‘Scots Law and the British Empire, c. 1750-1820’

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On 29 September, 2016, the Centre welcomed Andrew Mackillop from the University of Aberdeen to discuss ‘Scots Law and the British Empire, c. 1750-1820.’ Below is a short summary of his lecture.

This paper grew out of the Andrew Mackillop’s long-standing interest in studying the experiences of the Scots, Irish and Welsh within the British Indian colonial project.  Conventional historiography asserts that the Empire was governed exclusively by English Common Law. However there is significant evidence of Scottish legal influences within the within the Empire, particularly in India and the Caribbean which, unlike Presbyterian and Scottish Education, has attracted little attention. There were multiple legal codes used in the Empire; legal pluralism was necessary.

Various benefits to using Scottish Law can be identified. Although English Law was the foundation of property, credit, and debit in India, the Caribbean and North America (except Quebec),  Scots who wished to send money back to Scotland found it advantageous to use Scottish institutions and legal instruments.  Some London-based lawyers, e.g. Websters, specialised in providing sophisticated legal services for Scots abroad because they had interests in three jurisdictions: the colony, London  and  Scotland. This was particularly true of wills, which are a particularly revealing historical resource. High ranking to middling colonists made wills. In India, Scots were the most likely colonial nationality to make a will. In 1780-1810 Bengal, about one third of wills were made by Scots. Scots legal costs were perceived as cheaper, but Scots Law also allowed inheritance to the female line, unlike English Common Law, so this was a potentially important distinction.

The Executors of the wills were predominantly other Scots. In Kingston, Jamaica, the executors are c. 80% Scottish. Dense webs of legalistic solidarity are evident. Black Watch soldiers were working as a legal co-operative, using the regiments to ensure that wishes relating to the inheritance were carried out. This was not particularly confined to family or clan networks; all Scots were selected. It seems that mutual reliance was placed on fellow Scots to protect personal interests from the depredations of the Empire.

Although formal legal culture was English, the Scots Law created an alternative legal technical discourse which contributed to forming Scottish identity within the Empire, particularly through the selection of executors.

Summary by Professor Stephen Driscoll 

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