Advocates
The profession of advocacy in Aberdeen
The highest branch of the legal profession in Scotland was that of the advocates in Edinburgh. There the term �advocate’ applied to a particular group of men: professional pleaders who had been granted a right of audience in the Court of Session as the highest civil court in Scotland.55 These men could be distinguished from the separate legal profession of writers, who would undertake other work on behalf of clients, most obviously providing advice on legal transactions.56
However, in Aberdeen as well as most other towns in Scotland, there was sufficient work to support a community of lawyers but not enough to allow for the same degree of specialisation seen in the capital.57 The local men of law would both plead in the local courts and undertake tasks more typically associated with writers in Edinburgh.
These men were known locally in Aberdeen as �advocates’, although in a different sense to how the term was applied in Edinburgh.58A previous reconstruction of the community of advocates in Aberdeen has found that approximately 50 men entered as advocates during the sixteenth century, and almost 70 were admitted during the seventeenth century.59 They would have worked alongside additional men who practised in the Aberdeenshire area but who had been admitted to the Court of Session in Edinburgh, so did not require separate admission to the inferior courts.60 This included the seventeenth-century commissary court judges Thomas Nicolson of Cockburnspath and James Sandilands of Craibstone.61 Overall, there were probably around 10–20 men practicing as advocates in Aberdeen at the same time for most of the early modern period, with most residing in New Aberdeen.62 As with the notarial profession, this represents a considerable expansion of the local profession since the medieval period.63
Admission as an advocate or writer in Edinburgh
The combined scholarship of several legal historians has provided considerable insight into how aspirants were admitted into the profession and the right of audience in the Court of Session in Edinburgh.
R.K. Hannay found that a third of aspirants to the profession in the Court of Session would enter on the basis of having been apprenticed to an experienced professional for several years.64 John Ford has commented that the apprentices would have spent this timeattend[ing] the sittings of the court, running errands for their masters, assisting with the documentation required in every case, and above all listening to and learning from the oral pleadings presented at the bar. Sometimes the servitors of advocates appeared themselves as procurators in lower courts, and a few managed to gain experience as judges in other courts. More generally they acted as secretaries to the advocates they served, writing and delivering letters, drafting and witnessing formal deeds[.]65
Similarly, from 1610, an apprenticeship of seven years was notionally required for admission as a writer to the signet for those who aspired to the upper echelons of that branch of the profession. However, Finlay’s work on the community of writers in Edinburgh has suggested that there was some degree of fluctuation in this and a shorter period of three to five years was soon common.66
Meanwhile, two-thirds of aspiring advocates entered on the basis of their knowledge of the so-called learned laws, namely Roman law and canon law.67 John Cairns has shown that, by at least the Restoration period, this requirement had crystallised into a trial by a panel of experienced advocates with respect to the expectant’s general knowledge of Roman law and, thereafter, provision of a lecture on a topic from the books of Roman law in court before the Bench.68 This lecture was reminiscent of the disputation required of students of law wishing to graduate at continental universities; this comparison extends as far as the traditional donning of a cap by the expectant, reflecting the doctoral cap worn as part of the law graduate’s robes at continental institutions.69
The example of Sir James Dalrymple, later Viscount Stair and Lord President of the Court of Session, shows that it was possible to pass these exams after a period of self-study.70 However, most aspirants would have progressed from studying the arts at one of Scotland’s universities to reading law at a continental university.
Schools from Italy, France, Germany and the Netherlands were fashionable at different times as new modes of scholarship developed.71 Meanwhile, university legal education had been inconsistently available in Scotland since the Reformation, and was abolished in Aberdeen’s King’s College specifically for approximately 30 years before its reintroduction in 1619.72The study of the learned laws became associated with the exclusivity and high status of the Edinburgh advocates.73 This reputation can be contrasted with that of writers and other men of law, which were perceived as less noble professions.74 It also led to a high level of reliance on the learned laws in court pleadings by advocates once they were admitted to the profession.75 This practice, in turn, led to a significant reception of civilian jurisprudence, which contributed to the reputation of Scots law as a mixed legal system.76
Admission as an advocate in Aberdeen
Admission to the profession of advocate was quite different in Aberdeen. The principal source for historians of Aberdeen’s advocates is John Henderson’s biographical sketches of those who were admitted to the right of audience in the local sheriff court.77 Henderson suggested that since at least the sixteenth century �Only those of good character, education and ability were admitted’.78 The question remained as to what that education comprised.
The Aberdeenshire sheriff court records include a note from 1633 naming 16 local advocates as having been granted the right of audience in that court. A reconstruction of the educational background of those men published elsewhere has suggested that roughly two-thirds undertook formal study in the arts at one of the local universities, and roughly half undertook an apprenticeship to an experienced local advocate. Thus the educational background of those admitted to the audience of this court included study of the arts at university, completion of an apprenticeship and a combination of both.79 A separate reconstruction of the educational backgrounds of those who entered as advocates in the sixteenth and seventeenth centuries more generally provides additional support for this conclusion.80 It appears that some additional prestige may have attached to those who undertook study at a university.81
Aberdonian advocates therefore lacked the university study of law undertaken by two-thirds of the Edinburgh community. The standards set in Aberdeen were, however, broadly consistent with those set for admission to the legal communities of other Scottish towns.82 Indeed, Finlay has located a mid-eighteenth century case in which established procurators in Leith defended the decision not to admit a man who had completed an apprenticeship in Edinburgh to their local profession, in which they questioned whether it was for the public benefit �that persons who have had a more eminent education in the law, should practise in the inferior courts’; it was better, they argued, for a local procurator to be educated suitably to their station and the demands of the sphere in which they were to act.83
It is notable that for much of the early modern period it would not have been possible for Aberdonian men to study law locally.
Law teaching was abolished at King’s College after the Reformation, and was reintroduced only in 1619.84 Even after the reintroduction of law teaching at King’s College, attendance at the classes of the two masters of law does not appear to have been a requirement for – or even common among – those seeking admission as an advocate.85 This dislocation between admission as an advocate and the study of law at King’s College persisted into the eighteenth century.86 Those who did attend any such classes would likely have had a highly practical legal education, being taught by those sitting as clerks or judges in the local sheriff and commissary courts, rather than the more scholarly education in the learned laws provided at continental universities.87It should be noted that not all professional pleaders in Aberdeen would have sought or been awarded the right of audience in the sheriff court. This would have included those living locally who had been admitted previously into the superior bar of the Court of Session, including Aberdeen’s commissary Thomas Nicolson of Cockburnspath.88 Moreover, Cairns has shown that in the 1680s, �Admission [as an advocate in Aberdeen] was linked to admission to practice as a procurator before the Commissary Court’.89 It is possible that some professional pleaders made sufficient living from pleading in such lesser courts in the area so as not to seek admission to the sheriff court. Some suggestion that this would have been possible is found in the example of the aforementioned Alexander Spalding. He entered as an advocate in 1609, but the record of his personal practice suggests that he spent much of his career in the commissary courts and undertook very little work in the sheriff court.90 Nonetheless, it is likely that any such men would broadly have undertaken a similar pattern of education to those who sought this recognition.
The impact of legal education on local practice and the formation of legal dynasties
The pattern of education outlined here would have had a significant impact on local legal culture and its practice.
Legal argumentation in the courts would, for example, have been shaped by the standard and type of knowledge expected among entrants to the profession of advocate. This is why the aforementioned knowledge of the learned laws required for attainment of audience rights in the Court of Session was a vehicle through which Scots law became a mixed legal system. That argumentation would have progressed very differently in the courts of Aberdeen is suggested by the lack of such a requirement, and the focus on practical learning, through apprenticeship and probably also at King’s College.Apprenticeship as the route of training for notaries and many advocates would also have had a wider impact on the nature of the legal community. The master-apprentice bond also often coincided with other types of relationships. A reconstruction of the apprenticeship networks of Aberdeen’s sheriff and commissary courts has shown that there was �a significant coincidence of professional and kinship relationships – through marriage and by receiving as apprentices younger relatives through consanguinity, affinity and god-parentage’.91 One example of an apprenticeship and kinship network in Aberdeen’s legal community is that of the Thomson family, which was prominent from the early seventeenth century until at least the mid-eighteenth century.92 The aforementioned Nicolson legal dynasty, which spanned both Aberdeen and Edinburgh, likewise provides various examples of apprenticeship within the family, including the Edinburgh commissary John Nicolson of Lasswade being master to his cousin, Sir Thomas Hope of Craighall, later king’s advocate.93 Although these two networks both principally comprised those who were admitted as notaries, the same is true of that latter profession: �the office of notary, no less than that of advocate, often descended down family lines’.94
Although sometimes the master-apprenticeship relationship was problematic,95 generally the resulting bond was remarkable for its �strength and durability’ for both notaries and advocates.96 Once established, the master-apprentice relationship �could become a powerful mechanism for the advancement of [the professions’] members’.97 Apprenticeship and wider kinship networks could bring legal business: Finlay has shown that the sixteenth-century Court of Session advocate, Robert Leslie, significantly benefited from such networks.98 Such relationships might also offer the opportunity to acquire offices such as court appointments which were being promoted through the network.
This might come in the form of recommendations for high-level appointments, as Sir Thomas Hope of Craighall recommended as his successor as king’s advocate his former master’s son, Sir Thomas Nicolson.99 The bestowing of an office may also be arranged through a simple gift of the position, as William Anderson gifted the sheriff clerkship to his son.100 In Aberdeen, this sharing of offices led to courts being largely run by particular networks of men who were interconnected through their apprenticeship and kinship networks.101 Thus, the networks created through this form of educational relationship, kinship and other forms of relationship would have been a defining aspect of legal culture and communities in Aberdeen.