Trouble and Fash: Ordinary People and the Scottish Courts

Litigation documents are the “meat and potatoes” of our Scottish Court of Session Records (1759-1834), but the collection is also peppered with testimony, letters, wills, contracts, and other evidence offered by lawyers to help prove their cases. These records preserve the voices of ordinary people—including women, servants, and Erse-speakers,[1] among others—and tell stories that might otherwise have been lost to history. Though it would be easy to overlook these personal histories tucked inside legal documents, they form an extremely valuable part of the collection, illuminating the socioeconomic context of legal disputes and providing information about the burdens and biases of the court system.

The depositions in Farquharson v. Anderson, for example, reveal complicated tensions between the case’s landed litigants and the witnesses, many of them working-class, who were forced to testify. Farquharson was about an alleged romantic entanglement, and the case documents include salacious, even spiteful allegations. Pursuer (plaintiff in Scots law) Jean Farquharson, having birthed a child out of wedlock, sued Alexander Anderson to have a marriage declared on the grounds of “a public courtship, followed by copula,” or consummation of the marriage. In addition to her core claim of an irregular marriage, Farquharson alleged that Anderson had engaged in a scheme to corrupt witnesses and blame Farquharson’s pregnancy on a man named Alexander “Sandy” Milne.[2]

The case proceedings required the participation of witnesses who were debtors, servants, or tenants of the litigants. These individuals found themselves caught between the compulsory power of the courts and the risk of backlash from landlords, creditors, and other influential men who might be angered by unfavorable revelations. Witness Ann Forbes touched on this dynamic, testifying that fellow witness Rachael Stewart had “expressed sorrow that she had been summoned, cursed the parties, [and] said [Rev. Farquharson, minister of] Colston [the pursuer’s brother] had put up a good house for her, and she would lose it.” Stewart’s situation exemplifies the difficulties that might arise for a less privileged witness.

Another witness in Farquharson, Isobel Duncan, also expressed displeasure with the litigation. Duncan, whose “husband ha[d] a farm under the defender,” was drawn into the case after she took part in a nighttime gathering at a neighbor’s farm; Farquharson alleged that during this meeting, several people under Anderson’s influence tried to convince Sandy Milne to marry Jean Farquharson. (For her part, Duncan claimed that she did “not recollect whether she urged or particularly advised Milne to marry Miss Farquharson; but she did express an opinion, that it would be an eligible match for him.”) Having been summoned to testify about the meeting, Isobel was required to travel to Edinburgh from her home in Aberdeenshire. During the deposition, she was asked whether she regretted attending the gathering. She responded:

That she may be sure of that; for that she has felt the smart of it, having had a great deal of trouble and fash[3] in coming so far as Edinburgh, on account of her having been present upon that occasion; and this is the only reason she ever had or expressed for regretting what happened . . .; and that she did regret it before receiving her citation, suspecting, as she did, that sooner or later she would be called upon to give evidence concerning it.

This testimony highlights a side of the legal system that is often overlooked by case reports: the experience of regular people, unversed in the law, who were compelled to help resolve the disputes of their wealthier landlords and neighbors. As our case documents make clear, these individuals raised important questions about the fairness, social cost, and reliability of the process in which they participated.

Testimony of Isobel Duncan in the records of the Scottish Court of Sessions Records.
Testimony of Isobel Duncan, first page.

The testimony in our collection also provides insight about 18th and 19th century cultural norms, including the interface between those norms and the procedures, deliberations, and jurisprudence of Scottish courts. A prime example comes from the case of Macgregor v. Campbell, in which a woman named Katharine Macgregor claimed to have been married to the late Lieutenant Duncan Campbell. Lieutenant Campbell’s family, in line to be his heirs, disputed her claim. Because there was no record of a regular marriage, Macgregor sought to prove the marriage “by cohabitation, habit and repute.”

Testimony centered on the couple’s reputation in the neighborhood. A number of witnesses described the different names that people called Katharine Macgregor. For example, they said that Lieutenant Campbell called her Kate, Katy, “My Dear,” and even “Kate Brodie, which means thick or fat.” Of particular interest was whether Katharine’s neighbors (not to mention her alleged husband) commonly referred to her as “Mrs. Campbell.” If they did call her Mrs. Campbell, one would tend to think that she was married. But what if they didn’t? Would a married woman in Katharine’s neighborhood normally have been called “Mrs.”? Testimony on this issue revealed complex linkages among facts, cultural norms, and legal standards.

One witness told a vivid story that seemed to support the marriage and confirm that neighbors—in at least some cases—called Katharine “Mrs. Campbell.” Betty Macilwhannel testified that she had run into Katharine and Lieutenant Campbell at the Comrie Fair, where:      

. . . the Lieutenant took Kattie Macgregor and the witness into the [public] house: That he then called the landlady, and said to her, ‘Luckie, put on the kettle, and warm a bottle ‘of beer for these women, for do you know this is my wife;’ and the witness understood that he meant Kattie Macgregor, the pursuer: That the pursuer upon hearing this smiled, but said nothing: That the landlady also smiled, and said, ‘If I did not ‘know it before, I know it now:’ That Lieutenant Campbell, the pursuer, the landlady, and the witness, drank the warm beer together, and were very happy over it: that the witness drank to the health of the pursuer as Mrs Campbell. . .

Clear as this testimony may seem, it was not conclusive. The landlady disputed some details of the account, and Lieutenant Campbell’s family claimed that he had called Katharine his wife in jest. Further, Macilwhannel subsequently testified—seemingly to the court’s surprise—that even after their day at the fair, she heard a servant refer to Katharine by her first name. To the court, this familiar form of address appears to have weighed against the idea that Macgregor and Campbell were married. The discussion about this conversation among the witness, the court, and Macgregor’s lawyer provides a fascinating exposition of class differences and cultural variation in Scotland.

The exchange began with Macilwhannel’s testimony that during a visit to Lieutenant Campbell’s house, she sent a servant (who happened to be Katharine’s sister) to announce that she was waiting. After delivering the message, according to Macilwhannel, “the servant bade the witness stay and rest her, and Kattie would rise and speak to her.” The court posed some follow-up questions, asking:

Whether the witness be positive, that when the servant returned and gave the witness the answer to the message at the house of Dundurn, she said that if the witness would stay a little and rest Kattie would rise? [Emphasis added.]

Macilwhannel responded “[t]hat the servant expressed herself exactly as it has been taken down in the former part of this deposition,” and the court pressed the issue, asking “[i]f this did not strike her as something particular after what had passed at Comrie fair?” Macilwhannel said simply that she “did not know what to think of it.”

Likely realizing that this testimony would hurt his case, Katharine Macgregor’s counsel sought to clarify the norms surrounding women’s names. He asked, “[Is it] not a common practice in that part of the country to call married women by their maiden name?”

Macilwhannel gave this nuanced explanation:

…[t]hat it is, according to their station: That the wives of the best farmers get the name of Mrs; but that the witness having long been upon an intimate footing with the pursuer, used the freedom to call her by her maiden name, and the sister (the servant) knew this well: That she knew the pursuer ought to have got the name of Mrs Campbell; but that she, the witness, being so intimate with the pursuer, gave her the name of Kattie Macgregor, both when she spoke of her and spoke to her.

Another witness, James Macisaac, also recognized the class implications of this issue, though he suggested that Lieutenant Campbell’s wife should always be called “Mrs.” Macisaac testified:

That the wives of gentlemen in that country are always called by the names of their husbands, and particularly that the wife of Mr Sinclair, a farmer in the deponent’s neighborhood, but whom the deponent does not consider as equal in rank to Lieutenant Campbell, is called by her husband’s name, though her maiden name was Thomson.

These accounts, with their rich specificity and detail, go well beyond what is relayed in the case report of Macgregor v. Campbell, which is what makes them so valuable. For lawyers (and law students!), it becomes second-nature to focus on rules, legal reasoning, and legally relevant facts, along with the final outcome of a case.[4] But our collection’s “dispatches from non-lawyers”—with their distinctive voices and wonderful descriptions of everyday life—offer a wealth of information about the lives of ordinary people and their interactions with the legal system.

[1] Referring to “[t]he Gaelic of Scotland or (occas.) of Ireland,” the term “Erse” was once “[a]pplied by Scottish Lowlanders to the Gaelic dialect of the Highlands.” Erse, Oxford English Dictionary, http://www.oed.com/view/Entry/64135 (last visited Apr. 4, 2017).

[2] Farquharson’s counsel wrote that Anderson targeted Milne because Milne “was in very indigent circumstances; he was a good-looking lad; and he had been employed as a mason about [Farquharson’s] brother’s house for a considerable period.”

[3] “Trouble, vexation; bother, inconvenience; also, something that gives trouble,” in the dialects of Scotland and Northern England. Fash, Oxford English Dictionary, http://www.oed.com/view/Entry/68383 (last visited Apr. 4, 2017).

[4] For the record, Katharine Macgregor lost her case, Macgregor v. Campbell, [1801] Mor. 12,697 (Scot.), and Jean Farquharson achieved mixed results in her effort to disqualify certain witnesses. Farquharson v. Anderson, [1800] Mor. 16,790 app. at 2 (Scot.).

Published by

Kate Boudouris

Kate practiced energy and environmental law before joining the Law Library. She is a graduate of the University of Michigan and Yale Law School. Kate works at the reference desk and in Special Collections.

Scottish Session Papers and the Bar Exam

In the summer, the Law Library provides a quiet study space for recent graduates who are preparing to take the bar exam. Studying for the bar can be a stressful, all consuming experience, and one possible side effect is the tendency to see bar exam fact patterns everywhere. For those suffering from this condition, it becomes nearly impossible to unwind by watching a procedural drama (crim pro!), a soap opera (family law!), or even an infomercial (products liability!).

In the spirit of solidarity, we’ve been considering how the Law Library’s Scottish Court of Session Papers may resonate with the subjects tested on the bar exam. The library’s collection of Session Papers features case materials presented in Scotland’s highest civil court from 1759 to 1834. Despite their origins in a foreign legal system, the documents raise many issues familiar to modern bar-takers. They also feature memorable and significant historical facts.

The case of Birnie and Co. v. Weir, 3 Shaw’s Dig. 1732 [1800], aff’d [1800] 4 Pat. App. 144 (Scot.), presents a colorful example. Samuel Birnie developed a new, “British” form of a bleaching agent called potash. His company claimed in printed materials that this British potash had been “found to answer every purpose in bleaching, &c. equal to the best American pot.” Helen Weir, a bleacher, ordered several casks of the potash for her business but later refused to pay her bill; Birnie brought suit to collect on the account.

Why didn’t Helen Weir pay? According to her lawyers, the British potash contained “a radical latent defect.” Materials bleached with the potash initially looked white, but they turned a reddish or bluish color after being exposed to the air. Because the problem wasn’t immediately apparent, Weir had shipped defective products to her customers—including some whose white thread turned red after being sewn into the seam! Weir argued that the potash was unfit for the purpose of bleaching, and that Birnie should be held responsible for his warranty comparing British potash to American potash. In addition to withholding payment, she raised a claim for damages based on harm to her business and her reputation.

In response, Birnie pointed out that Weir had ordered the potash in three different shipments, all of which were consumed, and that she hadn’t complained until Birnie demanded payment. In Birnie’s view, these facts were decisive. Further, he maintained that British potash was suitable for use in certain stages of the bleaching process (just like American potash); the problem was Weir’s unskillful use of the product. Birnie also explained that the statement comparing British potash to American potash hadn’t been used to advertise the product or to establish its character. Instead, it was contained in “directions” given to customers after they purchased the potash.

Petition of William Alexander and sons (1772)
Petition of William Alexander and sons (1772)

It’s striking how the case materials in Birnie address some of the same questions posed by modern bar examiners: What constitutes a warranty? What happens if there’s a non obvious problem with the seller’s product? How should damages be calculated? The vivid facts and fascinating characters in Birnie bring these issues to life.

Another case in our collection, Colville v. Lauder, [1800] Mor. 1 (Scot.), resembles a multi subject exam fact pattern combining estate law and conflict of law issues. Again, though, the facts matter. Colville is a darker story than Birnie, recounting an ill-fated personal history set against the backdrop of British colonialism.

Shortly after marrying Jean Colville, David Lauder left Scotland under indenture to work on the island of St. Vincent. While living there, he wrote home to describe his experiences with sickness and violence (probably the Second Carib War). David was released from his indenture as a result of the war.

Hoping that a cooler climate would ease his health problems, he reserved enough money for passage to New York and sent his remaining savings to his father, William. David asked William to secure the money in case he returned to Scotland, and wrote that if he was not heard from again, “the money is either at [father’s] or my dear mother’s disposal.” During the next year, David traveled to New York and then Canada, where he was drowned while bathing in the Saint Lawrence River. James Watson, another Scotsman living abroad, wrote that he had “dived for [David] for two hours, and at last brought him up from twenty-four feet [of] water” to bury him. According to Watson, David’s effects included letters stating that he was going home the next year.

David’s death led to the multi-part legal quandary we mentioned earlier. William Lauder kept the money that David had sent him, claiming that his son’s letter was a valid will, and David’s widow Jean Colville sued to recover a share of the funds. Colville’s lawyer argued that it didn’t matter whether the letter was a will, because a choice of law question could resolve the case: Was the claim governed by the law of Scotland or the law of England (which regulated British territories)? Under Scots law, David’s widow was entitled to half of his moveable estate, notwithstanding any will. Under English law, a will could cut off her inheritance completely. Unsurprisingly, Colville argued that Scots law controlled.

Colville's Answer
Answers of Jean Colville.

The Scottish Court of Session Papers show that for hundreds of years, life has been full of messy, surprising, tragic disputes that need to be resolved using legal principles. And like the practice of law, our documents occupy a space where human stories meet the overarching principles used to organize society. The collection provides a rich historical record, insight on past approaches to the law—and evidence that, for better or worse, questions like the ones posed on the bar exam have mattered to everyday people for hundreds of years.  (Bar-takers, please take note: Despite the similarity of the issues raised, the Court of Session may not have reached the result you’d expect based on modern state law.)

Good luck to those preparing for the exam!

Published by

Kate Boudouris

Kate practiced energy and environmental law before joining the Law Library. She is a graduate of the University of Michigan and Yale Law School. Kate works at the reference desk and in Special Collections.