John Finlay's latest book provides a vivid insight into the unique history of Scotland's College of Justice. Finlay has undertaken painstaking archival research to make this work a rich and original contribution to Scottish legal history. His work draws fascinating conclusions as to how the College shaped Edinburgh and Scotland, both socially and legally.
In the introduction, Finlay tells us why the dates in question have been selected. The era studied is framed by an Act of Sederunt from 1687 which defined College members' extensive privileges, and legislation from 1808 which restructured the Inner House of the Court of Session into the divisions it still has today. Of course this era is also particularly interesting for broader reasons, both in Scotland and beyond. It spans the end of the Restoration period; the Treaty of Union; the Jacobite risings; the beginning of Highland Clearances; the developments of the Enlightenment across western society and the emergence of the Industrial Revolution. The effects of many of these landmark events permeate this work.
Finlay also usefully defines “community” to show that he has analysed both the community of the College as an entity “quite separate” from the rest of Edinburgh, but also as being an “important part” of the city (p. 1). Later, it becomes evident that there are actually four senses of “community”: each discrete profession within the College; the College as a whole; the city of Edinburgh; and Scotland as a nation. Finlay introduces two elements which show the community ethos of the College and which recur throughout the work. First, the establishment of self-regulating members' groups, such as the Society of Writers to Her Majesty's Signet (WS Society) and the Faculty of Advocates (both discussed further below) show the community spirit of many of the different College professions. Secondly, we are told of the nepotistic nature of the College. Sons of members were given preferential treatment in their own admission to the College, and members' daughters were routinely married to newer members, creating a “myriad of social and family links” (p. 24). This fostered a “palpable” sense of community (p. 24), although not without consequent problems, which are discussed further below.
The College's influence on the community of Scotland as a whole is also introduced. It is partially ascribed to the judges also being Justices of the Peace in their home counties across the country. Due to increasingly short sessions (a low of 112 days in 1801), the “mass exodus” from the capital ensured that “first-hand accounts of events in Edinburgh made their way into the localities” (p. 14).
The first main part of the book deals with the effect the College had on Edinburgh. In chapter two, Finlay takes us on a tour of the College's social impact on the city. What would have happened, he asks, if the College had been based elsewhere? We are told convincingly that the College “influenced all aspects of life” (p. 33). For example, College members gave loans to the council; pressurised for improvements in city development and amenities; funded the development of the New Town; and invested in the newly created Bank of Scotland (established in 1695). Finlay provides us with illustrations of how the College added to the “fabric of the city” (p. 35), including thoroughfares being named after College members (for example, Strichen's Close) and their professions (for example, Advocate's Close and Writer's Court). College members' migration from the “cramped” Old Town to the “opulent” New Town (p. 41) also shaped permanently Edinburgh's geography, as members campaigned successfully for better links between the two parts of the city. The influence on Edinburgh's philosophical societies (for example, through Lord Kames) and literary scene (for example, through Walter Scott and James Boswell) are also highlighted.
Chapter three deals with the relationship between the College and the city council. Finlay provides evidence of the “mutual benefit” of the relationship (p. 81). On the one hand, the council was the College's landlord. On the other, the council took “full advantage” (p. 63) of the legal services the College could offer, allowing Edinburgh to boast the “most sophisticated local administration in Scotland” (p. 62). The council, due to its proximity to the College, was able to appoint members to a variety of roles, giving Edinburgh a distinct advantage over other cities. Judges provided legal advice and also met with magistrates regarding maintenance and mercantile issues. For example, the infamous Edinburgh practice of gardez l'eau (throwing chamber pot contents from tenement windows) was discussed with a view to its eradication. Advocates were employed by the council to provide advice on a “wide spectrum of legal issues” (p. 70). This system benefited both sides, with an appointment to the council appearing to be a quick route from the bar to the bench, at least until the late eighteenth century when less distinguished advocates began to be appointed. Adding to these links, town clerks were often lawyers, and the position was variously taken up by advocates, writers (solicitors, who were not part of the College) or writers to the signet (solicitors with special privileges, who were part of the College).
The second main part of the book analyses various parts of the College in turn, starting with the judges as the head of the College in chapter four. They are credited with having “developed Scots law into the distinctive legal system that it remains today” (p. 92). The judges, contrary to much existing literature, are not examined as individuals, but as a group, which continues the “community” theme. Finlay examines the dearth of Scottish statutes after the Union, which, in his view, increased the importance of the common law and therefore the impact the judges could make. Relating back to chapter one, the “legal dynasties” (p. 95) and nepotism of the College are further examined. Finlay notes that the closeness of relations encouraged attempts at corruption, but found “relatively little evidence of outright attempts” at corruption after the seventeenth century (p. 97), at least in judgments if not in appointments. He does go on, however, to describe several specific attempts to influence judges as being “hardly sinister”, giving perhaps a lenient interpretation of such practices (p. 97). Finlay brings his conclusions back to the central “community” theme, discussing the “strength” in drawing the judges from all over Scotland (p. 104). Despite the problems of inaccessibility during the vacation, links with people and land all over Scotland clearly helped to spread the College's influence beyond Edinburgh.
Working down the hierarchy, the next College members for discussion, in chapter five, are the advocates. The development of the Faculty of Advocates as a self-regulating body (imposing, for example, fines for non-attendance of meetings and providing for its weakest members and their wives/widows) shows the community-centred attitude yet again. The effect of the Faculty on the wider legal community is also illustrated. For example, the Faculty's voice clearly added weight to the successful campaign to establish the first chair in law at the University of Edinburgh in 1707. Although few solicitors proceeded to the bar at that time, there were close relations between the Faculty of Advocates and the WS Society, showing that the community of the College brought separate factions together. This leads Finlay on to a fuller discussion of writers and writers to the signet in the next chapter.
In chapter six, relations between writers and writers to the signet are explored and found to be deeply strained. The WS Society is described, and again we see the community motif through this society's provision for its members. This closeness appears again in a discussion of the relationships between apprentice writers and their masters. Apprentices were fully integrated “into the master's household” (p. 167), often carrying out household chores, such as tutoring their master's children and having their social lives closely regulated (being forbidden, for example, from gambling). The larger community of lawyers is also recognised as crucial, with writers having to network in order to “flourish” (p. 172). In the wider community, writers contributed to the city of Edinburgh, frequently investing their clients' money in town council annuities, which generated income for the council. The closeness between writers and their clients also encouraged trading across Scotland. Transactions flowed in both directions as men swapped plants, fabrics, livestock and even servants.
In the next two chapters, Finlay moves on to consider those working “[b]ehind the scenes” of the College (p. 188). In chapter seven, professions such as clerks and extractors (responsible for writing and copying) are examined. It is commendable that Finlay extended his study to these subjects when many researchers might have not looked beyond the judges and advocates. This examination highlights Finlay's “community” thesis in demonstrating the links between all of the College's parts. Not only were these ancillary members clearly relied on for the smooth-running of the College, there is much overlap between roles. For example, advocates frequently applied for (and occasionally were appointed to) positions as clerks, attracted to the steadier income clerking could offer, despite the drop in status. Like the other roles of the College, nepotism and the consequent “potential for bribery” in appointments pervaded (p. 194). Furthermore, there was a “close relationship” between lawyers and clerks (p. 199), which occasionally had negative consequences, resulting in “friction” and alleged malpractice (p. 199). The ancillary workers themselves had their own individual communities, with, for example, the clerks and the extractors running their own poor funds.
In the final substantive chapter, Finlay concludes with a look at the most minor office holders in the College, such as advocates' and judges' clerks and macers. No less essential to the running of the College, these men came from all over Scotland to partake in what were clearly considered to be desirable jobs. Once more we see connections with the wider community, with, for example, Glaswegian advocates appointing Glaswegian clerks and family connections having a part to play in successful appointments. Again, considerable overlap makes these professions well worth exploring. For example, advocates' and judges' clerks and macers were frequently also writers, and occasionally went on to become writers to the signet. Again we see a spirit of collegiality (and tension), both within each discrete profession (particularly the macers) and throughout the College more generally.
Overall, this work highlights the role each element of the College had in shaping the College itself, and, in turn, the College's influence on the city of Edinburgh and Scotland, both legally and socially. Scottish legal culture “radiated” from the College in a way in which only small jurisdictions with “one voice” can enjoy (p. 247). Indeed, Finlay notes that the impact of the College diminished as both it and the city of Edinburgh grew. Standards were set in the College which filtered out into the provinces. College members' dedication to the preservation of legal and historical records, as well as the increase in legal literature and education, helped to shape the law and the community.
Finlay is to be congratulated for his rejection of legalese (legal terms are defined where unavoidable), making the book readily accessible to historians as well as lawyers. Likewise, for the reader less familiar with historical sources, such information is always presented clearly and meanings are given where terms could potentially be obscure. This book is therefore recommended as an essential read for students and researchers interested in both Scottish legal or social history. Finlay explicitly encourages the greater use of legal sources by historians, and believes that much can be learnt about “social and political attitudes” and “life in general” from such sources (p. 257). He has provided a perfect starting point for such inter-disciplinary work.