their blood had been corrupted, he had lost all the rights of "Radcliffe, unhappy in his crimes of youth, The soft lamented, and the brave approved." The general opinion was and is, that there was at this time. greater and less necessary severity than on the suppression of the rebellion of 1715f, and although the blame of it is laid upon the Duke of Cumberland, who personally ordered the military executions which rendered his name so odious in Scotland, Lord Hardwicke ought to be held responsible for what was done judicially in England. + CHAP. CXXXIV. However, I am glad to be able again to praise him, in Excellent stating his admirable measure for abolishing heritable juris * 18 St. Tr. 430-442. Hall. Const. Hist. iii. 312. The subsequent execution of Dr. Alexander Cameron in 1753, I regard as a wanton atrocity. He was a man of literature and science, who, having studied surgery, had accompanied his brother, the famous Lochiel, into the field in 1745, that he might take care of him when wounded; and had escaped with Prince Charles after the battle of Culloden. His name was included in the act of attainder, and he was appointed surgeon to a regiment in the French service. Some years after, in a time of profound tranquillity, when all real danger of Jacobitism had passed away, he visited his native country to arrange his private affairs; and being betrayed, he was sent to London, arraigned on the act of attainder, and without trial, executed as a traitor at Tyburn; displaying the highest qualities of a philosopher and a Christian. Although Lord Hardwicke's name is not mentioned in this affair, he must have been consulted about it; and he must have been present in council when the death warrant was signed.— See 19 St. Tr. 733-746. measure of Lord Hard CXXXIV. CHAP. 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 meet his object to be prepared under his own superintendence 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 state is a contradiction in terms. "In all *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 satisfactorily, but whom he deprived of all merit from being free of local and party connections, saying, "No thanks to them, KITHLESS LOONS!" * CXXXIV. countries,” he said, "the legislative power must, to a general CHAP. 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 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 Scotland, 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. CXXXIV, CHAP. 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 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 appropiate 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 Hard- 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 Dudly 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 14 Parl. Hist. 1-57. CXXXIV. seeing legislators, that I am obliged immediately to record CHAP. 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 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 forbidding them to use May, 1748. the tartan, which they said and believed had distinguished garb to be Highland their ancestors since the time of Ossian and long before. abolished. 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 32, including 20 Bishops, against 29 lay Lords. |