This is a publication of The Stair Society. This publication is licensed by John Finlay and The Stair Society under Creative Commons license CC-BY-NC-ND and may be freely shared for non-commercial purposes so long as the creators are credited. John Finlay, ‘Scots Lawyers, England, and the Union of 1707’, in: Stair Society 62 [Miscellany VII] (2015) 243-263 http://doi.org/10.36098/stairsoc/9781872517292.4 The Stair Society was founded in 1934 to encourage the study and advance the knowledge of the history of Scots Law, by the publication of original works, and by the reprinting and editing of works of rarity or importance. As a member of the Society, you will receive a copy of every volume published during your membership. Volumes are bound in hardcover and produced to a high quality. 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Please visit: http://stairsociety.org/membership/apply SCOTS LAWYERS, ENGLAND, AND THE UNION OF 1707 JOHN FINLAY I Support from the legal profession in Scotland was important in securing parliamentary union in 1707.1 At this time, the membership of the Faculty of Advocates in Edinburgh was greater than it had ever been, therefore their support, and that of the judges in the Court of Session, was worth gaining. In return, Article XVIII of the treaty protected Scotland's private law 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 Scottish Parliament 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 court of session 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 London as a pathway to professional advancement. As the advocate and judge Francis Grant expressed it in 1715, the "new Terror,namely the Study of the English Law ... 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 Inns of Court 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 Lord Advocate in 1746, was MP for Elgin Burghs 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 barristers). 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 barrister 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).