XVIII. Preservation of Scots law
THAT the Laws concerning Regulation of Trade, Customs, and such Excises to which Scotland is, by virtue of this Treaty, to be lyable, be the same in Scotland, from and after the Union, as in England; and that all other Laws in Use within the Kingdom of Scotland, do after the Union, and notwithstanding thereof, remain in the same Force as before, (except such as are contrary to, or inconsistent with this Treaty) but alterable by the Parliament of Great Britain; with this Difference betwixt the Laws concerning publick Right, Policy,, and Civil Government, and those which concern private Right, that the Laws which concern publick Right, Policy, and Civil Government, maybe made the same throughout the whole United Kingdom; but that no Alteration be made in Laws which concern private Right, except for evident Utility of the Subjects within Scotland.
The law of Scotland, having been developed to some fineness in the generations before the union, was to be preserved. Parliament was empowered to amend the law but undertook not to change the civil law unless for the evident benefit of the people of Scotland.
Laws on trade and on customs and excise would need to be uniform. Public right, policy and civil government could be changed freely, and this would appear to include the criminal law, but the civil law was to be subject to an “evident utility” test. This is the reason that the laws of Scotland have remained different from those of England, although the two have grown together learning from each other (not least since Lord Mansfield began to introduce Scottish practice when Lord Chief Justice of England).
Criticism may be made of how this has worked in practice; that Parliament has been so keen to preserve Scots law that it has failed to act even when there was evident utility in a change, for which a few brief examples may include:
- The arbitrary, often cruel, authority of clan chiefs was unchallenged until 1746;
- The law of entail was unreformed until 1770;
- Serfdom amongst colliers and salt miners was not abolished until 1775;
- Full feudal land tenure and the Register of Saisines were retained until the 1980s.
On occasion too, the harmonisation of the law across the kingdom in certain areas, would be of evident utility. In some areas of public right, where Parliament had a free hand, important reforms could be left undone, as for example to regularise the appointments of sheriffs or to reform the burghs.