Some late summer reading
Scots Law News hasn't made a practice of carrying book reviews, and this post isn't intended to start one; but two books that recently crossed your correspondent's desk were sufficiently out of the ordinary run to seem to call for comment.
One is a biography of Lord Justice Clerk Macdonald (1836-1919), whom we had cause to note in 2008 when his S1 car number plate – the first such plate in Edinburgh – was sold at auction for nearly £400,000. The biography, simply entitled Sir John Macdonald Lord Kingsburgh (ISBN 978-0-9566149-0-2), is written by the subject's great-grandson, Norman Macdonald, who is a retired WS. The book retails for an extremely modest £7.99. It tells a fascinating tale in a clear straightforward way, and with frequent quotation, not only from its subject's own fascinating memoir, Life Jottings of an Old Edinburgh Citizen (1915), but from his many other writings and political speeches. Macdonald was no jurist, except perhaps in criminal law, but he was otherwise a polymath with a special interest in technology who, had he lived today, would undoubtedly be an enthusiastic blogger and social networker if not a hacker. He was also a Tory Lord Advocate at the time of the Highland land troubles of the 1880s, and a number of chapters are devoted to his involvement in resolute defence of the status quo of landownership in the Highlands and support of emigration as the solution to the problem of crofters and the landless poor. Yet his own Highland background left him with some sympathy for the plight of these groups, and led to a refusal of support for some of the extremes to which the local forces of law and order went in order to suppress their insurrectionary behaviour.
Another interesting dimension which could perhaps have received more attention is his leading position in the Catholic Apostolic Church, an Irvingite sect of which Macdonald's father was a founding member of the Edinburgh branch. Our Macdonald became first an Archdeacon then an Archangel in the church, the Edinburgh base of which was the church in the Broughton area now known as the Mansfield Traquair Centre. The famous Phoebe Traquair murals inside the church were put there under Macdonald's close supervision. It was from the Mansfield church that Macdonald's massive funeral procession began in 1919, before his interment at St Cuthbert's churchyard at the West End; there is a picture in the book (among a number of other illustrations) showing the procession setting off. But, as Norman Macdonald says, his ancestor wrote nothing about his faith, and so we can only speculate as to how it affected his life and actions – for example, the horror of the death penalty which was so striking in a Tory Lord Advocate and judge of the Victorian era.
One other fascinating detail in this little gem of a book: Macdonald's Criminal Law, first published in 1867, was intended to be an up-date and condensation of Hume's Commentaries on the subject. Macdonald had family connections to Hume through his step-mother, his father's third wife having been Agnes Hume of Ninewells, daughter of the former Professor of Scots Law at Edinburgh University, and grand-niece of the even greater philosopher. Macdonald inherited from this connection the original MSS of Hume's then-unpublished lectures on Scots law, and apparently began but never finished a transcription. He eventually presented both MS and incomplete transcript to the Advocates Library. Although Norman Macdonald does not mention it, this MS became the basis for the late Campbell Paton's edition of Hume's Lectures, published by the Stair Society between 1939 and 1958; but what your correspondent has not found in Paton's commentary is what Norman Macdonald says, viz that the introductory chapter in Book 1 of the Lectures is missing from the MS and is only known from the Macdonald transcript.
The other unusual work with which your correspondent has been beguiling some of his leisure hours is Scots Law Tales, edited by John Grant and Elaine Sutherland and published by Dundee University Press (ISBN 978-1-84586-067-7). This is a collection of pieces by different hands on various leading cases of the last one hundred years, putting their stories into a wider context than their status as legal precedents, whether through discussion of the personalities involved or the social and political settings of the case facts. From Lord Justice Clerk Macdonald's era come the McCaig and Oscar Slater cases, while from the middle of the twentieth century we of course have Donoghue v Stevenson, MacCormick v Lord Advocate and the St Ninian's Isle treasure case. The balance leans, however, towards modern times with the remaining six tales being about cases decided since 1980, including the Campbell and Cosans v UK (the corporal punishment case), the Orkney children case, Law Hospital NHS Trust v Lord Advocate (turning off the life support machine), McFarlane v Tayside Health Board (right to damages for birth of a healthy child) and Sheridan v News International (trenchant views from Alistair Bonnington on the greatest defamation action of them all).
Last but by no means least is John Grant's elegant and penetrating account of the Lockerbie case, completed before this summer's brouhaha on the subject from the US Senate began. Professor Grant's view of the trial itself is summarised in his title: "Not our finest hour." Like your correspondent, he is also puzzled by Megrahi's decision to drop his appeal, given that he continued to maintain his innocence and could have gone on doing so in court even after the compassionate release of August 2009. Professor Grant also comments: "Decisions about compassionate release made by politicians alone are clearly problematic, however well intentioned and well advised the politician may be. … As befits politicians, concern about Megrahi's return to Libya has focused exclusively on the politics of the return decision, and not on whether Megrahi's conviction is sound or what actually happened prior to the awful events of 21 December 1988." Unlike so much else said and written recently about the Lockerbie case, this tale is one that is well worth reading.