Page images
[merged small][ocr errors][merged small][ocr errors][ocr errors]

than the 'Lords of Council and Session and the Advocates or "General Procurators of the Council " mentioned in these

[ocr errors]


THEIR FUNCTIONS AND PRIVILEGES. The following memorandum on the Law enactments. These " Advocates "-along with The following memorandum on the Law the party litigants were given by express Officers of Scotland, submitted to the Prime provision the sole right of audience, and the Minister by the Lord President of the Court of forms of admission, oaths, and duties of the Session, was issued from 10 Downing Street "Advocates" forming the General Proon 6th February, and, although it has been curators of the Council" are preserved in widely circulated by the public press, it is use with but little change to this day. 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 enjoys by virtue of the original enactment. of Lord Advocate has always been a member Since 1532 the person appointed to the office of the Bar of Scotland. The only qualification on this general statement is one which emphasises the professional character of the officenamely, that in the early years after 1532 the holder of the office was sometimes one of the Judges. This practice did not survive the establishment of something like settled govern

The Lord Advocate and the Solicitor-General for Scotland stand to the affairs of that kingdom in practically the same position as the Attorney General and the Solicitor-General of England stand to those of that country. But the former have, in addition, responsibility for the conduct of the criminal administration in Scotland under the system of public prosecution there prevailing. It is part of the unwritten there prevailing. It is part of the unwritten constitutional law of the land that the Lord Advocate and the Solicitor-General for Scotland are appointed from among the members of the Scottish Bar. This springs-in the same way as other parts of that law-from long custom.


The office of Lord Advocate, like the profession of advocate, is much older than the Institution of the Faculty of Advocates (as the Bar of Scotland is called). The Faculty dates from the establishment of the Court of Session in 1532. In Scotland (as in France) an advocate was a person holding an office of procuration, the distinctive function of which was to plead other people's cases before the sovereign tribunals of the country, and the distinctive privilege of which was the exclusive right of audience in the capacity of pleader before those tribunals. Thus, as far back as 1424 (cap. 45) statute provided that poor litigants should have the services of an advocate supplied to them by the Judge. The Lord Advocate or King's Advocate (as he was called) appears as pleader in civil suits on behalf of the Crown as early as 1478 (Lord Medwyn in Lord Dunglas v. Lord Advocate, 15 S. at p. 325), and as pleader in the King's interest in Parliament at the trial of certain persons for resisting the King's forces in 1479 (Act. Parl. Scot. II., 125). Our public records do not enable

search to be carried further back.


[ocr errors]

The existing system of administering justice in Scotland dates from 1532, when James V. and his Parliament founded the College of Justice by a long series of enactments (cited under the year 1537, caps. 36-68). The present Judges and Bar of Scotland are none other

ment. The Lord Advocate became one of the Officers of State in 1540. He has been the regular public prosecutor in crimes generally since 1587.

[ocr errors]

The description of the office given in the Institutes of Law of Scotland," by Professor W. Forbes, is as accurate now as it was two hundred years ago when his "Institutes" were published (1722): "The King names out of the body of Advocates an eminent person called Lord Advocate, who gives advice in making and executing laws, defends the King's right and interest, concurs in all suits before sovereign courts for breaches of the peace, and also in all matters civil wherein the Sovereign or any claiming under His Majesty has interest." In the early years after 1532 the office was sometimes conferred upon two persons at the same time.


[ocr errors]
[ocr errors]
[ocr errors]

The office of Solicitor-General is much less ancient than that of the Lord Advocate. There is no reference to it in our public records prior to the Union. After the Union there appear references to persons holding various appointments as Procurators for the Estates," Agents for the Estates, and " King's Solicitor," or " King's Agent and Solicitor." The latter of these apparently related in part to the King's interests in the affairs of the Church. But it would require exhaustive search to elucidate the exact nature of these various appointments. My impression is that they were made casually in the first instance. The office of Solicitor-General for Scotland arose out of—or from a union of— these appointments in one officer. This took

place, as far as I have been able to ascertain, between 1620 and 1650. From its institution at that period the office has always been held by a member of the Bar in Scotland. Involving, as it always has done since its institution, the duty of assisting the Lord Advocate in pleading Crown suits before the sovereign Courts, the office could not have been held otherwise. Traces of the origin of the office as outlined in the preceding paragraph are to be seen in the form of the Royal Commission of Appointment, which has remained unchanged in form from the institution of the office until the present day.

[ocr errors]

The Solicitor-General, like the Lord Advocate, has the privilege of pleading as an "advocate within the Bar. But this privilege was not given to him by Act of Parliament- -as in the case of the Lord Advocate-but (in the first instance) by the Court itself in 1662 (Act of Sederunt, 28th February 1662) and (after some variation of practice) by direction of the Crown in 1725. The Solicitor-General's functions are to act as Crown counsel along with the Lord Advocate. He holds a deputation from the Lord Advocate enabling him to plead in his stead in criminal cases. He also acts as counsel to the Lord High Commissioner at the General Assemblies of the Church of Scotland. Until about 100 years ago the office was sometimes conferred on a plurality of persons at the same time.


[ocr errors]

The legal posts have at long last been filled, and filled to everyone's satisfaction, except that, of course, of a small but highly vocal section of the community. This section has emitted a stream of criticism which is of the kind perhaps best left unanswered. It is amusing, however, to notice that one Member of Parliament is crying aloud for a "Royal Commission to enquire into the Constitution, Working, Payment, and Policy of the Faculty of Advocates.' He says that the whole thing would be over in a week (how much of this does he allocate to payment ".?), and declares that, given health and strength, he will live to smash the Faculty. That the subject is one which does attract interest even in the most unlikely places is shewn by the announcement that a Glasgow minister (the term is here used in its religious, not its political, sense) delivered a sermon one Sunday evening on "Why the Advocates won. Moreover, a member of the Faculty (who is not in practice) has contributed an interesting article in a Socialist weekly on "The Close Corporation of Advocates -a Preserve of the Rich." The reproach can

[ocr errors]

thus no longer be levelled at the Faculty that it has no representatives in one of our great parties; presumably this means that it will be unnecessary to appoint them at the next Anniversary Meeting, which was one of the many suggestions canvassed. Meantime, the average non-political member of the Bar may well speculate why it comes about that during the last few weeks he has been described, directly or by implication, as a wealthy, privileged, incompetent, overpaid, and actionary blackmailer.

[ocr errors]


February week has once more given the industrious an opportunity to rest and the idle a chance to play golf. It also has once more suggested the question whether it would not be possible to have this part of the winter recess added to the other, so that there might be a three weeks' recess at Christmas, and none in February. This would have some obvious advantages; but it is doubtful if the present is a favourable occasion for a suggested revision of the 1868 Act. Perhaps in the larger changes that may (or may not) be imminent, this modest improvement might slip through unnoticed. The week was not spent in idleness by everyone, for the Redding disaster enquiry was in full swing in Glasgow, while evidence was taken before Lord Skerrington in the First Division Court-Room in a petition brought by the Society of Writers to the Signet against 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:


[Being extracts from a Glasgow paper of 1934.] There was a sitting of the High Court of Justiciary yesterday, when Commissary of Justice Rattigan took his seat on the bench of the North Court to try a number of cases. The proceedings opened with the singing of the "Red Flag."

The first case was the trial of Ivor Pile on a serious charge. This was read when a jury had been empanelled, and was in the following terms: "Ivor Pile, prisoner in the prison of Glasgow, you are indicted at the instance of Comrade O'Leary, the People's Advocate, and the charge against you is that, at some time or other during the past few years you did contrive by the buying and selling of stocks and shares to amass a larger fortune than any citizen, not being a Government official, has any right to have, and you did thus steal from the people the fruits of their labour, and did thus appropriate their property dishonestly, and you are by habit and repute a common capitalist. The prisoner, who had all the low cunning of.

[ocr errors]

his class stamped upon his features, had the audacity to wear a collar.

At the outset the Commissary stated that, from the nature of the charge, it was obvious that the evidence would be of a most disagreeable and degrading nature. In order that the morals of those present might not be subverted, he must ask all persons in Court to withdraw, including the jury. The Court was cleared. When the doors were again opened, the Advocate-Depute moved the Commissary to dispense with evidence for the defence. The motion was granted. Comrade Rattigan then summed up. He told the jury that the question was one entirely for them, but he felt it right also to tell them to be very careful indeed what they were doing. The accused was charged with a horrible crime, and he 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 they would be sent out again to bring in one that was. They might find the accused guilty, or, if that alternative did not commend itself to them, they might declare him guilty with aggravating circumstances.


The jury, without retiring, found the accused guilty as libelled. The judge, addressing Pile, said: "Ivor Pile, you have been found guilty by the verdict of your countrymen, and I can only say that I entirely agree with that verdict. Your offence is one of a type unhappily only too common in this great city. Your personal record has been a very terrible I am prepared to believe that it was through unhappy surroundings or evil companionship that you first stepped from the paths of true citizenship in opening a savings bank account. But, although you were treated with leniency on that occasion, you have since only gone from bad to worse, until it seems that hardly a day has gone by without your indulging your acquisitive instincts at the expense of your fellow-men. Your ill-gotten gains are hereby forfeited to the High Court Commissaries' Consolidated Fund. Taking into account the jury's leniency in only finding you guilty, I declare the sentence of the Court to be one of five years' instruction in the Communist College in Motherwell."

The prisoner collapsed on on hearing the sentence, and was removed.

In the next case to be taken, Henry Macdubb was charged with sedition, and with practices whereby, by writing, speech, and conduct, he had disturbed the tranquillity of the country and incited the people to disaffection. There was a special defence of insanity.

Evidence was led to establish that the prisoner, in conversation with his friends, and

in letters to his wife, had stated that the country had been better off before, and would be better off again, if Communism were abolished.

Dr C. Hatch, the eminent alienist, stated that he had had the prisoner under observation.. Though he was able to talk in quite a rational manner on most topics, Macdubb displayed grave symptoms of political insanity. He suffered from delusions, and had declared that individualism was a good thing; he attributed the present rate of exchange (£43 to $1) to what he called the incompetence of the present Government. (Sensation in Court.)

At this stage the trial was adjourned, as the Commissary indicated that he must leave in order to address a meeting of his constituents. In any case, he had already sat for the number of hours prescribed by his Union Regulations.


TEMPLE, 11th February 1924.

The death of Lord Loreburn removes a

personality that will always be honoured in the history of the Bar. He became Lord Chancellor at a time when the Liberal party was smarting under a sense of grievance on account of the political nature of the appointments of his predecessor on the woolsack. Great pressure was brought to bear on him to equalise the balance by using his patronage to appoint only members of his own party. This he steadfastly refused to do and so earned the gratitude of the whole nation for preventing what might have become a growing evil. The effect on the administration of justice of the use of the High Court and County Court benches in favour of whichever party might be in power is too obvious to labour. But there is yet another immense debt which his countrymen owe him, and that is the establishment of the Court of Criminal Appeal in 1907. The importance of this step may be realised when it is remembered that, before the passing of the Criminal Appeal Act, a prisoner had permission to appeal only if the consent of his judge was obtained, and even then only on points of law, never on facts. Under such primitive conditions it is not surprising that the average annual number of appeals was eight. Now the prisoner has an absolute right of appeal on any question of law and, by leave either of his judge or of the Court of Criminal Appeal itself, on any question of fact or of mixed fact and law. With the giving of great judgments his name is not connected, but on the other hand he presided over the highest tribunal of the land with patience, courtesy, impartiality, and, above all, silence, and his

judgments were concise, well phrased, and eminently sound and just. His courage was astonishing, for, in speaking out so strongly against the Boer War, he appeared to be throwing away all his professional and political chances. The fact that his country was so well served by him as its Lord Chancellor, shews that it has never lost by honouring those of its sons who are both honest and


The Criminal Bar has lost in quick and unexpected succession three of its most wellknown members-Mr Huntly Jenkins, Mr Purchase, K.C., and Sir Richard Muir. Sir Richard was Senior Counsel for the Treasury at the Old Bailey, and as such conducted the most important prosecutions on behalf of the Crown. In that capacity he succeeded in driving from the precincts of the Old Bailey the lingering shades of Buzfuz. It is invariably laid down in text-books on criminal law that counsel for the Crown should always remember that, when prosecuting, their duty is not to fight in order to secure a conviction, but to help the Court in seeing that absolute justice is done as far as possible. Sir Richard Muir was that advice in action. His cases were always admirably prepared to the last detail, but at the trial those details were presented with the most scrupulous fairness to the prisoner. There can be no doubt that he has founded a tradition. But these remarks of mine must not be taken to convey that he was not a deadly enemy of the guilty. He was a masterly cross-examiner, and for those who prefer to present their facts and arguments in a cold, quiet, logical manner, no better model than he could have been found. His place is taken by Mr Travers Humphreys, who has been under Sir Richard Muir at the Old Bailey since 1908. Second and third counsel for the Crown are now respectively Mr Percival Clarke, son of Sir Edward Clarke, and Mr Fulton, son of the predecessor of Sir Ernest Wild, as Recorder of London.

Up till last July the decline in litigation, as from 1921, had been tremendous. The position at present is certainly not worse than it was six months ago, but it is scarcely better. There is an increase in some forms of work and 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 Court to another. It is a doubtful satisfaction to have to record that there is a slight increase in company winding-up cases. There is a decrease, on the other hand, in chancery, commercial, and probate and divorce work. Both increases and decreases, however, are slight, so that there is room for hope that, in the cant phrase, we have touched bottom."

[ocr errors]


In my letter of a year ago I referred to the remarks made to the last general meeting of the Bar by the Attorney-General, Sir Douglas Hogg, that unofficial negotiations were taking place between him and the American Bar Association with a view to the possibility of that body holding its 1924 meeting in London. At this year's general meeting Sir Douglas Hogg again presided as Attorney-General (though soon to hand over office to Sir Patrick Hastings), and he was able to inform us that his negotiations had been crowned with success. only are 700 or 800 members of the American Bar Association expected, but 150 or 200 members of the Canadian Bar Association are also coming across to act as joint hosts with the Bar Council and the Law Society. This year's general meeting was also made memorable by the fact that we were informed that the Bar Council is engaged on important work in maintaining the traditions of the Bar, coordinating professional conduct in the Colonies and Dependencies of the Empire, and cultivating cordial relations with barristers in other countries. Unfortunately for any interest that members of the Bar may take in all this important work, the Bar Council does not now even trouble to send out copies of its annual statement. Meanwhile members of the Law Society continue to attack the privileges of the Bar. At a special general meeting held last month, a resolution was moved proposing that solicitors should have the same right of appearance in Court as barristers. The resolution was defeated by 58 to 32, but a poll was demanded. The result of the poll is not yet announced. As the terms of this resolution cover "fusion" with a thin disguise, the matter is of interest.

THE firm of Messrs Carmichael & Miller, W.S., 10 Duke Street, Edinburgh, has been incorporated with that of Messrs Hamilton, Kinnear & Beatson, W.S., 35 Queen Street, Edinburgh, at which address the business will in future be continued. The new firm will bear the name of Hamilton, Kinnear & Beatson, W.S. (incorporating Carmichael & Miller, W.S.).


The Editor will welcome legal problems or questions of interest from subscribers, and will, wherever possible, arrange for articles thereon by experts. Interesting points are continually cropping up in practice, and there is at present no means other than that now suggested whereby a lawyer in one part of Scotland may benefit at a saving of time and money from the experience of a lawyer in another part who has dealt with a similar problem.

[ocr errors][merged small]


This subject was investigated for the purpose of explaining to a conveyancing student the object of a bundle of liferent dispositions which he had found in a charter chest. As the subject may be of interest from a historical point of view to other students of law, the result of the investigations has been embodied in this article.

[ocr errors]
[ocr errors]

The name Fagots was much in use after the Reform Act of 1832. Literally it means a bundle of sticks, but the secondary meaning, or one of the secondary meanings, applies to the nominal and fictitious votes which were manufactured by landed proprietors by breaking up portions of their estates into small bundles or parcels of land of the annual value of £10 each, and conveying such parcels to various individuals in liferent. This breaking up was to meet section 7 of the Reform Act which, inter alia, provided: (1) that the person claiming a vote in a county must be owner of property; (2) that the annual value of the property be £10; (3) that he must be in possession by himself or his tenants; and (4) that he must be either himself in the actual occupation, or in receipt of the profits.

Three quarters of a century ago the names of a large number of voters were removed from the roll of a certain county following on objections being taken to their names appearing on the roll. There was a keen fight between the two political parties, and the following is a summary of the arguments which were used and of the decision which was come to.

Counsel for the objectors stated that to meet the letter of the Act it was customary for landed proprietors to grant dispositions of parts of their estates in liferent to batches of individuals who would use the votes acquired through such pretended liferent qualifications for the benefit of the particular political party. These dispositions were in all respects regular and deficient in no single point that was necessary from a strictly feudal point of view to make a conveyance of heritable property valid and effectual. They bore that for the subjects made over by the granter a full and sufficient price had been paid by the grantee. In reality, however, the voters, whatever the dispositions bore, paid no money at the time 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

Ledgers." The circumstances all tended, in the view of counsel, to demonstrate the nominality and fictitiousness of the transactions which made the liferenters in the lands conveyed voters in the county.

Counsel for the liferenters referred to the system of making votes as having been in operation since the Reform Act. He considered that nothing had been done by the landed proprietors contrary to the law of the country. He maintained that the liferenters were the real owners of the lands. Their conveyances bore that they were entitled to the rents, and although the rents were levied by other persons with their consent, that was as good a payment as a cash payment. He held it was no objection to the constitution of any vote that the purpose for which the dispositions were granted was to create votes, and that being kept in view they were very natural and fair transactions.

In giving judgment against the liferenters, and expunging them from the roll, the Sheriff said that the object of the Reform Act was to abolish nominal and fictitious votes, that his duty was to administer the law as it stood, and in so doing to act, not only according to the letter, but according to the spirit of the law. His duty, he added, was to reject, if against the spirit, even though within the letter of the law. He went on to say that to entitle the liferenters to be on the roll they must be owners not only on paper, but real and substantial owners. The receipt of profits on paper by means of cross entries in liferent ledgers was not sufficient. He pointed out that the liferenters were not infeft, and that the statute did not contemplate that they should be. He made a strong point of the titles not being in the custody of the liferenters or their private agents, but being handed over to the political agent of the party by arrangement, and as part of a general system.

Evidently after the system was declared to be illegal the liferent dispositions were handed back by the political agent to the law agents of the landed proprietors to be filed among the archives of the estate.

One can gather from the foregoing summary of the arguments and decision what was the procedure followed, both from a conveyancing and an accounting point of view for the purpose of making " fagots.

W. Y.

« PreviousContinue »