Our Legal Heritage: A short lesson in how to damn with a hint of praise

Our Legal Heritage: A short lesson in how to damn with a hint of praise

Sir Archibald Alison

Death and taxes are inevitable, and following the former kindly obituaries may and often do follow but a recitation of platitudes was not always certain in earlier times, writes Robert Shiels.

The death of Sir Archibald Alison in 1867 produced an obituary that must, surely, be seen as being not in keeping with the usual practice. Not everyone in the legal profession in Scotland, it would seem, was distraught at receiving the news of the death of the Sheriff of Lanarkshire. A lengthy obituary was published: (1867) 11 Journal of Jurisprudence 311-4: other less acerbic obituaries were available.

Alison was a graduate of the University of Edinburgh and passed as advocate in 1814. He wrote extensively on historical matters: an extensive bibliography is in Michael Michie, An Enlightenment Tory in Victorian Scotland: The Career of Sir Archibald Alison (1997), pp. 204-5. Many of his historical works were popular best sellers and he became well-known to the wider British public for that reason. He received an honorary degree from the University of Oxford in 1853. The obituary considered here is likely to have been driven by political motives, a dislike in Edinburgh of the ascending commercial importance of Glasgow (and associated problems) and mere personal dislike or, perhaps, jealousy.

It was noted in the obituary that after Archibald passed as advocate, he “then travelled it is said for eight years, probably because he had little or nothing to do in his profession”. Through family connections and his Toryism, he was appointed an advocate depute in 1823, and he was “lucky enough to remain in office with his party for seven years”. During that period, he was “under the necessity” of studying the criminal law and “in the next four years, having a good deal of leisure” he spent his time in composition on his well-known books on criminal law.

After a survey of Alison’s achievements over thirty years, the obituarist noted that Lord Derby’s government created him a baronet, and would have appointed him a judge in the Court of Session “if that could have been done without an outrageous disregard of decency”. An un-named senior judge had opposed “stoutly” that appointment partly because he did not like Alison but it was “also certain that if he opposed the promotion of so distinguished a figure of his own party, he did it on grounds satisfactory to, and probably imperative upon his conscience”.

The obituary writer seemed to suggest that Alison did not know of the possible offer of a judgeship but if he had seen into the realities of the proposal, he “would not have desired to be removed from the leisure, dignity and virtual supremacy which he enjoyed in Glasgow, the commercial metropolis of the kingdom, to the chair of Junior Lord Ordinary with its irksome details, inevitable work, and ill-natured critics”.

Another blow was landed: “The life of Sir Archibald Alison was full, wonderfully full of honours. Whether he deserved them all, and if not, how he attained them are not to be settled at this time [1867], and not likely to be of much interest a hundred or even fifty years hence”. It was suggested that Alison was “not such a genius as he is reckoned in Lanarkshire, not so much of the reverse as he is reckoned in the critical metropolis”.

Further: “So far as we can judge, his mind was essentially and entirely commonplace, except in the power of application. The work he did, especially the literary work, in point of quantity [emphasis in original] attests a very rare industrial faculty, which in itself is worthy of not a little admiration and praise. Not one man in ten thousand could have gone through the toil of writing so many volumes; but probably not one in a million would have thought the work worth doing after he understood it, and would not have been smitten with such a disbelief in it as would have rendered the labour more odious than the treadmill.”

Additionally: “Perhaps the secret of Alison’s going through it [the effort of writing so much] was that he never took time to understand it … is there any branch of human knowledge of which he writes, and he writes of many, of which he does not show his superficial knowledge and his profound ignorance? His similes nearly all betray inaccurate information and thought. He blunders in geography, and his criticism of modern English literature are unrivalled in absurdity.”

The anonymous obituarist refers to Alison’s work on criminal law as the “one on which we are best entitled to pronounce an opinion in these pages, [and] we do not hesitate to declare that though it be the work that he bestowed most study upon, and is probably the most accurate of all his works, there is not a respectable work in Scottish legal literature which is so inaccurate. No junior counsel ever read much at it who was not misled by it. Out of Glasgow it could not be listened to as an authority, and although it has been already called “the standard authority” we feel assured that it never will be recognised as such. Still, it is a highly readable, interesting treatise, useful for suggestions and references, but dangerous to rely upon for principles, or even for facts”.

The denigration continued with an assessment of Alison’s judicial abilities: as a judge he was “distinguished by the same marvellous powers of industry and of inaccuracy which he manifested as an author. He did more work than any four or five ordinary sheriffs, but he made more egregious blunders than all the sheriffs in Scotland put together. His interlocutors contained perversions of fact as glaring as any in the pages of his history, and more easy [sic] of detection, seeing that the evidence which afforded the means of detection was printed in the same paper. No man who heard his judgments discussed and reviewed in the FIrst and Second Divisions would believe any fact upon his statement of it. He did not mean to mis-state, but he did it with a success which an intentional perverter of fact could not have achieved. His mind was an uneven mirror, the reflections and distortions of which baffled, surprised, defied imagination”.

The good news, however, was that Alison “always got through his judicial work and cleared it off his hands in some way, and his faculty of having done with it, however erroneously, endeared him to many of the busy legal gentlemen of Glasgow so much, that their ideal of law reform never went beyond giving finality to his decisions. He was always very polite and dignified in his bearing towards those who appeared to plead before him. The interlocutor when it appeared might be rather astonishing, but there were no rankling memories of judicial insolence during the debate”.

The anonymous commentator thought that Alison was “a gentleman [sic], not quite perfect, perhaps, but tolerably perfect for a lawyer”. There was comment then about how Glasgow idealised him, with reference five times to “Glasgow” in two sentences, clearly the place was becoming a matter of concern to at least one Edinburgh lawyer. The kind remarks of Sir Archibald’s fine features ended: “The features of men of high intellect seem in general to be formed of marble, or of bronze, but his seemed to be formed of the desert sand”.

The concluding point made was that the obituarist was sorry not to be able to write of Alison in “more kindly and eulogistic terms. But it is necessary in these days of complimentary obituary platitudes to speak the truth for the benefit of the living”. It was said then that “the truth is of some consequence to all who aspire to positions and honours of which they are unworthy, and to those unjust persons who help them to reach the altitude of their aspirations”. With all of these ungracious comments it can be said that our legal heritage comes in many forms.

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