Legal Practice in Eighteenth-century Scotland

This research will focus on the nature and development of legal practice in Scotland in the eighteenth century. This was a crucial period in the development of Scots law. It was a time when Scots lawyers themselves largely developed the law and, in the post-Union context, did so under the influence of legal literature deriving from the common law in England as well as the continental Roman law tradition to which the Scots themselves belonged. This research aims to explore the relationship between lawyers and clients and to look at how the role of lawyers benefited the wider society in Scotland.
One theme of the research is the relationship between the centre of Scots law, the Court of Session in Edinburgh, and the role of local law agents across the country. Edinburgh practitioners, writers to the signet and law agents, understood the procedures of the central civil court and were best placed to advise a client, and his local agent, on which advocates to employ for which type of action they intended to bring or defend. The local agent, on the other hand, would deal largely with estate management and might also appear as a procurator in the local sheriff or burgh court. However, there is evidence that the procurators in local courts, who often formed themselves into societies, sought to protect their monopoly and tended only to admit a new member when a place amongst them fell vacant. This was often done with the connivance of the judge, although it was at odds with the development of ideas about unlawful combinations in the workplace and the freedom of any suitably-qualified profession man to follow his profession. Information about the relationships involved between lawyers in acting for a client is generally to be found in surviving legal arguments but also in the private correspondence of lawyers and in the court records themselves.
Local courts had a procurator fiscal whose role was to prosecute crime and ensure the maintenance of order. The proposed research will attempt to define more closely the role of the local fiscal through examining local and central records. Use will also be made of the town council records in Edinburgh in order to bring to light the role of the town's procurator fiscal. Advocates acted as assessors to the town council and part of the research will investigate the significance of this office not only for the advocates (many of whom went on to become Court of Session judges) but for the wider populace of the town who clearly had an interest in the quality of decision-making in their local courts at a time when the New Town of Edinburgh was being built. In terms of wider society, the role of lawyers acting for free on behalf of poor persons, which is well-documented for the Court of Session, will also be investigated. This was not restricted to advocates, but included both writers to the signet and, after 1755, law agents who had been admitted to practise in the court.
The research being undertaken is therefore multi-faceted. It will uncover a great deal about the relationship between lawyers and their clients in eighteenth-century Scotland. At the same time, it will reveal much about how local groups of lawyers operated and the extent to which they mirrored their practices on national, if Edinburgh-based, organisations such as the Faculty of Advocates and the WS Society whose members formed part of the College of Justice. Since it will be based not simply on court and legal records, but on contemporary private correspondence, it should add significantly to our knowledge of how litigation strategies developed and how lawyers managed their own professional disputes.

The research for this project will enhance the knowledge economy in a number of ways. It is based on primary research using a range of sources some of which have rarely been used by historians or legal historians. This will provide new knowledge that will help to understand the place of the legal profession in the historical development of Scotland and the ideas which governed the development of lawyers as economic players within their society. The thesis that advocates in the seventeenth century were early 'trade union pioneers' has been floated but did not gain wide acceptance (J. Simpson, 'The advocates as trade union pioneers' in G.W.S. Barrow, ed., The Scottish Tradition (Edinburgh, 1974). However, the kinds of arguments put up by lawyers concerning their functional significance and in justification of the self-regulation of societies of lawyers as leading to better outcomes in terms of the development of legal doctrine, have a strong contemporary resonance.
The use of session papers (legal arguments preserved largely in two Edinburgh record repositories) remains limited largely because there are few with the necessary inter-disciplinary skills to make the most out of them as a source. They will form a significant source of information for the volume to be researched and this should produce innovatory ideas concerning the development of the legal profession at the local level. This is also the kind of source with the potential to have an important impact on future historiography more generally.
Part of this project will be doctrinal. It will seek to explain the ethical dimension of legal practice in the eighteenth century and it may assist to inform ethical questions which still exist for current lawyers in practice. There is a very limited practical jurisptudence on this area of Scots law