LAW OFFICERS OF SCOTLAND.

than the “Lords of Council and Session and the “ Advocates or

General ProcuraTHEIR FUNCTIONS AND PRIVILEGES. tors of the Council mentioned in these The following memorandum on the Law enactments. These “ Advocates ”-along with Officers of Scotland, submitted to the Prime the party litigants-were given by express Minister by the Lord President of the Court of forms of admission, oaths, and duties of the

provision the sole right of audience, and the Session, was issued from 10 Downing Street

“ General Proon 6th February, and, although it has been curators of the Council" are preserved in

Advocates” forming the widely circulated by the public press, it is use with but little change to this day. “The thought advisable to be reprinted here so as to be available for future reference by the special provision the privilege of standing to

King's Advocate"

was given by another profession :

plead within the Bar—a privilege he still The Lord Advocate and the Solicitor-General Since 1532 the person appointed to the office

licitor-General enjoys by virtue of the original enactment. for Scotland stand to the affairs of that kingdom of Lord Advocate has always been a member in practically the same position as the Attorney: of the Bar of Scotland. The only qualification General and the Solicitor-General of England stand to those of that country. But the on this general statement is one which emphastand to those of that country. But the sises the professional character of the office former have, in addition, responsibility for the conduct of the criminal administration in namely, that in the early years after 1532 the

holder of the office was sometimes one of the Scotland under the system of public prosecution Judges. This practice did not survive the there prevailing. It is part of the unwritten establishment of something like settled governconstitutional law of the land that the Lord

ment. Advocate and the Solicitor-General for Scotland Officers of State in 1540.

The Lord Advocate became one of the

He has been the are appointed from among the members of the regular public prosecutor in crimes generally Scottish Bar. This springs—in the same way since 1587. as other parts of that law-from long custom.

The description of the office given in the THE LORD ADVOCATE.

Institutes of Law of Scotland," by Professor

W. Forbes, is as accurate now as it was two The office of Lord Advocate, like the pro-hundred years ago when his "Institutes fession of advocate, is much older than the published (1722): “The King names out of Institution of the Faculty of Advocates (as the body of Advocates an eminent person the Bar of Scotland is called). The Faculty called Lord Advocate, who gives advice in dates from the establishment of the Court of making and executing laws, defends the Session in 1532. In Scotland (as in France) King's right and interest, concurs in all suits an advocate was a person holding an office of before sovereign courts for breaches of the procuration, the distinctive function of which peace, and also in all matters civil wherein the was to plead other people's cases before the Sovereign or any claiming under His Majesty sovereign tribunals of the country, and the has interest.” In the early years after 1532 distinctive privilege of which was the exclusive the office was sometimes conferred upon two right of audience in the capacity of pleader before persons at the same time. those tribunals. Thus, as far back as 1424 (cap. 45) statute provided that poor litigants

THE SOLICITOR-GENERAL. should have the services of an advocate The office of Solicitor-General is much less supplied to them by the Judge. The Lord ancient than that of the Lord Advocate. Advocate or King's Advocate (as he was called) There is no reference to it in our public appears as pleader in civil suits on behalf of records prior to the Union. After the Union the Crown as early as 1478 (Lord Medwyn in there appear references to persons holding Lord Dunglas v. Lord Advocate, 15 S. at p. 325), various appointments as Procurators for and as pleader in the King's interest in Parlia- the Estates, Agents for the Estates," ment at the trial of certain persons for resisting and “ King's Solicitor," or King's Agent and the King's forces in 1479 (Act. Parl. Scot. II., Solicitor." The latter of these apparently

. 125). Our public records do not enable related in part to the King's interests in the search to be carried further back.

affairs of the Church. But it would require The existing system of administering justice exhaustive search to elucidate the exact nature in Scotland dates from 1532, when James V. of these various appointments. My impresand his Parliament founded the College of sion is that they were made casually in the Justice by a long series of enactments (cited first instance. The office of Solicitor-General under the year 1637, caps. 36-68). The present for Scotland arose out of-or from a union ofJudges and Bar of Scotland are none other these appointments in one officer. This took

were

66

place, as far as I have been able to ascertain, thus no longer be levelled at the Faculty that between 1620 and 1650. From its institution it has no representatives in one of our great at that period the office has always been held parties ; presumably this means that it will be by a member of the Bar in Scotland. Involving, unnecessary to appoint them at the next as it always has done since its institution, the Anniversary Meeting, which was one of the duty of assisting the Lord Advocate in pleading many suggestions canvassed. Meantime, the Crown suits before the sovereign Courts, the average non-political member of the Bar may office could not have been held otherwise. well speculate why it comes about that during Traces of the origin of the office as outlined in the last few weeks he has been described, the preceding paragraph are to be seen in the directly or by implication, as a wealthy, form of the Royal Commission of Appointment, privileged, incompetent, overpaid, and rewhich has remained unchanged in form from actionary blackmailer. the institution of the office until the present February week has once more given the day.

industrious an opportunity to rest and the idle The Solicitor-General, like the Lord Advocate, a chance to play golf. It also has once more has the privilege of pleading as an “advocate suggested the question whether it would not within the Bar. But this privilege was not be possible to have this part of the winter given to him by Act of Parliament—as in the recess added to the other, so that there case of the Lord Advocate-but (in the first might be a three weeks' recess at Christmas, instance) by the Court itself in 1662 (Act of and none in February. This would have some Sederunt, 28th February 1662) and (after some obvious advantages ; but it is doubtful if the variation of practice) by direction of the present is a favourable occasion for a suggested Crown in 1725. The Solicitor-General's func- revision of the 1868 Act. Perhaps in the larger tions are to act as Crown counsel along with changes that may (or may not) be imminent, the Lord Advocate. He holds a deputation this modest improvement might slip through from the Lord Advocate enabling him to plead unnoticed. The week was not spent in idleness in his stead in criminal cases. He also acts by everyone, for the Redding disaster enquiry as counsel to the Lord High Commissioner at was in full swing in Glasgow, while evidence the General Assemblies of the Church of Scot- was taken before Lord Skerrington in the First land. Until about 100 years ago the office Division Court-Room in a petition brought by was sometimes conferred on a plurality of the Society of Writers to the Signet against persons at the same time.

one of their number.

A forecast is subjoined of what our Courts are likely to be in a few years' time if present

tendencies are carried to their logical conclusion: NOTES FROM PARLIAMENT HOUSE. The legal posts have at long last been filled,

WHEN I DIPT INTO THE FUTURE." and filled to everyone's satisfaction, except

[Being extracts from a Glasgow paper of 1934.] that, of course, of a small but highly vocal section of the community. This section has There was a sitting of the High Court of emitted a stream of criticism which is of the Justiciary yesterday, when Commissary of kind perhaps best left unanswered. It is Justice Rattigan took his seat on the bench amusing, however, to notice that one Member of the North Court to try a number of cases. of Parliament is crying aloud for a Royal The proceedings opened with the singing of the Commission to enquire into the Constitution, “Red Flag.' Working, Payment, and Policy of the Faculty The first case was the trial of Ivor Pile on a of Advocates.” He says that the whole thing serious charge. This was read when a jury had would be over in a week (how much of this does been empanelled, and was in the following he allocate to payment”.?), and declares terms : Ivor Pile, prisoner in the prison of that, given health and strength, he will live to Glasgow, you are indicted at the instance of smash the Faculty. That the subject is one Comrade O'Leary, the People's Advocate, and which does attract interest even in the most the charge against you is that, at some time unlikely places is shewn by the announcement or other during the past few years you did that a Glasgow minister (the term is here used contrive by the buying and selling of stocks in its religious, not its political, sense) delivered and shares to amass a larger fortune than any a sermon one Sunday evening on “Why the citizen, not being a Government official, has any

Moreover, a member of the right to have, and you did thus steal from the Faculty (who is not in practice) has con people the fruits of their labour, and did thus tributed an interesting article in a Socialist appropriate their property dishonestly, and you weekly on “ The Close Corporation of Advocates are by habit and repute a common capitalist." -a Preserve of the Rich.” The reproach can The prisoner, who had all the low cunning of

.

a

a

his class stamped upon his features, had the in letters to his wife, had stated that the audacity to wear a collar.

country had been better off before, and would At the outset the Commissary stated that, be better off again, if Communism were abolished. from the nature of the charge, it was obvious Dr C. Hatch, the eminent alienist, stated that the evidence would be of a most disagreeable that he had had the prisoner under observation.. and degrading nature. In order that the morals Though he was able to talk in quite a rational of those present might not be subverted, he manner on most topics, Macdubb displayed must ask all persons in Court to withdraw, grave symptoms of political insanity. He including the jury. The Court was cleared. suffered from delusions, and had declared that

When the doors were again opened, the individualism was a good thing; he attributed Advocate-Depute moved the Commissary to the present rate of exchange (£43 to $1) to dispense with evidence for the defence. The what he called the incompetence of the present motion was granted. Comrade Rattigan then Government. (Sensation in Court.) summed up. He told the jury that the At this stage the trial was adjourned, as the question was one entirely for them, but he felt Commissary indicated that he must leave in it right also to tell them to be very careful order to address a meeting of his constituents. indeed what they were doing. The accused in any case, he had already sat for the number was charged with a horrible crime, and he of hours prescribed by his Union Regulations. strongly suspected that this was not his first offence. They would weigh the evidence very carefully and bring in a verdict in the confident knowledge that if it wasn't a satisfactory one

LONDON LETTER. they would be sent out again to bring in one

TEMPLE, 11th February 1924. that was. They might find the accused guilty, or, if that alternative did not commend

The death of Lord Loreburn removes itself to them, they might declare him guilty personality that will always be honoured in with aggravating circumstances.

the history of the Bar. He became Lord The jury, without retiring, found the accused Chancellor at a time when the Liberal party guilty as libelled. The judge, addressing Pile, was smarting under a sense of grievance on said : “ Ivor Pile, you have been found guilty account of the political nature of the appointby the verdict of your countrymen, and I ments of his predecessor on the woolsack. can only say that I entirely agree with that Great pressure was brought to bear on him to verdict. Your offence is one of a type un equalise the balance by using his patronage happily only too common in this great city. to appoint only members of his own party, Your personal record has been a very terrible This he steadfastly refused to do and so earned

I am prepared to believe that it was the gratitude of the whole nation for preventing through unhappy surroundings or evil com- what might have become a growing evil. panionship that you first stepped from the paths The effect on the administration of justice of of true citizenship in opening a savings bank the use of the High Court and County Court account. But, although you were treated with benches in favour of whichever party might leniency on that occasion, you have since only be in power is too obvious to labour. But gone from bad to worse, until it seems that there is yet another immense debt which his hardly a day has gone by without your indulging countrymen owe him, and that is the establishyour acquisitive instincts at the expense of ment of the Court of Criminal Appeal in 1907. your fellow-men. Your ill-gotten gains are The importance of this step may be realised hereby forfeited to the High Court Commissaries' when it is remembered that, before the passing Consolidated Fund. Taking into account the of the Criminal Appeal Act, a prisoner had jury's leniency in only finding you guilty, Ipermission to appeal only if the consent of declare the sentence of the Court to be one of his judge was obtained, and even then only on five years' instruction in the Communist points of law, never on facts. Under such College in Motherwell."

primitive conditions it is not surprising that The prisoner collapsed on hearing the the average annual number of appeals was sentence, and was removed.

eight. Now the prisoner has an absolute right In the next case to be taken, Henry Macdubb of appeal on any question of law and, by leave was charged with sedition, and with practices either of his judge or of the Court of Criminal whereby, by writing, speech, and conduct, he Appeal itself, on any question of fact or of had disturbed the tranquillity of the country mixed fact and law. With the giving of great and incited the people to disaffection. There judgments his name is not connected, but on was a special defence of insanity.

the other hand he presided over the highest Evidence was led to establish that the tribunal of the land with patience, courtesy, prisoner, in conversation with his friends, and impartiality, and, above all, silence, and his

one.

judgments were concise, well phrased, and In

my letter of a year ago I referred to the eminently sound and just. His courage was remarks made to the last general meeting of astonishing, for, in speaking out so strongly the Bar by the Attorney-General, Sir Douglas against the Boer War, he appeared to be Hogg, that unofficial negotiations were taking throwing away all his professional and political place between him and the American Bar chances. The fact that his country was so Association with a view to the possibility of well served by him as its Lord Chancellor, that body holding its 1924 meeting in London. shews that it has never lost by honouring At this year's general meeting Sir Douglas Hogg those of its sons who are both honest and again presided as Attorney-General (though courageous.

soon to hand over office to Sir Patrick Hastings), The Criminal Bar has lost in quick and and he was able to inform us that his negotiaunexpected succession three of its most well- tions had been crowned with success. Not known members—Mr Huntly Jenkins, Mr only are 700 or 800 members of the American Purchase, K.C., and Sir Richard Muir. Sir Bar Association expected, but 150 or 200 Richard was Senior Counsel for the Treasury members of the Canadian Bar Association are at the Old Bailey, and as such conducted the also coming across to act as joint hosts with most important prosecutions on behalf of the the Bar Council and the Law Society. This Crown. In that capacity he succeeded in year's general meeting was also made memordriving from the precincts of the Old Bailey able by the fact that we were informed that the the lingering shades of Buzfuz. It is invariably Bar Council is engaged on important work in laid down in text-books on criminal law that maintaining the traditions of the Bar, cocounsel for the Crown should always remember ordinating professional conduct in the Colonies that, when prosecuting, their duty is not to and Dependencies of the Empire, and cultivatfight in order to secure a conviction, but to ing cordial relations with barristers in other help the Court in seeing that absolute justice countries. Unfortunately for any interest that is done as far as possible. Sir Richard Muir members of the Bar may take in all this was that advice in action. His cases were important work, the Bar Council does not always admirably prepared to the last detail, now even trouble to send out copies of its but at the trial those details were presented annual statement. Meanwhile members of the with the most scrupulous fairness to the Law Society continue to attack the privileges prisoner. There can be no doubt that he has of the Bar. At a special general meeting

. founded a tradition. But these remarks of held last month, a resolution was moved promine must not be taken to convey that he was posing that solicitors should have the same not a deadly enemy of the guilty. He was a right of appearance in Court as barristers. masterly cross-examiner, and for those who The resolution was defeated by 58 to 32, but prefer to present their facts and arguments in a poll was demanded. The result of the poll à cold, quiet, logical manner, no better model is not yet announced. As the terms of this than he could have been found. His place is resolution cover“ fusion” with a thin disguise,

a taken by Mr Travers Humphreys, who has been the matter is of interest. under Sir Richard Muir at the Old Bailey since 1908. Second and third counsel for the Crown now respectively Mr Percival Clarke, son of Sir Edward Clarke, and Mr

THE firm of Messrs Carmichael & Miller, W.S., Fulton, son of the predecessor of Sir Ernest 10 Duke Street, Edinburgh, has been incorWild, as Recorder of London.

porated with that of Messrs Hamilton, Kinnear Up till last July the decline in litigation, as

& Beatson, W.S., 35 Queen Street, Edinburgh, from 1921, had been tremendous. The position at which address the business will in future be at present is certainly not worse than it was

continued. The new firm will bear the name of six months ago, but it is scarcely better. Hamilton, Kinnear & Beatson, W.S. (incorThere is an increase in some forms of work and porating Carmichael & Miller, W.S.). a decrease in others. There is, for instance, an increase in common law actions of all kinds, in County Court work, and in appeals from one

SPECIAL NOTICE. Court to another. It is a doubtful satisfaction The Editor will welcome legal problems or to have to record that there is a slight increase questions of interest from subscribers, and will, in company winding-up cases. There is a wherever possible, arrange for articles thereon by decrease, on the other hand, in chancery, experts. Interesting points are continually cropping commercial,, and probate and divorce work. up in practice, and there is at present no means Both increases and decreases, however, are

other than that now suggested whereby a lawyer in

one part of Scotland may benefit at a saving of slight, so that there is room for hope that, in time and money from the experience of a lawyer in the cant phrase, we have touched bottom.” another part who has dealt with a similar problem.

66

are

Ledgers." The circumstances all tended, in FAGOTS.

the view of counsel, to demonstrate the nomi

nality and fictitiousness of the transactions This subject was investigated for the purpose which made the liferenters in the lands conof explaining to a conveyancing student the veyed voters in the county. object of a bundle of liferent dispositions which Counsel for the liferenters referred to the he had found in a charter chest. As the subject system of making votes as having been in may be of interest from a historical point of operation since the Reform Act. He conview to other students of law, the result of sidered that nothing had been done by the the investigations has been embodied in this landed proprietors contrary to the law of the article.

country. He maintained that the liferenters The name

Fagots was much in use after were the real owners of the lands. Their the Reform Act of 1832. Literally it means a conveyances bore that they were entitled to bundle of sticks, but the secondary meaning, the rents, and although the rents were levied or one of the secondary meanings, applies to by other persons with their consent, that was the nominal and fictitious votes which were as good a payment as a cash payment. He manufactured by landed proprietors by break- held it was no objection to the constitution of ing up portions of their estates into small any vote that the purpose for which the disbundles or parcels of land of the annual value positions were granted was to create votes, and of £10 each, and conveying such parcels to that being kept in view they were very natural various individuals in liferent. This breaking and fair transactions. up was to meet section 7 of the Reform Act In giving judgment against the liferenters, which, inter alia, provided : (1) that the and expunging them from the roll, the Sheriff person claiming a vote in a county must be said that the object of the Reform Act was to owner of property ; (2) that the annual value abolish nominal and fictitious votes, that his of the property be £10; (3) that he must be duty was to administer the law as it stood, and in possession by himself or his tenants; and in so doing to act, not only according to the (4) that he must be either himself in the actual letter, but according to the spirit of the law. occupation, or in receipt of the profits.

His duty, he added, was to reject, if against Three quarters of a century ago the names the spirit, even though within the letter of of a large number of voters were removed from the law. He went on to say that to entitle the roll of a certain county following on the liferenters to be on the roll they must be objections being taken to their names appearing owners not only on paper, but real and subon the roll. There was a keen fight between stantial owners. The receipt of profits on the two political parties, and the following is paper by means of cross entries in liferent & summary of the arguments which were used ledgers was not sufficient. He pointed out and of the decision which was come to.

that the liferenters were not infeft, and that Counsel for the objectors stated that to the statute did not contemplate that they meet the letter of the Act it was customary for should be. He made a strong point of the landed proprietors to grant dispositions of titles not being in the custody of the liferenters parts of their estates in liferent to batches of or their private agents, but being handed over individuals who would use the votes acquired to the political agent of the party by arrangethrough such pretended liferent qualifications ment, and as part of a general system. for the benefit of the particular political party. Evidently after the system was declared to These dispositions were in all respects regular be illegal the liferent dispositions were handed and deficient in no single point that was back by the political agent to the law agents of necessary from a strictly feudal point of view the landed proprietors to be filed among the to make a conveyance of heritable property archives of the estate. valid and effectual. They bore that for the One can gather from the foregoing summary subjects made over by the granter a full and of the arguments and decision what was the sufficient price had been paid by the grantee. procedure followed, both from a conveyancing In reality, however, the voters, whatever the and an accounting point of view for the purpose dispositions bore, paid no money at the time of making " fagots.

W. Y. of the alleged transaction. They merely granted bills or promissory notes payable one day after date, and so continued debtors for the considerations in the conveyances. The disponers did not demand interest, nor did the disponees receive rents. No payments were made on either side, but cross entries were made in what were called Liferent