Copyright J V Ward 14th August 2003

Waverly and Heart of Midlothian. Scott’s commentary on the legal system.

Scott was well acquainted with the workings of Scots law; as a lawyer he had long experience of its operations during his professional career. His commentary on Scots law leads the reader to believe that he regarded it as a valuable national asset yet underlying his account is a sense of doubt as to the workings of the legal process and the cause of justice which it purports to serve.

Law is logocentric: it relies for its validity on the concept of 'Justice' which is presumed to lie above and beyond the parameters of the law itself. Scott continually shifts this logocentre in an attempt to deconstruct the validity of 'Law' as a concept and to expose its inadequacies.

In accordance with the Treaty Of Union (1707), Scotland kept its own legal and judicial system which for Scott had a particular charm. Scott draws out the detail of the jury's verdict at Effie's trial and takes the trouble to explain (to English reader's) the quaintness of Scots law. The foreman of the jury, he tells us, is called the chancellor, the verdict is delivered in writing and its contents engrossed before being made public. Finally the original script is sealed with wax melted by a candle flame. Scott highlights this particular scene by use of the symbolism of the candle flame representing the frailty of the ‘human spirit’ which is ‘doomed to be quenched’ by the pronouncement of the dreaded Doomster. With the appearance of this macabre figure, Scott describes the ‘fantastic garment’, his ‘tall haggard figure’ yet omits the details of his facial features which would tend to humanise him. The apprehension of the spectators who ‘avoid the touch of his garment’ is shared by the reader as the Doomster is symbolised as a ‘bird of ill omen’. These descriptions contain an element of ‘special pleading' as advocates say. The natural consequences of the Union would mean an integration of English and Scots laws to which Scott was virulently opposed. The charm and antiquity of the Scots law are thus made the referential point for its validity and its right to continue.

The English equivalent of the Doomster's utterance is the 'fatal cap of judgement’ which symbolises the condemnation of Fergus. At this point Fergus ‘placed his own bonnet upon his head’ which in turn symbolises his own non‑recognition of the court's validity. Justice stems from the Crown and, for the Jacobites, the Hanoverian legal apparatus has no constitutional authority. Sir Everard Waverly expresses this sentiment in the expression 'De Facto but not De Jure’ that is; in actuality but not by law a feeling shared by the Presbyterian community of Edinburgh who baulk at the words ‘Lords Spiritual' in the Porteus Proclamation but are complacent as to its content. The young Prince Charles feels constrained to refer to the alleged George II as 'The Elector of Hanover’ denying him his legal mandate much as Jeannie addresses Mr Staunton senior as ‘His Honour (for she would not say His Reverence)’. Scott himself ironically skirts the issue by imputing to the reader a leaning to one cause or the other by referring to Charles Edward Stuart by the non committal title of 'The Chevalier’.

If law holds its validity from 'Justice' and its power from constituted authority then a conflict arise when these two concepts cannot be reconciled. The judgement by which Effie was condemned has its legal foundation in an Act of Parliament of the reign of William and Mary. This well intentioned Act sought to prevent the concealment of pregnancy which would be injurious to the state of health of the new born. Effle is certainly guilty of concealment but Scott eventually demonstrates that she is innocent of murder by eventually producing the child. The disparity of the Act from the principles of Justice stems from the imputation of murder. Argyll finds this Act ‘contrary to the genius of British law’ in that it ‘takes that for granted which is not proved’. The ‘genius’ is the concept of Justice which Argyll conceives as the law's referential point. The issue may be circumvented by an act of clemency which releases Efflie from her sentence but maintains her guilt in the eyes of the law. The eventual release is not an acquittal but a pardon which fails to acknowledge Effle's innocence. The terms of the pardon are conditional, by the insistence of the King's Advocate due to the preponderance of this type of crime.

To the magistrates of Edinburgh, law has its foundation in political necessity. Porteus, though guilty, cannot be condemned due to the fearful consequences of a disruption of the social order. Indeed Captain Moyle refuses to put down a riot without written authority fearing a similar fate to Porteus. Porteus is the man ‘on whom the magistrates chiefly relied in all emergencies of uncommon difficulty’. The petition for mercy is favourable received by the government whose ‘natural feeling’ lies in ‘the general maintenance of authority’. The magistracy is exemplified in the person of Mr Sharpitlaw, who as his outrageous name suggests is prepared to compromise the authority of the court in negotiating with the felon Radcliffe a quid pro quo settlement. The citizens of Edinburgh construe this as ‘the fear of losing a convenient accomplice in their debaucheries’, not willing to grant that the law is determined by the maintenance of order. To the burghers of the city, true authority derives from their will. They bemoan the passing of the ‘auld Scots law’ when ‘the kingdom was a kingdom’ and when ‘we had a king and a chancellor, and parliament men o' our ain’ and ‘could aye peeble them wi' stanes’. Magistrates and citizens alike view true law as deriving from their collective will but both governors and governed see themselves as imbued with that authority.

To the theologian just laws have Divine inspiration. David Deans attempts to rationalise his thoughts ‘in a legal way’ in order to vindicate his decisions. The Scots law is invalid because Scotland has become ‘part and portion’ of England ‘wherein Prelacy, the sister of Popery had made fast her throne’. True authority rested in God's Kirk as established by the Solemn League and Covenant. In his legal hierarchy, power descends from the Kirk directly to the ‘Elect’ without reference to bishop or priest. This simplified structure omits to include the Deity in its arrangements and therefore Deans has no conception of Divine grace proceeding to any person outside the boundaries of Scotland. His fallacy is compounded when he places himself as the arbiter in ecclesiastical matters as when he debates with himself the legality of Butler's accepting of a clerical incumbency. The propriety of the appointment is not in doubt but Deans must satisfy himself as to its legal niceties which he does tortuously but sincerely due in part to his dubious concept of ecclesiastical law.

Jeannie finds herself ‘cruelly sted between God's laws and man's laws’ but there is no conflict for her, the former overriding the latter. Authority comes directly from God and is manifested in scripture which she often aptly quotes. Her legal proprieties are encapsulated in the quote 'He has given us a law ... for the lamp of our path’. In Jeannie, Scott produces an exemplar of the realistic Presbyterian spirit of Divine commandments interpreted by the individual. In her examination of conscience in the case of ‘thou shalt not bear false witness against thy neighbour’ she does not accede to the seductive fallacy of placing undue regard on the designation ‘against’ as those of the character of the well named Mr Sharpitlaw might do, but offers true testimony according to her conscience regardless of the distressing consequences. In this we see the paradigm of the spirit of the law judiciously applied.

There are some benighted individuals who have little or no conception of the workings of the legal apparatus. When Evan Maccombich is convicted, it is expected that he will plead ‘the influence of his superior’ as the court will sympathise with an assiduous if misguided devotion as the crime of treason consists of breaking the hierarchical structure. Evan unfortunately cannot avail himself of clemency as his concept of Law and Justice stems from the principle of ‘the honour of a gentleman’. The court is aroused to mirth at his offer of an exchange of prisoners which may well have a basis in the customary laws of the Highland clans but has no foundation in English Common Law.

Scott's examination of the legal structure is by way of 'Obita Dicta'; He mentions in passing not so much the validity of law but the point where various individuals look for its authoritative source. The law itself is on trial, Scott is both advocate and witness and the reader is chancellor of the jury. Scott's testimony is suspect as hearsay, as author he is not under oath and is not subject to cross examination. He is as a lawyer an 'expert witness' but as advocate he poses 'leading questions'. The only verdict which the jury can reasonably deliver is the ancient Scottish one 'Not Proven'.