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Legal Practice in Eighteenth-Century Scotland Legal Practice in Eighteenth-Century Scotland <UN> Legal History Library VOLUME 18 Studies in the History of Private Law Series Editors C.H. (Remco) van Rhee (Maastricht University) Dirk Heirbaut (Ghent University) Matthew C. Mirow (Florida International University) Editorial Board Hamilton Bryson (University of Richmond) Thomas P. Gallanis (University of Iowa) James Gordley (Tulane University) Richard Helmholz (University of Chicago) Michael Hoeflich (University of Kansas) Neil Jones (University of Cambridge) Hector MacQueen (University of Edinburgh) Paul Oberhammer (University of Vienna) Marko Petrak (University of Zagreb) Jacques du Plessis (University of Stellenbosch) Mathias Reimann (University of Michigan) Jan M. Smits (University of Tilburg) Alain Wijffels (Université Catholique de Louvain, Leiden University, CNRS) Reinhard Zimmermann (Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg) VOLUME 9 The titles published in this series are listed at brill.com/shlp <UN> Legal Practice in Eighteenth-Century Scotland By John Finlay LEIDEN | BOSTON <UN> James Marshall ws (1731–1807), taken from John Kay (1742–1826), A Series of Original Portraits and Caricature Etchings; with biographical sketches and illustrative anecdotes (2 vols, Edinburgh, 1838), I, 272. This is reproduced courtesy of Glasgow University Library, Special Collections. Marshall, an “arduous and acute man of business” from Strathaven in Lanarkshire, was a character particularly noted for his colourful language. Finlay, John, author. Legal practice in eighteenth-century Scotland / by John Finlay. pages cm. -- (Legal history library ; volume 18) (Studies in the history of private law ; volume 9) Includes bibliographical references and index. ISBN 978-90-04-29493-6 (hardback : alk. paper) -- ISBN 978-90-04-29494-3 (e-book) 1. Practice of law--Scotland--History--18th century. 2. Lawyers--Scotland--History--18th century. 3. Law--Scotland-- History--18th century. I. Title. KDC232.F56 2015 340.023’411--dc23 2015020784 issn 1874-1793 isbn 978-90-04-29493-6 (hardback) isbn 978-90-04-29494-3 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper. <UN> Contents Acknowledgements vii List of Illustrations viii Abbreviations ix Glossary xi 1 Introduction 1 2 Lawyers and Legal Practice 31 3 Income 70 4 Management 110 5 Ethics and Etiquette 153 6 Pro Bono 186 7 Societies 225 8 Solidarity 260 9 Burghs 287 10 Procurators Fiscal 319 11 Notaries 360 12 Conclusion 390 Appendix 413 Select Bibliography 417 Name Index 427 Subject Index 438 <UN> Acknowledgements A number of debts have been incurred in the course of researching and writing this volume. My thanks are due to Mr Mungo Bovey, Keeper of the Advocates’ Library in Edinburgh, for permission to use and quote from the Session Papers in the care of the Faculty; to Mr James Hamilton, Principal Researcher at the ws Society, for access to material held in the Signet Library in Edinburgh; to Mr John McKenzie, chief executive of the Royal Faculty of Procurators in Glasgow, for facilitating access to the Faculty’s minute books; to the staff at the National Records of Scotland search room and the search rooms of the various archives across Scotland where research was carried out. Special thanks are due to Rosemary Paterson and Andrea Longson in the Advocates’ Library; Dr Kay Munro, Law Librarian at the University of Glasgow; Mrs Ellen Gallagher in the Law Workshop at the University of Glasgow; Mr Greig McDonell; Ms Charlotte Edgar; Ms Alessandra Pili; and Professoressa Ilenia Ruggiu of the University of Cagliari, where part of this book was written. Professors Olivia F. Robinson and Hector MacQueen both very kindly read individual chapters. Their suggestions were beneficial and gratefully received. Any deficiencies that remain are entirely my responsibility. I would also like to thank Ms Jennifer Obdam of Brill for her patience and assistance in dealing with queries during the publication process. The research for this work was completed with the aid of a grant from the Arts and Humanities Research Council (grant reference number AH/J00832X/1) which I acknowledge with gratitude. My thanks also go to the anonymous reviewers for Brill for their helpful comments. Quotations from archival sources appear courtesy of the following: Aberdeen City and Aberdeenshire Archives; the Keeper of the Advocates’ Library; the librar- ian of the Society of Advocates in Aberdeen; Dumfries and Galloway Libraries, Information and Archives; East Lothian Council Archives, John Gray Centre, Haddington; Glasgow City Archives; Edinburgh City Archives; Glasgow University Library, Special Collections Department; Highland Archive Centre, Inverness; the National Records of Scotland; Perth & Kinross Council Archive; the Royal Faculty of Procurators, Glasgow; Scottish Borders Archives (Heritage Hub, Hawick) and the ws Society. Material from manuscripts in their care is reproduced by kind permission of the National Library of Scotland. The letterbooks of George Craig are used and quoted by permission of Iain Smith & Partners ws in Galashiels. Finally, I would like to dedicate this book to the memory of my mother. Glasgow May 2015. <UN> List of Illustrations 1 Robert Craigie (1685–1760), of Glendoick, advocate, lord advocate, and Lord President of the Court of Session 43 2 William Grant (1701–1764), of Prestongrange, advocate, lord advocate and lord of session 72 3 Detail from John Kay, Original Portraits. ‘The artist under examination’ (1792). Kay stands before John Pringle, sheriff of Edinburgh (seated, right), with the sheriff clerk, Joseph Mack, seated between them. Kay’s furious protagonist, Hamilton Bell ws, is represented “black in the face” with rage, seated to the left 123 4 Copy complaint brought against James Petrie by the fiscal of Aberdeen in 1754, con- taining notes of the defence presented by William Grant 233 5 Opening page of an Information for the fiscal of Perth in 1757 against John Robertson for alleged infringement of the 1746 Act of Parliament for disarming the Highlands. The Information was signed by Andrew Pringle, advocate 341 6 Hon. Henry Erskine (1746–1817) of Almondell, advocate, dean of the Faculty of Advocates 394 <UN> Abbreviations Record Depositories aa Ayrshire Archives (Auchincruive) acaa Aberdeen City & Aberdeenshire Archives al Advocates’ Library alsp Advocates’ Library, Session Papers bl British Library dca Dundee City Archives dac Dumfries Archive Centre eca Edinburgh City Archives elca East Lothian Council Archives (Haddington) eul Edinburgh University Library gca Glasgow City Archives gua Glasgow University Archives gul Glasgow University Library hac Highland Archive Centre (Inverness) nrs National Records of Scotland nls National Library of Scotland pkca Perth and Kinross Council Archive rfpg Royal Faculty of Procurators in Glasgow saul St Andrews University Library sba Scottish Borders Archive (Hawick) sca Stirling Council Archives sl Signet Library slsp Signet Library, Session Papers Reports and Other Sources arnp Admission Register of Notaries Public in Scotland, 1700–1799, edited by J. Finlay (2 vols, Edinburgh: Scottish Record Society, 2012). Br. Sup. Supplement to the Dictionary of Decisions of the Court of Session, ed. M.P. Brown (5 vols, Edinburgh: Tait, 1826). cj The Codex of Justinian C.S. & P. Reports of Cases decided in the House of Lords upon Appeal from Scotland from 1726 to 1821, edited by J. Craigie, J.S. Stewart and T.S. Paton (6 vols, Edinburgh: T&T Clark, 1849–1856). <UN> x Abbreviations Fac. Dec. Faculty of Advocates Report D. The Digest of Justinian Mor. The Decisions of the Court of Session from its First Institution to the Present Time, ed. W.M. Morison (22 vols, Edinburgh: Bell & Bradfute, 1801–1815). rps Records of the Parliament of Scotland, ed. K.M. Brown et al., (St Andrews, 2007–2014). tcm Town council minutes Offices and Institutions Adv. Advocate crb Convention of Royal Burghs hma His Majesty’s Advocate (i.e. the lord advocate) np Notary Public pcs Principal Clerk of Session scj Senator of the College of Justice (i.e. Lord of Council and Session) ws Writer to the signet <UN> Glossary Advocate A term reserved for members of the Faculty of Advocates in Edinburgh who were entitled to practise in the supreme courts and in any inferior court. Advocates are sometimes referred to as ‘counsel.’ The Lord Advocate, a political appoin- tee of the government, was responsible for prosecutions in the public interest but also had a wider political role. In Aberdeen, writers and procurators used the title ‘advocate’ to indicate membership of the Society of Advocates in Aberdeen. Advocation A bill of advocation was a means of removing (or ‘advocat- ing’) an action from one court to another, normally an infe- rior court to the Court of Session. This was might be for iniquity (an allegedly partial or unsound judgment) or incompetence (the inferior judged lacked jurisdiction). Bailie court Also known as the burgh court, this court was presided over by bailies or magistrates who were generally laymen elected to the town council. Caption Also known as a process caption, but generally referred to simply as a caption, was a summary warrant sought by a clerk of court to recover a process improperly retained by the agent or party whose receipt stood for it in the court book. The agent might be incarcerated until the process is returned. Commissary The commissary court was the secular court which, after the Reformation, replaced the old courts of the bishops’ officials.
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