John Finlay on John Finlay, Legal Practice in Eighteenth-Century Scotland
On 23 October, 2015, the Centre for Legal History of the Edinburgh Law School held the first of the book events it was holding this year. Professor John Finlay of Glasgow gave a presentation about his recent book, John Finlay, Legal Practice in Eighteenth-Century Scotland (Leiden: Brill, 2015). Professor Cairns commented before a general discussion. It was a successful and interesting event. Professor Finlay’s account is below.
How do you begin to look at the legal profession Scotland in the eighteenth century? In my case, it was reading as many Session Papers as I could find the time to examine. All of eighteenth-century life is there but, from the perspective of looking specifically at lawyers, this one source is a great way to gain a sense of their everyday language, of the types of legal matters which occupied their attention, and, perhaps most importantly, these papers provide contain within them in a distilled form the legal character of the age. Many other sources were to follow, primarily personal correspondence and corporate records – the papers of legal societies, town councils and, of course, court records. Much of this material was in manuscript and so, of course, patience, and time, were necessary. Simply to examine all the volumes of Edinburgh town council minutes for the eighteenth century, for example, is no small task in itself. It is, though, a very rewarding one for a body that was so engaged in litigation, law reform and in employing lawyers as assessors, agents and clerks.
Early on it became clear that to understand the profession meant looking beyond its most visible, and in many ways, most important practitioners – the members of the Faculty of Advocates and WS Society. Compiling a database of notaries public was a necessary preliminary in mapping the size and hinting at the local prevalence of lawyers: given that over 3000 notaries were admitted in the course of the eighteenth century, this again took time. The Scottish Record Society published the results in 2012 but the core database, alongside databases of advocates, members of the WS Society, the procurators of various courts and members of legal societies, effectively provided a useful and searchable directory of the profession. This is what I wanted to do – to get beyond Edinburgh, and to look at relationships between local lawyers, relationships between local and central lawyers, and, of course, between lawyers and their clients. The general theme of centre and periphery has long been popular with historians, but in terms of the Scottish legal profession it has a particularly important relevance: in terms of Scots law, Edinburgh was definitely the centre, and it drew in large numbers of lawyers, but by no means is it the whole story. The dynamic between local agents and corresponding agents in Edinburgh can be particularly fascinating.
Naturally, my focus on lawyers countrywide meant examining local archives and the archives of the WS Society, the Faculty of Procurators in Glasgow and the minute books of the Society of Advocates in Aberdeen and other, smaller, local societies of lawyers. The private papers of a number of local lawyers, in Inverness, Fife, Stirlingshire, the Borders and other more rural communities, shed considerable light on the range of their activities and the types of services they provided.
It is in such sources that one of the themes of the book, community, came to the fore. Lawyers formed their own communities but, of course, they also engaged with the wider communities of which they formed part. After all, they had to attract clients and to tap into streams of patronage where they could. The profession was extremely competitive and public offices, especially ones that held out the prospect of fees, were much sought after. One of the interesting features of the research was the regularity with which one can encounter failed or financially struggling lawyers. This is as true in local contexts as it undoubtedly was in Edinburgh. Poor business decisions, particularly rash offers to guarantee a loan to a friend or family member, were the ruin of many perfectly competent practitioners. This is why legal societies were geared so strongly towards the support of their own members, and their dependents, who had fallen into distressed financial circumstances. As an extension of this, the voluntary organisation of legal provision for the poor, if imperfect in practice, was a phenomenon that is found in local courts as much as it was in the Court of Session in Edinburgh. The annual nomination of advocates and writers and law agents for the poor was copied, as were so many other aspects of the great Edinburgh legal societies, by groups of provincial practitioners.
In terms of new themes to emerge, the use of lawyers by town councils was something I found particularly interesting. The role of the procurator fiscal, and the identity of those who fulfilled it (by no means all men with legal training) was something that had to be pieced together from a wide range of sources. Away from the session papers, always a rich source of entertainment, the most enjoyable elements of the research undoubtedly came from reading the correspondence of lawyers and clients. These can reveal much information about tactical thinking, consultations with counsel, judicial attitudes and the personalities involved. Letters, alongside receipts and other sources, allow information to be compiled about lawyers’ income and financial relationships.
A final word should be said about the writing and planning of the book. I must thank my publisher for the freedom to be able to publish a book of substantial length without any pressure to make it shorter. In attempting a broad survey, particularly in an area where hitherto there had been, outside of some excellent studies of the Faculty of Advocates, little in the way of detailed research, it is important to attempt to be comprehensive and to contextualise what is found.
There is still much to do in the history of the legal profession in Scotland. My next project, a database of notaries public in the nineteenth century, has already begun. As that century saw in excess of 4000 new notaries, this is also something that will take time but, hopefully, it will form a useful foundation for the next phase of research and will help to improve our understanding of how the profession developed after 1800.
John Finlay, Glasgow