Legal Dress In Scotland

One fascinating historical study is that of the dress of lawyers and judges. In general in all the European countries lawyers have historically worn some type of robe to demonstrate their status and judges have worn robes specific to their work. In the British Isles, the fashionable wigs of the eighteenth century also came to be attached to the dress in court of members of the bar. it is a topic that has never been properly researched in Scotland.

These remarks are provoked by the approach made to your blogger by Scottish Legal News aout the recent Practice Note on Legal Dress issued by the Lord President, Lord Carloway. See https://www.scottishlegal.com/article/decision-to-dispense-with-judicial-garb-comes-in-for-criticism . This was picked up by The Times on 5th November.

Courts are hierarchical, with dress indicating position and authority. The only judges who traditionally did not wear robes for hearing cases were those of the House of Lords, because they sat as peers as a committee of the House of Lords. This was a practice continued in the new Supreme Court, where it has also become the rule that whether counsel wear gowns and wigs is at the option of those appearing. One understands that there is social pressure from some counsel, who see themselves as “modern” and “social democrats”, not to wear wigs and gowns before the Supreme Court. This means that those who prefer to be robed and wigged are put under pressure to conform to a new set of “norms”, or be identified as fusty for not “getting with the programme”.

Of course, hierarchies are not much to the modern taste; but they exist. It will always be evident who is in charge in the court, the woman or man sitting on the bench. But dress reinforces and eases identification of the roles played by each person. It defines identity. Getting rid of dress does not suppress hierarchy, it just makes it more obscure and difficult to identify.

When it was decided in 2014 that judges would no longer wear wigs and gowns in the Inner House of the Court of Session, and would no longer require that counsel wear wig and gown, the Faculty of Advocates decided that their members would nonetheless continue to wear wig and gown in addressing the Inner House.

The new practice note issued by the current Lord President means that judges, except when hearing witnesses testimony, will not be robed in the Outer House, nor will they require that counsel wear wig and gown. A poll conducted by Scottish Legal News indicates that lawyers are overwhelmingly opposed to the change. See https://www.scottishlegal.com/article/scots-lawyers-massively-in-favour-of-retaining-wigs-and-gowns  According to The Times on 5 November, Gordon Jackson, Dean of the Faculty of Advocates, has stated that advocates could still continue to wear court dress if they liked. If he is correctly reported, one can foresee that the practice will progressively vanish, even though we know that in 2014, the majority of the Faculty of Advocates wished to retain court dress.

In 2014, the then Lord President was quoted by the BBC as stating that to no longer wear robes for civil appeals “makes sense in this day and age”. But this is no argument. If a student wrote this in an essay, one would ask: What do you mean? What do you mean by “making sense”? In what way does it make sense? and so on. It is in fact rather meaningless. One is left to assume that, somehow, not wearing robes is more modern; but perhaps it makes sense in a way your blogger does not see. No better explanation is offered for the new development. But what is vague is always questionable.

Dress in court is part of the corporate if diverse identity of the legal profession. As far as your blogger is aware, in most of Europe lawyers and judges were robes; some considerably more elaborate than those used in the British Isles. One friend f your blogger’s is always proud that in court he always wore the judicial robe of his grandfather. It marks continuity in structures, the type of continuity that permits development and change, without dislocating ruptures and stress. In this it is like the law itself, routed in the past to permit future development.

Scots law is backward-facing; it develops incrementally by precedent, with some statutes when necessary, and all lawyers know that statutes are far from offering a panacea. Adam Smith was wise when he wrote about the evils of men of system. One also thinks of Walter Scott’s character, Vitruvius Whigham, who ends up destroying what he wishes to reform. While one would not wish to exaggerate, it is difficult to know where such reforms end or what their consequences can be, particularly when the reasons for them are so unclear. If not robes, then why suits? Why not tracksuits and trainers – comfortable, functional and modern?

There are many factors and social practices that give authority to the law. Interfering with them is arguably dangerous and not to be entered into lightly. With our unwritten constitution, recently rather abused,  it is important to have respect for the institutions of the past. Without them, we are without foundation, or, to change the metaphor, become rudderless. These are the institutions on which depend the liberty of the subject and cultural security.

Walter Scott was all too aware of this when, in response to proposed Whig reforms in 1807, he told Francis Jeffrey: “little by little, whatever your wishes may be you will destroy and undermine, until nothing of what makes Scotland Scotland shall remain.” Perhaps he exaggerated; but these are words to ponder

 

 

 

 

 

 

 

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Armada chests and legal documents: Anderson Strathern

Most law firms have antecedents back through the centuries. In recent years, there have been many amalgamations, and law firms can end up holding interesting caches of documents that once belonged to clients, or that they acquired in the course of litigation. Also, they can sometimes hold interesting objects, beyond the ubiquitous tin boxes for trust deeds.

Anderson Strathern, a major Edinburgh firm that is the successor to a number of other Edinburgh firms, has found itself with three “Armada” chests. These are wrought iron, often massive, strong boxes with elaborate, and locks in their lid. They were objects of luxury to protect documents from theft and give some level of protection in a fire. The qualifier “Armada” is the product of Victorian romanticism,  formerly they were known as Nuremberg chests.

The firm has employed a young historian, Mr Ewan McCall, to examine and advise on the historic documents that they have in their offices. He found a rich haul of goods and two locked Armada chests. The firm had a ceremonial opening of these chests by a locksmith at a small event where a selection of some of the documents found by Ewan were displayed. One can note a very interesting list of the library of a WS in 1794, who had a good collection of interesting books on Roman law, and a deed signed by Adam Smith when Professor at Glasgow, and interesting disputes over rights to the cargo of a vessel taken in the north east of Scotland. The oldest document was a sixteenth century charter.

Along with you blogger and some other guests, Dr Karen Baston, well-known to this blog, and Mr James Hamilton from the Signet Library, were there to examine the documents and see a locksmith open one of the two locked Armada chests (the other was opened privately in advance). This proved to have been used for storing documents until 1919 or so, judging from the dates of the contents, while the other was empty. Both chests were highly decorative on the inside, one painted on the inside of the lid, the other with an elaborate wrought decorative cover over the oak mechanism.

 

Of course, it is now a question, as it is for other law firms, about what do with such historic material.

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15 August, Birthday of Napoleon and Sir Walter Scott: Codes and Europe

Napoleon is one of the most interesting and important figures in the history of Europe; Sir Walter Scott was one of the most important and influential European novelists of the first half of the nineteenth century. They were both born on 15h August, the Emperor and general in 1789, so this year is his 250th anniversary, and the novelist in 1771. Napoleon was a fan, we know, of Ossian; it is unknown to your blogger whether he ever read any of Scott’s poetry, or whiled away a weary evening in St Helena reading one of Scott’s Waverley novels. One suspects not, however, since he died in 1821.

The indefatigable Scott, however, wrote a biography of Napoleon, The Life of Napoleon Buonaparte: Emperor of the French. With a Preliminary View  of the French Revolution ,  published in Edinburgh in 1827, in nine volumes. Despite Scott’s Tory views, he was actually measured and in many ways not unsympathetic in his treatment of his subject, admiring the military genius, and identifying with his life, as Susan Manning has pointed out. As a lover of Shakespeare it is perhaps no surprise that he depicts Napoleon as a tragic hero, ultimately brought down by the nemesis that followed his hubris.

Scott quotes a speech of Napoleon in which the Emperor claims he is aiming at “one universal European code, one court of appeal. The same one, the same weights and measures, the same laws, must have currency through Europe. I must make one nation out of all the European states, and Paris must be the capital of the world.” (Life vol. 7, pp. 157-8) Needless to say, reflecting the Smithian views of his teachers at Edinburgh,  Scott preferred the common law of England to the Code civil, commenting that it it is a “vulgar, though a natural and pleasing error” to prefer “the simplicity of an ingenious and philosophic code of jurisprudence, to a system which has grown up with a nation”. (Life, vol. 6, p. 59.)

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The French Viceroy

France is of course a republic; but it still has at least one vice-roi! The river Bidassoa, in the Basque country, divides Spain from its northern neighbour. In the middle of the river is the île des Faisans, though there are no pheasants on it, at least according to Victor Hugo. Sovereignty over this island is shared between the two states, with each taking a six-month control. During that period, the relevant functionary is described as the Viceroy. In the job description of the relevant French functionary, found in the Journal official de la République française of 20 July 2017, who has other, perhaps more taxing, duties, he/she is described as exercising “les functions du vice-roi de l’île des Faisans”. The French period of responsibility starts on 1 August, so the viceroy will just have entered into exercise of the office, which will be held until 31 January. See Le Monde, 2 Aug. 2019

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Latin Revival

It perhaps may be no great surprise to readers of this blog that your blogger’s favourite school subjects were History, Latin, and English. In all, he had seven years of Latin, and regrets that he has lost the facility and level of knowledge that he had when he had just finished his A-level. Latin remains a key language in understanding European culture, and is necessary for much historical research in Scots law and indeed Scottish history and literature more generally. Your blogger has found research students frustrated by not being able to pursue certain topics through lack of a knowledge of Latin. In your blogger’s school, which at secondary level had perhaps 800 pupils, there was a classics department of three or four teachers. But even then Latin and Greek were under attack.

Once, at an open day quite a few years ago, I was asked by a school pupil if I had any recommendations about specific highers. This was in the days when universities were more relaxed about such events, so I felt free to answer honestly, including Latin as one of my suggestions. Back came the instant response from the pupil that he could not take Latin, as it was “elitist”. I was astonished at this extraordinary remark, so glibly and confidently given. No doubt the young man was simply echoing something he had been told at school, though one wonders who would have made  such a fatuous and irresponsible evaluation to school pupils. But I later came to discover that this was a commonly repeated view, one whose meaning is beyond understanding.  Soon thereafter, it became impossible for a classics graduate to train as a classics teacher in Scotland. It was almost as if a whole history and tradition were being deliberately destroyed, or at least wilfully neglected.

A recent article by Alex Imrie, “Caledonia resurgens:  reflections on the campaign to revive Classics in Scotland”, published, as open access, in 20 (39) The Journal of Classics Teaching (2019), pp. 111-16, gives cause for hope. The author has been working hard with the Classics Association of Scotland and Classics for All on outreach and public engagement activities to reintroduce both the possibility of training as a classics teacher in Scotland and to develop the discipline in schools. What is encouraging is that he has found that there is a thirst for the subject, even if there was still the need to overcome the view that it was of interest only to the “elite” (not that he uses that term). One has to congratulate the endeavours.

Your blogger is a few years younger than his sister. But it is notable that at her school, while also gaining the “highers” necessary for entrance to medical study, she also acquired a higher in Latin (as well as in French – but that is another story).  One suspects, however, that the universal study of Latin that was once the lot of all pupils aiming for university is gone for good. But the work and achievements catalogued in Imrie’s article give cause for hope that more in the future with acquire knowledge of this key to understanding. Knowledge of Latin is no longer to make one a “Tall Poppy”, under attack from the tyrannical kings that stalk the fields of education.

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Report: Water and Waterways Management in the Roman Empire Workshop

by Peter Candy

On 18–19 July 2019 the Centre for Legal History hosted an interdisciplinary workshop on the subject of the management of water resources and waterways during the Roman period. The meeting was organised by Peter Candy and Dr Marguerite Ronin (Brasenose College, Oxford) with the help of funding provided by Marie Curie Actions. The conference brought together archaeologists, ancient historians, and Roman lawyers from several different countries to discuss interdisciplinary approaches to the understanding of Roman water management strategies. The papers were grouped into three themes: (i) the management of waterways; (ii) the management of land adjacent to waterways; and (iii) the exploitation of water resources.

The central aim of the workshop was to explore the potential and challenges of studying a historical problem from the perspective of different sets of evidence. From this point of view, the conference was a success. The management of water resources was an ideal subject, partly because the effective exploitation of water was essential to both agricultural and urban development in the ancient world. Moreover, the contributions of archaeologists and lawyers combined to lend an insight into the integrated technical and legal strategies that the Romans employed to the challenge of supplying water to the places it was required. In the case of rural communities, for example, irrigation was a central concern; while cities frequently relied upon rainwater collection and aqueducts to provide for their populations. Maintaining the navigability of waterways (both natural and man-made) was also an important task. In all these cases, the construction and maintenance of the necessary infrastructure was facilitated by the Roman legal framework, which provided remedies designed to govern the relationships between the individuals engaged in these tasks.

Finally, the organisers would like to thank Prof. Paul du Plessis (University of Edinburgh), Prof. Nicholas Purcell (University of Oxford), and Prof. Luigi Capogrossi Colognesi (Università degli studi di Roma La Sapienza) for their participation and support.

You can download the workshop programme here:
Water and Waterways Management in the Roman Empire

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Race, Slavery, and Reparations

Regular readers of this blog will be aware of its interest in questions of history, race, slavery, and discrimination. Your blogger is very pleased to see that one of his former pupils, Eric J. Miler, has recently gained considerable attention for his presentation before the House Committee of the US Congress on issues of redress for those subject to violence and intimidation who had their lives destroyed.

see https://www.scotsman.com/news/people/from-glasgow-to-tulsa-a-scot-wrestles-with-his-racial-identity-1-4960580?utm_source=Scottish%20Legal%20News&utm_campaign=aff5984976-EMAIL_CAMPAIGN_2019_07_08_11_17&utm_medium=email&utm_term=0_07336e1dbf-aff5984976-66764801#comments-area

A video of Professor Miller giving his evidence is available on C-Span

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Water and Waterways Management in the Roman Empire

The Universities of Edinburgh and Oxford, with the support of Marie Skłodowska-Curie Actions are holding an important interdisciplinary Conference on the management of water and waterways in the Roman Empire. With speakers form Europe and North America this conference promises to be an important event in developing our understanding of a vital topic. The conference is not open to the public, but expressions of interest are welcomed:p.f.candy@sms.ed.ac.uk.

Click here for poster:

WWM Poster

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There is a Scottish Parliament and Scotland’s shared values.

In recent months, your blogger has been thinking about the use of “shall” in legislation. It is an interesting question, one with rather greater implications than might at first be thought. But the following post has been provoked by conversation with your blogger’s colleague, Hector MacQueen, leading to consultation of a fascinating article on legislative drafting by another colleague, Eric Clive.

The recent commemorations of the establishment of the Scottish Parliament in 1999 have led your blogger to reflect on the terms of s.1.1 of the Scotland Act, 1998, ch. 46, which states: “There shall be a Scottish Parliament”. Probably because the late Donald Dewar made much play with this phrase in his speech opening the Parliament in 1999, it has become rather associated with him in the public mind, as the merest search of the internet will reveal. Indeed it is carved on the plinth of his statue in Glasgow. It is seen as a resounding, powerful, even national, statement of intent, marking the event and the hoped-for development of a new politics. You shall go to the ball. Rather more prosaically, however, one can observe that the drafter of the relevant provision of the 1998 Act has simply copied the opening words of the (repealed) Scotland Act of 1978 ch. 51, which, in its s.1.1, stated: “There shall be a Scottish Assembly.” Indeed there are many other parallels between the two acts. Of course the 1978 Act was repealed, since the referendum that followed, perhaps reflecting greater and more sophisticated thought about the significance of major constitutional change than has been displayed in planning subsequent adore recent referendums, required more than a simple majority of votes cast to initiate dramatic constitutional reform. But, basically, as much of the 1978 act as could be salvaged was transplanted into that of 1998. One can in fact trace this formulation further back, if without the dramatic simplicity in the 1978 and 1998 Acts. Thus the Government of Ireland Act 1920, ch. 67,  s.1.1 states there “shall be established for Southern Ireland a Parliament … and there shall be established for Northern Ireland a Parliament ….” I have not searched further.

But there are many other strange twists to the myths that now surround the Scottish Parliament. One that your blogger particularly enjoys involves the mace presented to the Scottish Parliament by Her Majesty the Queen. Engraved on it are the words “Wisdom”, “Justice”, “Compassion”, and “Integrity” . Apparently these are now the “shared values” of the Scottish people. Who would have known? If you doubt this is a common view, search the web!  They are of course aspirational words that are easy to endorse; but that is because, of course, they mean very little without a context, and are as empty as any other advertising slogan. Who does not like Mom and apple pie, as the Americans (and now all anglophones) say? These four words apparently now constitute the values, to give one example, that underpin the controversial Scottish Curriculum for Excellence. One member of the Scottish Parliament, Jenny Gilruth, has described them as the four founding principles of the Parliament.

All this high-minded stuff is fair enough if perhaps tending to the rather worthy pomposity that one associates with the clergyman or clergywoman at speech day at school. Again one suspects they have entered the popular consciousness (if they have) because Donald Dewar’s remarkable speech also made much of them. But what is interesting is that these “shared values” of the Scottish people or “four founding principles of the Parliament” were in fact made up, or perhaps one should say chosen, by Michael Lloyd, the Salisbury-born silversmith who made the mace. Had he had the space, he also wanted to put on “courage”. See https://uruisg.blogspot.com/2012/01/truth-about-wisdom-justice-compassion.html

Your blogger is primarily an eighteenth century scholar. He shares that century’s love of paradox and unintended consequences. Of course hard historical fact does not challenge the values individuals have put on these words; but it is as well always to remember their origins. One set of words was copied by a drafter form an earlier act; the others were made up by an English-born silversmith and, rather to his surprise, simply accepted. It is amusing to note that the website of the Scottish Parliament states: “Engraved on the head of the mace are the words ‘Wisdom, Justice, Compassion and Integrity’ – these are a reference to the ideals that the people of Scotland aspire to for their Members of Parliament.” It is good to know. https://www.parliament.scot/visitandlearn/24496.aspx

Your blogger did think of calling this entry “Of mace and men”, but wiser counsel prevailed and he thought the better of it.

 

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Hector MacQueen: C.B.E.

The Blog is delighted to report that Her Majesty has honoured Professor Hector L MacQueen of this University with the award of the rank of Commander of the British Empire for services to legal scholarship.

Professor MacQueen is one of a tiny handful of truly distinguished legal historians in Britain, as well as a distinguished private lawyer who served for many years as a Scottish Law Commissioner, with a particular interest in intellectual property and contract

As a legal historian he is an all-rounder; but he best known for his work on the middle ages, notably with his outstanding book Common Law and Feudal Society in Medieval Scotland, first published in 1993, and his pathbreaking work on brieves more generally.

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