Judges, at that time all landed proprietors, who for little emolument contentedly filled the judicial office in consideration of the power and influence it conferred, resolved to thwart the English Chancellor in this salutary measure. They presented a report in which, on frivolous excuses, such as that some records were damaged, and others were locked up with the Scottish regalia, they pretended that they could not prepare the draught of the required bill, nor give an accurate account of the nature and extent of the heritable jurisdictions; and they remonstrated against the abolition of these jurisdictions as a measure contrary to the articles of Union, and wholly impracticable." Lord Hardwicke, nothing daunted, caused a bill to effect Feb. 17, his object to be prepared under his own superintend1747. ence in London, and this he introduced at the commencement of the following session in a most lucid and argumentative speech, of which we have an authentic report edited by himself. In this he animadverts with decency, but with the most cutting severity, on the conduct of the Scotch Judges, saying, amongst other things equally bitter, “The interference of the legislature is now proved to be indispensable, for after the discovery made by the Lords of Session to all the world, that there is no record by which the nature and extent of these heritable jurisdictions can be ascertained, they may be claimed and stretched by all who think fit, and the poor people who are oppressed are told by those to whom they might fly for refuge that there is no redress for oppression in its worst form." His chief difficulty was to combat the argument arising from the treaty of Union. After some rather sophistical criticisms upon the language of the different articles, he assumes a manly tone, and boldly contends that the parliament of the United Kingdom had in it all the powers which belonged to the parliament of Scotland, and could now legislate on the subject as that parliament might have done,→ insisting, that if the measure was clearly required by existing circumstances, and must be for the general good of Scotland, it ought to be adopted were it forbidden by the articles of Union in terms the most express and peremptory. He showed that an attempt to fetter the supreme legislative power in any d It was soon after this that a Lord of Session spoke so contemptuously of Cromwell's Judges, who he could not deny had administered justice impartially and satis factorily, but whom he deprived of all merit because they were free from local and party connections, saying, "No thanks to them, KITHLESS LOONS!" A.D. 1747. ABOLITION OF HERITABLE JURISDICTIONS. 251 "In all countries," he said, state is a contradiction in terms. "the legislative power must, to a general intent, be absolute; and therefore, upon treaties of this nature, strict and rigid constructions ought not to be made, and may prove dangerous. If they should too easily be given way to, incorporating Unions would become impracticable or mischievous.” Out of policy, I presume, but not very sincerely, he declared that he was not moved to bring forward this measure by the rebellion, or by the supposed disaffection of Scotland, or by a belief that the present possessors of these heritable jurisdictions were not fit to be intrusted with such powers, there being before his eyes Scottish chiefs of distinguished loyalty, as well as high birth, worthy to be trusted with any powers which it is proper for the Crown to confer upon a subject. "My Lords," said he, "my true reasons are drawn from known and allowed maxims of policy. I think that the parcelling out in this manner the power of jurisdiction originally lodged in the Crown, was an erroneous and a dangerous model of government. I look upon the administration of justice as the principal and essential part of all government. The people know and judge of it by little else. The effects of this are felt every day by the meanest in the business' and affairs of common life. Statesmen look abroad into foreign countries, and consider our remote interests and connections with other nations. But of what utility are those views, however great and just, unless they be referred back to our domestic peace and good order? The chief object of the social compact is to secure to us the regular course of law and justice. When the King, therefore, grants away jurisdiction, he parts with so much of his government; it is giving away so many jewels of his crown. It is certainly putting so much of the protection of his people into other hands; and this tends directly to dissolve the bond of allegiance and affection between This, however, is perhaps, by a fallacy, begging the question. There may be a legislature with limited powers, like the American Congress, and it is possible that after an incorporating union the power of the united legislature may be made to be limited by the conditions of the treaty of union declaring that any law to infringe these conditions is void, and by erecting a tribunal like the Supreme Court of the United States to decide whether any law is contrary to these conditions-or, in a rougher manner, by providing that an infraction of these conditions shall work a dissolution of the union. However, I entertain no doubt that by the just construction of the treaty of Union with Scot land, and of the treaty of Union with Ireland, the united legislature was to be vested with supreme and absolute power over the whole empire. The fact that a proposed law repeals or alters any article of the Union is a very strong but not a conclusive objection to it. On this doctrine I acted when I supported the entire abolition of the Court of Admiralty and the substantial abolition of the Court of Exchequer in Scotland, both declared by the articles of Union to be for ever established in that country; and by this doctrine I should be guided if any law were proposed for modifying the Protestant Episcopal Church in Ireland. See the opinion of Mr. Burke, Works, vol. x. 6. King and people: whilst the subjects do not see the King either in the benefits they enjoy, or the punishments they undergo. Hence arises a dangerous and unconstitutional dependence. The people will follow those who have the power to help or to hurt them; and this dependence will operate most strongly in the uncivilised part of any country remote from the seat of government. The ill effects of it in Scotland were felt long since, and will continue to be felt till the appropriate remedy is applied." He then stated the details of the measure, by which the whole of the heritable jurisdictions in Scotland were at once to be swept away, root and branch, and the King's judges were to make circuits twice a year for the trial of all offenders. Lord Hardwicke concluded by laying his bill upon the table, and moving that it be read a first time; but, as compensation was to be given, he stated on a subsequent day that it must commence in the House of Commons. There it was brought in by the Attorney-General, Sir Dudley Ryder, and passed with little opposition. When it came up to the Lords it was strongly opposed by the Duke of Beaufort, and other Jacobitically inclined peers; but the Chancellor left the defence of it to the Duke of Argyle, without again entering into its merits. The opponents of the bill did not venture to divide the House upon it, and satisfied themselves with a violent protest. It certainly does high honour to its author. From the time that it came into full operation, and not from the Union, commences the prosperity of Scotland, which, having been the idlest, poorest, and most turbulent country in Europe, has become one of the most industrious, the most improving, and the most orderly. But such is the imperfection of human wisdom, such a mixture of praise and censure is meted out to the most clear-seeing legislators, that I am obliged immediately to record another Scottish measure of Lord Hardwicke, which greatly endangered and considerably retarded the good effects of that which I have so cordially applauded. Provision being made for the due administration of justice, conciliation was now the obvious policy to reclaim the Highlands; but because a deep resentment was manifested against the barbarities of the Duke of Cumberland, and there were enthusiastic rejoicings at the escape of the young Chevalier after all the perils to which he had been exposed, and because there had been a not unnatural f 14 Parl. Hist. 1-57. A.D. 1748. HIS "COERCION BILL." 253 A.D. 1748. combination to oppose the abolition of the heritable jurisdictions between the Lords to be restrained, and the vassals to be protected by it, who all cried out with equal violence that it was an encroachment on the ancient rights and privileges of Scotsmen,-Lord Hardwicke, instead of affording a little time for those feelings to subside, in the ensuing session introduced a "Coercion Bill," which added insult to injury, for it not only contained clauses for universally disarming the Highlanders, but forbade them to use the tartan, which they said and believed had distinguished their ancestors since the time of Ossian, and long before. Instead of plaids and philibegs, and trews, they were, henceforth, to be clothed in coats and in waistcoats, and (worst of all) in BREECHES!!! This unpopular bill was strongly opposed in both Houses, but was carried by large majorities, for there was then a strong prejudice against the Highlanders. People had not forgotten the alarm and consternation into which a small band of them had thrown all England; most unfounded stories were propagated respecting atrocities imputed to them in their march to Derby, and it was highly popular in the South by acts of parliament to heap upon them all sorts of indignity. Unfortunately the debates upon the bill are lost, except respecting one insignificant clause about preventing priests from officiating in Scotland who were ordained by nonjuring bishops. This the English bishops assailed as an attack on the spiritual jurisdiction of Christ's church, and they rejected it in the committee, but, on the report, Lord Hardwicke made a strong speech in its favour. In reference to Charles's landing at Moidart, he said,— "Rebellion may take its rise in one of the remotest,—one of the smallest and least populous corners of this island : 'Mobilitate viget, viresque acquirit eundo: Parva metu primo; mox sese attollit in auras, I am astonished, my Lords, to hear any regulation called cruelty that may tend towards preventing such a rebellion for the future. What is the form of ordination among those who call themselves nonjuring bishops, or what confessions, promises, or vows, they exact from the persons they ordain, I do not certainly know; but I believe that no man will be ordained by one of them who is not a Jacobite in his heart; and an exclusion of all such from the exercise of their function 5 32, including 20 Bishops, against 29 lay Lords. in any part of his Majesty's dominions is, I think, absolutely necessary for the public safety. As to the encroachment made by this clause upon the rights or privileges of the Christian church, I do not pretend to be so good a judge as the Right Reverend Prelates; but, as far as I am master of the subject, I cannot conceive what the rights and privileges of the Christian church have to do in this question. We do not by this clause pretend to annul the holy orders granted by a nonjuring bishop, nor do we pretend that the civil magistrate has any power to determine whether a priest has been regularly ordained, or a bishop duly consecrated; but, surely, the supreme legislature in every state has power to determine who shall be allowed to exercise the office of priest or bishop within its territory." h The clause was restored. To the enactments for the universal seizure of arms, the most captivating objection was, that they made no distinction between Jacobites and Georgites. The loyal clans murmured " that, after having defended the King upon the throne, they were forbidden for the future to defend themselves, and that the sword was forfeited which had been legally employed." I believe such measures are powerless to put down disaffection, and rather excite irritation than cripple the means of annoying the established government. The Highlanders were first reconciled to the House of Hanover by the great Lord Chatham, who pursued towards them a policy very different from that of Lord Hardwicke's "Coercion Bill," for he put arms into their hands and called upon them, with confidence, to fight against the enemies of their country. It is amusing to find Dr. Johnson ascribing the tranquillity he observed in the Highlands, in the year 1773, to an act which, having prolonged agitation for a while, had soon become a dead letter, the very memory of it having been blotted out by a more generous and wiser policy. "The last law," says he, " by which the Highlanders are deprived of their arms, has operated with efficacy beyond expectation." His remarks are more amusing, and therefore more valuable, on the clauses respecting the tartan garb. "In the Islands the plaid is rarely worn. The law by which the Highlanders have been obliged to change the form of their dress has, in all the places that we have visited, been universally obeyed. I have seen only one gentleman completely clothed in the an h 37 to 32. i "I remember how I employed the very rebels in the service and defence of their country. They were reclaimed by this means; they fought our battles; they cheerfully bled in defence of those liberties which they had attempted to overthrow but a few years before."-Lord Chatham's Speech in the House of Lords, 2nd Dec. 1777. |