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 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 this 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.’
• • • • • • •