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John Finlay, ‘Scots Lawyers, , and the Union of 1707’, in: Stair Society 62 [Miscellany VII] (2015) 243-263

http://doi.org/10.36098/stairsoc/9781872517292.4

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SCOTS LAWYERS, ENGLAND, AND THE UNION OF 1707

JOHN FINLAY

I Support from the in was important in securing parliamentary union in 1707.1 At this time, the membership of the in was greater than it had ever been, therefore their support, and that of the in the of Session, was worth gaining. In return, Article XVIII of the treaty protected Scotland's while Article XIX provided advocates, Writers to the Signet and Clerks of Session with a formal career structure for the first time, leading potentially to a place on the bench. A little-known motion in the in March 1707 recommended an increase in judicial salaries to take into account rising prices and the fact that the court's jurisdiction had recently been expanded.2 When the queen's letter authorising the increase arrived in 1708, the judges in the court (the Lords of Session) made a link between the Union and this new mark of favour: Your majestie has been pleased by the treatie of Union to add a new & inviolable security to the authority and priviledges of your and by this new mark of Royall bountie have made decent provisioun for the Judges which not we only but all your people here cannot but own with a most gratefull acknowledgement.' The Union also offered enticing prospects to the rest of Scotland's legal community. For the remainder of the eighteenth century, many sought to gain fidl advantage of this by treating the road to as a pathway to professional advancement. As the and Francis Grant expressed it in 1715, the "new Terror,namely the Study of the ... is very requisite, to a compleat Lawyer in our united State".4 Grant's sons, Archibald and William, were among many to heed the message: both became advocates in Scotland, both joined in England, and both became Members of Parliament.'

1 The later political significance of advocates is discussed in J S Shaw, The Management of Scottish Society 1707-1764 (1983). 2 National Records of Scotland [NRS], MS Court of Session books of sederunt, CS 1/10 fo. 51v. 3 Ibid, fo. 70v. 4 Francis Grant, Law Religion, and Education, considered; in three essays; with respect to the youth; who study law; as aprincipalprofession, or accessory accomplishment (1715), p. 96. Grant's son, Archibald, followed this advice himself, joining Lincoln's Inn (LI) in 1715. 5 Archibald was MP for Aberdeenshire 1722-30 and joined LI in 1725; William, who became in 1746, was MP for Elgin 1747-54 and entered Middle Temple (MT) in 1721. In 1754, he became a Lord of Session as Lord Prestongrange. For biographical information, reference has been made primarily to the following: The Oxford Dictionary of NationalBiography, the publications of the History of Parliament Trust; The Scottish Peerage, ed J Paul (1904); H A C Sturgess (ed.), Register ofAdmissions to the Honourable Society of the Middle Temple (3 vols, 1949-78); J Foster, The Register of Admissions to Grays Inn, 1521-1889 (1889); W P Baildon, The Records of the Honourable MISCELLANY VII

In the centuries prior to the Union, only seven Scots are known to have joined one of the Inns of Court (the traditional centres of legal education for aspiring English gentlemen and ). Analysing students there in the period 1590-1637, Wilfrid Prest identified only two from Scotland from a sample of 10,917.6 So rare was their appearance that when the Scot Thomas Fullerton was called to the bar at Lincoln's Inn in 1698, only a year after his admission there, the council of the Inn required him to enter into a bond for £200 that he would not practise as a in England or Ireland until seven years had elapsed from the date of his admission.7 If he did return to practise, he was to purchase a chamber and pay all his dues in advance. Scots soon became more common: 239 of them joined the Inns between 1707 and 1800.8 One of the first was Patrick Haldane, who entered Middle Temple in November 1718, almost four years after his admission as an advocate. Haldane's move to England provoked considerable debate when, in December 1721, he was nominated by the crown as a lord of session. For various reasons, the dean and a number of members of the Faculty of Advocates made objections to him. A technical objection was made based on Article XIX of the treaty, which required advocates to have served in the Court of Session for at least five years to become eligible for the bench. It was commonly accepted that the intention behind the article was to prevent Englishmen, inexperienced in Scots law and practice, from being sent to Scotland as judges.9 Haldane's problem was that although he had been an advocate for more than five years, it was suggested he had not served as one due to his sojourns in England. Though ultimately unsuccessful, Haldane drew an interesting comparison between what happened in Scotland and what happened at the Inns of Court. His opponents, he argued, were putting too rigorous an interpretation on the treaty:

as to the practise every body knows who is the least versant in those matters that the Rules in the Severall Inns of Court in England are much more express as to local attendance in order to intitle a Student to be a Barrister, a Barrister to be a Councillor

Society ofLincoln'sInn:AdmissionsfromA.D. 1420 toAD. 1893, andchapel registers (2 vols, 1896); W H Cooke (ed.), Students admittedto the Inner Temple, 1547-1600 (1877);W P Baildon, The Records of the Honourable Society of Lincoln's Inn: the black books (4 vols, 1897); J B Williamson, The Middle Temple Bench Book- being a register of benchers of the Middle Templefrom the earliest records to the present time (2nd edn, 1937); Alumni Cantabrigiensis:a biographicallist of all known students,graduates and holders ofoffice at the University of Cambridgefrom the earliesttimes to 1900 (10 vols, 1922-54);J Foster (ed.), Alumni Oxonienses: the members of the University of Oxford, 1500-1714 (4 vols, 1891-2); and FJ Grant, The Faculty ofAdvocates, 1532-1843 (Scottish Record Society, 1944). 6 W Prest, The Inns of Court under Elizabeth land the Early Stuarts 1590-1640 (1972), pp. 32-3. This is based on known residence of the student or the student's father. Both were at Gray's Inn (GI). The sample overlooks Robert Foulis (adm. MT on 26 October 1604), who was admitted advocate in 1606 based on his professed education in France, England and elsewhere: NRS, books of sederunt, CS1/4/2/354v; Sturgess (ed.),Admissions to Middle Temple, i, p. 82 (cf. another student of the same name from Yorkshire, ibid, i, 121). 7 Baildon (ed.), Black Books, iii, p. 199. 8 The first Scot after the Union to enter an Inn was Archibald Johnstone (adm. MT, 17 May 1707): Sturgess (ed.), Admissions to Middle Temple, i, p. 261. The last before 1800 was George Kinnaird (adm. LI, 8 November 1799). This figure counts only first entry to an Inn; thus, for example,James Mure's admission to GI on 28 November 1799 is ignored because he was already a member of Lincoln's Inn (adm. 30 January 1778). 9 There was, and is, no rule against English people becoming lords of session, provided they have served appropriately as advocates, writers or clerks of session to be qualified in terms of Article XIX. SCOTS LAWYERS, ENGLAND, AND THE UNION OF 1707

and a Councillor to be a Serjeant, than will be said the 19' article of the Union is with regard to the Question in hand.'0

It is questionable how versant the average Scottish advocate was with the rules in the Inns of Court in England. Including Haldane, only six members of the Faculty of Advocates in 1722 were also members of Inns." However, the number of Scots gaining admission to them increased steadily as the century progressed, particularly after 1770 (see Table 1).

Table 1: Scots at the Inns of Court and English universities 2

Period Adm. GI IT LI MT Oxon Cantab. Calls Bench Adv. FoA 1701-10 8 0 0 3 5 1 0 6 1 1 100 1711-20 8 1 0 2 5 0 1 2 1 3 81 1721-30 13 0 3 4 6 1 1 5 1 3 86 1731-40 17 1 5 3 8 1 2 6 2 8 55 1741-50 7 1 2 2 2 2 0 2 0 2 33 1751-60 12 1 6 0 5 2 1 6 0 6 58 1761-70 18 1 7 9 1 4 1 7 3 6 73 1771-80 67 2 3 50 12 15 2 21 4 25 68 1781-90 58 1 8 38 11 6 4 14 2 15 70 1791-1800 39 2 4 28 5 10 3 16 2 11 94 Totals 247 10 39 139 60 42 15 85 16 79 718

While the trend in admissions is clear, there is a difficulty in defining who counts as a Scot, particularly where the candidate was born outside Scotland. The rule adopted here is to include only those for whom the register indicates a Scottish origin, or for whom an origin is known from other sources (such as a description given at university or school admission), or from knowledge of the father's original domicile. This means that James Nisbett, for example, is included. Nisbett came to England

10 Haldane's case is discussed by R Scott, "The politics and administration of Scotland 1725-1748" (unpublished PhD thesis, , 1981), esp. at 247-60. Ironically, the reverse situation affected the Scot, Henry Brougham, in 1808 at Lincoln's Inn: Baildon (ed.), Black Books, iv, p. 113. 11 Alexander Bayne (adm. LI 1707); the others were at MT: David Kennedy (adm. 1713); Hugh Dalrymple (adm. 1716); William Grant and Patrick Turnbull (both adm. 1721). 12 In Table 1, the key date is that of admission to an Inn. One column for each Inn (Gray's Inn; Inner Temple; Lincoln's Inn; Middle Temple) records the admissions there of Scots in each decade; the next two columns indicate the number of those admitted to an Inn in each period who attended Oxford or Cambridge. The Calls and Bench columns refer to the number of those admitted in each decade who went on to be called to the bar and then became members of the bench of an Inn. Thus six of the seventeen admitted to Inns in the 1730s, for example, went on to be called to the bar. (Table 2 records the number of actual calls in each period.) The Adv. column indicates the number of those admitted to Inns who were, or later became, advocates. The final column indicates the total number of members admitted to the Faculty of Advocates in each ten-year period. MISCELLANY VII from Jamaica bringing the means to purchase a mastership in chancery before he joined Lincoln's Inn in 1781; but his father was a doctor of medicine originally from Dumfries. 3 Also included are the London-born sons of Gilbert Burnet, former bishop of Salisbury (both of whom entered Middle Temple, one in 1709, the other in 1711). George Morison, who entered Middle Temple in 1733, was described thus in a pleading in 1749: "George Morison of London Esq; tho' descended from a Scots Family by the Father's Side; was a Native of England,where he constantly resided, and continues to reside at this Day."1 4 Morison, the only son of William Morison of Prestongrange, suffered from mental illness and had led "an irregular Course of Life". This eventually led to a dispute over his property which included debate over what effect a finding of lunacy in English chancery proceedings had in Scotland. Based on his father's original domicile as indicated in the admissions register, Morrison is regarded as a Scot. Another difficult case is Andrew Rule, who entered Lincoln's Inn in 1684 stating he was from Berwick-upon-Tweed; in Edinburgh, on his admission as an advocate, he mentioned his link to the Inn but was described as the son of Dr Gilbert Rule, principal of Edinburgh University. His father was originally a regent at University, making Andrew, under the criteria adopted here, a Scot." Mere reliance on a Scottish surname in an admissions register is insufficient as proof of nationality or migration. The admission figures in Table 1 demonstrate the impact of the Union. At Inner Temple, for example, only three Scots were admitted in the century and a half before the Union, with the last of them in 1687; after 1707, there were thirty-nine before the end of the eighteenth century. Of these, fourteen (35.9 per cent) were, either at the time of admission or subsequently, also members of the Faculty of Advocates; and, in varying proportions, advocates were among the Scottish entrants to all the Inns.16 This underlines the attraction of England, even if the aim in joining an Inn often had as much to do with political and social connections as with any professional ambition to go to the English bar. There is scope for further investigation into the family connections engendered by this migration, in particular by the young advocates and sons of advocates whose London connections brought them marriage to the daughters of city bankers and merchants. Movement south to study or practise law was one reason for increasing numbers of Scots attending English public schools. seems to have been particularly popular with budding lawyers, but Scots went to the Inns from a number of leading schools including Harrow, Charterhouse and Eton. In turn, Scotsmen already practising at the English bar, like William Hamilton, Sylvester Douglas

13 Baildon (ed.), Lincoln's Inn:Admissions, i, p. 501. 14 Advocates' Library Session Papers [ALSP], Informationfor George Morison of the Middle Temple London Esq; Walter Baynes the younger of the Middle Temple London, Esq; and Penelope his Wife, and John Hamilton, Writer to the Signet, their Factor,2 January 1749, Kilkerran collection, vol. 16, no. 108. 15 NRS, books of sederunt, CS1/9/44v (6 Nov 1691). This makes him the first Scot admitted to that Inn; with Thomas Fullerton (supra) the second. Gilbert Rule was a regent in Glasgow in 1651 and spent time in exile: R D Anderson et al., The University of Edinburgh (2003), pp. 53-6. 16 Out of the 247 identified as Scots, 79 (32 per cent) were or became members of the Faculty of Advocates. This breaks down as follows: 14 out of 39 at IT (35.9 per cent); 52 out of 138 at LI (37.7 per cent); 1 out of 10 at GI (10 per cent); 12 out of 60 at MT (20 per cent). SCOTS LAWYERS, ENGLAND, AND THE UNION OF 1707 and Lockhart Gordon, sent their sons to such schools.1 7 The Union may have given advocates a new cursus honorum leading to the Scottish bench, but it also opened the way for new educational possibilities in England. These were exploited to the full by men like John Erskine and Charles Edmonstone, both younger sons, who entered Westminster School a year apart and then gained admission to Lincoln's Inn within six months of each other. Both were called to the bar in 1788. Almost a quarter of the Scots at the Inns can be traced to an English university." Three times as many went to Oxford as Cambridge, with more Scots going to Lord Mansfield's former college, Christ Church, than to all the colleges in Cambridge combined (Mansfield was perceived to favour young lawyers who had gone to Westminster and then Christ Church). It is worth comparing the career of the Scot William Murray, Lord Mansfield (1705-93), with that of the less illustrious Archibald Macdonald (1747-1826), which seems to some degree to have been modelled on it. Both went to Westminster School then on to Christ Church, Oxford, and both joined Lincoln's Inn (Murray in 1724, Macdonald in 1765). Both were MPs, held the offices of and , and then went on to hold judicial office. Tables 4-6 allow direct comparison with the attendance of English peers and their sons at university.19 They demonstrate the same broad preferences as the aristocracy for Christ Church at Oxford and Trinity College, Cambridge. In educational terms, Scottish fathers, trying hard to assimilate their children into the English elite, selected the most socially prestigious colleges. The practice of some families seems to have been to send one son to train for the bar in London and another to do so in Edinburgh. Alexander Abercromby of Tullibody was by no means unique in sending his son George to train as an advocate and another son,James (future speaker in the Commons), to Lincoln's Inn.25 Charles Areskine's eldest son, also Charles, was called to the English bar in 1739 when his father was Lord Advocate; Charles's younger brother, James, became an advocate in 1743 (less than a year before their father became a lord of session). Patrick Boyle of Shewalton made a similar arrangement for two of his sons, although it was the eldest, John, who went to Lincoln's Inn, and another, David, who went on to a legal and parliamentary career which saw him retire as Lord President of the Court of Session in 1852. Legal dynasties were looking south. Just as sons for generations had followed their fathers into the Faculty of Advocates, so quite quickly the same tradition began for Scots at the Inns of Court. Robert Montgomery, who was called to the English bar in 1800, is a good example. His grandfather William was an advocate (although not a successful one), and so was his elder brotherJames; his father (also James) had been Lord Advocate and was Chief Baron of the Exchequer when Robert was admitted to Lincoln's Inn in 1794. Prior to 1800, another three barons of

17 Both Hamilton and Gordon had sons at Harrow (the former's son also joined LI and became an MP); Douglas sent his son in 1801 to attend Westminster School, whence he trod the familiar path to Christ Church, Oxford. 18 Of the rest, Edinburgh, Glasgow and Aberdeen universities feature heavily. A number of Scots who had trained as English lawyers, particularly those who became MPs, became rectors of their alma mater e.g. William Grant (Aberdeen), Henry Glassford (Glasgow). 19 The tables have been prepared for comparison withJ Cannon,AristocraticCentury (1984), 50, tables 12 and 13. 20 George (adm. advocate 1728) became professor of and the law of nature and nations in the University of Edinburgh in 1735;James entered LI in 1726. MISCELLANY VII the exchequer in Scotland sent a son south to join one of the Inns, as did ten of the seventy-two lords of session appointed in the period 1707-1800. 11 Brothers tend to be found going to the same Inn, suggesting the development of family connections with a particular institution. The social origins of Scots entering the Inns varied, but most enjoyed substantial means. They were the sons of professional men, such as church ministers, advocates, army officers and doctors of medicine, but also of local landowners and members of the lesser nobility. Some were the younger sons of earls including Selkirk, Aberdeen and Buchan. Where seniority of birth can be determined, more than five Scots out of every ten admitted to English Inns were eldest sons.2 This is a surprisingly large figure, not too far from what can be established in regard to entry to the Faculty of Advocates. 3 The willingness to send an eldest son to an Inn of Court demonstrates that ambitious Scottish fathers recognised the importance of associating with elites in the south and the potential opportunities arising from such contacts. For a substantial minority heading south, London as a legal centre presented opportunities for a career in English law that had never been presented before.

II

Over a third of the Scots admitted to the Inns between the Union and the end of the eighteenth century were called to the bar in England, the first being George Montgomerie in 1709.24 Reliable figures for the rate of calls compared to admissions to the bar suggest, despite variations within each Inn, an overall figure in the period 1688-1714 of almost 25 per cent of those admitted to the Inns being called to the bar; at Inner Temple in the period 1701-1800, the figure is 27 per cent.2 The percentage of Scots admitted who were called (34.5 per cent) seems a reasonable one but cannot be entirely relied upon, given the potential margin for error in identifying members who were Scots. A higher ratio of calls to admissions among Scots than English, Welsh or Irishmen is not necessarily to be expected. There is no reason to

21 The three barons were William Mure, George Dalrymple ofDalmahoy and SirJohn Dalrymple. The most famous son of a lord of session is James Boswell, son of Lord Auchinleck (at IT). The others are: Archibald and William Campbell (sons of Lord Stonefield, both at LI); Archibald Campbell (son of Lord Succoth, at LI); William Dundas (son of the second Lord President Arniston, at LI); Charles Erskine (son of Lord Tinwald, at MT and LI); James Erskine (son of Lord Grange, at IT); John Erskine (son of Lord Barjarg, at LI); William Miller (son of Lord President Glenlee, at LI); William Murray (son of Lord Henderland, at LI); and Alexander Wedderburn (son of Lord Chesterhall, at IT and LI). 22 Of 221 entrants where this is known, 122 (55.2 per cent) were eldest sons; 50 (22.6 per cent) were second sons; 37 (16.7 per cent) were third sons. 23 Parentage is generally noted in the books of sederunt, but often without indication of whether an intrant is an eldest son. Of only 374 advocates whose status is known in the period 1 May 1707-31 December 1800 (out of 648 intrants), 231 (61.8 per cent) were eldest sons; 94 (25.1 per cent) were second sons; 26 (7 per cent) were third sons. Bearing in mind generally lower recruitment during the century, and the attractions of church, army, medical and other careers, this also seems a high percentage of eldest sons going to the bar, although there are many advocates whose status is not known. These figures are based on genealogical information in Grant, Faculty ofAdvocates in Scotland. 24 Seventy-one Scots have been identified as being called before 1 January 1800. Of the 247 Scots admitted (in the century 1701-1800), 85 (34.5 per cent) were called in total, with 14 of these called in the period 1800-1812. See Table 1. 25 D Lemmings, Gentlemen and Barristers(1990), 62. SCOTS LAWYERS, ENGLAND, AND THE UNION OF 1707 think that more Scots joined an Inn with the intention of practising law than was the case with their southern counterparts (there were, after all, many social reasons for joining an Inn). On the other hand, the rate of admission for Scots grew from nil, and it naturally took time for Scots to develop the tradition of joining Inns simply because their fathers had done. The admission of advocates to Inns raises the issue of qualification to practise on both sides of the Border. Twenty-three men admitted to Inns between the Union and 1800 became qualified to practise at both bars.26 All but one of this group qualified as advocates first. Those admitted to an Inn in the period 1707-50 waited, on average, 8.8 years between admission as an advocate and call to the English bar. In the period 1751-1800, this average interval was 8.5 years. But the practice in the second half of the century was for such men to gain admission to an Inn (as opposed to a call to the bar) prior to joining the Faculty of Advocates (eleven out of sixteen did so; against only three out of seven in the period 1707-50). This was clearly the product of strategic thought. Early admission to an Inn for a youth being trained for the Scottish bar suggests that practice in England was not an afterthought for the majority of those called to both bars. Only sixteen Scots who entered an Inn before 1800 became benchers (that is, senior governing members). 27 To put this into perspective, of the 109 benchers appointed in Inner Temple in the first half of the century, only one, Alexander Hume-Campbell, was a Scot. He was heavily involved in politics - and this is true of most of the Scottish benchers. Indeed, this small group includes four attorney generals of England, two lord chancellors, five members of Parliament, one Commons speaker, one lord chief , two chief barons of exchequer (one in England, the other in Scotland) and a further baron of exchequer in Scotland.28 More generally, as Table 2 demonstrates, almost a quarter of the Scots admitted to English Inns in the eighteenth century went on to become MPs (by no means always for Scottish constituencies). In this regard, the dominant Inn was Lincoln's Inn, from where forty-four Scots emerged to become parliamentarians. 9 Proportionally twice as many Scots reached Parliament via the Inns of Court than via the Faculty of Advocates, although this is subject to the caveat that twenty-seven MPs were both advocates and members of an Inn.30 Some measure of legal practice was helpful in gaining a

26 These men were (by admission year): David Kennedy (1713, MT); Patrick Turnbull (1721, MT); John Rutherford (1725, MT); Alexander Hume-Campbell (1731, IT); AndrewMitchell (1733, MT); John Lookup (1739, MT); Archibald Duff (1743, IT); Simon Fraser (1752, MT and IT); Alexander Wedderburn (1753, IT and LI); Hugh Dalrymple (1759, MT);James Boswell (1761, IT); William Adam (1769, LI); Alexander Millar (1771, LI); John Sinclair (1774, LI); Thomas Erskine (1775, LI);James Suttie (1777, LI); John Simon Fraser (1780, LI);John Douglas (1785, LI); John Halkett (1788, LI); John Anstruther (1789, LI); MoncreiffThreipland (1793, LI);James Lock (1796, LI); Alexander Whyte (1798, LI). 27 Distinguish Table 3 (benchers appointed per decade). The sixteen, some of whom became benchers after 1800, were James Abercromby (LI); William Adam (LI); Philip Callard Ainslie (MT); John Anstruther (LI); Archibald Cullen (MT); Sylvester Douglas (LI); Thomas Erskine (LI); Patrick Garden (GI); William Grant (of the Isle of Man; LI); William Hamilton (LI); Alexander Hume- Campbell (IT); Archibald Macdonald (LI); Andrew Mitchell (MT); William Murray; Alexander Wedderburn (called at IT, bencher at LI) and George Wilson (LI). 28 This does not include John Campbell (adm. LI, 1800; , 1859). 29 None did so from Gray's Inn, ten came from MT and the remaining six from IT. 30 Of this number, eighteen were at LI, five at MT and four at IT. MISCELLANY VII seat in the Commons, since almost half of the Scots at the Inns who became MPs were at the English bar, whereas in general just over a third of Scots at the Inns were called. However, the call to the bar did not imply the achievement of successful legal practice; and Scots often abandoned the law once they entered parliament.

Table 2: Scottish advocates and members of Inns who became MPs

Period Advocates Inns Number who became MPs

Advocates Inns Of whom called to bar 1701-10 100 8 13 [13%] 1 [12.5%] 0

1711-20 81 8 9 [11%] 2 [25%] 0 1721-30 86 13 8 [9.3%] 6 [46.1%] 1 1731-40 55 17 9 [16.3%] 6 [35.3%] 3 1741-50 33 7 3 [9.1%] 2 [28.6%] 0 1751-60 58 12 11 [20%] 3 [25%] 3 1761-70 73 18 4 [5.5%] 9 [50%] 6 1771-80 68 67 14 [20.6%] 20 [29.4%] 10 1781-90 70 58 8 [11.4%] 8 [13.8%] 2 1791-1800 94 39 10 [10.6%] 9 [23.1%] 7 Totals 718 247 86 [12%] 66 [24.4%] 32

Reliance on the admission registers of the Inns of Court does not tell the whole story. Some Scots went to London with the intention of being exposed to the practice of English law without formal admission to any of the Inns - which, in any event, were much-decayed educational institutions by the eighteenth century. Andrew Fletcher of Saltoun (the future Milton) is one example. On arriving in London in August 1716 from Leiden, he was advised to go to Lincoln's Inn because that was the favoured lodging of chancery practitioners. But, on the advice of John Cuming and John Scrope (both of Middle Temple), Fletcher took up lodgings in Channel Row, Westminster. Not aiming at the English bar, he was encouraged to study the procedure and terminology of English law:

As for the manner of spending my time here I am advised not to enter further into the detail of the than to understand the Terms of art and something of form. The study of the Common law being tedious requiring 7 or eight years & 3 1 depends far more on the memory than the judgment.

As a budding Scottish advocate, Fletcher's priorities in post-Union London are interesting. His notebook reveals that he was advised to focus on the Exchequer, to sit in on any treason cases (Scots and English law having been assimilated after the

31 National Library of Scotland [NLS], Saltoun Papers, MS 16947, fos 2r-4v. SCOTS LAWYERS, ENGLAND, AND THE UNION OF 1707

Union) and to observe appeals. Fletcher intended to attend the Court of Chancery during term time, since this was regarded as procedurally similar to the Court of Session, with considerable discussion of - with which he was already well familiar from his student days at Edinburgh and Leiden.32 He planned also to see "the forms of Customs & Excise" - and this would have been useful to him when, in 1718, he was appointed a cashier of the excise in Scotland under the patronage of the earl of Sunderland.3 Conceivably, a similar sojourn in London may have been had by a number of aspiring advocates; this may explain some of the curious chronological gaps between the private examination of certain intrants to the Faculty and their public lesson and admission as advocates by the lords of session. In the case of Allan Maconochie (later the first Lord Meadowbank), he also travelled in his youth. He was admitted to Lincoln's Inn in 1771, although according to Lord Brougham he arrived in London from Paris in 1769 with the intention of entering the English bar.3 4 Having been introduced to Edward Thurlow (later lord chancellor), he was encouraged in this aim before deciding to settle in Scotland. Maconochie's father, Alexander, an Edinburgh writer, knew Thurlow personally through his involvement in the Douglas cause. In fact, a letter of July 1768 recounts a meeting in London at which both men were present.3"

III Fletcher's focus underlines the centrality to the Anglo-Scottish juridical exchange of the House of Lords, which came to be heavily occupied with appeals from Scotland. An analysis of the hundreds of reported Scottish appeals to the lords in the eighteenth century is instructive.36 It is clear from these, and also from some pleadings from unreported cases, that at least 107 advocates appeared as counsel, although eleven of them, men such as Alexander Hume-Campbell, Adam Gillies and James Boswell, were also members of the English bar. Seven advocates (six of whom were law officers) 37 appeared in more than fifty appeal cases. Several conclusions can be given. First, just like the eighteenth-century English bar, Scotland had "political lawyers". There is a strong correlation between advocates pleading in the Lords and advocates who became Members of Parliament. The first Scot to plead in the Lords seems to have been Dugald Stuart in 1709 after he had been elected MP for both Perth and Bute. His London career was so quickly curtailed by his elevation to the Court of Session as Lord Blairhall that he had not yet decided which parliamentary seat to take up. David Dalrymple, next to appear in 1710, was

32 J W Cairns, "Alexander Cunningham's proposed edition of the Digest" (2001) T~idschrift voor Rechtsgeschiedenis 69 and 301 (2 parts), 317. 33 Shaw, Management, 62-3. 34 H Brougham, Memoir ofthe late Hon. Allan Maconochie ofMeadowbank one of the Senators of the College ofJustice, Etc Etc Etc in Scotland(1845), p. 7. 35 NRS, Douglas Cause letters, GD1/155/143. 36 See J Finlay, "Scots lawyers and House of Lords appeals in eighteenth-century Britain" (2011) 32 Journal of Legal History, 249-77. 37 An eighth advocate, William Grant of Prestongrange, appeared in twenty appeals between 1724 and his elevation as a lord of session in 1754. He is not to be confused with a later barrister called William Grant from the Isle of Man at Lincoln's Inn (although his father, James, was originally from Elgin), who appeared in seventy-one reported cases between 1782 and 1799. MISCELLANY VII both Lord Advocate and an MP; he went on to enjoy a longer career at the Lords' bar. Of the 225 advocates admitted in the first quarter of the eighteenth century, those who went on to plead in the Lords were 6.5 times more likely to become an MP, and five times more likely to end their career as a Lord of Session, than those who did not." As the century progressed, these correlations continued but were less strong. Second, Scottish advocates almost always appeared with English-trained counsel. Leaders of the English bar feature strongly in Scottish (as in other) appeals in the eighteenth century. However, of the ninety-one English-trained barristers identified as appearing in Scottish appeals in the eighteenth century, sixteen were actually Scots, and six of them were members of both the Scots and English bars. 9 Individual Scots at the English bar are often noticed, especially Alexander Wedderburn (who took great pains to be trained in English pronunciation), William Murray and, of course, James Boswell. One of the most active was William Hamilton, who appeared in well over 100 cases in the House of Lords in the period 1715-50. Admitted to Lincoln's Inn in 1708 and called to the bar in 1714, he was the third son of the second marriage of William Hamilton of ; his eldest half-brother, Archibald, had been admitted advocate in 1690.40 By the 1720s, he had become one of the leaders at the Lords' bar, counting among his clients at least seven Hamiltons including James, fifth duke of Hamilton and second duke of Brandon. 41 He was also involved in drafting the first two charters of the Royal .4 2 The significance of Scots such as him at the English bar has not yet been fully appreciated. In 1734, James Erskine of Grange praised the Lords' illustrious reputation for justice.43 In contrast, political influence in the appointment of Scottish judges, he argued, led to domestic corruption (as a former judge, he was in a position to know). He therefore advised a client to appeal his case to London. Unable to act personally, he undertook to draft a memorial in such a way that English counsel "might the more easily know what to insist on and what to set aside". If Scots lawyers like Erskine took the lead in interpreting the law in appeal cases, they also seem to have taken the lead in seeking extra-judicial settlements once cases reached London. For example,

38 This is based purely on the number of admissions. It is difficult to tell how many advocates were actually in practice at any one time; some never practised, while some did so only for a short time. Any advocate appearing before the House of Lords is likely to have by then become an established practitioner. 39 The sixteen are as follows, with an asterisk indicating qualification as members of both bars: James Adair (LI),William Adam (LI)*,William Alexander (MT),James Boswell (IT)*, Frederick Campbell (MT), Archibald Cullen (MT), Sylvester Douglas (LI), Charles Dundas (MT/IT)*, James Erskine (IT)*, Thomas Erskine (LI), Simon Fraser (MT/IT), William Hamilton (IT), William Johnston (Pulteney) [IT]*,Thomas Lockhart (IT), Archibald Macdonald (LI), Alexander Wedderburn (IT)*. Note that not all advocates who were also qualified as barristers appeared before the House of Lords. 40 He was admitted to LI on 7 January 1708 and called to the bar on 17 November 1714. Lemmings (Gentlemen andBarristers,p. 2 85 ) indicates that Hamilton was one of the leaders of the Lords' bar by the 1720s. Archibald's admission as advocate was in June 1690: NRS, books of sederunt, CS1/9 fo. 21r. Alexander Hamilton, a younger brother, was admitted to Lincoln's Inn in April 1720: Baildon (ed.), Lincoln's Inn:Admissions, I, p. 3 8 5 . 41 In 1710, Hamilton was corresponding from London as an agent for the fourth duke of Hamilton (who was killed in a duel in 1712): NRS, Papers of the Douglas Hamilton family, GD406/1/5650, 5653. 42 NLS, Saltoun papers, MS 16574 fo. 46. 43 HMC, Polwarth, v, no. 150. SCOTS LAWYERS, ENGLAND, AND THE UNION OF 1707 a case in 1732 was postponed for two months, on the earl of lay's initiative, while one counsel on each side was appointed to seek a resolution." Those appointed were Scots rather than the lead counsel, who were, on both sides, Englishmen. Throughout the eighteenth century, about a third of the advocates who appeared in the House of Lords did so in only one case each. This suggests that, for some, this was a rite of passage. This was certainly not true for Adam Rolland, who did not make his first appearance in the House of Lords until 1799, some forty-one years after being called to the Scots bar. In contrast, the least experienced advocate to appear in an appeal was Alexander Hume-Campbell, who did so in 1731 at the age of 23, a mere twenty-six months after his admission to the Faculty of Advocates. A week later, he was admitted to the Inner Temple; and, in a similarly meteoric advance, only seven weeks after that, he was called to the English bar (a process that normally took several years). Hume-Campbell was the younger of the identical twin sons of Alexander, earl of Marchmont (born 1675), himself an advocate and Lord of Session who was commissioner in the Scottish Parliament for Berwickshire at the time of 4 the Union. ' His rise may be explained on the basis of family connection that proved 46 strong enough to have him elected as MP for Berwickshire in 1734. Resort to London allowed advocates to bypass the tributaries of patronage and head straight for the source. Results were not always predictable. Lord Hardwicke is said to have supported Robert Craigie as a candidate for Lord President of the 47 Court of Session purely as a result of having seen him argue in Scottish appeals. There is irony in this because Craigie as Lord Advocate was said to have taken the view (along with his wife) that it was better for him to be in Edinburgh looking after public affairs than "at London where he could not believe that his presence was necessary".48 But, as a crown lawyer, Craigie was obliged to attend Parliament, and he became one of the growing number of political lawyers whose legal careers were increasingly intertwined with political interests. Combining law with politics was not always easy. Had they not been engaged as counsel in a Lords' appeal at the end of the parliamentary session in 1737, for example, James Erskine and Charles Areskine (then Solicitor General) would have voted to stop a controversial bill intended to punish Edinburgh in the wake of the Porteous riot.4 Inconvenient Commons divisions aside, however, there is that appeal cases from Scotland might be scheduled to accommodate Scottish counsel. While crown lawyers and those who were MPs normally headed south in November for the opening of Parliament, advocates in private practice in Edinburgh who had

44 NLS, Saltoun papers, MS 16553 fo. 196, Dundas and Areskine were appointed. Lead counsel were Philip Yorke and Charles Talbot: ChariotMarchioness DowagerofAnnandale and SirJamesJohnstone Baronet, Appellants, The Right Honourable George Marquis ofAnnandale. the Right Honours Charles Earlof Hopetoun, and Henrietta Countess of Hopetoun, his Wife, and the Right HonourableJohn Lord Hope, The Case of the Respondents the Earland Countess of Hopetoun and Lord Hope, ALSP, Alva Collection, vol. 79, no. 38. 45 Papersof the earls ofMarchmont, pp. xxix-xlii. 46 Cf. David Kennedy (MT,1713) and George Montgomery (MT, 1709) both, highly unusually, called immediately upon admission. 47 J Ramsay of Ochtertyre, Scotland and Scotsmen in the eighteenth century (2 vols, 1888), i, pp. 113-14. 48 NLS, MS 7051, fos 9v, 17r. 49 A Collection of the ParliamentaryDebates in Englandfrom the Year M, D C,LXVIII to the present time (1741), vol. 14, p. 284. See G Holmes and D Szechi, The Age of Oligarchy (1993), p. 83. MISCELLANY VII cases to be heard in the Lords would do so in March during the Court of Session's vacation. According to the solicitor James Chalmers, for example, the parties to an action in 1790 had successfully applied for their case to be heard on 17 March "to suit the Scots Counsel".5" To what extent did the trip to London present the prospect of a worthwhile financial return? The possibility of appeals necessitated a technical change in the way in which advocates might be formally retained in order to encompass the novelty of actions outside Scotland. Thus the earl of Selkirk and Ruglen in September 1739 constituted as his advocate Charles Areskine, recently promoted to Lord Advocate, undertaking to pay him £20 sterling annually as "ane Honorary and Retaining Fee to him as Council and Lawyer for us in all and whatsoever causes we shall Happen to have in any of the ofJudicature in Great Brittain". a Payment was to continue for as long as Areskine served at the bar. Lady Mary Drummond paid a retaining fee of three guineas in 1748 to each of her three counsel for all Lords' appeals in respect of actions arising from succession to an estate.12 Retainers formed a small part of advocates' incomes, although it is difficult to make an accurate assessment of overall earnings. It is worth noting, however, that in Scotland, as in England, fees and honoraria were paid in multiples of guineas.5 3 A guinea was the going rate for drawing a memorial in the Court of Session, or for drafting answers, or for correcting and revising a memorial drawn by a law agent.5 4 Fees for consultations were generally two guineas, but all fees might vary slightly depending on who the counsel was.5 The record of expenses in the 1780s case Stewart of Culross v Duncan McDonell of Glengarry and Others is particularly detailed. 6 In total, William Miller was entitled to fifteen guineas for his work on the case, Robert Dundas (who became Solicitor General during the case) earned seven guineas (two of which were paid for a one-hour consultation), and David Rae four guineas. In June 1784, when the case was pled for the final time, Dundas and Miller each received five guineas for carrying this out although, again, the norm for a consultation in this case was two guineas. Civil and criminal business in Scotland was not as lucrative as pleading in the Lords, where demand for good advocates was strong. While contemplating an appeal in 1745, Lord Lovat sought the services of William Murray and, "even if it should cost me a 100 gueneas [sic]", of Charles Erskine, the son of his friend and the former Lord Advocate Charles Areskine, Lord Tinwald.5 7 The respondents' bill of costs from the appeal case The Magistrates of Edinburgh v The Dean & Faculty

50 Advocates' Library [AL], Faculty records, FR 339/12. 51 NLS, Ch. 4413. 52 NRS, Papers of the Drummond Family, GD160/581/1. 53 See Lemmings, Professors of the Law, p. 190; Finlay, "Scots lawyers and House of Lords appeals", 267-8. 54 E.g. the account of expenses attached to The Petition of William Murray, tenant in Tillynaught, 24 November 1778, ALSP, Meadowbank Collection, vol. 43, no. 12. 55 I intend to discuss this topic in more detail in a forthcoming book on legal practice in Scotland which is currently under preparation. 56 The Petition of George Bean, Writer in Inverness, 20 July 1784, ALSP, Miscellaneous Collection, series vii (1782-5), vol. 5. 57 HMC, Report on Laing MSS, p. 298. Charles Erskine junior was called to the bar (MT, 1739) and was also a member of LI. His brother, James, was admitted advocate in 1743. SCOTS LAWYERS, ENGLAND, AND THE UNION OF 1707 of Advocates & The writers to his Majestys Signet as members of the College ofJustice provides interesting detail."8 Three counsel, Alexander Wight, Alexander Tait and William Adam, were employed jointly by the Faculty and the Society of Writers to the Signet, with each contributing a half-share of the cost. The hearing in the case began on 22 March 1790. Wight had arrived on 17 March, in good time for a consultation of all four counsel three days later, for which each received five guineas plus a brief fee often guineas each and a further ten guineas on each of the four days on which the case was heard. The standard fee for leading counsel was ten guineas a day, considerably more than was to be gained in Edinburgh. 9 Wight, a former Solicitor General then coming towards the end of his career, was involved in at least three Lords' appeals in 1790 and almost fifty in total following his first appearance in 1767. Such frequent resort to London would have generated useful income; but this alone is not a sufficient explanation. More significant was the prospect of gaining (or, as importantly, retaining) patronage, and the opportunity to build and enhance a professional reputation.

IV If the Union, and appellate business in particular, represented an opportunity for advocates, this was equally true of law agents. Appeals and other cross-Border litigation had to be managed by agents familiar with Scots law and legal procedure; occasionally such agents were appointed as commissioners of oaths and witnesses in actions depending before the Court of Session. These agents dealt with a range of routine legal business, from administering funds (including investment and rental income) on behalf of those residing in Scotland to executing documents for Scots resident in England to ensure their formal conformity with Scots law. London contained a number of Scots working as solicitors and attorneys mainly overseeing appeals and cases in the Court of Chancery.6° That was by no means the extent of their activities, however, and the records of the Convention of Royal Burghs provide good evidence of the political lobbying activities which such law agents, away from the judicial forum, might undertake.61 In 1712, the burghs employed William Hamilton "to negotiate the affairs of the Burrows relating to the tax roll before the House of Commons".6 2 The land tax imposed by Parliament had created a difference of opinion between the burghs.63 Satisfied with Hamilton's efforts, the burghs appointed him as their London agent in 1713 on an annual salary of425 sterling.' 4 He was also acting as London solicitor for the town council of Edinburgh at the same period.6" Some of his correspondence survives in which he promised, in

58 AL, FR 339r/12. The case is reported at Pat. App., iii, 155. 59 Lemmings, Professorsof the Law, p. 194. 60 This is discussed in Finlay, "Scots lawyers and House of Lords appeals", pp. 259-64. 61 The Edinburgh Chamber of Commerce also had its own London agent: e.g. Edinburgh City Archives [ECA], Chamber of Commerce minute book, ED0005/1/1, fo. 34. 62 ECA, Convention of Royal Burghs minute book, SL30/1/1/9, fo. 16v. There is record of his being paid in 1712: SL30/1/1/8, fo. 179r. The land tax was authorised under the 12 Ann., c 1. 63 J D Marwick (ed.), Extractsfrom the Records of the Convention of the RoyalBurghs of Scotland (5 vols, 1866-90), vol. v,p. 47. 64 ECA, Convention of Royal Burghs minute book, SC30/1/1/9, fo. 16v. 65 ECA, Edinburgh TCM, SL1/1/41, fo. 131. MISCELLANY VII one particular matter, to ensure that "no steps be taken in parliament to be prejudice of the City of Edinburgh" until he heard again from the .66 He also expressed disquiet at being pressured by Sir Patrick Johnston, a former Edinburgh lord provost, to employ his son Archibald (called to the bar in the Middle Temple in 1711) as counsel for the town. According to Hamilton, Archibald Johnston was "a very pretty young gentleman, but I'm afraid may want [i.e. lack] experience". The royal burghs had had London agents since at least 1612, when Sir Robert Mure was appointed, but they were not typically lawyers prior to the Union of 1707.67 Their role was to protect mercantile interests from abuses perpetrated against Scottish merchants and mariners in England and, in particular, in London. Hamilton's appointment cannot have done him any harm in his aspirations for the bar.68 It may not be a coincidence that two of his early Lords' appeal cases involved acting for Robert Stewart, provost of Aberdeen, and an Edinburgh merchant named Roger Hog.69 Certainly the Convention of Royal Burghs would not have thought it odd to employ a barrister as an agent; its own law agent in Edinburgh at the time was George Smollet, an advocate and one of the judges in the commissary court.70 However, he was not called to the bar until 1714, and there is reference in the accounts of the Convention in February 1712 to a payment to "Mr Hamilton Attorney for retaining money 4 guineas" in relation to a London appeal case in 1711 - which, presumably, means that Hamilton retained counsel.7 If it was his general employment, Hamilton would have been required to give up practice as an attorney when he was called to the bar; but that is not inconsistent with him continuing to act as the Convention's London agent.72 The royal burghs, throughout the eighteenth century, made extensive use of lawyers who were also employed as assessors and clerks by Edinburgh town council. 73 This extended to law agents used in London. Hamilton was paid through his Edinburgh factor, the writer John Hamilton. 74 His later successors included George

66 ECA, MacLeod D0019/144. I am grateful to the city archivist, Richard Hunter, for this reference. 67 Marwick (ed.), Records of the Convention of the Royal Burghs, vol. ii, p. 379. 68 Another William, designed "under secretarie", was agent in 1692, but this was not the same man: ibid, vol. iv, p. 151. It is worth noting that Patrick Hamilton, "secretar deput of Scotland", was appointed agent in 1613: ibid, vol. ii, p. 406. Although it is a common name, Hamilton the barrister's identity is confirmed by reference to him being "at Lincoln's Inn" in 1721 (ibid, vol. 5, p. 286) and by the text cited below at note 82. He was admitted to Lincoln's Inn in 1708: Baildon (ed.), Lincoln'Inn: Admissions, i, p. 367 (and see note 39 above). 69 Rob. App, nos 32, 36. 70 Smollet was appointed on 11 July 1709: Marwick (ed.), Records of the Convention ofthe Royal Burghs, vol. iv, p. 486. He replaced another advocate, Sir Robert Forbes, who himself had followed the advocate John Buchan: ibid, vol. iv, 73, 342. 71 ECA, Convention of Royal Burghs minute book, Sc30/1/1/8, fo. 180r. This must refer to the case ofJames Greenshields which the barrister Peter King unsuccessfully argued on behalf of Edinburgh: Rob. App. no. 6. The town's pleadings were said to contain some "Bilingsgate language"which harmed its case: NLS, Delvine papers, MS 1104, fo. 36. Hamilton is also mentioned in the latter source, fo. 38. 72 H H L Bellot, "The exclusion of attorneys from the Inns of Court" (1910) 26 LQR 137 at 143-4. Hamilton ceased to be the city of Edinburgh's agent, but it is not clear when.The city had no London agent in 1733: ECA, Edinburgh TCM, SL1/1/54, fos 295-8. 73 George Irving WS was law agent for both Edinburgh town council and the Convention of Royal Burghs. However, discrete law agents were later employed by the two organisations, perhaps due to concerns about a conflict of interest. 74 E.g., there is a receipt dated 2 July 1744 subscribed by John Hamilton: ECA, Edinburgh TCM, SL30/4/10. SCOTS LAWYERS, ENGLAND, AND THE UNION OF 1707

Ross (well known not only as a law agent but also as a broker of military commissions), Henry Davidson, Thomas Longlands and James Chalmers. Ross and Davidson were in partnership in the 1760s and were described in one Scottish process, in 1767, as "joint solicitors ... who carry on business ...for their joint behoof".7 This was at a 76 time when partnerships of lawyers were rare in Scotland. The names of these London agents arise in a variety of contexts. They were fixers, men with good political contacts who were able to offer advice and assistance should the passage of a parliamentary bill need to be promoted or obstructed or should it prove necessary to make requests of government. Longlands, for example, was the man employed as go-between by the Society of Solicitors at Law in 1780 when it sought incorporation by royal charter.77 His salary ofC25 from the Convention in 7 1792 was exactly the same as Hamilton had received eighty years before. 1 George Ross went to London to assist on behalf of the of Inverness in 1738 when it was seeking a parliamentary renewal of the right to impose ale duty. Alexander Ross, another Scottish solicitor, was already managing this; but George,

who had likewise gone to London to solicite the affair, from his great friendship to the Town and for my Lord President, did advance the money at London, for the full payment of the solicitors bill, and of the said draught drawn by the town clerk, for which two sums with the current exchange the said Duncan Urquhart Esq did (upon 27 May last) draw £186-13-2 sterling in favours of the said George Ross upon the Provost. 79

George, former clerk to Duncan Forbes (who had been assessor for Inverness burgh council for many years when at the bar), may have decided to remain in London from then on. 0 At the end of 1763, Dunbar town council employed another London solicitor, Gibbs Crawford, to ensure that a similar Act of Parliament was passed in respect of their burgh. 1 The council paid his expenses but not his fee, because it first wanted the magistrates to enquire "what had been in use to be paid on such Occasions and to allow Mr Crawford what they think reasonable for his Trouble". 2 After the death of William Hamilton ("Councillor [sc. Counsellor] Hamilton"), George Ross in 1754 successfully solicited Lord Milton for his support in being

75 ALSP, Interrogatoriesproposed by Sir Alexander Grant to the Magistrates of Fortrose, 6 Aug. 1767, Miscellaneous collection, 1st series, loose papers, p. 14. 76 I intend to say more on this subject in a forthcoming monograph on legal practice in the eighteenth century. 77 Edinburgh Central Library, Register of the Society of Procurators of Edinburgh, 1707, fo. 16. 78 ECA, Convention of Royal Burghs minute book, SC30/1/15, entry dated 12 July 1792. 79 Highland Council Archive, Inverness TCM, BUtl/1/10, fo. 358. On Alexander Ross (d. 1753), see Finlay, "Lawyers and House of Lords appeals", 263. He was later described thus: "Alexander Ross, Writer to the Signet, and afterwards Sollicitor at London, was, for many years, employed as cashier, Writer and Agent in Law-affairs, and in a word, as an universal Confidant, by the family of Sutherland": ALSP, The Petition of William Earl of Sutherland, 11 November 1761, Arniston collection, vol. 61, no. 5. He seems to have gone to London under a cloud, having been discovered overcharging a client. 80 He also did some work for Edinburgh town council when in London in April 1738: ECA, Edinburgh TCM, Sl1/1/59, fo. 77. 81 East Lothian Archive, Dunbar TCM, DUN/2/1/1/5, Dunbar town council minutes, entry dated 29 December 1763. 82 Ibid, entry dated 5 February 1766. MISCELLANY VII appointed successor as agent for the royal burghs. 3 Ross thought he deserved the post, his record entitling him to the office "preferablie to any body here", and that the duke of Argyll would support him, as he was "perswaded my nomination to a more lucrative employment would not be disagreeable to him". At this date, Ross was working from Conduit Street in London. He may have been unaware that the royal burghs had discontinued William Hamilton's salary in 1749. This decision was taken on the basis that they saw no need to pay for an agent in London in time of and because of the "Low State of the Publick Revenue of the Burrows".14 It may have been soon regretted, as is evident from the correspondence of the Edinburgh merchant Francis Grant, who was commissioned by the Convention soon afterwards to go to London to negotiate on fisheries, hence the later appointment of Ross.8" Another very active agent was John Spottiswoode, who worked in partnership with William Gordon (until 1770) and later with David Robertson, and undertook business for many years on behalf of Edinburgh town council as well as many other clients. 6 An account submitted in 1792 by Spottiswoode in connection with the passing of a bill to improve the roads in Berwickshire records all the steps of procedure and all the payments which he had to make in order to get the bill passed.87 The account totalled £408 6s 4d, and the fees for the second reading in the Lords alone amounted to £108. As well as lawyers, Spottiswoode had made payments to committees, clerks, doorkeepers, barkeepers and other servants; he also included one guinea "for the use of a Room at several Meetings" in the British Coffeehouse. In a similar vein, Henry Davidson, Glasgow's legal agent in London, dealt with a petition to the Commons in 1770 seeking an alteration to the Shotts and Strathaven Turnpike Act.88 Davidson is an interesting character because he was also solicitor for Edinburgh and yet he seems to have had no natural connection to either of these major burghs. The son of the clerk of Cromarty, William Davidson, who died in 1761, settled in London before his father's death. 9 He ended up in partnership with Thomas Longlands and another Scot in London, John Seton. 9 It was Seton who succeeded him, when he retired from business in 1779, as the London agent for Edinburgh town council. 91

V Legal talent crossed the Border in both directions after the Union. Most of the traffic went south, with English lawyers coming north generally only where they had particular business to attend to as office-holders in the Scottish Court of Exchequer or in some other capacity. A good illustration of this occurred following the Jacobite

83 NLS, Saltoun papers, MS 16689, fos 64, 72. 84 ECA, CRB sederunt books, SL30/1/1/9, fos 13, 25. 85 Ibid, SL30/1/1/12, fos 29-30, 40. 86 See Finlay, "Lawyers and House of Lords appeals", 263. For mention of Spottiswoode in a private bond of corroboration, see NRS, RD3/241, fo. 549. 87 Archive, DL/WC/9/59. No client is mentioned. 88 Glasgow City Archive, Glasgow town council minutes, C1/1/34, fo. 351. 89 ALSP, Petition ofAlexander Mackenzie writer to the signet, sheriffclerk of the county of Cromarty, and George Greig depute sheriff-clerk, 18 December 1766, Swinton collection, vol. 2, pp. 3-4. 90 Seton had an office in Brewer Street, London, by 1776: NRS, Papers of David Ross, Accountant to the GPO, RH15/44/72. 91 ECA, Edinburgh TCM, S11/1/98, fo. 194; See Finlay, "Lawyers and House of Lords appeals", 263. SCOTS LAWYERS, ENGLAND, AND THE UNION OF 1707 uprising in 1715, when attempts were made to prosecute rebels in Scotland using the procedural novelty of a commission of oyer et terminer under the 1708 Treason Act." At Carlisle at the end of 1716, the advocates Robert Craigie and Alexander Garden of Troup had only participated with English counsel in the prosecution of Jacobite prisoners when offered £200 each.93 The decision to hold grand sessions in Scotland in 1718 via the commission of oyer et terminer met strong domestic opposition; and Scottish lawyers on the government side, such as Duncan Forbes and Sir James Stuart, claimed ignorance of English procedure and refused to participate. The commission therefore required the presence of two English lawyers to advise the court and assist the Scottish Solicitor General.94 Despite their presence, and considerable political pressure, Scottish proved reluctant to convict.95

Table 3: Scots from English Inns called to the bar9 6

Period Calls Advocates called Total calls Benchers

1701-10 6 0 436 -

1711-20 4 1 397 - 1721-30 6 1 479 -

1731-40 8 3 417 1 1741-50 2 1 342 3 1751-60 4 2 339 -

1761-70 2 2 254 2 1771-80 10 2 348 1 1781-90 21 6 425 1

1791-1800 16 3 425 4 Totals 79 21 3,916 12

Despite, as Table 3 demonstrates, a very small proportion of calls to the English bar involving Scotsmen (4.35 per cent in the period 1781-1800), Scottish lawyers in England had a greater impact than English lawyers did in Scotland. What that impact was can be demonstrated by taking, at random, the Law List for the year 1796 (which

92 7 Ann. c 21. Section 2 of the act made such commissions competent from 1 July 1709. 93 M SankeyJacobite Prisoners of the 1715 Rebellion (2005), pp. 121-3. Defence costs incurred by the advocate James Graham of Airth and his colleagues were paid with the help of a fighting fund contributed to byJacobites across Europe. 94 D Szechi, 1715: The GreatJacobite Rebellion (2006), pp. 241-3; SankeyJacobitePrisoners, pp. 126-8. 95 E.g. at Perth in Sept. 1718: HMC, Calendarof tbe Stuartpapers, vii, pp. 340-2,409-11. 96 Table 3 indicates the number of Scots called to the bar or bench per decade, rather than the number of Scots admitted per decade who went on to be called to the bar. Hence the different total from Table 1. The third column indicates those called to the bar who were, or who became, members of the Faculty of Advocates. The "Total calls" column relies on data drawn from Lemmings, Professors ofthe Law, Table 3.1. MISCELLANY VII

Table 4: Attendance of Scots admitted to Inns at Oxford97

College 1700-19 1720-39 1740-59 1760-79 1780-99 Total

Christ Church - 1 1 8 9 19

University -- - 1 1 2

Trinity -- 1 2 - 3

Oriel -- 1 - 1 2

Balliol -- 1 - 4 5

Magdalen - -- 1 - 1

Queen's --- 1 - 1

StJohn's .... 1 1

St Mary Hall - 1 --- 1

Merton 1 .... 1

Wadham --- 1 2 3

Pembroke -- - 1 1 2

Total 1 2 4 15 19 41

featured James Boswell, even though he died in 1795). This contains the names of nineteen Scots among the list of 446 ordinary counsel in practice (this represents just over 4 per cent). 98 But four of the twenty-six king's counsel were Scots (15.4 per cent). 99 This is significant because this was the rank that mattered. As newcomers to the English bar, there was no reason why Scots should aim at the rank of serjeant, which had long been in decline; indeed, William Murray disdained it and was said to have laughed when presiding at the creation of new serjeants.10 Although Boswell did not succeed in his practice at the English bar, he well understood (as did other Scots) the political culture and the legal cursus honorum."' Precedence and pre-audience provided a usefl advantage at the bar for those with access to patronage. Archibald Macdonald obtained a patent of precedence in 1778; Sylvester Douglas, Thomas Erskine and John Anstruther also either acquired patents of precedence or became

97 Tables 3 and 4 list only those colleges attended by students who were admitted to an Inn of Court. 98 The nineteen are William Adam (LI);James Boswell (IT); Charles Brand (Serjeants' Inn but originally LI);John Campbell (LI); Alexander Craufurd (LI), Archibald Cullen (MT); William Dundas (LI); Charles Edmonstone (LI);John Erskine (LI); Simon Fraser (IT);James Gordon (IT);John Halkett (LI); Peter Johnson recte Johnstone (LI); James Ker (IT); Thomas Macdonald (IT); James Mure (LI); Alexander Pitcairn (U); Thomas Scott (LI) and James Trail (MT). 99 This does not include George Dallas, whose name suggests Scottish descent. 100 Lemmings, Professors of the Law, pp. 299-300. In the List, the Hon. Thomas Erskine and Charles Brand are the only two Scots at Serjeants' Inn. Thomas Burnet (adm. MT 1709, called 1729), having served as consul general in Portugal in 1719, became a serjeant in 1736 and king's serjeant in 1740. 101 Lemmings, Professors of the Law, p. 261. SCOTS LAWYERS, ENGLAND, AND THE UNION OF 1707 king's counsel. Political influence was important in achieving such promotions; and Lemmings has highlighted the correspondence between king's counsel and the office of MP' 0 2 In 1796, Macdonald was Lord Chief Baron of Exchequer and a former MP, while Anstruther was MP for Cockermouth and Chief Justice for Anglesey Great Sessions; he was later to pursue a judicial career in Bengal.

Table 5: Attendance of Scots admitted to Inns at Cambridge

College 1700-19 1720-39 1740-59 1760-79 1780-99 Total Trinity 1 - - 2 3 6

St John's - - - 1 1 2

Corpus - 1 - - - 1 Emmanuel - 1 1 - 1 3

Pembroke - - - - 1 1 Unknown - 1 - - - 1 Total 1 3 1 3 6 14

Like Irish barristers, the nineteen Scots ordinary counsel in the 1796 List lacked local connections. They had to think carefully about which circuit to join (assuming they had the resources to join any). Sylvester Douglas had joined the Welsh circuit early in his career, without much success, although this was unusual."°3 In 1796, there was an understandable preference for the home circuit (with nine practising there) and the northern circuit (with four practitioners).1 4 The only other Scot known to have joined a circuit was attached to the Midland circuit. A continuing link to Chancery business is clear in that five were described as draftsmen, a specialist position that implies they needed to supplement their income (successful barristers disdained such work).105 The same might be said of the six on the list who were commissioners of bankrupts. Three were MPs. It is no surprise that as many as twelve of these barristers had joined Lincoln's Inn; three were at Inner Temple, the remaining four were at Middle Temple, although, of these, two had also become members of Inner Temple and in 1796 had their chambers there. In terms of calls to the bar at this period, Lincoln's Inn had almost as many as the two Temples combined, although why these two Scots, Simon Fraser and James Gordon, should choose within a few weeks of each other in the spring of 1793 to migrate from the Middle to the Inner Temple is unclear.106 Including Boswell, four of the five on

102 Ibid, p. 265. 103 His attendance on the circuit is attested from 1777: NRS, Miscellaneous small collections, GD1/616/183. 104 A May, The Bar and the Old Bailey, 1750-1850 (2003), p. 65 . 105 See Lemmings, Professorsof the Law, pp. 33-4. 106 Preference for Inner Temple is averred in the Report of the commissioners appointedto enquire into the arrangementsof the inns of court and inns of chanceryforpromotingthe study ofthe law andjurisprudence (HMSO, 1854-5), p. 50. MISCELLANY VII the home circuit attended the quarter sessions, two in Middlesex, one in Kent and Boswell in Essex. One of them was Simon Fraser, whose practice took in the home circuit, the Old Bailey and the London, Middlesex and Westminster sessions until he became MP for Inverness-shire in 1796. Thereafter, like his fellow MP William Adam, his practice would probably have been restricted to the home circuit. The third MP, William Dundas (son of the second Lord President Arniston), is recorded as practising on the northern circuit.

Table 6: Consolidated list of attendance at Oxford and Cambridge

University 1700-19 1720-39 1740-59 1760-79 1780-99 Total

Oxford 1 2 4 15 19 41

Cambridge 1 3 1 3 6 14 Total 2 5 5 18 25 55

Scots admitted to Inns 14 30 20 77 99 240

The Law List suggests that the Scots were able to exert an influence beyond their numbers by the careful exploitation of such patronage as was available to them. Within a few years, George Wilson gained precedence as a KC; and, a generation later, so did John Campbell (the future lord chancellor). Nor should we overlook Scots such as Charles Dundas, Gilbert Elliot and John Sinclair of Ulbster, who were not on the list but who had been called to the English bar and were in 1796 current or former MPs. The opportunities beyond legal practice which London offered to Scottish advocates were in 1737 summed up by James Erskine of Grange. Erskine had resigned from the bench in 1734 in order to become an MP. His private affairs at the bar had had to suffer since "being so much absent from the courts here [i.e. in Edinburgh] and at the time of best business breaks my employment". Two options occurred to him. First there were "several employments in the city of London, not great, but such as would do me good" which he might obtain through his friends; the other was to obtain "some employment about the Prince or Princess" (in which he succeeded).1 °7 Scots were normally at a disadvantage at the English bar, and attempts by them to gain a practice, particularly in the very competitive home circuit, usually failed. That is why so many made such efforts to obtain a seat in the Commons or some other public office in compensation. Many in the end gave up the law and turned their talents elsewhere. In the case of some, including Andrew Mitchell, David Montagu Erskine and William Fullarton, they turned to diplomacy. Others continued to practise law but did so elsewhere, particularly in India. Lockhart Gordon went to Bengal as Justice Advocate General, John Anstruther did so as Chief Justice (as John Peter Grant and Robert Fergusson, also at Lincoln's Inn, were to do in the nineteenth century) while Anstruther's younger brother went to Madras in 1803 as Attorney General.1 °8

107 HMC, Polmont, v,no. 205. 108 Gordon (adm. MT 1751); Anstruther (adm. LT 1774); Grant (adm. LI 1793); Fergusson (adm. LI 1792). Grant's daughter, Elizabeth, wrote Memoirs ofa HighlandLady (first published in 1898). SCOTS LAWYERS, ENGLAND, AND THE UNION OF 1707

North America was also a prime destination before the revolutionary war: James Trail of Middle Temple, for example, became Clerk of Pleas at Charleston, South Carolina in 1771. Scottish lawyers, not just merchants, missionaries and soldiers, made use of access to the empire. But, in England, they had one saving grace: the amount of House of Lords appeals, and other (mainly Chancery) business, that came to London direct from Scotland. One example demonstrates how this benefit could be put to work. Margaret, countess of Panmure, was one of the unfortunate wives whose husbands were exiled after the Jacobite rising of 1715.1"9 She fought hard to recover her family estates and to gain permission for her husband to return home. Her agent in London was the solicitor Alexander Hamilton, already noted above. He employed as one of the counsel his elder brother William, who had been called to the bar at Lincoln's Inn in November 1714. By the following summer, William Hamilton was already appearing before the Lords in Scottish cases as junior colleague to such English leaders as Sir Edward Northey, Robert Raymond and Sir Joseph Jekyll.' Another Hamilton brother, John, was his brothers' factor in Edinburgh and received payment from the countess on Alexander's behalf in February 1719 and from Harry Maule of Kellie, heir to the Panmure estate, in 1723."' No doubt he was also instrumental in advising the great and the good to instruct his brothers when they had business in London. In turn, Alexander's son, William (died 1811), became an attorney in King's Bench and ensured a family presence in Lincoln's Inn Fields for almost a century. Horace Walpole predicted that Scotland's "will replace ours"."' He has not yet been proved right. But, having preserved their separate legal system in 1707, Scots by 1800 were influencing the development of the English legal profession and had made a significant contribution as crown lawyers, officers of state, judges and office-holders in the Inns of Court. Historians of Scots law often highlight the influence, for good or ill, of English law and English-trained lawyers in the House of Lords on the development of post-Union Scots law. On closer inspection, it is clear that the influence was not all in one direction.

109 Szechi, 1715. The GreatJacobite Rebellion, pp. 223-5. 110 Watson v Watson, Rob. App. 33; Menzies v Menzies, Rob. App. 34; Habkin v Hog, Rob. App. 36. 111 NRS, Exchequer Papers, Forfeited Estates 1715, Panmure, E650/63/21; Papers of the Maule family, GD45/17/994. The case dragged on into the 1720s, as further accounts show: GD45/23/86. 112 The Yale Edition of Horace Walpole's Correspondence, ed. W S Lewis (10 vols, 1937-83), 28, p. 67.