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LITIGATION, THE ANGLO-SCOTTISH UNION, AND THE HOUSE OF LORDS AS THE HIGH COURT, 1660–1875

  • PHILIP LOFT (a1)

Abstract

This article examines the role of the House of Lords as the high court from the Restoration of 1660 to the passage of the Appellate Jurisdiction Act in 1876. Throughout this period, lay peers and bishops judged appeals on civil law from the central courts of England and Wales, Ireland (aside from between 1783 and 1800), and Scotland after the Union of 1707. It has long been known that the revolution of 1688–9 transformed the ability of parliament to pass legislation, but the increased length and predictability of parliamentary sessions was of equal significance to the judicial functions performed by peers. Unlike the English-dominated profile of eighteenth-century legislation, Scots constituted the largest proportion of appellants between 1740 and 1875. The lack of interaction between Westminster and Scotland is often seen as essential to ensuring the longevity of the Union, but through comparing the subject matter of appeals and mapping the distribution of cases within Scotland, this article demonstrates the extent of Scottish engagement. Echoing the tendency of Scottish interests to pursue local, private, and specific legislation in order to insulate Scottish institutions from English intervention, Scottish litigants primarily sought to maintain and challenge local privileges, legal particularisms, and the power of dominant landowners.

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Corresponding author

Faculty of History, West Road, Cambridge, cb3 9efpl433@cam.ac.uk

References

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1 Hoppit, J., ‘Patterns of parliamentary legislation, 1660–1800’, Historical Journal, 39 (1996), pp. 109–31; Innes, J., ‘Legislating for three kingdoms: how the Westminster parliament legislated for England, Scotland and Ireland, 1707–1830’, in Hoppit, J., ed., Parliaments, nations and identities in Britain and Ireland, 1660–1850 (Manchester, 2003), pp. 1547.

2 Phillipson, N., The Scottish whigs and the reform of the court of Session, 1785–1830 (Edinburgh, 1990), p. 85; Finlay, J., ‘Scots lawyers and House of Lords appeals in eighteenth-century Britain’, Legal History, 32 (2011), pp. 249–77, at p. 275.

3 Connolly, S., Houston, R., and Morris, R., ‘Identity, conflict and economic change: themes and issues’, in Connolly, S., Houston, R., and Morris, R., eds., Conflict, identity and economic development: Ireland and Scotland, 1600–1939 (Preston, 1995), p. 2.

4 Scott, P. H., Still in bed with an elephant (Edinburgh, 1985); Kennedy, L., In bed with an elephant: a journey through Scotland's past and present (London, 1995).

5 Hoppit, J., Parliament and Britain's political economies, 1660–1800 (Cambridge, 2017), ch. 4; Harris, B., ‘Scotland's herring fisheries and the prosperity of the nation, c. 1660–1760’, Scottish Historical Review, 79 (2000), pp. 3960.

6 Phillipson, The Scottish whigs; Pentland, G., Radicalism, reform and national identity in Scotland, 1820–1833 (Woodbridge, 2008).

7 Innes, ‘Legislating for three kingdoms’, pp. 21, fig. 2.4, 22.

8 Lords journals (LJ), xviii–xxvii; Commons journals, xvi–xxvi.

9 B. Jewell, ‘The legislation relating to Scotland after the forty-five’ (Ph.D., North Carolina, 1975); MacKillop, A., ‘The political culture of the Scottish highlands from Culloden to Waterloo’, Historical Journal, 46 (2003), pp. 511–32, at pp. 521–4.

10 B. Harris, ‘The Scots, the Westminster parliament, and the British state in the eighteenth century’, in Hoppit, ed., Parliaments, nations and identities, pp. 124–45, at pp. 133, 136–8; Hoppit, Britain's political economies, pp. 112–22.

11 Scots law did not maintain a distinctive Scottish identity; see Kidd, C., Union and unionisms, political thought in Scotland, 1500–2000 (Cambridge, 2008), ch. 5; MacQueen, H., ‘“Regiam majestatem”, Scots law, and national identity’, Scottish Historical Review, 74 (1995), pp. 125.

12 LJ, xi–cvii; Parliamentary archives, HL/PO/JU/4/3/1–298, HL/PO/JO/10/1/283–525, HL/PO/JO/10/6–9. The exception are cases that went unprosecuted, for which only a record in the LJ of their presentation exists.

13 Criminal appeals from the justiciary were outlawed in the 1770s; see Williams, N., Final appellate jurisdiction in the Scottish legal system (Edinburgh, 2010), p. 22.

14 Its post-1876 role is examined in Blom-Cooper, L., Dickson, B., and Drewry, G., eds., The judicial House of Lords, 1876–2009 (Oxford, 2009). Hart, J., Justice upon petition: the House of Lords and the reformation of justice, 1621–1675 (London, 1991), surveys its seventeenth-century history.

15 Atkins, R., An enquiry into the jurisdiction of the Chancery in causes of equity (London, 1695), p. 27; Swift, J., Gulliver's travels (Oxford, 1986), p. 116.

16 Hoppit, ‘Patterns of parliamentary legislation’, pp. 110, 112.

17 Lemmings, D., Professors of the law: barristers and English legal culture in the eighteenth century (Oxford, 2000), pp. 11, 91, 95–7, 190; Horwitz, H., ‘Chancery's “younger sister”: the court of Exchequer and its equity jurisdiction, 1649–1841’, Historical Research, 72 (1999), pp. 160–82, at pp. 168–9, 172.

18 Hayton, D., ‘The Stanhope/Sunderland ministry and the repudiation of Irish parliamentary independence’, English Historical Review, 113 (1998), pp. 610–36.

19 A. Rees, ‘The practice and procedure of the House of Lords, 1714–1784’ (Ph.D., University of Wales, 1987), p. 138.

20 Standing orders of the House of Lords (London, 1844), pp. 24–7, 56, 63–4.

21 Ford, J. D., ‘Protestations to parliament for remeid of law’, Scottish Historical Review, 88 (2009), pp. 57107, at p. 95.

22 Phillipson, The Scottish whigs, p. 53.

23 Hamilton, H., An economic history of Scotland in the eighteenth century (Oxford, 1963), appendix I; Wrigley, E. A., ‘British population during the “long” eighteenth century, 1680–1840’, in Floud, R. and Johnson, P., eds., The Cambridge economic history of modern Britain (3 vols., Cambridge, 2004), i, pp. 5795, at p. 64, table 3.1.

24 Cairns, J., ‘Historical introduction’, in Reid, K. and Zimmermann, R., eds., A history of private law in Scotland, i: Introduction and property (Oxford, 2000), pp. 142–55; Report on the supreme court of judicature in Scotland (London, 1840), pp. 18, 131, 156.

25 Standing orders, pp. 118–19.

26 Report…on the supreme court of judicature, p. 79; Phillipson, The Scottish whigs, p. 47.

27 Report…on the supreme court of judicature, pp. 9, 61, 74–5, 79, 144, 233, 241–2.

28 Finlay, ‘Scots lawyers’, p. 258.

29 The Scots statutes revised: the acts of the parliaments of Scotland, 1424–1707 (Edinburgh, 1908), pp. 200–8.

30 Due to their small number, Welsh appeals have been included with England. There were only forty between 1689 and 1720, and four between 1813 and 1823.

31 Because of the greater variation in the number of appeals each session during the Restoration, a single average of twenty-one was used to select sample sessions.

32 Robertson, D., Reports of cases on appeal from Scotland, decided in the House of Peers, i (London, 1807), pp. 13.

33 E. J. Dawson, ‘Finance and the unreformed borough: a critical appraisal of corporate finance 1660 to 1835, with special reference to the boroughs of Nottingham, York and Boston’ (Ph.D., Hull, 1978), pp. 380–403.

34 Philip, J., ‘Some reflections on desuetude’, Juridical Review, 43 (1931), pp. 260–7.

35 Harris, B., ‘Scots burghs, “privilege” and the court of Session in the eighteenth century’, Urban History, 44 (2017), pp. 121.

36 Robertson, Reports of cases, i, pp. 124–9; Armet, H., ed., Extracts from the records of the burgh of Edinburgh, 1689–1701 (Edinburgh, 1962), pp. 134–5.

37 Renwick, R., ed., Extracts from the records of the burgh of Glasgow, a.d. 1718–1738 (Glasgow, 1909), pp. 40–1, 471, 487.

38 Paton, T., Reports of cases decided in the House of Lords upon appeal from Scotland from 1726 to 1821 (6 vols., Edinburgh, 1849–56), vi, pp. 15.

39 Dow, P., Reports of cases upon appeals and writs of error in the House of Lords (6 vols., London, 1814–19), v, pp. 282–92.

40 Aberdeen Journal, 17 Mar. 1825, issue 3975; Caledonian Mercury, 20 Mar. 1824, issue 16006, 27 Mar. 1824, issue 16009, 11 Mar. 1826, issue 16311; Morning Post, 10 Mar. 1824, issue 16505, 19 Apr. 1827, issue 17580.

41 Dow, Report of cases, ii, pp. 40–66.

42 Langford, P., Public life and the propertied Englishman, 1689–1798 (Oxford, 1991), pp. 156–66.

43 Paton, Reports, i, pp. 645–9.

44 I. A. Robertson, ‘The Tay salmon fisheries in the nineteenth century’ (Ph.D., Stirling, 1989), pp. 222–6; Macqueen, J. F., Reports of Scotch appeals and writs of error, together with peerage, divorce and practice cases in the House of Lords (4 vols., Edinburgh, 1855–66), iv, pp. 535–59.

45 Macqueen, Reports of Scotch appeals, i, pp. 2–35.

46 The best account of the Scottish electorate remains W. Ferguson, ‘Electoral law and procedure in eighteenth and early nineteenth-century Scotland’ (2 vols., Ph.D., Glasgow, 1957).

47 Information for Alexander Penrose Cumming…against John Lawson [in the high court of the justiciary] (n.p., 1785), pp. 12, 14; Edinburgh Review for October, 1830…January 1831 (250 vols., Edinburgh, 1802–1929), lii, p. 223.

48 Ferguson, ‘Electoral law’, i, pp. 15–23, 45, 49–51.

49 Scots Magazine (Edinburgh, 1768), xxx, pp. 163–4; Namier, L. and Brooke, J., eds., The House of Commons, 1754–1790 (3 vols., London, 1964), i, p. 482; Report of the commissioners…into…appeals from the court of Session to the House of Lords (London, 1824), pp. 297–8.

50 Thorne, R., ed., The House of Commons, 1790–1820 (5 vols., London, 1986), ii, pp. 571–2; Bligh, R., Reports of cases heard in the House of Lords on appeals and writs of error, and decided during the session 1819 (4 vols., London, 1823–7), i, pp. 163, 209.

51 Thorne, ed., The House of Commons, ii, pp. 72, 512; Paton, Reports, iii, pp. 169–88.

52 Keith, T., ‘The trading privileges of the royal burghs of Scotland (continued)’, English Historical Review, 28 (1913), pp. 678–90, at p. 687.

53 Morison, W. M., The decisions of the court of Session: from its first institution to the present time (38 vols., Edinburgh, 1801–8), iii, p. 1908; Pagan, T., The convention of royal burghs of Scotland (Glasgow, 1926), p. 136.

54 Extracts from the records of the convention of the royal burghs of Scotland, 1759–1779 (Edinburgh, 1918), p. 351.

55 Extracts from the records of the convention of royal burghs of Scotland, 1738–1759 (Edinburgh, 1915), pp. 18, 257–8, 270, 307–8, 399, 516, 533; Abstract of facts, respecting the revenues of the royal boroughs of Scotland (London, 1788), pp. 58, 60.

56 Pagan, Convention of royal burghs, pp. 62–3, 146.

57 Ward, W., ‘The land tax in Scotland, 1707–1798’, Bulletin of the John Rylands Library, 37 (1954), pp. 288308, at pp. 292–3, 296.

58 Porteous, A., The town council seals of Scotland, historical legendary and heraldic (Edinburgh, 1906), p. 179.

59 Stephen, J., Defending the revolution: the church of Scotland, 1689–1716 (London, 2013), pp. 165–80.

60 Robertson, Reports of cases, i, pp. 12–16.

61 Kidd, Union and unionisms, pp. 221, 223.

62 Lyall, F., Church and state in Scotland: developing law (Oxford, 2016), pp. 32–8.

63 Earlsferry, Lord Roger of, The courts, the church and the constitution: aspects of the disruption of 1843 (Edinburgh, 2008), pp. 330.

64 Report…on forms of process in the courts of law in Scotland (London, 1824), pp. 306–43.

65 Hansard, T. C., The parliamentary debates, second series (25 vols., London, 1824), x, p. 386.

66 LJ, lxxxiv, p. 49.

67 Minutes of proceedings of the select committee on the royal burghs of Scotland (London, 1821), p. 25; Magistrates and town council of the town of Montrose (n.p., 1714), pp. 1–5.

68 Finlay, ‘Scots lawyers’, pp. 257–8. There were only two cases represented by two Scottish-based counsel before the late 1740s.

69 Robertson, Reports of cases, i, pp. 617–19.

70 Kagan, R., Lawsuits and litigants in Castile, 1500–1700 (Chapel Hill, NC, 1981), p. 100.

71 Rees, ‘Practice and procedure’, p. 161.

72 Letters of Lord Balmerino to Harry Maule, 1710–1713, 1721–1722, ed. Jones, C. (Miscellany of the Scottish History Society, fifth series, vol. 12, Edinburgh, 1994), pp. 99168, at pp. 109, 127; Szechi, D., ‘The politics of “persecution”: Scots Episcopalian toleration and the Harley ministry, 1710–1712’, in Sheils, W., ed., Studies in church history: toleration and persecution, 21 (1984), pp. 275–87, at p. 281.

73 Hoppit, Britain's political economies, pp. 102–7, summarizes this approach.

74 Horwitz, ‘Exchequer’, p. 171, table 3; Horwitz, H. and Polden, P., ‘Continuity or change in the court of Chancery in the seventeenth and eighteenth centuries?’, Journal of British Studies, 35 (1996), pp. 2457, at p. 50, table 17; Brooks, C., Pettyfoggers and vipers of the commonwealth: the ‘lower branch’ of the legal profession in early modern England (Cambridge, 1986), p. 64, table 4.4.

75 The University of Virginia has mapped cases from 1750 to 1800, http://archives.law.virginia.edu/scos/casemap, last accessed Jan. 2015.

76 Hoppit, Britain's political economies, p. 114, table 4.3.

77 Ibid., pp. 335–6.

78 Namier and Brooke, eds., The House of Commons 1754–1790, i, p. 476.

79 Ferguson, Electoral law, ii, pp. 217–18, 251, 256.

80 Ibid., i, p. 200; LJ, xxxii, pp. 464–5.

81 LJ, xxxii, pp. 118, 444, 664, xxxviii, p. 607; Thorne, ed., The House of Commons, i, p. 529.

82 Paton, Reports, i, pp. 302, 586, vi, p. 709; LJ, xxiv, pp. 231, 239, xxv, pp. 540, 576, xxxvii, p. 402, xxviii, pp. 326, 607.

83 King, P. and Ward, R., ‘Rethinking the bloody code in eighteenth-century Britain: capital punishment at the centre and on the periphery’, Past and Present, 228 (2015), pp. 159205; Innes, J., ‘What would a “four nations” approach to the study of eighteenth-century British social policy entail?’, in Connolly, S. J., ed., Kingdoms united? Great Britain and Ireland since 1500 (Dublin, 1999), pp. 181–99.

84 Storrs, C., ed., The fiscal-military state in eighteenth-century Europe: essays in honour of P. G. M. Dickinson (Farnham, 2009), chs. 3 and 5.

85 Kidd, Union and unionisms, ch. 5.

Many thanks are due to Phil Withington and the anonymous readers for their comments. This article has also benefited from the feedback of seminar participants in Liverpool, Oxford, Edinburgh, the Institute of Historical Research, and the British Legal History Conference. I gratefully acknowledge the financial support of the Arts and Humanities Research Council and the British Academy (grant pf160004).

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