Boxes à 200 session: a “gallery of mirrors”
Like something from Borges, Lord Stewart discusses Thom v Black 1828 7 S 158 report – his choice for the main entry in Session Cases. Name your favorite cases here.
“The law on this subject cannot be better expressed than it is by Monkbarns in a work of fiction that we are all familiar with.” So Lord Gillies, giving a preliminary view of the Thom v Black case in the First Division, reported 1828 7 S 158. The “S” stands for “Shaw”.
Patrick Shaw’s report is interesting by the fact that exceptionally if not only for a legal report – at least for a legal report which does not concern literary property – it includes a long quotation from a novel, added as a footnote to Shaw’s footer, as if the novelist were an “institutional writer.” The novel is The Antiquarian, and the footnote is the one referred to by Lord Gillies containing a dissertation by the title antiquarian, Jonathan Oldbuck of Monkbarns, on the “elegance of legal fiction” underlying the tenure of incarceration of debtors decamping in meditation fugae.
Lord Gillies’ reflections lead us into a gallery of mirrors, using literary fiction as they do to explain legal fiction, itself an ambiguous phrase meaning both legal fiction and legal fiction – the latter being a fair description of The Antiquarian like many other tales from the same pen. (Particularly relevant is Red gauntlet, in which a “fugie warrant” is one of the driving forces.) The words “that we all know well” suggest a circle of initiates, a circle that extends to Lord’s friend Gillies, the clerk of the court, sitting silent under the bench, who for years had entertained the fiction that he was not the author. Also on the bench was Lord Meadowbank, the same who, at the Edinburgh Theater Fund dinner on February 23, 1827, had revealed the true authorship of the novels. Both the registrar and the author were, of course, Sir Walter Scott.
The monoped Shaw – he had undergone an amputation as a child – was still experimenting with the format of his new series of forensic reports. He and James Ballantine published the first volume in 1822, Cases tried by the Court of Session, from May 12, 1821… Alexander Dunlop became co-editor in 1822 after Ballantine had to leave for the mainland at short notice, presumably in meditation, creditors chasing him. A second edition of volume 1 was published in 1824, and an enlarged edition of volumes 1 to 5, with notes added and different pagination, was published in 1834 – 1835. The early success of the new reports is attested by the literary attention they have attracted. . In The last of the lairds (1826), novelist John Galt referred to a fictitious affair “accurately reported in this amusing periodical Shaw and Dunlop’s Decisions of the Court of Session”.
And so, here we are 200 years later, and the “fun magazine” is still going strong, as strong as it ever was. It’s time to celebrate, with dignity of course, as if these worthy Shaw, Dunlop, Macpherson, Rettie and Fraser were part of the business.
Lord Stewart was previously Senator of the College of Justice and Chairman of the Scottish Council of Law Reporting 1997-2001.