almost incessant warfare for its national independence, invaded twenty times by immense foreign armies, repeatedly pierced to the heart by foreign power, and plundered and devastated everywhere by foreign bands; when we call to mind that during this constant and grinding military exertion its fields were perpetually laid waste, its cities burned, its merchant vessels captured, and the seeds equally of agricultural, manufacturing, and commercial prosperity nipped in the bud; when we observe that during the two next centuries, when the English had abandoned their attempts to conquer the kingdom by main force, they had constant recourse to the still more disastrous method of management which consisted in the corruption and division of the nobles, and that by the continual application of that potent engine, the integrity of a great portion of the aristocracy was totally destroyed, and the nation kept in perpetual state of feudal disorder – from which no one derived benefit but the arch-fiends who put their base and selfish passions in motion – we are lost in astonishment at the laws which were framed during such periods of anarchy, and the noble principles of legislation adopted by a  people too often, to appearance, occupied only with the wretched and distracting objects of individual ambition.’ 

One thought on “Note E, pp.133-143.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s