Articles written by the late J. Irvine Smith, QC, and former honorary sheriff, Ian Maclagan, have been published by Scotland’s leading legal history society.
The Stair Society was founded in 1934 to encourage the study and advance the knowledge of the history of Scots Law.
The Society quickly became and still is the leading proponent of that history.
It recently published its 62nd volume, Miscellany VII, which contains two erudite articles by lawyers resident on Bute.
The late J Irvine Smith, QC, who was sheriff at Rothesay from 1983 to 1991, contributed an article entitled The Trial of Captain Green.
Ian Maclagan, a solicitor and an honorary sheriff at Rothesay from 1988 to 2013, contributed The Maritime Rights of the Magistrates of Rothesay.
In his article Irvine Smith critically examines the trial in 1705 of Captain Thomas Green of the London owned ship named Worcester and 17 members of the crew before the Scottish High Court of Admiralty on charges of piracy, robbery and murder.
The article commences with a timely reminder of the extraordinary financial difficulties Scotland was in prior to the union with England in 1707.
The Company of Scotland’s Darien Scheme had collapsed, relations with England were sour and a ship named Annandale which was being fitted out on the Thames by the Company of Scotland for trade in the east was forfeited by the English authorities to the English East India Company.
In retaliation, when the Worcester put in to Leith, she was seized as reparation for the Annandale.
Between 1702 and 1704 the Worcester had, according to her owners, been trading in the east, but, according to Scots, she had been engaged in piracy including the pirating of two other ships belonging to the Company of Scotland. The author describes in intriguing detail the processes of an 18th century criminal trial.
How the evidence was gathered, how the decision to prosecute was taken, how the jury was selected and empanelled, how the trial was conducted and finally the verdict.
The prosecution was in the hands of the procurator fiscal of the Admiralty Court, the Lord Advocate, the Solicitor General and four other advocates. The accused were represented by no fewer than seven advocates none of whom appear to have made much of a mark in the defence of their clients.
Although the whole legal process may appear somewhat unfair and crude by to-day’s standards (for example the accused were not allowed to give evidence) the author argues that justice, by 18th century standards, was done.
Of the 18 accused, the case against three was deserted, one was acquitted and the remainder convicted of piracy and robbery.
The murder charge was, in today’s language, found “not proven”.
Political considerations, including pressure from Queen Anne, resulted in 11 of the remaining 14 accused being reprieved, but Captain Green, John Madder, his first mate, and Simpson the gunner were all hung on the sands of Leith before a mob of ecstatic Edinburgh residents. It is a miracle that the union was consummated.
Ian Maclagan writes on the maritime rights enjoyed by the magistrates of Rothesay.
The author’s researches commence in 1400 when the burgh was erected as a Royal Burgh and continue with a detailed consideration of the terms of the burgh’s Charter of Confirmation of 1584 and finish with the Kames Bay litigation in 2010.
The author teases out the legal implications of the rights granted by the Crown and continues with a broader review of the admiralty jurisdiction formerly exercised by the magistrates over the Firth of Clyde.
He examines its development in the wider context of Scots Law, until, as a result of litigation, the magistrates’ jurisdiction was abolished by the Court of Session in 1820. In developing his argument the author pulls together Acts of Parliament, case histories from higher and lower courts, judicial pronouncements, academic commentary and minutes of assorted official bodies.
He also includes colourful archival illustrations of the workings of lower maritime courts including the water baillie of Glasgow.
The implications of a case involving default on a debt by a bankrupt Irishman, and the subsequent contested seizure of his goods on a ship berthed at the Broomielaw are considered.
Meanwhile, still in the 18 th century, the author describes how 50 gallons of rum were dragged ashore from a hulk floating upside down off Bute. In the Preface to the volume Lord Stewart writes in relation to the author’s demolition of the judicial decision of 1820: “Mr Maclagan persuades me that the case was wrongly decided.”
The legal implications of case history and the jurisdictional bases of judgements and rulings is not of purely antiquarian interest.
A body of law is built up that has repercussions in contemporary judgements.
Such an instance arose at the turn of the millennium.
Yacht owners who had laid permanent moorings in Kames Bay without receiving permission from the Crown Estate Commissioners claimed that the charters of the Burgh gave them the right to use the seabed for this purpose.
The Crown Estate Commissions maintained that the charters did not. In the resulting case before the Court of Session the author was called as an expert witness and gave his opinion on the interpretation of the charters.
The Court of Session agreed with the expert testimony on the questionable legality of the moorings in Kames Bay.
Part of the opinion of Lord Uist reads:- “I agree with the view of …Mr Maclagan…that the seabed was retained by the Crown and is still owned by it…….Any grant over the sea area inclusive of Kames Bay was limited to a grant of administrative and judicial powers to the Burgh.”
The article includes illustrations of matters referred to in the text.
It is also fully documented with appendices and extensive references.
The quality of the research carried out by both authors is undeniable, but the articles have an additional character. They exude the authority of lawyers who are so steeped in their respective subjects that they can confidently assess, and where necessary, criticize and challenge earlier legal opinions and decisions.
They are, in short, masterly pieces of work and rightly deserve their place in the published annals of The Stair Society.
Miscellany VII (edited by Professor Hector L MacQueen) can be purchased from Avizandum Law Bookshop.