Rhetoric, Language, and Roman Law: Legal Education and Improvement in Eighteenth- Century Scotland Author(S): John W

American Society for Legal History Rhetoric, Language, and Roman Law: Legal Education and Improvement in Eighteenth- Century Scotland Author(s): John W. Cairns Source: Law and History Review, Vol. 9, No. 1 (Spring, 1991), pp. 31-58 Published by: University of Illinois Press for the American Society for Legal History Stable URL: http://www.jstor.org/stable/743659 Accessed: 02/07/2009 14:14 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=illinois. Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit organization founded in 1995 to build trusted digital archives for scholarship. We work with the scholarly community to preserve their work and the materials they rely upon, and to build a common research platform that promotes the discovery and use of these resources. For more information about JSTOR, please contact [email protected]. American Society for Legal History and University of Illinois Press are collaborating with JSTOR to digitize, preserve and extend access to Law and History Review. http://www.jstor.org Rhetoric, Language, and Roman Law: Legal Education and Improvement in Eighteenth-CenturyScotland JOHN W. CAIRNS Education in law in the Scottish universitieshas a continuous history only from the earlyeighteenth century. In 1707, the regiusprofessorship of public law and the law of nature and nations was founded in Edinburgh,to be followed in 1710 and 1722 by professorshipsin civil (Roman) and Scots law respectively.'In the Universityof Glasgow,the regius professorshipof civil law was establishedin late 1713 and first filledin 1714.2These developmentswere not entirelynovel. Throughout the seventeenthcentury, there had been regular,if unsuccessful,attempts to create university chairs in law.3 While the background to the foundation of the university chairs requires further careful study, we may note that, by at least around 1690, it was thought desirable to introduce the teaching of both civil and Scots law, though the notion of teaching both does go back at least as far as the First Book of Discipline of 1561.4After the visitation of the Universityof Edinburgh that resulted from the political and religious settlements of 1688-89, it was proposed to establish a single professorshipto teach both civil and Scots law.5This proposalin the late seventeenthcentury is in line with generaldevelopments throughout Europe.6 Nothing, however,was done, probably because no person or body was willing to finance a chair.7 In the absence of legal education in the universities,members of the bar started to teach law privately at the end of the seventeenth and the beginning of the eighteenthcentury. The first three known to have done so were Alexander Drummond in 1699, John Spottiswoodein 1702, and John Cuninghame (or Cunningham) in 1705.8 They all John W. Cairns is lecturerin Scots law, University of Edinburgh. Law and History ReviewSpring 1991, Vol. 9, No. 1 ? 1991 by the Board of Trusteesof the University of Illinois 32 Law and History Review taught both civil and Scots law. Nothing is known of Drummond's teaching other than that he offeredhis services"to all personswho are desirous to be instructed in the knowledge of the Institutions and Pandects of the Civil Law, and the laws of this kingdom, or either of the two, or both," and that he claimed "by reason of a singular method ... in teachingof the civil law... to perfite[sic] and accomplish any of a middle capacity,more in a years time, then [sic] others have been by being abroadand out of the country 3 years."9From surviving student notes (and, in Spottiswoode'scase, his own records)we can tell that he and Cuninghame taught Scots law by dictating notes to students on Sir George Mackenzie's Institutions of the Law of Scotland.10 (Spottiswoodealso gave classeson the style of writs and civil process.)'1 These classes were taught in English. There is no information on Spottiswoode'slectures on Roman law, other than that they were based on Bockelmann'scompend of Justinian'sInstitutes,12 but studentnotes survive from Cuninghame's classes, and he taught a course on the Institutes in Latin.13 Throughoutthe first half of the eighteenthcentury in Scotland, the practice of teaching Roman law in Latin and Scots law in English seems to have been maintained.'4After 1750, however, there was a move away from teaching civil law in Latin at the University of Glasgow,for on March 5, 1768, the faculty of advocatesand its dean deplored Professor John Millar's practice of lecturing in English on civil law.15Millar, however, was followingand extendingan innovation of his predecessorin the chair.l6Thomas Reid, writing in the 1790s, obviously thought this change to teaching civil law in English was natural,and that what needed to be explainedwas why the practiceof teaching it in Latin had lasted so late. His explanationwas "want of competition,"because there was only one professor teaching law in Glasgow.17This seems insufficient,because Scots law was presumably taught in English, and it seems fair to assume that it would have been easier for the professorto teach in English as well as more attractive to the students. Given the dependency,praised by Adam Smith,'8of Scots professorson fees from students, it is possible, though far from certain,that once the class in civil law was taughtin Englishin Glasgow, the professor of civil law in Edinburgh might feel pressure to do likewise. There was, however, more at stake than attractingstudents. Instead, a new method of teaching, influenced by new emphases in rhetoric in eighteenth-centuryScotland, along with a new aim in teachingcivil law, led some professorsto lectureon civil law in English, ratherthan the traditionalLatin. This article will be in four parts. In the first I shall argue that the Rhetoric,Language, and Roman Law 33 development of rhetoricaltheory through the course of the eighteenth centuryput at issue both methods of instructionand the languagemost suitable for teaching. The second will be devoted to explaining how the new approachto rhetoric and communication favored English as the language of instruction. The change from teaching civil law in Latin to teaching it in English will be describedin the third section, which will also discuss the relationshipof languageto the content of courses in civil law, while the fourth will contain some conclusions. Theories of Rhetoric and Choice of Language Until the late 1750s, and certainly in the University of Edinburgh, the textbook used to teach Scots law was Sir George Mackenzie's Institutionsof the Law of Scotland,written in the vernacular.19Forbes, the first regiusprofessor in Glasgow,wrote in Englishhis own textbook on Scots law after initially using Mackenzie'sInstitutions.20 Further- more, there is no hint that Spottiswoode,who seems in so many ways to have establishedthe patternfor legal educationin eighteenth-century Scotland, ever considered teaching Scots law in Latin.2' This might suggestthat the decision to teach Scots law in Englishand civil law in Latin was a simple and unexaminedone, relatingto the materialsused as the basis for classes. This would be wrong. At the start of the eighteenthcentury, Latin was the normal languageof instructionin all subjects in the Scottish universities.22Scots advocates were familiar, moreover,with the practicein the Netherlands,where the modern law was taughtin Latin.23In the Universityof Leiden,for example,Johannes Voet lectured in Latin to his class on ius practicum or hodiernum, though he used as his textbook Hugo Grotius's Inleidinge tot de HollandscheRechtsgeleerdheid, written in Dutch.24Though it is possible that the choice of the languagefor teaching may have been related to the languagesin which were carriedout the trials for admission as an advocate,25there were other, deeper, reasons that underlay all these usagesof Englishin connection with writing,examination, and teaching in Scots law: These were reasons derived from the study of rhetoric and eloquence that led to the use of the two different languages in teaching Scots law and civil law. Sir GeorgeMackenzie was the most eruditeof the Restorationlawyers of Scotland. As dean of the faculty of advocates, he pursued policies that emphasized educational matters, and which did much to define the role of an advocate and the character of the bar.26One of his interests was the study of rhetoric. He published two collections of 34 Law and History Review pleadings,one in English,the other in Latin, both of which he prefaced with essays on the eloquence necessaryfor practiceat the bar.27In the Englishessay of 1672, in his argumentson the benefitsto the advocate of the study of rhetoric, he showed himself aware that there were importantissues at stake in choice of language.He argued,for example, that Scots was a better language for oral argument in court than English.28Furthermore, he wrote that he "love[d] equally ill, to hear civil Law spoke to in the terms of a Stile-book, or accidental Latin, ... as to hear the genuin words of our MunicipalLaw, forc'd to expressethe phrases of the Civil Law and Doctors."29The choice of language for teaching Scots and civil law was accordinglyto be related to a sense of what was fit and suitable for communicatingthe concepts and ideas of the two different systems.

Load more