Great Britain was in a near constant state of war for most of the eighteenth and early nineteenth centuries. Between 1707 and 1815, British subjects fought in a number of major conflicts, including the Jacobite Uprisings, the Wars of Spanish and Austrian Succession, the global Seven Years' War, the American War for Independence, the French Revolutionary Wars, and the Napoleonic Wars. Peace quickly gave way to renewed combat as the inhabitants of the British Atlantic world vied for land, power, and mastery on sometimes global scales.
Scots played a critical role in the British military. In years following the final Jacobite Uprising of 1745, Scots came to occupy a central place in the British military's officer corps and rank and file. The officer depicted here, Archibald Montgomerie, 11th Earl of Eglinton, raised and commanded the 77th Regiment of Foot (Montgomery's Highlanders) during the Seven Years' War. Montgomerie and his men served under General Jeffrey Amherst in 1758 against the French and their Native American allies in western Pennsylvania, a campaign in which a young Virginia officer named George Washington also fought. His defeat of the Cherokee in the southern colonies two years later helped to pave the way for the dispossession of native lands in the ensuing decades. Montgomerie and his regiment are but one example of the significant Scottish contribution to the British military in this period.
The Court of Session dealt with the legal consequences of military service and war. Ships taken as prizes on the high seas triggered insurance litigation while the need to supply British forces with men and matériel led to lawsuits over impressment and provisioning. And on occasion, officers, soldiers, or their family members attempted to deploy their military affiliation in defense of their legal interests. The cases included here demonstrate how Scots and other peoples waged a different kind of war in the Court of Session, one far from the battlefield as they defended their legal interests.
Related Cases
| Case | Date | Legal Subjects | Abstract |
|---|---|---|---|
| Tailors of Glasgow v. Hugh M'Kechnie and Others | 29 Jan 1778 | Corporation, Burgh Royal, Poor, Common Law, Right of Employment, Female Occupation, Soldier | Finlay Ferguson, George Ferguson, and James Wallis all served in the British Army, and they all had daughters who married journeymen tailors. After their marriage, the three men: Hugh Mackechnie, Christopher Taes, and Peter Clydesdale, set up as master tailors in Glasgow. Not being members of the Incorporation of Tailors, they based their right to practice tailoring upon the statute 3d Geo. III. c. 8., which declared that soldiers, their wives, and children, were entitled to "set up, and exercise such trades, as they are apt and able for, in any town or place, within the kingdoms of Great Britain and Ireland, without any let, suit, or molestation, of any person or persons whatsoever.” The Incorporation of Tailors brought a complaint against these men in 1776. The Magistrates of Glasgow ruled that they must pay 5 s. sterling, cease from working as master-tailors under penalty of 100 merks Scots, and be imprisoned in the tolbooth until they should make payment and grant bond. Arguing that this incarceration was "violent and illegal," the defenders obtained letters of suspension and liberation. The case came before Lord Stonefield, who ruled against them. They next petitioned the Court for review. The Court adhered to Lord Stonefield's interlocutor, and decided that the statute in question "does not entitle the daughter of a soldier to confer that privilege upon her husband." |
| Yelton and others v. Smith and others | 19 Nov 1801 | The ship "Diana," which was owned by the pursuers, recaptured an English ship called the "Lady Bruce" from a French privateer. The pursuers purchased an insurance policy of £400 on the salvage. However, the Diana lacked any letters of marque giving it the legal right to seize property from the enemy. After the "Lady Bruce" was recaptured by a Dutch schooner, the pursuers sued the underwriters, the defenders, for the amount due under their policy. The defenders argued that because the Diana had no letters of marque, the pursuers never possessed an insurable interest in the Lady Bruce; therefore, according to the defenders, the insurance policy was void. | |
| Thomas Wake and Attorney v. Hillary Bauerman & Son, and Jacob Runke Jacobs | 7 Jul 1801 | A ship belonging to pursuer Thomas Wake, "The Mary of Sunderland," was captured by a French privateer and taken to the Netherlands. The French Commissary of Marine and Commerce, sitting in Amsterdam, condemned the ship as a lawful prize. The ship was re-named the Stettin of Embden and sold to Defenders Hillary Bauerman and Son, who were subjects of Prussia. Subsequently, the ship sailed to the Firth of Forth, where it was seized and taken to Leith on suspicion of being enemy property. When Thomas Wake learned of the ship’s capture, he sought to reclaim it, arguing that the commissary had lacked jurisdiction to issue the condemnation order. Hillary Bauerman and Son argued that ownership of the ship was legally transferred by possession, and that in any case, the condemnation order was sufficient. | |
| Ralston and Lamont v. Lamont | 1800 | Petitioner William Henry Ralston advanced substantial sums to Hugh Lamont while both were serving with the 100th regiment of foot in India. After Hugh Lamont died, Ralston sought payment from Hugh’s widow. John Lamont, Hugh’s brother, also sought payment of certain debts. Because the available funds were not adequate to pay both claims, multiplepoindings were raised to adjudicate them. Case documents include several financial accounts. | |
| John Skeill v. Humphry-Bland Gardiner | 1775 | Debt, Estate | John Skeill, pursuer, provided horses for Robert Gardiner, father of the defendant and Commissary for British forces in Scotland. Skeill contends that he was paid for the use of his horses in the summer of 1759 but not for the period of November 1759 to March 1760. Gardiner claims that he was very young when these transactions took place, but that there is ample evidence that the troops had been removed from their encampment by early November 1759, so that his father would no longer have needed Skeill's services. Case documents include depositions and accounts. |
| Macindoe v. Cowley, Wallace, Crawford, and French | 1780 | Military, Optima Fide, Jurisdiction, Mala Fides, Damages, Wrongful imprisonment, Freemasonry | This case concerns the forced enlistment and imprisonment for desertion of John Macindoe, Glasgow hair-dresser. In February of 1777, while in a drunken state, John Macindoe pledged himself to the army in exchange for a shilling from Ensign Hugh Wallace. A few weeks later, upon the order of Captain William Cowley, Macindoe was seized by a group of soldiers and imprisoned for refusing to enlist. Macindoe applied to the Court by a bill of suspension and liberation, and Lords Covington and Kennet ordered Macindoe set at liberty. Macindoe then brought action for damages and expenses against Wallace and Cowley, and against the bailies who had ordered his imprisonment. He claimed that his false imprisonment had led to the ruin of his business, and that he had been forced to enlist in another regiment out of necessity. Bailies French and Crawfurd, on the other hand, argued that because Macindoe was presently a soldier, therefore "the only consequence of his not being found a soldier in one regiment, was, that he would soon be a soldier in another.” They also argued that as bailies they had merely judged erroneously, and not acted out of malice. The Court assoilzied Crawfurd and French, as well as Cowley. Ensign Wallace then petitioned the Court for assoilment as well, stating that he had "innocently and bona fide" believed that Macindoe's enlistment was legitimate. |
| Stewart v. Graham | 1782 | Impress Service | This case addressed whether a standard press-warrant, which authorized the impressment of seamen, applied to a man who had worked aboard ships while enslaved. The man in question, James Graham, accompanied a slaveholder on voyages between Scotland and the Caribbean, performing duties such as steering and reefing. However, when Graham’s enslavement ended, he became apprenticed to Grant, Wood, and Company, a carpet manufacturing company in Glasgow. The petitioner in this case, Lieutenant William Stewart, subsequently attempted to press Graham into naval service based on his sailing experience. Grant, Wood, and Company petitioned the magistrates of Glasgow to prevent Graham’s impressment, and Graham appeared on his own behalf. After allowing the parties to gather proof, the magistrates found that Graham could not be impressed because he did not voluntarily choose a seafaring life. Lieutenant Stewart appealed to the Court of Session. |
| Loch, et al v. Lord Hailes' Interlocutor | 1789 | Documents available. Full description in progress. | |
| Marshall, et al v. Magistrates and Town-Council of Glasgow | 1788 |
