Philip Loft, ‘Litigation, the Anglo-Scottish union and the House of Lords as high court, 1660-1875’, Historical Journal

Much ink has been spilled in debates over the union of the Edinburgh and Westminster parliaments in 1707. The loss of sovereignty this entailed for Scotland did not occur without opposition, with thousands of ordinary Scots drawing up petitions to pressurise political elites to reject the treaty.[1] The members of the Scottish parliament did not escape criticism, being immortalised in Robert Burn’s famous phrase that they had been ‘bought and sold for English gold’. Arguments that the corrupted ‘parcel of rogues’ sitting at Edinburgh had behind closed doors secured a union that primarily satisfied English political and imperial ends found endorsement amongst some post-war historians.[2]

This article seeks to continue the growing interest amongst historians of why, despite these initial concerns and the dominance of England, the union functioned and survived.[3] After 1707, institutional continuities favoured the English: parliament met at Westminster, its procedures remained unchanged, and Scottish MPs and peers were in a distinct minority. But one means by which these challenges were overcome was by the activity of the Westminster parliament becoming more plural and varied. In legislative terms, this meant passing thousands of specific laws governing individual counties and burghs in order to defend them from the encroachment of the central state or powerful landowners.

My article focuses on the judicial business of the House of Lords. From the 1660s, peers acted as a court of appeal for the English and Welsh courts at Westminster Hall, and from 1707 they heard appeals from Scottish courts. This is perhaps surprising given that Scottish law was protected in the articles of union, but appellants quickly came after 1707 and 4000 Scottish appeals were entered at Westminster in the years to 1875. They far outnumbered the 2600 English and Welsh cases in the same period. The presence of so many Scottish appeals raises the question of how English peers and bishops could navigate Scots law. Nationalist figures have in recent years questioned the ability of non-Scottish judges in the UK supreme court to judge Scottish criminal law, and Brexiteers asked the same question of European judges.[4] The article explores these themes in cases dealing with burgh privileges, elections, trade and religion. In these appeals, laws remained pluralistic and locally-conditioned. These varied experiences and uses of the British state were crucial to managing the diverse needs and wants of elites and communities throughout the British Isles and ensured that the lop-sided nature of the union did not erode local and national differences.

Read Philip Loft’s Historical Journal article ‘Litigation, the Anglo-Scottish union and the House of Lords as high court, 1660-1875‘.


[1] Karin Bowie, Scottish public opinion and the Anglo-Scottish union, 1699-1707 (Woodbridge, 2007).

[2] William Ferguson, ‘The making of the treaty of the union of 1707’, Scottish Historical Review, 43 (1964), 89-110 and Patrick Riley, The union of England and Scotland: a study in Anglo-Scottish politics of the eighteenth century (Manchester, 1970). This is challenged in Christopher Whatley, The Scots and the union (Edinburgh, 2007).

[3] Julian Hoppit, ed, Parliaments, nations and identities in Britain and Ireland, 1660-1850 (Manchester, 2003).

[4] http://www.scotsman.com/news/supreme-court-threat-to-scots-law-alex-salmond-1-1655512; https://www.thetimes.co.uk/article/macaskill-claims-judges-knowledge-of-scots-law-is-based-on-a-trip-to-the-festival-vt2qfvfm9cv; http://www.voteleavetakecontrol.org/briefing_control.html


Main image: Queen Anne addressing the House of Lords, c. 1708–14, by Peter Tillemans

Peter Tillemans – Royal Collection RCIN 405301

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