Cases that gripped the public while making legal history over past 200 years
Salacious divorce dispute features in Scottish Council of Law Reporting’s ‘top 10’ cases, finds
When you look at the judgment, you can see the law being formed and the state of the law at the time
The case could and should have provided the engine for a great Victorian novel
HE was the dashing – if a little bruised – war hero with a colourful heritage and the prospect of a large inheritance to come.
She, on the other hand, was the 16-year-old daughter of a modest Edinburgh fishing tackle maker, whose reputation her family were anxious to protect.
The questions that swirled around their relationship would be picked over in a court case that could easily have slipped straight from the love-struck world of the Bridgertons.
The question of whether Major William Steuart, VC, went down on bended knee one February night in 1866 to take teenage Mary Wilson as his wife led to the highest court in the land.
The case certainly had all the vital ingredients for a great Victorian romantic novel: distinguished war service, gallantry, a disputed marriage, a significant estate and perhaps the most bizarre ending imaginable for one of its leading characters.
The 1875 court wrangle sparked by Mary’s claim for a share of Major Steuart’s late father’s estate might have been forgotten had it not been meticulously recorded for the Session Cases, a collection of authoritative reports of key judgments written by practising lawyers.
Launched 200 years ago this month and updated ever since, the Session Cases are hundreds of court opinions covering all manner of disputes, from the relatively unknown to some that gripped the nation, such as the Duke and Duchess of Argyll’s scandalous divorce in 1962.
Overseen by the Scottish Council of Law Reporting (SCLR), the Session Cases’ bicentenary has now been marked with a top 10 of its most significant reports, including the case of the gallant Major Steuart, his matrimonial status, and his late father’s estate.
Born at Glentully Castle, near Pitlochry, Major Steuart was the result of a liaison between a servant girl and Sir William Drummond Steuart – or Stewart – who would go on to become the 7th Baronet of Murthly.
Within a year, Sir William quit Scotland for adventure in the American West. There he forged a long and, for Victorian times, shocking romance with Antoine Clement, the son of a French Canadian and Cree Indian.
His own son served with the 93rd Highlanders, receiving honours for his bravery in the Crimean War and the Victoria Cross at the age of just 26 for his role at the Siege of Lucknow during the Indian Rebellion in 1857.
But his life soon unravelled as, having left the army, he became an alcoholic who boarded in a flat above Mary’s father’s shop at the top of Leith Walk in Edinburgh.
A summary of the case written for the bicentenary by former chairman Lord Woolman reveals events reached a head when Mary’s father decided his presence was tarnishing her reputation.
“Major Steuart sat quiet for a minute or two and tears came into his eyes,” he writes. “He then said, ‘I am poor now and cannot marry, but I will marry her in the Scotch fashion.’
“He went down on his knee, put a ring on the third finger of Mary’s left hand and said, ‘You are my wife before Heaven, so help me, oh God’. Those present then saw the couple embrace, kiss and go to bed together.
“Following that night the parties’ conduct followed an uncertain pattern,” he continues. “Sometimes the Major acknowledged that he was married to Mary. Sometimes he did not. She likewise claimed to be his wife, but also held herself out as single.”
Whatever the relationship, events of October 1868 at Hythe, Hampshire, proved devastating when Major Steuart’s flashy attempt to demonstrate sword swallowing went disastrously wrong, causing fatal internal injuries.
His own father’s death three years later sparked the action between the executor of the 7th Baronet’s estate and Mary.
The Court of Session held that the couple were man and wife. However, the defenders appealed to the House of Lords where the decision was unanimously reversed.
“Steuart isn’t the most influential decision in Session Cases. It’s rarely cited today,” writes Lord Woolman.
“But it reminds us that litigation is about people and their very human problems. It could and should have provided the engine for a great Victorian novel.”
The Session Cases is believed to be the second longest running series of law reports after only the United States Reports of the US Supreme Court.
However, reports of cases date from the 1500s, written in the form of practicks, or dictionaries, of decisions and usually provided by the judge as a record of the case and containing a brief statement of legal principle.
As Scottish courts evolved, a more systematic approach to reporting emerged. However, it was not until 1821 that practising advocate Patrick Shaw began editing what would become known as the Session Cases.
The first case – recently researched by SCLR trustees Emma Mclarty and Stephen O’rourke, QC, to mark the bicentenary – seems simple but still resonates today.
A shortfall in funds at a Dundee church meant Rev William Strang’s stipend went unpaid, sparking suggestions that a parishioner, Mr Mclaren, had meddled with the money.
The minister won a court decree for payment and expenses and set about seizing Mclaren’s possessions.
However, Mclaren had passed his financial responsibilities to his nephew and created a string of sham creditors.
The Court of Session ruled in the minister’s favour, setting precedence in how judges viewed cases of bankruptcy and providing future lawyers with an example of what is legally known as “challengeable alienations” made by a debtor – attempts to put money beyond the reach of those to whom it is owed.
However, it was two cases from the early 1930s – both as relevant today as they were back then – which topped the bicentenary poll.
In echoes of today’s “me too” movement, female employees in a Glasgow drapers’ claimed they had been sexually assaulted by their boss, Samuel Moorov.
He was prosecuted but for most of the 21 charges the only evidence available was from the complainer.
His appeal led to the “Moorov doctrine” – which held that sufficient connections between individual complainers led to “similar fact evidence”, which provided necessary corroboration for conviction.
The other case, Donoghue v Stevenson, is known worldwide thanks to the decision and the quirky nature of the problem.
May Donoghue was sipping on an ice cream float made using a bottle of ginger beer in a Paisley cafe, when she realised it contained the decomposed body of a snail.
She sued ginger beer producer David Sneddon for £500 damages – more than £25,000 in today’s money. The case led to the modern law of negligence and the “neighbour principle”, that care should be taken not to injure others.
According to current Session Cases editor Emma Toner, it is not surprising that the Paisley Snail case was voted top.
“Apart from its importance in terms of the modern law of negligence and ‘who is my neighbour’, is the human-interest aspect of the case: it is quite charming in its own way with the cafe, the wizened corpse of the snail sliding around,” she says.
“When you look at the judgment, you can see the law being formed, the concerns about precedence and the state of the law at the time.”
Few of the cases included in the Session Cases held the public’s attention quite like the bitter divorce of the Duke and Duchess of Argyll.
When her suspicious husband hired a locksmith to break into her cupboards, the salacious photographs of her in a compromising position with another man set the divorce wheels spinning.
The case revolved around whether the photos were admissible as evidence. Unfortunately for the Duchess, the court decided they were.
Some top 10 cases were less salacious but still fascinating. In 1976, landowners raised an action against canoeists using the River Spey, arguing they were scaring the fish.
There followed much historic debate over the river’s use, with examples of how it had been traditionally used to transport timber, butter, cheese and local people for decades.
All of which led the lords, among them Lord Salmon, to conclude that the Spey indeed was a public, navigable river.
Rather than spending hours in court, Session Cases reporters now make use of online judgments. However, there have been recent exceptions, such as Joanna Cherry’s case questioning the Prime Minister’s prorogation of Parliament, and Martin Keating’s action which examined the Scottish Parliament’s power to legislate for a second referendum without Westminster consent.
Ms Toner adds: “We are now creating Session Cases that could be looked at 200 years from now, and have to hold good as a useful product for whoever is using them.
“The weight on my shoulders is to maintain the quality and importance of what has gone before.”