Some Scottish 18th Century Legal Terms
Bill Long 8/19/06
Focusing in On Mental Capacity
I was struck in reading the wonderful book Autism in History (2000) by Houston & Frith that so many terms foreign to our daily usage were used in the legal case of Hugh Blair of Brogue described in that book that it might be helpful to pause and learn them. For those who haven't heard of the book (review here), it is a collaborative effort of a historian and neurologist to try to understand whether an 18th century man whose capacity to enter into a marital relationship that was questioned by his brother was, in fact, autistic. In order to answer that question, the authors had to comb court records (depositions or interrogatories or questions put directly to Hugh Blair by the judges) to understand how Hugh was described by his contemporaries. So, in this and the next essay I want to introduce 18th century terms relating to mental capacity (fatuous, fool, stupid, facile, furious) as well as search out the meaning of legal words such as brieve, pursuer, cognosce/cognition and molestation.
Beginning with Procedure--Pursuer
Let's begin at the beginning. When someone wanted to bring a legal cause of action in 18th century Scotland, a person we would call a plaintiff today, s/he was denominated a pursuer. Though the word pursuer, as well as plaintiff, go back to the early 15th century to mean the one who brings a lawsuit, pursuer had an even earlier meaning: a persecutor. Wyclif could speak, in his Works, of people who had been "manquelleris (man-killers) & pursueris of crist." His translation of I Tim. has the Apostle Paul say: "I first was a blasfeme, or dispiser of God, and pursuwer, and ful of wrongis." Thus, the term had a sort of theological deep background to refer to those who had persecuted Christ. But, as indicated in an early 16th century statute, pursuer and plaintiff were synonyms. "The demaundantes pleyntyffes or pursuers of the same accions..." Indeed, the language was still common enough in the late 19th century for Jowett, the famous translator of Plato to render a passage in the Euthyphro as follows: "What is your suit, Euthyphro? are you the pursuer or the defendant?"
When the pursuer wanted to bring suit, s/he had to obtain a writ from Chancery which would direct the local sheriff to call together a jury of peers and witnesses in order to investigate the matter of the petition. Such a writ was called a brieve (alternative form of brief). The OED has this to say about the brieve:
"Before the institution of the Court of Session (1532) a breve or brieve was the prescribed form of Summons issued for any cause; afterwards it was limited to the (Latin) Writ from Chancery addressed to the Judge Ordinary or Sheriff for trial by him and a jury of special questions in which the Court of Session had no original jurisdiction. These Brieves have all fallen into desuetude or been abolished by statute, except in one or two cases (e.g. in the appointment of a tutor-at-law to a minor), where also other forms of proceeding are now usually preferred."
In the 1747 case of Blair v. Blair, which first had to be tried to the Court of Commissaries (and not the Supreme Court--the Court of Session), a brieve would therefore be necessary. The case had to do with the legal capacity of Hugh Blair to be a get married. Many were the different kind of brieves that had to be obtained in 18th Century law. But, as the quotation indicates, they were abolished by statute. In fact, an Act of 1868 has the following (sec. 101): "The brieves of furiosity and idiotry hitherto in use are hereby abolished." Thus, the several hundred-year history of the brieve, at least with respect to mental competence, was finished once and for all.
Once the local sheriff had received his copy of the brieve, he was obligated to call together a cognition, in which procedure witnesses would be cognosced. The legal procedure of 1747 differs from ours in that the interested parties (John Blair, Lady Blair and Hugh Blair) could not testify in the matter--the supposition was that an interested party had such motivation not to be truthful that his/her testimony wouldn't be valuable. Well, the language of cognition and cognosce, at least according to the OED, is not as clear-cut as this, but in general it is consistent. Here is what the OED provides.
The word cognition in law, used first in the 16th century (it was used as early as the 15th century to denote the "action or faculty of knowing") had either to do with the general jurisdiction of the court or a specific process with respect to land issues. For example, the Chancellor could be said to have cognition of various kinds of cases. Or, in the latter sense (connected with property law), it is defined as "a process in the Court of Session for the determination of cases concerning disputed marches." A march is a border land. One quotation from 1809 takes us further afield, and I will only follow the trail briefly. It says: "Cognition is the process whereby molestation is determined."
That is an interesting one, because we all think we know what the word molest or molestation means. In Scots law a molestation was, according to a 1722 treatise: "the disturbing, molesting, and disquieting an Heretor of Lands and his Tenants." But, the action for molestation would be brought by one who is being harassed or molested in his land. According to Bell's 1838 Scottish legal dictionary: "An action of molestation is a possessory action, calculated for continuing proprietors in the lawful possession of their lands during the dependence of any quesiton in relation to the right thereto." Thus, an action of molestation defends a person's claim to possession of the land. By the 19th century, however, the word molestation had achieved a wider significance in law. It referred to "injury knowingly and without lawful excuse inflicted upon another in his person, character, social position, or property."
Well I see we haven't gotten to the bottom of the procedural terms. Let's pick up the next essay with the word cognosce.
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