Dating: The Language of the Law

Michael G. J. Upton, Advocate, F.S.A. Scot., M.C.I.Arb.

The extent of what may be known (or at least read) about the present-day world merely by tapping on your keyboard is so vast, that it is easy to overlook how much may with equal ease be discovered about the past. We work on the surface of deep waters. For example, it is almost five years since the Scottish Council of Law Reporting published the contents of Morison’s Dictionary of Decisions through Westlaw and (even more generously) for free on the website of the British & Irish Legal Information Institute. This public-spirited innovation deserves general recognition for greatly increasing the temporal scope of searchable judgments. If we have not reached the point at which every recorded Scots judgment is available on-line, nonetheless the addition of Morison to Session Cases and other sources has pushed back the possible range of electronic scrutiny by several centuries. 

Thus the earliest online judgment by the Lords of Session is from 31st May 1469: Nicol Forman of Hutton v. George Ker of Samuelston. Forman averred that Ker wrongfully possessed his lands. They picked a jury of twelve local gentlemen to report who had them first. The jury reporting for the pursuer, “the Lords decerned Samuelston to desist therefrom in time coming”, which apart from being the first record of perpetual interdict, discloses “decern” to be as old as the Lords of Session. Samuelston is near Haddington; Hutton was presumably the Berwickshire village. (B.A.I.L.L.I.’s website records five earlier cases, but their dates appear to be errors.)

How to use these great seams of material is up to the reader. Curiosity being, in Samuel Johnson’s words, “one of the most permanent and certain characteristics of a vigorous intellect”, a possible interest lies is tracing the history of our vocabulary - both very old and very new.

The old includes for instance “contract”, first seen on 7th March 1488: in The King v. Cairns a contract was no bar to the superior’s right of avail of marriage (look it up). “Delict” is younger, not appearing till 1565 in Laird of Rossie v. Lord Innermeith’s Witnesses. An unhappy litigant was suing his opponent’s witnesses for perjury. This is an interesting idea, and remains seemingly a relevant ground for damages: cf. Norrie, s.v. ‘Obligations’, Stair Memorial Encyclopaedia, vol. 15, para. 521. 

Meanwhile “damages” had taken its first bow on 9th March 1541 in Halliburton v. Rutherford. “Solatium” is more modern, arriving through the law of defamation in Calder v. M’Kenzie (1700) in as succinct an explanation of the concept of proof before answer as you could wish.

Many basic terms are as old as the Court of Session: “witness” (1532), “pursuer” (1533) and “defendar” (1528). “Interlocutor” dates to 9th February 1541 in Rutherford v. Earl of Bothwell - an early authority for late amendment, with a defender who, had he lived to see his son married, would have been Mary Queen of Scots’ third father-in-law. There was no “evidence” till Lady Balquhanan v. Laird of Balquhanan in 1579: the laird’s lady divorcing him for adultery and pursuing for her dowry, on averment that she had been complicit in a contract between her husband and her father to procure the divorce, the Session held any such immoral agreement to be inadmissible as “evidence”. Balquhanan is Buchanan; presumably the Stirlingshire parish.

“Senators” are found from 1649, but “sheriffs” having been instituted by David I (at the latest) appear far earlier (1481). The Lord Advocate is aptly the first of his brethren to appear, in Murray v. King’s Advocate (1502). “Clerks” (to the signet), “writers” and “procurators” all turn up by the 1540s, and “procurator fiscal” by 1611, but the court seems to have referred to no lawyers in private practice as “solicitors” before 1781 (Collins v. Judge of the High Court of Admiralty), while “law agent” is even younger (1822).   Amongst the litigants, the first “company” in the sense of a business appears in 1672 - in that era meaning a “partnership”, a word itself first used four years earlier. No limited company was a party till the rateability of gas meters arose in Falkirk Joint Stock Gas Co. (Ltd.) (1864).

Cultural influences may also be traced. By way of example, the first appearance of “Mohammed” is M’Leod v. St. Andrews Mags. (1924); not a direct reference to the Prophet, but a student alleged to have struck the pursuer with a sliced golf-ball, where the issue was whether that was too obvious a risk to walkers beside the Old Course for the burgh to owe them a duty of care. “Duty of care” dates from 1841, in respect of trustees: Seton v. Dawson. The coffin of the Prophet himself was mentioned in Young’s Exx. v. Gray’s Hospital (1917), and “Mohammedanism” in the defamation case of Davis v. Miller (1855), but “Mahometans” occurs in the discussion of Grotius’ views on administering oaths to “Pagans” in Telfair v. Gibson (1698). Buddha is not mentioned till 1912, in company with Confucius in Ness v. Miller; a standard kirk-secession case, vindicating the title to kirk property of the minority of the congregation adhering to its constitutive principles, against a claim by a deviating majority, viz., the Gilfillan Memorial Church. 1929 saw the first reference to “Sikhs”. 

The crime of being a “witch” is not found after 1631, but that may reflect lack of justiciary reports. Metaphors aside, no one has been seriously said to have “sinned” since 1931. However, folk were first “politically correct” in 2009.

Some terms turn out not to be as new as you might think: “human right” was used in 1859, albeit as distinct from divine right, which overlaps rather than quadrates with the modern sense: Couper v. Burn (1859);  another dissenting-kirk litigation, this time the United Associate Synod of Original Seceders. But “discrimination”, as in “racial” and “sexual”, does not appear until 1985 (Nahar v. Strathclyde R.C. (1986); Rainey v. G.G.H.B. (1985)). “Homosexual” dates no further back than 1956 and “feminist” to 1987. Judgments of course map progress, with “newspaper” in 1770; “steam” entirely un-litigated till the first steam-engine is mentioned in 1793; and “railway” dating to 1827, “electricity” to 1852, “bicycle” to 1884, “motor car” to 1900 and “television” to 1959. The “internet” arrived with Shetland Times v. Wills (1996). Although “trolling” dates to Menzies v. Wentworth in 1901, in that innocent age the only victims were trout.

The Shetland Times case saw the first of c. 320 judgments which have since used a verb which forty years ago had not even germinated in the dictionary but which has now spread like chickweed, pressing to the verge of extinction dozens of ancient native species - verbs such as to acquire, attain, examine, find, gain, gather, get, look at, obtain, procure, reach, read, retrieve, secure, spend and use - yes, you guessed, that jack-of-all-trades “to access”. 

In Land Securities Group v. North Lanarkshire Council (2005) Lord Hodge appears to have been the first judge to use the verb “to impact” in the way that some now use it to mean “to affect”. 

Where laws were formerly “applied”, like brakes (or ointment?), it has lately become more fashionable for them to be “engaged”, as though gears in a motor - since Lord Maclean’s opinion in Nwokoye v. Home Secretary (2002) - although to be fair the Lord Ordinary was quoting Schiemann L.J. (in 2000), and used the word himself only in careful quotation marks. The first Senator who was content so to use “engage” as his own word appears to have been Lord Nimmo Smith in the fox-hunting case, Adams v. Advocate-General (2003) -  illustrating the much greater romantic propensity for E.C.H.R. articles to become engaged, compared to your more unsentimental, hard-boiled Acts of Parliament.

2003 Adams (a different Adams) v. Guardian Newspapers also saw the coinage of “fact-sensitive”. Its previous absence seems as odd as its apparent lack of an antonym, since judges had presumably not been hitherto insensitive to fact.

Coming full circle, Morison’s Dictionary received its own first name-check in Mill v. Steven (1858), but though numerous English judgments have referred to “Westlaw” itself by name, no on-line Court of Session judgment seems yet to have done so.

Only Criminal Appeal Court judgments have used the word “nerd” (2001), and “geek” took its first bow just last year, in the Land Court (Thom v. Scottish Ministers) … but more to the point of course, Lord Eassie is the only Lord of Session in 550 years who is recorded mentioning that harmless drudge, the “philologist” (N. v. Advocate-General, 2013). 

I need to get out more - well, don’t we all?

“So all our best is dressing old words new,

Spending again what is already spent”

- after Shakespeare, Sonnet 76.

I am most grateful to Helen Robinson, Reader Services Librarian at the Advocates’ Library, for her helpful comments on a draft of this article. Responsibility for all errors is mine - Michael G. Johnson Upton