Weaving the Legal Tapestry of the Union State: Privilege, Litigation and Statutes in Scotland, 1707–1800

Abstract

Despite the incorporating union of 1707, the pursuit of legislation at Westminster was an overwhelmingly English practice in the eighteenth century, even when Scotland's smaller population is taken into account. Narratives of the making of the post-union state have commonly stressed Scotland's limited incorporation before 1800, and the significance of executive action exercised through military force and orders from central boards for manufactories and agriculture. But if our attention is turned to litigation, a different picture of the British state and Scotland's place within it emerges. Scottish appeals to the house of lords, which was the state's highest civil court, are shown to be a means of bringing in British power to maintain autonomy and privilege at the local, rather than national, level. With much litigation centred on preserving local privileges, the utility of ‘nation’ as an interpretive framework is questioned. Both British and Scottish governance are shown to be pluralistic, with considerable mixing of privileges and autonomies. During the century, Scots applied for Westminster's power to defend their privileges from infringement by other Scots, whilst also insulating themselves from some of the effects of Westminster legislation. The union was constituted by a shifting and mixed tapestry of laws.