Before departing from this brief general consideration of the principles adopted by the House of Lords in handling Scottish appeals and in dealing with the law of Scotland, reference should be made to the audacious theory propounded by Lord Redesdale. This peer who, as Lord Chancellor of Ireland, can have gained but little acquaintance with the law of Scotland, was no friend at any time to Scottish peculiarities. In the Strathmore Peerage Case, he is found enunciating this doctrine in regard to the laws of Scotland and England: “It is evident and it has always been conceived that the law of England was (after the Act of Union) to be deemed the general law of the realm of Great Britain... except as qualified by the particular provision with respect to the laws of Scotland contained in the 23rd Article of Union.” It may be true that the law made by Parliament is predominant English law but a more completely untrue statement upon a matter of weight it would be difficult to discover than this sweeping generalization of Lord Redesdale’s. It seems to hint at some considerable body of law affecting Scottish interests which is not Scots law – nay, rather, is actually English law. Upon this theory the law of Scotland is relegated to the position of a mere local variation. Lord Redesdale’s prejudices in this matter shine through clearly in another case, decided about the same time. The case was peculiar and interesting. By a pre-Union Statute of 1695 it was provided that all persons joining the Bank of Scotland as partners should become naturalized Scotsmen. It was held that one William Macao, a native of China, did not, although he was a partner in the bank, become entitled to the privileges of a naturalized Scotsman. Lord Eldon decided on the facts of the case, though with as doubt as to whether in the form it took (a declarator against Officers of State) the action was competent in the Court of Session. Lord Redesdale considered it perfectly clear that the Court of Session had no jurisdiction. Theirs was a merely local jurisdiction and they were incompetent to make a general declaration of the public law. He fails entirely to observe that had the question been raised in a different form the Court of Session would have been bound to decide on a question of what he calls public law, whatever that may be. He expressed himself thus: "What right have the Officers of State in Scotland to decide that question which involves the right of all the persons in England. I conceive such an action of declarator must be brought, as the law of Scotland is, against persons who are competent to sustain the question." It can scarcely be doubtful that had an action of declarator such as this been competent at all in England at this date, the English courts and the House of Lords would have entertained it even if it did mean deciding as to the status of the inhabitants of “another part of the island”, namely Scotland. No mere excerpt form this speech can do justice to the provincial pettiness which animates every line of it. It is pleasant to reflect that at least no such language as this could be held at the present day.
Andrew Dewar Gibb, Law from over the Border: A short account of a strange jurisdiction, 1950
