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Law Journals in Nineteenth-Century Scotland

Document Cited authorities 3 Cited in Related
Vincent
Date01 January 2008
Published date01 January 2008
DOI10.3366/E136498090800005X
Pages9-25
AuthorReinhard Zimmermann
INTRODUCTION

Apart from a brief survey published as long ago as 1929,1

C A Malcolm, “Scottish legal periodicals: past and present” (1929) 45 Scottish Law Review 155.

the history of law journals in Scotland remains largely unwritten. This neglect is both surprising and, in view of the subject's importance, unfortunate. In this paper an attempt is made to trace the main developments.2

The paper is based on my “Juristische Zeitschriften und Rechtskultur in Schottland”, in M Stolleis and T Simon (eds), Juristische Zeitschriften in Europa (2006) 565. I am grateful to the editors for permission to publish this revised version here, and to Ross Gilbert Anderson for his translation and for suggestions as to how the paper might be adapted for an English-language audience. I am further indebted to Niall Whitty and John Cairns for encouragement and advice.

 In fact the history is shorter than might be supposed. The intellectual energy which infused Enlightenment Scotland did not find expression in the publication of journals devoted to law. Unlike in England, where law journals can already be found in the last quarter of the eighteenth century,3

S Vogenauer, “Law journals in nineteenth-century England” (2008) 12 EdinLR 26 at 35.

 the history of legal periodicals in Scotland begins only in the second quarter of the nineteenth. And those beginnings were tentative and, for a long time, barely successful.4

Only the Advocates' Library holds all the journals detailed in this paper. I am grateful to Stephen Woolman QC, Keeper of the Library, for permission to use the Library.

 B. THE 1830s: TWO FALSE STARTS (1) <italic>Law Chronicle</italic>

Towards the beginning of the nineteenth century, two attempts, one shortly after the other, were made to establish a specialist legal journal in Scotland. Both soon failed. The first, the Law Chronicle or Journal of Jurisprudence and Legislation, appeared in 1829, initiated and produced by some “professional gentlemen”. The move was possibly inspired by the establishment of two specialist journals in England: The Jurist in 1827 and the Law Magazine and Quarterly Review of Jurisprudence in 1829.5

Malcolm (n 1) suspects as much. For these English journals, see Vogenauer (n 3) at 42.

In the foreword to the first issue, the editors indicated that the journal was aimed not only at experts (“members of government, the legislature, and the legal profession”) but also at the educated layman (“country gentlemen, those who may be called upon to act as jurors, and to intelligent men of all classes and professions in Scotland”).6

(1829) 1 Law Chronicle 2.

 A considerable proportion of this monthly journal was to be dedicated to the “consideration of the highest branches of jurisprudence”, while notice was also to be taken of “everything remarkable” in foreign legal writings and cases.7

(1829) 1 Law Chronicle 1.

 This was to include critical analysis of Scottish statutes and cases, book reviews, biographical sketches of notable Scots lawyers, as well as notes of decisions of the English courts of importance to Scots law. Finally, space was to be reserved for discussion of those issues of particular relevance to the law of the Kirk.8

In particular, questions relating to poor relief for which, in terms of the Poor Law Amendment Act 1845, the Church remained responsible. Cf T M Devine, The Scottish Nation 1700-2007 (2006) 100 ff, 286 and 365; D M Walker, A Legal History of Scotland vol 6 (2001) 233 ff. For the law and the Kirk, see F Lyall, Of Presbyters and Kings: Church and State in the Law of Scotland (1980). The modern practitioner's book is A Heron, The Law and Practice of the Kirk (1995).

 The plan was an ambitious one, too ambitious as it turned out. From volume two onwards, the journal would appear in two parts, the second being dedicated entirely to reports of decisions of the Court of Session

In line with the editor's ambitious foreword, volume 1 contained an article (published, as was the convention, anonymously) on ‘Law and the Administration of Justice in Scotland’:9

(1829) 1 Law Chronicle 1 ff.

a complaint of the neglect suffered by Scotland as a result of the post-Union constitutional settlement under which the organs of government were now centred in far-off London. Each piecemeal attempt to remedy existing “evils and grievances” was, in the eyes of many, hopeless. Such remoteness from their political and legislative institutions had, it was argued, led to a state of apathy and indifference among the people. The image in Scotland of the English lawyer of the day was distorted by the examples of certain individuals who had distinguished themselves by their ignorance of Scots law.10

The most notorious example came later in the century. In Bartonshill Coal Co v Reid (1859) Macq 266, a decision which imposed the English doctrine of common employment on Scotland, Lord Cranworth said (at 285) that: “I consider, therefore, that in England the doctrine must be regarded as well-settled; but if such be the law of England, on what ground can it be argued not to be the law of Scotland.”

 Similar complaints are found in a substantial piece on the “Rise and Progress of the Laws of Scotland”.11

(1829) 1 Law Chronicle 135.

 Among the other topics covered in volume one were the House of Lords in Scottish cases, land law in Scotland and England, and the law on church patronage.12

See, respectively, (1829) 1 Law Chronicle 195; (1829) 1 Law Chronicle 264; (1829) 1 Law Chronicle 49, 91 and 251.

 There were also articles of a more general import on the sources of Scots law and their interpretation and on legal education.13

(1829) 1 Law Chronicle 259; (1832) 4 Law Chronicle 1.

 The journal contained a number of shorter contributions on subjects such as bankruptcy, succession to heritage, the payment of rates by landholders to the church, and the sheriff courts. In addition, notices of new legislation affecting Scotland, biographies of Scottish MPs and notes of the peculiar habits of particular judges, letters to the editor, notices of legal appointments and promotions, and criticisms of the inordinate delay in the resolution of some disputes were also published.14

Malcolm (n 1) at 155 f.

 All in all, the Law Chronicle can be seen as a journal with the local outlook which was to be expected from the opening editorial. It ran to only four annual volumes.15

Despite having a healthy list of subscribers, in 1831, at the beginning of volume 3.

 (2) <italic>Edinburgh Law Journal</italic>

As the Law Chronicle sank into obscurity with its fourth and final issue in 1832 there was already a second periodical, the Edinburgh Law Journal. Among much else, it carried notices of new legislation and legislative reform, book reviews and general information about the justice system. Initially there were also case reports but the practice was quickly abandoned.16

(1831) 1 Edinburgh Law Journal 219.

The journal also contained articles on contested points of law in such areas as bankruptcy, land and succession law, and aspects of peerage law. Over and again there were contributions on legal education and on the relationship of Scots to English law. In amongst these run-of-the mill pieces there were also to be found more rigorous papers, in particular a long and detailed piece on the “Principles of Prescription, with History of its Rise and Progress in the Law of Scotland”.17

(1831) 1 Edinburgh Law Journal 244, 350, 438, 577; 2 Edinburgh Law Journal (undated) 11, 161.

 A striking feature is a concern with legal history, legal philosophy and comparative law. This finds expression in a number of contributions: a description of legal education in Holland and Belgium,18

2 Edinburgh Law Journal 1.

 an account of the French Code civil,19

2 Edinburgh Law Journal 63.

 an article on the relationship between law and morals,20

2 Edinburgh Law Journal 25.

 and a reprint of fragments from a Roman will.21

2 Edinburgh Law Journal 58 (“from the German of Professor Puggé”).

 A number of the articles contain footnotes (some with references to the literature of the ius commune) and are published under the author's name. After some years,22

Malcolm (n 1) at 156 suggests the Journal was published intermittently until 1836.

 however, this journal also folded; today all the issues are bound together in only two volumes (3) Possible reasons for failure

The question must be asked why legal journals were initially unable to establish themselves in Scotland. A number of possible reasons may be suggested.

(a) Law tracts

One reason was the tradition of publishing, whether individually or in collections, short treatments of particular questions of Scots law. The most comprehensive collection of these “law tracts” is found in the Advocates' Library where those published from 1800 onwards are bound together in thirty volumes.23

Many other loose law tracts have been collected and are stored together in boxes. In addition the Advocates' Library holds a number of law tracts from the eighteenth century, such as A Bayne, Institutions on the Criminal Law of Scotland (1748); A Dissertation on the Laws of Elections for the Counties of Scotland (1767); Observations on Regiam Majestatem (undated but pre-1799); J Borthwick, An Inquiry into the Origins and Limitations of the Feudal Dignities of Scotland (1775); G Stuart, Observations concerning the Public Law and the Constitutional History of Scotland (1779); J Miller, Elements of the Law relating to Insurance (1787); J Dalrymple, Considerations on the Polity of Entails in a Nation (1765).

Of the pamphlets published in the first decades of the nineteenth century, papers dealing with reforms of civil procedure feature prominently, in particular the controversial introduction of civil jury trials. There is a multitude of pamphlets in the form of a letter, such as Letter to the People of Scotland on the Jury Bill;24

By “A Juryman” (1815) 24 pp.

 Letter to Henry Brougham Esq on Law Reform in Scotland;25

By J Douglas (1830) 40 pp.

 A Letter to the...

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