Review of A Legal History of Scotland Vol VI: The Nineteenth Century
The sixth volume of Professor Walker’s Legal History of Scotland is devoted to the 19th century. In its period up to the great Reform Bill of 1832 the forces influencing the law are still largely those of the late 18th century. The industrial revolution, begun in the 18th century, is then gathering momentum with no other apparent aim than the production of wealth and no philosophy other than laissez faire, and accompanied by vast social consequences mainly destructive. After the Reform Act under the all pervading influence of the Evangelical and Utilitarian movements attempts, which became increasingly systematic, are made to control the consequences of industrialism in the interest of the community and by the instrument of legislation. It is the age of capital. In the United Kingdom it is the Age of Empire. There was in it much that was unlovely and unjust by modern standards but until the misgivings and doubts of the fin de siecle its people, as G M Young put it, “were nearer to the later Elizabethans …….. in their sense of the worthwhileness of everything - themselves, their age, and their country”.

The legal history of a vibrant country undergoing such changes, as Professor Walker has conceived that history, is a vastly more complex subject than he faced in his earlier volumes. It demands detailed accounts of the substantive law, civil and criminal, of procedural, administrative constitutional law and their sources and literature, in the very widest sense. It involves also a description of all that pertains to the law, monarchy, parliament, central and local government, law and lawyers, their status and training, Courts from House of Lords to police courts. It requires moreover consideration of the social, political, economic and moral forces that influenced and determined these varied aspects of the law.

Professor Walker in his Preface calls this a vast subject that is not only fascinating but difficult because of the volume of background materials. That is a proposition borne out by his long first chapter on sources and literature on the subject, some 39 pages, by his select bibliography and by the exhaustive citation of sources and authorities in the notes which follow each individual chapter. Contemplation of the bulk of all these is staggering and there must be few scholars, faced with such evidence, who have the energy, the patience and the capacity to master and order them. Professor Walker however is such a scholar, and one who throughout his long years of publications has taught the legal profession that he possesses these qualities in ample measure. I recall about 1956 or 1957 his deploring the then lack of an introduction to the Scottish legal system he set out to remedy that and in so doing began a renaissance of Scottish legal scholarship to which he has been a significant contributor. He showed me then the first draft on his book on the Scottish Legal System first published in 1959. That draft was in his own clear handwriting. It was, he told me, the first draft, and on it I saw hardly a correction or an amendment. It was that draft that went to the printers.

At the same meeting I recall him saying that the last thing he intended to write – having indicated he intended to write on much in Scots law – was a history of that law. That ambition, qualified by the form he has made his history take, not a conventional history of Scots law but a legal history of Scotland, he has now brought down to this sixth volume. I further understand that he intends, and is already collecting material for, the volume on the 20th century. It is given to few to fulfil to the letter so much of their early ambitions.

His object here as in his other five volumes is to look at the institutions and principles in existence at a particular period of time. The result here is an exhaustive encyclopaedia of Scotland in the 19th century in every aspect of its legal system. The format he uses is that adopted in his Principles of Scottish Private Law, namely a general statement of the subject and thereafter separate paragraphs exhaustively devoted to the subdivisions of each subject, with here liberal and extensive quotation  of  contemporary authority. Indeed a law student of the late 19th century, had he possessed a copy of Professor Walker’s sixth volume, would have had in one volume – admittedly a long one (1106 pages) – a text such as none of his then academic mentors had attempted – or were to attempt for some time – and having answered any questions likely to be put to him, and later, in practice have advised on most legal questions he was likely to encounter, so comprehensive is its account of 19th century law.

Adjective law occupies much of the text. It was a period which saw more changes in adjective law, conveyancing and the machinery of justice than in the substantive law because the Utilitarian spirit of the age lay in the direction of reforming and simplifying that which had become over complex for a rapidly changing social scene. The history of such changes while critical in their day are probably of limited interest to a generation to whom they were never of significance, or use, but the detailed account of the changes in this adjective law given here demonstrate that the Victorians were not easily satisfied with their legal procedure or their conveyancing system and were assiduous in their attempts to improve them. By contrast with the adjective law the author’s conclusion is that in private law in the 19th century, there is a continuation of traditional Scottish principles. It was indeed its golden age.

On any of the detailed chapters in this book it would take a specialist in its subject to pronounce that ‘nothing has been missed’ but having read the text and being aware of the author’s reputation for and practice of thoroughness, I would respectfully very much doubt it. The author here does more than expound law of the day. He concludes each of the chapters on the substantive law with a section heading  ‘Conclusions’  which summarise the general effect of the law, and the changes in it, he has just described. The book moreover concludes  with  an  eminently readable  and  comprehensive ‘Retrospect’ of the main features which make the development of the law in the 19th century of particular interest and importance.

In  the  19th  century,  law  and especially   legislation  became increasingly influenced by social and political ideas and by the social and economic background of the age. These subjects are dealt with in two early chapters where again Professor Walker demonstrates his range of reading and his capacity to digest its results. His chapter Social and Political Thought ranges from Benthan, Marx and Engels to the schools of Historical Jurisprudence. His chapter on Social and Economic Background ranges over 23 topics from land to whisky production, from Social Welfare to prostitution, from railways to the rise of the learned professions. The general content of these two chapters is however elaborated in relation to particular branches of the law when these  are  later  individually discussed. The chapter on the law of property for example includes a long, balanced and illuminating account of land holding in the Highlands and Western Isles. The 19th century legislation on crofters the author describes as a reaction to special circumstances and as “a tangled history and a failure or refusal to appreciate the difference between a kin based society and a legal right based society”. In a note to this chapter the author permits himself the judgment that “the legality of clearances can only be decided in particular cases, by reference to the particular landlord, the place and the contract if any of the particular occupier of the land in the circumstances. Generalisation is dangerous”.

The content of the law and the state of its legal institutions are here the paramount subjects but the author acknowledges the law in action with accounts of certain of the century’s causes celebres which fascinated, shocked, alarmed or ruined those involved. Body snatching and grave robbing was endemic until 1828 and concerned everyone. As Lord Cockburn put it, it was a crime by which “everyone felt himself living in the midst of persons to whom murder was a trade”. The crime came before the court in two notorious cases, Granville Sharp Pattison (1814) and Burke and McDougall (1828) than which later - again quoting Cockburn – “no case ever struck the public heart or imagination with greater horror”. The disclosures in these cases showed that murder to procure bodies for anatomists had become a practice, and led to The Anatomy Act of 1825 which provided other ways of obtaining bodies for dissection without recourse to murder. Burke, McDougall and their partner Hare are well known, but the case of Granville Pattison, allegedly an earlier if less notorious resurrection practitioner, deserves the colourful revival here that Professor Walker has given it.

The classic murder trial of the century was of course that of Madeleine Smith. As a murder Henry James considered it “the type of perfect (murder) case” with its attractive accused, the over-the-counter procurability of arsenic, the shocking revelation of what a girl of a highly respected family could get up to, and have the enthusiasm, indiscretion and vocabulary to write about, and its final Not Proven verdict. Professor Walker shares the modern view that Madeleine’s was a case of murder for elimination of an unwanted husband, with the Not Proven verdict, which was never mentioned in the Judges charge, “charitable and mistaken”. His chapter on insolvency and bankruptcy contains a lucid account of Sir Walter Scott’s insolvency; that on Corporations includes lengthy accounts of the failure of The Western Bank in 1857 and the crash of The City of Glasgow Bank in 1878. These financial disasters were the talk of the Scotland of their day. The details of the bank failures and their disastrous consequences are now largely forgotten but Professor Walker’s account of both explains their contemporary notoriety and tragedy.

To today’s older generation, of which I am one, the 19th century can seems comparatively close in many respects. Our parents and elders were Victorians and, in my own, case, my maternal grandmother was born in 1855 and lived to 1948 with total recall of which she winningly indulged the curiosity of childhood and youth. There is then to a certain extent a sense of familiarity with the age, which make certain of the details Professor Walker has recorded sometimes startling and always intriguing. This is because sometimes these details surprise that such things could have been, like the fact that in an age where the laws delays were notorious the Outer House of the Court of Session sat from 9.00 am to 11.00 am and never in the afternoons and the Inner House only from 11.00 am until 2.00 pm. Sometimes the details surprise because they are matters with which the 21st century is still concerned. Two examples of the latter, and there are many more, may perhaps be permitted here.

One is the problem of industrial relations and the other the expense of the ever-rising prison population. The first has of course a long history but it is significant of the early optimism of government in such matters that as early as 1824 Parliament passed an Industrial Arbitration Act, the first of many attempted solutions to what even then was a considerable problem, and the first of many to fail.

To reduce the ever-increasing costs of prison populations the Victorians by the Penal Servitude Act of 1853 introduced a ticket of leave system borrowed from Australia. It was a forerunner of parole but of a scope that even today has not been reached. It allowed convicts to make their own living while remaining convicts but liable to recall if they re-offended. It depended not on good behaviour but according to the convict’s chance of earning a living. It was however an experiment which when tried earned even from the liberally minded Lord Cockburn the comment that “this new fangled” idea “won’t do”. His Lordship was of the view that “by the establishment of tickets of leave, government means or will be tempted to save expense by emptying the gaols upon the public which will just be drenching us instead of our colonies with tolerated villains”.

There is one last fragment which in view of the personalities involved in it deserves a mention. In the 19th century for the first time serious consideration was being given to the regulation of university teaching in Law. In his long account of this Professor Walker records the somewhat if not confusing fact that from 1872 until 1875 Glasgow University’s degree in Law was a Bachelor of Science in the faculty of Arts. Whatever may be said if its name among those who took its law subjects were two who had no reason to complain of the teaching. One was Charles Scott Dickson, who became Lord Advocate and then Lord Justice Clerk. The other was Alexander Ure, who also became Lord Advocate and then Lord President and finally went to the House of Lords as Lord Strathclyde. The B.Sc in Law was a device to enable students to obtain a degree in Law. It was withdrawn from 1875 and was replaced at Glasgow by the BL and from 1878 by the LLB.

Pollock and Maitland, the authors of “The History of English Law” – one of the great English history books – prefaced their first edition in these terms “often times our business has been to quarry and to hew for some builder of the future …. But we have endeavoured to make sure so far as our power and will can go that when his day comes he shall have the facts and not fictions to build with”.

With these six volumes of his Legal History of Scotland, Professor Walker titles manifold to an identical accomplishment.

Sheriff J Irvine Smith

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