I came across a fascinating little book in a shop today, from 1918, titled Sir Walter Scott as Judge, transcribed and edited by John Chisholm. Chisholm was the Sheriff of Roxburgh, Berwick, and Selkirk in the early 1900s and filled a position that was once occupied by the afore-mentioned great novelist Walter Scott (1771–1832).
Scott’s novels have featured countless times on this website, mainly due to his interest in Robin Hood and other outlaws like Rob Roy. It was in his position as Sheriff of Selkirk that he met his best friend, Thomas Purdie, who appeared before him for poaching. Instead of assigning a harsh sentence in the form of a spell in the stocks or a fine, however, Scott gave him a job instead.[1]
Yet Scott did not only deal with criminal cases but also civil matters. Scanning through Chisholm’s book one can only imagine Scott’s face as he listened to some of the, quite petty, cases brought before him.
For example, one case brought before him was for slander. It appears that a man had publicly insulted another man in the local tavern—both of course having been drinking—and a brawl ensued. Then the man who had been assaulted brought a case for slander. Lord knows how Scott must have reacted but he concluded, probably with a sigh, that insults in a pub under the influence of booze do not amount to slander. But Scott did get annoyed at the fact that both men started fighting and disturbed the peace. So he fined both of them a few shillings as punishment.
However, a few cases did strike me out of those recorded by Chisholm: cases of wrongful dismissal (or ‘wrongous’ in Scots Law). I had assumed, quite wrongly, that employees in late eighteenth and early nineteenth-century Britain were completely at the mercy of their employers, who might treat them with impunity with no means of redress in the case of, say, unpaid wages.
This appears not to have been the case however.
I looked into Scots Law and it appears that, since time immemorial, most occupations in the eighteenth century were deemed to be ad vitam aut culpam (“for life until fault”). Another book by Chisholm, titled Green’s Encyclopaedia of the Law of Scotland (1895), explains that, while the courts will rarely get involved in employment matters—for employers were entitled to dismiss their employees—the courts will step in where
“only where there is irregularity, precipitation, and oppression in the course of the proceedings” and that any dismissal “must be such as disqualifies for the proper discharge of the duties of the office; and so, in the case of a schoolmaster [so a previous ruling held], grave moral delinquencies were held to justify dismissal, although his ability and diligence in teaching were unimpeached.”[2]
In October 1808, Thomas Drydon, a one-time servant in the household of Thomas Arras, sued his former master for half a year’s wages, alleging that he had been wrongfully dismissed.
Chisholm records the facts:
In his defences Arras stated that he found the pursuer “to be one of these servants whose turbulent Disposition suffered him not to be at peace with his master, his fellow-servants, or even the Horses he worked with. His behaviour has been the subject of challenge and vexation to the Defender, and complaint from the Defender’s housekeeper and other servants, which places the master in a situation so very uncomfortable as can hardly be tolerated by any Gentleman of spirit.” He condescended on instances of insolent behaviour. The action was a protracted one. Beginning in October 1808, it did not end until July 1812. The delay occurred over the proof. A proof was allowed by the Sheriff-Substitute, and we find him by interlocutor of 19th February 1812 ordering the proof to conclude.
Whose side would Scott take — the employers or the employees?
Selkirk, 22nd July 1812. — The Sheriff-Depute, having advised this process with the proof adduced, finds that the Defender has failed to prove the ill-usage of his horses set forth in his defences: finds further that although the conduct of the pursuer upon one other occasion seems to have been pert and uncivil, yet it was not so much so as to infer a confiscation of his whole term’s wages, as he expressed himself willing to enter on work the Monday after the altercation took place : Therefore finds the Defender liable in payment of the nine pounds ten shillings concluded for, and Decerns for the same and interest: Finds expenses due, and allows an accompt to be given in. (Signed) — Walter Scott.”[3]
I have not yet found any corresponding law in England for this time period, although comments below are always welcome. Obviously employers did have much more power than workers in this era, but it is heartening to know that they did have some means of fighting back against unscrupulous employers, and that they had a chance of their case being heard by amiable judges like Scott.
[1] The Journal of Walter Scott, 7 January 1826.
[2] John Chisholm, ed. Green’s Encyclopaedia of the Law of Scotland, vol. 1 (Edinburgh: William Green, 1896), p. 141.
[3] John Chisholm, Sir Walter Scott as a Judge: His Decisions in the Sheriff Court of Selkirk (Edinburgh: William Green, 1918), p. 50.
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