Over the Christmas vacation, your blogger was reminded that attending the class of Civil (Roman) Law in the University of Edinburgh in 1880 cost five guineas (putting aside all the other fees paid to the University). This illustrates the ignorance lying behind the First Minister’s recent claim in his New Year broadcast of “Scotland’s centuries-old tradition of free education” in the universities. Mr Salmond made this inaccurate historical assertion from the splendid new library-building of the University of Aberdeen, pointing up a supposed contrast with the charging of fees by the English universities. It is a claim that is current in Nationalist circles: http://www.snp.org/vision/smarter-scotland/supporting-our-students

That University education should be “free” is arguably a laudable ambition, though as a policy it raises interesting questions about how to pay for such expensive institutions as the British universities. But the point of interest here is that, quite simply, there is no “centuries-old tradition” of free university education in Scotland. This is an undisputable matter of fact. One can trace the new myth back through various internet sources to at least 2011, and no doubt further. But it seems to be ever more established as a “truth”, when it is quite mistaken. It is a new, developing, popular historical fiction, completely wrong, used to add historical legitimacy to a current policy.

History, of course, is written in a variety of ways from a variety of perspectives. Indeed, one of its strengths as a discipline is the extent to which individuals disagree and stimulate each other to further research. It is also as a discipline much more the object of popular opinion and debate than, say, theoretical physics. Unless one has the requisite training, it is difficult to say anything about quarks or the Higgs boson other than to repeat what one reads in the newspapers, in so far as one understands the discussion. But there are few individuals who do not have opinions about history, particularly about their national histories.

Trained historians rely on primary evidence to support their conclusions and are generally sceptical about unsupported statements. In academic works, footnotes are there to vouch for what is said, to support conclusions by reference to primary sources. Popular opinion about history does not have to exercise such rigour; anything goes, no matter how ill-informed or ignorant. Popular historical debate is not always characterised by accuracy of reliance on primary source material, but may often be the product of political prejudice or half-remembered garbled information from primary or secondary school. This seems to be the case with this new myth that there is a “centuries-old tradition” of free university education in Scotland. It is very easy to show the claim is without any foundation.
First, one should look at the background. In recent years, Scots university students have not had to pay fees direct to the University, but have had the fees paid for them by the SED, SOED, and now Scottish Government; just as the English local authorities paid the fees of students from their districts. The matter is too complicated to enter into in any detail; but the English universities now charge a fee payable directly by the student, rather than being funded for the fees by local authorities through general taxation. Likewise, the Scots universities, for the same reason, charge fees to students from England, Wales and Northern Ireland. It may be worth adding that undergraduates from outwith the European Union pay “full” fees in Scotland, just as a Scottish student taking a second “first” degree is charged the appropriate fee for tuition for the degree. The Scottish universities of today are fee-charging institutions.

Second, and this is the important historical point, Scots universities have traditionally charged fees. Not only were there fees for matriculating and so on, but individual professors – like the Professor of Civil Law in 1880 – charged fees for their classes. A very few classes were sometimes free; most were not. A moment’s reflection should make any educated person realise this was the case. In the Wealth of Nations, Adam Smith famously denigrated Oxford as a teaching institution. Why? The teachers did not earn a significant part of their income from student fees. This meant, according to Smith, they were not responsive to the needs of the students. The contrast he was drawing, if not explicitly, was with Scottish professors, who, as well as earning a salary, charged fees directly.  But even if Adam Smith has not been read, consultation of a standard work, such as R. D. Anderson’s Education and Opportunity in Victorian Scotland (1983), will show that fees were charged. There is no tradition of free university education to be restored in the way claimed by the First Minister.

The fees charged by the Scottish universities were far from nominal, as can be gathered from the universities’ calendars. The following examples come from Edinburgh. In the 1850s, fees varied from three to four guineas for each course in arts; they were four guineas for each course in law and medicine. Divinity was cheaper at two guineas for each course. The charge for graduation in medicine was £25, in divinity, £10, while it was only £3 to graduate in arts (there was no general graduation in law in this period). Annual matriculation was £1. In the 1880s, it cost a total of 26 guineas to take all six courses necessary for graduation with the degree of LL.B. The law student would also have had to pay three annual fees of £1 to matriculate, and one of 3 guineas to be examined.  In addition he (and it would have been he) would already have had to pay the cost of matriculation and all the course fees and examination fees to take the degree of M.A., which was a prerequisite for the degree of the LL.B. To make comparisons with contemporary wages is instructive.  In this period, a school-board teacher in London earned £75 per annum; a house maid earned £10 to 25 per annum; an apprentice in a workshop earned 8-10 shillings per week; a bank clerk earned £20-£50 per annum; a suburban bank manager earned £75-90 per annum.  (Source: http://www.victorianlondon.org/finance/money.htm.)

There is no need to elaborate the point further.  The myth has recently been created that university education was free in Scotland in the past. This myth has no foundation in any historical reality. University education was relatively expensive and open to relatively few.  It would be interesting to track down the source and development of this new historical myth. One suspects it has been created out of vague memories of the Scots Kirk’s desire for a literate faithful who could read the Bible, and its attempts to provide for elementary parochial schools, combined with an awareness of the title of George Davie’s Democratic Intellect, a controversial work, not easily understood, that dealt with the universities in Scotland. History may be a discipline open to differing interpretations; this does not mean that all statements about history are equally valid. Some are plainly wrong.
Like most historical myths this is one that should not be repeated, and it is therefore particularly unfortunate that the website of the Scottish Government (http://home.scotland.gov.uk/home), which carries some authority as a source, should currently link through to the First Minister repeating these errors about Scottish history. Free university education, in the sense of students not directly paying tuition fees, may be a perfectly respectable political ambition; but to pursue it is most certainly not to restore “Scotland’s centuries-old tradition of free education”.

J. G. Heineccius (1681-1741) was one of the most influential scholars of eighteenth century. He produced textbooks that were very popular for teaching the central dicipline of Roman law, as well as an influential text on natural law translated by the Scotsman George Turnbull. For a few years a professor in the Netherlands, before moving back to his native Germany, he worked in the humanistic, elegant tradition. He was rather more than the “the best writer of elementary books with whom I am acquainted on any subject” described by Sir James Mackintosh. His textbook on Justinian’s Institutes was published twice in Edinburgh for Scottish students.

Joseph Story (1779-1845), Harvard Law Professor and US Supreme Court Justice, ordered a set of Heineccius, printed in Naples, from Europe. When the volumes were en route to the US they were captured by a British warship during the War of 1812 between Britain and the USA – the war most noted for the burning of Washington by British troops. The Americans, in imperial and expansionist mode, were provoked by British blockades and impressment of sailors and moved by hope of further conquest, including of Canada. The British warship which captured them was then taken by an American warship, the captain of which forwarded the volumes to Story, who recorded their adventures in them.

At one stage, the volumes were in the Harvard Library; they are now, however, in the Yale Law Library, because in the nineteenth century the Harvard Library sold off duplicates, and no one presumably noticed the inscription – a moral for Libraries everywhere! They are mentioned in the Yale Rare Books Blog, from which this account has been taken. See http://blogs.law.yale.edu/blogs/rarebooks/
Interestingly enough, Harvard at the moment has an exhibition devoted to Story; but I am sure it was not Schadenfreude that encouraged Yale to blog about these volumes!

That something is new is no reason to reject it; that something is old is no reason to reject it.

But your blogger has always been interested in the use of the language of history to condemn institutions. Most recently there has been interesting language about the Scottish rule on corroboration in criminal law. This rule in Scots law derives ultimately from the Codex Justinianus and was received along with much Romano-canonical procedure. The recent Carloway Report has recommended its abolition; your blogger has no axe to grind about this, but it is interesting to note that the Senators of the College of Justice and the Scottish Police Federation have opposed its abolition. It will be interesting to see what the Scottish government does in the face of this opposition.

What is interesting is that the rule is condemned as "archaic" and "medieval" (Carloway Report, pp. 282, 284) and it is claimed that its preservation would ensure that "Scots criminal law remains deeply steeped in what is essentially late medieval jurisprudence" (ibid., p. 256). Now if it does not function well in the modern world and the law can be improved that is one thing; but the use of medieval and archaic in this way is telling about modern attitudes to the past. After all, the Scots rule that agreement is all that is necessary to form a contract derives from Roman law as influenced by canon law: do we condemn it as archaic and medieval? If not, why not? Should we not abolish this archaic and medieval rule? These are not neutral adjectives.

"Medieval", like "feudal" is generally used as an adjective implying disapproval – that which they qualify is always something to be disapproved of. Oddly enough, "classical" is generally an adjective which implies approval. Is corroboration a classical rule of Scots law! Surely it is. It is interesting how the Renaissance and Enlightenment's language of attack remains current.