geography, law and the centralizing state: wages arrestment in nineteenth- and twentieth-century...

Geography, Law and the Centralizing State: Wages Arrestment in Nineteenth- and Twentieth-Century ScotlandAuthor(s): Craig YoungSource: Area, Vol. 36, No. 3 (Sep., 2004), pp. 287-297Published by: Wiley on behalf of The Royal Geographical Society (with the Institute of BritishGeographers)Stable URL: http://www.jstor.org/stable/20004394 .

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Area (2004) 36.3, 287-297

Geography, law and the centralizing state:

wages arrestment in nineteenth- and twentieth

century Scotland

Craig Young Environmental and Geographical Sciences, Manchester Metropolitan University, Manchester MI 5GD

Email: [email protected]

Revised manuscript received 19 January 2004

This paper analyses reform of the law of wages arrestment in nineteenth- and twentieth century Scotland to examine the spatial nature of the 'regulatory dilemmas' faced by the state in legal interventions in a spatially heterogeneous context. Though this reform was an example of how the nineteenth-century British state sought to regulate the spaces of everyday life, the analysis shows that law-making processes are the outcome of complex tensions between and within the state and legal systems. In these processes, local legal cultures, tensions between systems of common and statute law and the complex geographies of social life play important roles in shaping the conjunction of space, place and law.

Key words: Scotland, legal geographies, historical geography, centralizing state, local legal culture

Introduction The development of law by the central state exhibits ambiguity over the ideal intersection of place, space and law. Though states pursue reform of legislation to centralize power, such centralization narratives are often moderated by concerns over whether legal interpretation should be rooted in the locales in

which people live and experience law (see Clark 1981; Blomley 1994; Blomley et al. 2001). Thus the state faces 'regulatory dilemmas' over legal inter ventions in a spatially heterogeneous environment. The tension between a desire for uniformity, and for legal interpretation which can be locally sensitive,

means that geography plays a role in the shaping of law (Blomley 1994). While the legal significance of place may diminish as local and customary law give way to formalized law, and 'legal interpretation becomes less a function of community and local circumstance than a response to the constraints of

formally placeless legal norms', it remains true that the 'geography of social life constitutes a particul arly vexatious dilemma for the ... state ... especi ally ... during regulatory interventions' (Blomley 1994, 109, 111). Thus legal reform must contend

with 'the dense geographies of social life, confront ing both the complex spatiality and the "place

boundedness" of society' and the enforcement of law is 'interpretive . . . with reference to a specific locality' (Blomley 1989, 112, 180).

Such tensions are evident in the regulatory inter ventions of the nineteenth-century British state. The social impacts of industrialization and urbanization led to new legislation to control 'deviant' behaviour, such as insanity, crime, prostitution, pauperism and contagion (Driver 1988, 1989, 1990; Ogborn 1993, 1995). The state pursued an overriding principle of uniformity and deployed discourses of formal legal rationality to construct laws which were to be applied equally and impersonally to regulate the spaces of

ISSN 0004-0894 i Royal Geographical Society (with The Institute of British Geographers) 2004



288 Young

everyday life (Ogborn 1995). However, 'the state

... often had to negotiate the obstacles and par

ticular requirements of particular localities' and

uniformity was not always achieved or uncontested (Butlin 1993, 150; Ogborn 1995). While the British state sought to extend its power across space and introduce legal frameworks which generalized prin

ciples about social and moral order, these ideals were limited by the difficulties of governing across

space and the contestation of totalizing reform within the state and by local elites (for examples of this

regarding imprisonment and pauperism see Driver

1989; Ogborn 1995). The state, the legal system and law were not monolithic entities.

This paper further examines the spatial 'regulatory dilemmas' that faced the 'modernizing' British state

by analysing the role of geography in the reform of the law of wages arrestment in nineteenth- and twentieth-century Scotland. Reform of the law re

vealed an ongoing tension within the state and the legal apparatus based on the ambiguity between

the desire for uniformity and for a law sensitive to

locality. The analysis brings out the tension between common law and statutory law, and the difficulties for centralizing legal reform of local social and lived

legal cultures, and of governing over space. First, the nature of wages arrestment is outlined. An ana

lysis is then undertaken of early nineteenth-century

geographical variation in its operation, focusing on

the role of 'local legal culture' (Blomley 1994, 46) and illustrating how the tension between the princi ples of common law and statutory reform resulted in the retention of a law sensitive to place. Second, nineteenth- and twentieth-century reform of the law reveals how that tension continued to moderate

attempts by the state to universalize legal practice and to regulate the 'spaces of everyday life' (Driver 1988, 276). The third section examines why this

legislation struggled to regulate space in a uniform

manner in the twentieth century when faced with

the geography of Scotland.

Wages arrestment and 'local legal cultures' in early nineteenth-century Scotland Scotland's position in the relations between state

and the law was complex, highlighting the differing geographies of different elements of the state. The 1707 Act of Union united Scotland with England as part of a new Kingdom of Great Britain, but it

preserved the separate identity of the Scottish legal

system. Scotland retained laws, courts and legal professionals distinct from other parts of Britain,

and all Scots law other than that relating to trade, customs and excise remained in force as before but was now alterable by Act of Parliament in Westmin ster. Scotland was thus in the peculiar situation of being a 'state within a state' (Morris 1990a, 5).

Scotland retained a highly differentiated power structure typified by a lack of centralized control

within which locality remained important. Prior to 1707 the state apparatus in Scotland was weakly

developed (despite the presence of the Scottish Parliament and the Privy Council) and this largely remained the case until the late nineteenth century.

While central direction was weak in Scotland, urban traditions of authority were strong. Over the nine teenth century, Edinburgh grew in importance as an administrative centre, while the burghs provided a distinctly Scottish context for urban governance

which people looked to for forms of locally specific authority (at least until central supervision of munic ipal governance in 1894) (Morris 1 990b). Part of this 'scatter of detailed and specific power structures

which littered the Scottish landscape' (Morris 1 990b, 89) were a variety of courts, some specific to Scot land, which had long experience of local decision

making with regard to issues such as regulating conditions of employment, wages, some prices and licensing. The organization of courts was also sub ject to considerable local variation (see Whetstone 1981).

The nineteenth century saw attempts to standard ize various aspects of the legal system (Whetstone 1981; Walker 1992). From around 1830 Scotland

witnessed the growth of administrative law, par ticularly in response to middle-class concern regard ing the condition of the urban poor (Smout 1986;

Crowther 1990). Wages arrestment was one focus for reform (Englander 1981). Wages arrestment is

part of the Scots law of diligence, i.e. methods of

enforcing unpaid debts under decrees of the Scottish courts (there was no direct English equivalent of wages arrestment, further emphasizing the differenti ation of the state and law). Within diligence, arrest

ment is 'the taking or attachment of the property of another which is in the hands of a third party to

obtain security against a debtor' (Law Society of Scotland 1992, 10). Wages arrestment thus allowed creditors to recover debts by arresting a debtor's wages. This involved gaining an order or decree for arrestment in the Small Debt Courts, of which there

were two main kinds in nineteenth-century Scotland.



Geography, law and the centralizing state 289

In the eighteenth century, wages arrestment was possible under common law but small debt jurisdic tion was split between several courts and was inef fective. From 1 795, Justices of the Peace (JPs) courts could hear small debt cases. JPs were local appoint

ments who sat as judges in JPs courts whose terri torial jurisdiction was county based. However, the key official in nineteenth-century Scottish county administration was the sheriff (in England this was only a minor post) who was the judge of a sheriff court, the territorial jurisdiction of which was the sheriffdom. Sheriffs could hold Small Debt Courts from 1825 and as a result JPs courts declined and

were largely dormant by 1865. By application to these courts, creditors could

obtain a decree for the arrestment of a proportion of a debtor's wages, for example by arresting 5s. out of a weekly wage of 25s., until the debt was settled.

Wages were arrested at the workplace and employ ers were responsible for keeping debtors' wages back. Thus decrees had to be lodged by court officers with the employer and debtor. These court officers were either sheriff officers or messengers-at-arms, who practised independently but were appointed, instructed and had their fees paid by court (Walker 1992).

In the early nineteenth century, industrialization and urbanization produced a large urban waged labour force reliant on credit as part of subsistence strategies. To regulate the use of credit the sheriff Small Debt Court was introduced in 1825 for debts up to f8 6s. 8d., and combined with abolishment of imprisonment for debt up to the same limit in 1835, these factors led to an increase in wages arrestment.

Wages arrestment was significant because it pro vided a legal safety net for, for example, shopkeepers or landlords to extend credit. Working people could thus gain credit during unemployment or between payment of wages, which could be annual in some occupations. Middle-class observers, however, came to view wages arrestment as a moral evil which led to the indebtedness and degradation of the 'respect able' working classes. It also inconvenienced large employers, as they had to withhold wages, perhaps for hundreds of employees (Parliamentary Papers (henceforth PP) 1854; Englander 1981).

The credit system and wages arrestment were thus seen as requiring regulation, resulting in the Small Debt Act (Scotland) 1837. This Act is at first sight an example of the centralizing state regulating social relations in a uniform manner by replacing common law with statutory law. However, reformers wished

to ensure that creditors had legal protection given the abolishment of imprisonment for debt, but also that debtors would not be impoverished by arrest

ment of their wages (PP 1957-8). The 1837 Act thus incorporated the Scottish common law principle that funds necessary for the subsistence of an indiv idual are alimentary, i.e. not available to meet the claims of creditors. Section 7 of the 1837 Act thus stated that 'the wages of labourers and manufactur ers shall, so far as is necessary for their subsistence, be deemed alimentary'. What proportion of an indiv idual's wages was deemed necessary for subsist ence and was thus alimentary was left to local legal agents in the form of the sheriffs and JPs. The appli cation of the law was interpretive and sensitive to locality. As Blomley argues, law is not simply imposed upon a local setting but is interpreted in and through that setting - 'law cannot be detached from the particular places in which it acquires mean ing and saliency' (1994, 46). The analysis below shows how legal meaning under the 1837 Act was place-specific in that it was operationalized through the interpretative practices of local legal agencies

which shaped, and were shaped by, the 'local legal culture' (Blomley 1994).

In fact, it was noted that this law:

operates very unequally throughout the country, - that it is not precisely alike in any two counties, and even in the same county has been interpreted differently by different Judges, either acting contem poraneously in different districts, or the one succeed ing the other in the same district. In some places, the

wages of the humblest workers are recovered; in others, a large class are exempt. (PP 1 854, 59)

Sheriffs and JPs interpreted Section 7 of the 1837 Act differently and there was considerable geo graphical variation in the level of weekly wages considered alimentary (see Table 1 and Figure 1). In places where there were a great number of cases it was more practical to fix a level of wages to be protected. This varied from a proportion, often half the weekly wage, to a fixed rate (see Table 1). The fixed rate was different in different locations as the local legal agents attempted to discern an amount

which was fair to creditors but left debtors with enough for subsistence given local circumstances.

In other localities no fixed amount was set and local legal agents took into account the individual

circumstances of the debtor when deciding on the non-arrestable proportion (see Table 1). The sheriff of Clackmannanshire stated that he 'fixed what



290 Young

Table 1 Geographical variation in Scotland of the level of weekly wages protected from arrestment under Section 7 of the Small Debt Act of 1837, 1837-54

Local rule for level of weekly wages Location Example protected from arrestment

Half Lanarkshire ()Ps and sheriff), Lanarkshire: 'half of the wages [of] any Airdrie mechanic, artificer, or workman ... but

where a man has wife and children or low wages then more than half at the discretion of JPs'

8-1Os. Edinburgh Edinburgh: 'general practice of allowing 8s. or 1Os. per week'

1 Os. Glasgow ()Ps) Glasgow: '1 Os. a week to the head of a family'

1 2s. Greenock, Aberdeen Greenock: 'it is the general understanding that a man with family is entitled to 1 2s. a week'

A varied amount of 5-1 2s. per week Glasgow (sheriff), Edinburgh, Glasgow: 'in the case of a young Linlithgow family, 9s. or 10s. would be deemed

alimentary; but the earnings of the whole family are taken into account, and if the father is but one of the productive workers, the allowance would be reduced'

An absolute sum of 1 Os. with a Leith Leith: '1 Os. unarrrestable . . . the next sliding scale applied to amounts 5s. equally divisible [between creditor above that sum and debtor], the next 5s. two-thirds

arrestable' No fixed rule - decided in each case Hamilton, Kilmarnock, Kilmarnock: 'it does not appear that it

Stirlingshire, Falkirk, has been ever necessary to lay down a Clackmannanshire, rule as to subsistence money' Dalkeith, Haddington, east Dundee: 'generally 12s. but 'no and west Fife, Dundee, inflexible rule can well be laid down' 'ordinary agricultural Agricultural districts, Highlands and

districts',' Highlands and northern counties: 'it naturally happens northern countiesb that there has been no occasion to lay

down a rule'

a Defined as Peebles, Berwick, Dumfries, Roxburgh, Kincardine, Elgin and Nairn b Inverness, Ross, Sutherland, Caithness and the Orkneys Source: PP (1 854, 55-8)

seemed a fair proportion of wages in the circum stances of each case', while the JPs of Stirlingshire

were guided by 'the circumstances, such as the number of the members of a family, or if there have been sickness or death in the family to cause extra expenditure' (PP 1854, 56-7). In Lanarkshire one half of wages were arrestable,

but in cases where the man has a wife and children, more than half . .. are allowed for subsistence as the circumstances of the case may appear to the Justices to require. (PP 1854, 55)

Local legal agents also considered the character istics of the locality in which the debtor lived. In

general it was considered that:

[all] the wages of agricultural and ordinary labourers will be considered necessary for their subsistence, and there will be no question raised about the matter. It is in the manufacturing districts, where wages range through so many grades, rising so high that there are instances of a pound cleared by a day's work, that there is occasion to make a rule for subsistence

money. (PP 1854, 56)




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Figure 1 Map of Scotland showing the key place names mentioned in the text

The sheriff of Dundee stated that

Each case must in some degree depend upon its own circumstances.... A good deal depends on the price of food.... The man's family, too, may not only be numerous but some of them helpless from permanent infirmity. All that requires to be taken into con sideration by the Judge in the exercise of a sound discretion.

The sheriff of Haddington considered

each case on its own merits, being guided not only by the rate of wages, but also by the family or other individuals the debtor may have to support. I should

consider that. . . 12s. is too large a sum to allow a collier for weekly subsistence as on principle a base subsistence is all that can be expected.

In Aberdeen, the sheriff chose 1 2s. as the limit because 'that sum was about the highest rate of wages paid to ordinary workmen', while the sheriff of east Fife kept in mind 'the very small wages on which the humble and frugal are able to live' in the area. This aspect was further complicated by different methods of payment as in some occupa tions, such as agricultural labourers, an important proportion of wages was 'in kind' with only a minor cash component. Thus local characteristics such as



292 Young

the dominant type of industry, rates of wages or the cost of living also played a role in local legal decisionmaking. This was explicitly stated by the sheriff of west Fife, who considered it would be very difficult to define in statute

what portions of the wages of various classes of workmen . . . are arrestable . . . so as to strike a fair average, keeping equitable pace with the range of different rates at which labour is paid. (PP 1854, 57-8)

In taking into account local circumstances in the setting of the protected limit, local legal agents also consulted the parties involved and even devel oped a kind of local legal consensus as to the interpretation of the law. Thus it was stated that, in general

it is certain, that whether or not the views held by the acting sheriffs are generally known, the one-half [of wages] is the practical rule, as settled by a sort of tacit convention between [those prosecuting] on the one hand, and the employers of work-people on the other. (PP 1854, 55, emphasis added)

The limit was sometimes agreed with the local courts by employers so they could withhold the correct proportion of wages from their employees. In Linlithgow it was stated that 'when the parties are at a loss how to act they are desired to go to the sheriff clerk for information'. The sheriff in Haddington even went so far as to say 'I have sometimes left it to the master [i.e. employer] to fix a sum'.

Similarly, some working people whose wages had been arrested were able to subvert the law through their work practices. Those paid by piece-work, for example, were accused by employers of only doing enough work to be paid up to the non-arrestable limit. Colliers, extracting coal in work gangs and being paid by output, were held to falsify the returns of each individual man, allowing the debtor's coal to be attributed to his workmates so that the overall payment was not reduced, but that the man's wages were not arrested. Thus geographical variation in the operation of the law was also due to locally lived legal relations involving a local consensus over

how the law should operate, or local avoidance strategies among working people (PP 1854, 57).

Thus the implementation of the Small Debt Act (1837) was shaped in localities by the local legal culture, through the decisions of local legal agents and other actors which were influenced by local circumstances. Though the state attempted to regu late credit relations and wages arrestment, the con

tinuing influence of the principles of common law regarding alimentary provision acted against the introduction of a universalizing law. Indeed, retain ing the principles of common law meant that the law

was explicitly constructed to cope with the geo graphy of social life in Scotland because it allowed consideration of local circumstances in legal judge ments. The law was thus operationalized through locally specific interpretations.

Uniformity and place sensitivity in the reform of wages arrestment

The 1837 Act demonstrated that reform of the law was not a simple product of the imposition of uniformity by the state. The new law was a product of tensions between retaining elements of common law while seeking to modernize the law of arrest

ment. Desires for uniformity co-existed with the retention of professional decisionmaking at a local level. This section discusses how this tension between common law principles and reforming statute law, and within and between the state and the legal apparatus, continued to shape reform of the law of wages arrestment, particularly in debates over the need to retain a law which was sensitive to geography.

By the 1850s the operation of wages arrestment was causing concern among reformers as a part of wider efforts to order Scottish society by introducing centralizing and universalizing laws. Glasgow in particular was seen as a location in which the law was being abused as retailers drew huge numbers of the working classes into debt in order to use the arrestment system to gain recompense. For middle class observers, this was undermining the moral fabric of urban society and creating a disordered

working class who were tempted into ruin by easy credit (see PP 1854). A major governmental enquiry in 1853-4 recommended the abolishment or reform

of wages arrestment (PP 1854; see Englander 1981 for background). Reform was achieved following campaigning by Mr George Anderson, a flax manu facturer, as part of his efforts to be elected as MP for

Glasgow in 1868. Anderson's Bill initially proposed the abolishment of arrestment on the grounds that this would force the working classes to operate in a 'ready money' market and thus alleviate debt. However, this was opposed in the Committee stage in the House of Commons' consideration of the

Bill, with many petitions presented for and against (though there was no debate in Parliament). In




response Anderson argued for the setting of a

nationally applicable limit to the proportion of wages which were not arrestable, in order to allevi ate working-class poverty by protecting more of their wages (and perhaps relieving major employers of the administrative burden). He wished the pro tected element of wages to be set at 30s. per week, but after much pressure from fearful creditors (par ticularly the shopkeeping lobby), he had to decrease this limit to 20s.

Debates surrounding the Bill reveal the tension between a desire for a uniform law and the fact that the retention of the common law principle of alimentary provision required a law which was sen sitive to the material geography of Scotland. Thus some in favour of a uniform national limit argued that the current law gave too much leeway to local interpretation and was thus failing the working classes in some places:

Under the present law [i.e. before the 1870 Act], the proportion of wages arrestable varies in different parts of the country; and it sometimes occurs that a workman whose wages have been arrested for debt is left with a sum quite inadequate to keep the souls and bodies of his wife and children together, except on the veriest trash of food. (Glasgow Herald, 25 June 1870)

Thus the idea of introducing a standardized limit was to try 'in part to get rid of the uncertainty and variations of practice to which the exercise of [the law] had given rise' (Scottish Law Commission (SLC) 1980a, 69). However, this attempt at a uniform solution was contested both within the state and the legal apparatus. Spatial variation in the operation

of the law was still seen as important, and some parties argued in favour of retaining a sliding scale of level of protection which was to be set locally. It was argued in House of Commons Committee, for example, that this was necessary because:

in different parts of Scotland the standard of comfort and cost of the necessaries of life are different; and, therefore, what may be fixed upon in one part of the country as strictly alimentary wages will not be so in another. (The Scotsman, 7 July 1870)

Mr Bell, the sheriff substitute for Lanarkshire, also supported a sliding scale because it:

recognises the fact that different classes of workmen have different standards of comfort. I think that a certain sum may be said to be requisite for the maintenance of a mere day labourer, but that a much larger sum

will be required for a skilled artisan, who is in a much better position in society. (The Scotsman, 7 July 1870)

and the wage rates of such occupations and living costs varied geographically. Thus contestation of the form of the law rested partly on the wish to keep a law which could be sensitive to locality.

In the end, faced with powerful opposition, Anderson felt that 'even in its present mutilated form [the Bill] is better than none at all' (The Scots

man, 11 July 1 870). His efforts led to the passing of the Wages Arrestment Limitation (Scotland) Act of 1870, which set the 20s. limit as a fixed national standard. The Small Debt (Scotland) Act of 1924 raised the non-arrestable limit to 35s. to reflect increases in wage levels and the cost of living.

However, although these Acts standardized the law across Scotland, under the Small Debt Act of 1 837 or under common law any wages above the 20s. or 35s. limit could still be excluded from arrestment if they were deemed alimentary, thus retaining some scope for local interpretation of the law. In addition, the 1870 and 1924 Acts specifically stated that this limit applied to the wages of 'labourers, farm serv ants, manufacturers, artificers and work people',

which did not cover a number of other occupations whose wages were liable to arrestment. Therefore some elements of spatial variation in the interpreta tion of arrestment remained and the 1870 Act did not entirely introduce a uniform law.

This tension between the desire for uniformity and for local sensitivity in applying wages arrest ment continued to underpin unease about the law. Opponents of the 1924 Act continued to question the use of a national limit on the grounds that 'no arbitrary figure would take into account the per sonal circumstances of all debtors' (PP 1957-8, 24). The 1958 McKechnie Report (PP 1957-8) consid ered this issue further, and inspired the Wages Arrestment Limitation (Amendment) (Scotland) Act of 1960. Parliamentary debate centred on this geo graphical question and noted that 'it is curious to find how a great advance such as the 1870 Act can itself in due course act as a brake, and in a sense

we have departed from the principle of Scots law because of the [fixed, national standard] figure written into the 1870 Act'. The Victorian desire for uniformity inherent in the 1870 Act was thus seen to have contradicted a basic principle of Scottish common law. Debate thus noted the need for legis lation which could be locally sensitive in order to take into account 'the worker's usual weekly wages



294 Young

on which his way of living must be assumed to be based' (PP 1959-60, 797, 800). Thus the 1960 Act restored local interpretation of the appropriate limit by changing the system from a fixed limit to one based on an exemption from arrestment of ?4 plus one-half of the balance of the weekly wage. This reflected the overriding principle of Scots law to

maintain alimentary provision and reinstated the ability of local courts to exercise judgement in the light of local conditions. Here, then, is a case of the 'structuring of law to geographical diversity' (Blomley 1994, 112) rather than a centralizing proc ess of introducing uniform law. Indeed, concern over wages arrestment continued to be inspired by the geography of its operation and Scotland's geo graphy, as is considered below.

The continued importance of geography: wages arrestment and the problem of the 'remote areas'

In the twentieth century, variation in the application of diligence law (including arrestment) was seen as an explicitly geographical problem: 'the difficulties of doing diligence in remote areas' (PP 1957-8, 56). This section considers the difficulties of governing across space faced by a state concerned with ensur ing equality of access to law and the continued importance of local legal cultures for variation in the application of wages arrestment.

A series of inquiries considered the problem of getting diligence carried out in these 'remote areas'. The 1958 McKechnie Report gave an explicit spatial definition of the problem (and see Figure 1):

the remote areas in which the most acute difficulties in doing diligence arise are the seven crofting coun ties, namely Argyll, Inverness, Ross and Cromarty, Sutherland, Caithness, Orkney and Shetland . . . There is no doubt, however, that in parts of the seven southernmost counties [Berwick, Roxburgh, Selkirk and Peebles, Dumfries, Kirkcudbright and Wigton], as well as in certain parts of more densely populated counties such as Aberdeen, the distances that have to be travelled by officers of court in order to do diligence are enough to make diligence prohibitively expensive. (PP 1957-8, 62)

Remote areas were thus defined as 'any district more than thirty miles from the nearest officer of court or so situated that the officer of court would require to remain overnight before returning to his base' (PP 1957-8, 62).

Table 2 Numbers of court officers in Scotland, 1800 1958

Number of Number of Year messengers-at-arms sheriff officers

1800 262 1840 197 1880 71 424 1903 42 1923 28 148 1958 36 92

Source: PP (1957-8, 56 and 59)

The reasons given for the problems in these remote areas were related to the difficulties faced by the state in trying to implement law throughout Scotland's varied geography - a lack of a suitable legal apparatus to cover space evenly, and thus the impact of distance on actually carrying out arrest

ment. Coverage was uneven because of a lack of sheriff officers and messengers-at-arms. The pres ence of these local court officers was necessary because decrees had to be lodged by them with the employer and debtor. Though all areas were cov ered by a sheriffdom, the numbers of court officers had declined since the mid-nineteenth century (see Table 2). Officers of court had to make their living through the fees the court paid them. The work available had declined due to some legislative changes, the growth in police forces, the use of the postal service from 1882 for delivering civil sum

monses, and the virtual abolishment of imprison ment for ordinary debt in 1880. Thus it became difficult to appoint court officers, particularly in these remoter areas.

This point was discussed in inquiries in 1904 and 1923, and even by 1958 the Law Society of Scot land reported that 'in certain parts of the country it is entirely impossible to have diligence executed

because there are no sheriff officers' (PP 1957-8, 56). The McKechnie Report was forced to conclude that 'outside the densely populated areas the opera tion of the present law and practice of diligence is extremely unsatisfactory' (PP 1957-8, 60), a com plaint based not on the nature of the law itself but on the difficulties in applying it over space. By the mid-twentieth century there was no resident sheriff officer in Caithness, Clackmannan, Kincardine, Kin ross, Roxburgh, Sutherland or West Lothian, and the only resident officer on a western isle north of Bute




was in Harris. The result was that the geography of

Scotland then impacted on attempts to provide an equal application of the law:

Because of the distances that have to be travelled within Roxburghshire, the absence of a sheriff officer nearer than Galashiels or Duns must make diligence very expensive in some parts of the country. We assume that in Caithness and Sutherland diligence has to be postponed until sufficient cases have been accumulated for a sheriff officer . .. in Inverness to make the long journey to these northern counties. (PP 1957-8, 59)

Distance from the apparatus of the state legal system and the costs incurred in attempting to enforce the law thus disrupted its even application:

In many respects the remoteness and the sparse population of some areas of Scotland give rise to special problems. In some parts of Scotland transport charges are so heavy that, despite certain subsidies, prices in the local shops are higher than elsewhere: high travelling charges may also affect all that the residents do outside their village. A person in the

Outer Hebrides who has to litigate in the Court of Session is faced with the risk of a very much heavier bill for expenses than if he and his opponent were resident in or near Edinburgh. (PP 1957-8, 61)

Indeed, it was often the case that the costs of doing diligence in these areas was much higher than the value of the debt.

These problems of geography and distance were linked to the role of local legal culture in variation in application of the law. The Law Society of Scot land reported that in places 'creditors are chary [sic] of undertaking diligence because of the long

distances and consequent high expenses involved and the doubt of recovering such expenses from the debtor' (PP 1957-8, 60). This led to a situation in which 'in many cases the debtor knows that his creditor will not willingly incur the cost of doing diligence' (PP 1957-8, 60). A witness from Oban stated that the distance and cost involved, and the nature of local economic activity, meant that:

in the Outer [Hebrides], particularly Barra, North Uist and South Uist, a stubborn debtor can get away with anything; that it is not worth doing diligence there for smallish decrees, particularly against people who are not in receipt of regular wages. The only way of touching the floating assets of a crofter, such as cattle and sheep, is to poind them on the ground,' which is the most expensive form of diligence and then to

sell them in probably the worst kind of market. (PP 1957-8, 60)

Further witnesses suggested that these problems were:

well known to the debtor who realises that the creditor will not willingly incur the expense of doing diligence which may prove to be irrecoverable . .. it is notorious that a certain class of irresponsible persons rely on these circumstances to ignore their civil obligations. (PP 1957-8, 56)

Legislative change attempted to extend the coverage of the law uniformly over space. The Execution of Diligence (Scotland) Act of 1926 allowed arrestment to be executed by post and allowed the sheriff, in the absence of a resident sheriff officer, to appoint any person he deemed suitable to execute the decree. This offered a solution as it was suggested that locally resident retired police officers could have undertaken this role. However, in reality this option was hardly ever used, mainly due to the problem of getting local people to take up such positions, and again the local legal culture played a role in maintaining this uneven application of law. The McKechnie Report noted that one reason for this failure of the 1926 Act was 'that of obtaining suitable persons willing to act [and] there was, of course, the further difficulty of inducing a local person to act against a neighbour' (PP 1957-8, 58). Even by the 1980s it was stated that 'community disapproval of such activity by a resident might well be very strong indeed and retired people cannot be expected to court unpopularity by acting as sheriff officers' (SLC 1980b, 180). Again, the attitudes and values of people in communities played a role in the local application of law.

In the 1980s there was discussion of how to achieve the equal application of the law given these problems. The SLC considered suggestions that the control and disciplining of sheriff officers should be taken over by a new, central, independent body.

However, their conclusion was that:

a convincing case has not been made for the establishment of a central authority to exercise func tions of appointment, supervision and discipline of officers of court. We suggest that these functions are likely to be better exercised locally in the sheriffdoms

where the sheriff can take primarily into consideration the need to provide an efficient service to the public in his locality by officers of appropriate character and ability who are familiar with the community within

which their commissions expect them to operate. (SLC 1980c, 1 1)



296 Young

Again the implementation of law was the outcome of a tension between the centralizing tendencies of the state and the wish to retain local control to meet the principles of Scots law, which demanded geographical sensitivity.

Conclusion

It was the concluding wish of the McKechnie Report in 1958 that their efforts would aid the even

application of diligence over space - 'Our hope is that ... it will be possible to have diligence done

within a reasonable time in any part of Scotland' (PP 1957-8, 66). Their desire for uniformity in the operation of wages arrestment law reflects the efforts of the state since the early 1 800s to extend its power across space and to regulate the spaces of everyday life through introducing new legislation. However, this desire for uniformity in legal practice, expressed by some parts of the state and the legal apparatus, foundered on Scotland's geography, its lived legal relations and the tensions between common and statute law. The nineteenth-century state was not simply a monolithic, centralizing, totalizing authority. The legal system was not simply an instrument of the state and neither was it monolithic in its operation and development.

At the centre of tensions within the state and law about the nature of wages arrestment lay an explicitly geographical question about the need for legislation which could remain sensitive to locality and circumstance. This desire for spatial sensitivity, running counter to a desire for uniformity, was a product of the wish to retain important principles of common law which demanded local interpretation of the law. The development and operation of this body of law, then, was the outcome of tensions between centralizing and localizing discourses in law and state formation, between the imperatives of

common law and the goals of statute law, and between and within the state and the legal appara tus each of which were, to some degree, not homo geneous institutions. The desires and goals of the state and law varied internally and at different spatial scales. Analyses of the role of the state and law-making thus need to look at both its totalizing nature and the limits that geography placed on those ideals (see also Ogborn 1995). In this case spatial variation in the capability of the state's legal apparatus, the material geography of Scotland and the continued influence of lived legal cultures all continued to mediate the local application of the

law, which itself was a product of an ongoing tension between common law principles and the

generation of statue law by the state which placed questions over the geography of law as central to debates. This further reveals law-making as an 'ongoing, tentative and open-ended process' (Choui nard 1993, 419) of attempting to order society in a uniform manner, which struggled to cope with the needs and practices of localities. The form of the law was thus the outcome of tension and ambiguity

over the intersection of space, place and law which cut through any simple visions of centralization narratives.

Note

1 To secure as part of diligence the debtor's 'corporeal

moveables', i.e. physical, moveable property (as opposed to 'heritable property' which generally refers to land) as a

preliminary to their sale or transfer to the creditor to pay

the debt (Law Society of Scotland 1992, 66).

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geography, law and the centralizing state: wages arrestment in nineteenth- and twentieth-century...

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