Commentary on Article XIX

XIX. Preservation of Scottish courts

King James VI once expressed the wish that Scotland should become in effect a part of England, governed like an English county, but in his day the law of Scotland was not as settled as it was to become.

In the hundred years since the kings had departed for London, the lawyers of Scotland developed Scots law and the procedures of its courts to a fineness which put the laws of England to shame. Indeed in England the courts had become corrupted by procedure and the simple incapability of an essentially mediaeval system to deal with the requirements of the modern world. The local courts of England had been neutered by the King’s Bench, a court jealous of any rival jurisdiction and with the authority to quash any decision. However having forbidden local courts from exercising their wonted jurisdiction, the King’s Bench was unable to handle the resultant workload falling to itself and to the other royal courts. The king’s courts (or by now the Queen’s courts) were crowded in together in Westminster Hall, a position they had to share with the House of Lords, and the resultant noise of barristers shouting over one another to be heard caused despair amongst commentators.

In contrast, the Court of Session had developed its jurisprudence according to the needs of justice. The sheriff courts were highly imperfect and in need of reform, but they did provide local justice. The idea of throwing that away to unite with the chaotic English system was unthinkable.

One particular clause was necessary to make this preservation effective:

and that no Causes in Scotland be cognoscible by the Courts of Chancery, Queens-Bench, Common-Pleas, or any other Court in Westminster-hall; and that the said Courts, or any other of the like Nature, after the Union, shall have no Power to cognosce, review, or alter the Acts or Sentences of the Judicatures within Scotland, or stop the Execution of the same

Without this clause, the Queen’s Bench would certainly have taken it upon itself to assert an unwonted authority over the Scottish courts, as it had done to a great many English courts.

An additional thread in Article XIX concerns the Privy Council in an almost throwaway sentence: the Privy Council would continue in Edinburgh until a new arrangement could be found. It was a brief interim: later in 1707, Parliament united the English and Scottish Privy Councils. The Privy Council in each part of Great Britain was essentially the government, before the development of the Cabinet system, and its main function as a council was local government. England this consisted of issuing commissions of the peace (the list of those appointed each year as justices of the peace for each shire) and directions for how justices ought to conduct and prioritise their administrative functions. Scotland had been more centralised, the Privy Council governing rather than directing government, except where private heritable jurisdictions and powerful lairds displaced it, and so it was to be kept going until it could be replaced.

The solution reached by the united parliament was to localise administration, by appointing justices of the peace in each shire with judicial and administrative functions, devolving government functions from the centre to the local justices and to the burghs. (The new justices’ judicial authority may have sat uneasily with the sheriffs, who already exercised judicial functions locally.) In effect, government fell into the hands of the College of Advocates in Edinburgh, from whom sheriffs were appointed and who assumed the mantle of advising on and controlling appointments.

After the union, it was decided that since appeal had formerly lain from the Court of Session to the Parliament of Scotland, so appeal would lie to the House of Lords. However no appeal could be found from the High Court of Justiciary, and to criminal matters cannot be appealed from the High Court. When Gladstone determined on a reform of the courts, in which a Court of Appeal was ceated in England and in Ireland, the treaty was invoked to state that no Court of Appeal could be created in Scotland. The Treaty has no such restriction, but to get around this objection, an Inner House was created in the Court of Session and in the High Court, so that appeal is within each court, not from it.

The separateness of the Scottish legal system has been taken to extremes. In the English legal system Scotland is treated almost as if it were a foreign country, rather than just a place with separate courts. It was not until 2011 that English proceedings could be served in Scotland without asking the court’s permission first (and the English Law Society resisted even that).

Even today, a Scottish court may not enforce a summons on a man resident in England or Northern Ireland nor an English court enforce a summons on a resident of Scotland, though they are courts of the same country. A decree of the Court of Session must be registered in the High Court in London before it may be enforced in England, which sounds like a breach of the obligation not "to cognosce, review, or alter the Acts or Sentences of the Judicatures within Scotland, or stop the Execution of the same". Even after 300 years then there is unfinished business.