The Old Scottish Parliament, pp.23-26.

[Scotland’s Scrap Contents]

   Sir Archibald Alison, the well-known lawyer and historian, who died in 1839, wrote an article in Blackwood’s Magazine for November 1834, on the old Scottish Parliament, showing what kind of Parliament Scotland lost. We quote a few extracts from this article. 

   “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… 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… 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… Scottish legislation 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… 

   “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… But 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. 

   “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. 

   “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. 

   “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… 

   “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. 

   “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. 

   “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.” 

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